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DEPARTMENT OF COMMERCE a framework under the authority of the mammals and verify predicted sound Marine Mammal Protection Act fields; National Oceanic and Atmospheric (MMPA) (16 U.S.C. 1361 et seq.) to • Coordination with subsistence users Administration allow for the issuance of a Letter of and adherence to a Plan of Cooperation Authorization (LOA) for the take of (POC); and 50 CFR Part 217 marine mammals incidental to Hilcorp’s • Limitation on vessel speeds and [Docket No. 191210–0105] activities related to construction and operation of the LDPI. transit areas, where appropriate. RIN 0648–BI00 Legal Authority for the Proposed Action Background Taking and Importing Marine Section 101(a)(5)(A) of the MMPA (16 The MMPA prohibits the take of Mammals; Taking Marine Mammals U.S.C. 1371(a)(5)(A)) directs the marine mammals, with certain Incidental to Construction and Secretary of Commerce to allow, upon exceptions. Sections 101(a)(5)(A) and Operation of the Liberty Drilling and request, the incidental, but not (D) of the MMPA (16 U.S.C. 1361 et Production Island, Beaufort Sea, intentional taking of small numbers of Alaska seq.) direct the Secretary of Commerce marine mammals by U.S. citizens who (as delegated to NMFS) to allow, upon AGENCY: National Marine Fisheries engage in a specified activity (other than request, the incidental, but not Service (NMFS), National Oceanic and commercial fishing) within a specified intentional, taking of small numbers of Atmospheric Administration (NOAA), geographical region for up to five years marine mammals by U.S. citizens who Commerce. if, after notice and public comment, the engage in a specified activity (other than agency makes certain findings and ACTION: Final rule; notification of commercial fishing) within a specified issues regulations that set forth issuance. geographical region if certain findings permissible methods of taking pursuant are made and either regulations are to that activity and other means of SUMMARY: NMFS hereby issues issued or, if the taking is limited to effecting the ‘‘least practicable adverse regulations to govern the unintentional harassment, a notice of a proposed impact’’ on the affected species or taking of marine mammals incidental to incidental take authorization is stocks and their habitat (see the construction and operation of the provided to the public for review. Under discussion below in the ‘‘Mitigation’’ Liberty Drilling and Production Island the MMPA, ‘‘take’’ is defined as section), as well as monitoring and (LDPI) in the Beaufort Sea, Alaska over meaning to harass, hunt, capture, or kill, the course of five years. These reporting requirements. Section or attempt to harass, hunt, capture, or regulations, which allow for the 101(a)(5)(A) of the MMPA and the kill any marine mammal. ‘‘Harassment’’ issuance of a Letter of Authorization for implementing regulations at 50 CFR part is statutorily defined as any act of the incidental take of marine mammals 216, subpart I, provide the legal basis for pursuit, torment, or annoyance which during the described activities and issuing this rule containing five-year has the potential to injure a marine specified timeframes, prescribe the regulations, and for any subsequent permissible methods of taking and other Letters of Authorization (LOAs). As mammal or marine mammal stock in the means of effecting the least practicable directed by this legal authority, this rule wild (Level A harassment) or has the adverse impact on marine mammal contains mitigation, monitoring, and potential to disturb a marine mammal or species or stocks and their habitat, as reporting requirements. marine mammal stock in the wild by causing disruption of behavioral well as requirements pertaining to the Summary of Major Provisions Within monitoring and reporting of such taking. patterns, including, but not limited to, the Final Rule migration, breathing, nursing, breeding, DATES: This rule is effective December 1, The following is a summary of the 2021 through November 30, 2026. feeding, or sheltering but which does major provisions of this final rule not have the potential to injure a marine FOR FURTHER INFORMATION CONTACT: Hilcorp would be required to mammal or marine mammal stock in the Jaclyn Daly, Office of Protected implement. These measures include: wild (Level B harassment). Resources, NMFS, (301) 427–8401. • Use of soft start during impact pile Authorization for incidental takings SUPPLEMENTARY INFORMATION: driving to allow marine mammals the shall be granted if NMFS finds that the opportunity to leave the area prior to Purpose and Need for Regulatory taking will have a negligible impact on beginning impact pile driving at full Action the species or stock(s) and will not have power; NMFS received an application from • Implementation of shutdowns of an unmitigable adverse impact on the Hilcorp requesting five-year regulations construction activities under certain availability of the species or stock(s) for and authorization to incidentally take circumstances to minimize harassment, taking for subsistence uses (where multiple species of marine mammals in including injury; relevant). Further, NMFS must prescribe Foggy Island Bay, Beaufort Sea, by Level • Prohibition on all pile and pipe the permissible methods of taking and A harassment (non-serious injury) and driving at the island site and vessel other ‘‘means of effecting the least Level B harassment (behavioral movement outside the barrier islands practicable [adverse] impact’’ on the disturbance), incidental to construction during the fall Cross Island bowhead affected species or stocks and their and operation of the LDPI and whale hunt, and seasonal drilling habitat, paying particular attention to associated infrastructure. Please see restrictions to minimize impacts to rookeries, mating grounds, and areas of ‘‘Background’’ below for definitions of marine mammals and subsistence users; similar significance, and on the harassment. In addition, a limited • Implementation of best availability of such species or stocks for unintentional take involving the management practices to avoid and taking for certain subsistence uses mortality or serious injury of no more minimize ice seal and habitat (referred to in shorthand as than two ringed seals (Phoca hispida) disturbance during ice road ‘‘mitigation’’); and ensure that would be authorized to occur during construction, maintenance, and use; requirements pertaining to the annual ice road construction and • Use of marine mammal and mitigation, monitoring, and reporting of maintenance. This final rule establishes acoustic monitoring to detect marine such takings are set forth.

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Summary of Request (e.g., pile driving, ice road and island range finders) in consideration of input On August 2, 2017, Hilcorp petitioned construction). Hilcorp also requested, provided in public comments. NMFS for rulemaking under Section and NMFS is authorizing, mortality and Public comments on the proposed 101(a)(5)(A) of the MMPA to authorize serious injury of two ringed seals rule indicated some confusion over the the take of six species of marine incidental to annual ice road mitigation and monitoring distances for mammals incidental to construction and construction over a 5-year period. The both ringed seal structures and ringed operation of the proposed LDPI in Foggy regulations are effective from December seals themselves in the Ice Road and Ice Island Bay, Alaska. On April 26, 2018, 1, 2021, through November 30, 2026. Trail Best Management Practices (BMPs). In light of public comments, Hilcorp submitted a revised petition, Changes From Proposed to Final Rule which NMFS deemed adequate and Hilcorp modified the BMPs to provide There are minor changes from the clarity and consistency with mitigation complete. On May 9, 2018, we proposed rule to the final rule. While published a notice of receipt of and monitoring distances. Those more detail can be found later in this changes, made to both the BMPs and Hilcorp’s petition in the Federal document, we summarize the changes Register, requesting comments and these final regulations, reflect a standard here. 150-m set back distance to ringed seal information related to the request for We modified the amount of thirty days (83 FR 21276). We received structures (both lairs and breathing authorized takes, by Level B holes) and a 50-m setback distance to comments from the Center for Biological harassment, of bowhead whales in years Diversity and 15,843 citizens opposing ringed seals on ice. two through five from one animal to five Finally, the effective date of this final issuance of the requested regulations animals per year. This change was to and LOA. We also received comments rule is advanced one year from that in account for a potentially large group of the proposed rule, as described in the from the Alaska Eskimo Whaling whales in lieu of a single animal Commission (AEWC) who Federal Register document announcing entering the Level B harassment our re-opening of the public comment recommended we include subsistence- isopleth. While these whales are related mitigation and coordination period on the proposed rule (84 FR extremely rare to Foggy Island Bay, we 32697, July 9, 2019), to accommodate requirements in the final rule. On May believe this is a more conservative 29, 2019, NMFS issued a notice of Hilcorp’s most recent construction approach and allows the applicant schedule. The regulations are effective proposed rulemaking in the Federal sufficient take coverage. Register (84 FR 24926), soliciting public from December 1, 2021, through We also corrected the take table for November 30, 2026. comments for 30 days. The 30-day gray whales to authorize the take, by comment period was subsequently Level B harassment, of two gray whales Description of the Specified Activity extended to July 31, 2019, in response per year. The proposed rule preamble Overview to a request from the AEWC (84 FR text indicated that two gray whales 32697; July 9, 2019). All public could be taken by Level B harassment Hilcorp is proposing to construct and comments were considered in per year; however, the table incorrectly operate the LDPI, a self-contained developing this final rule. To extract oil indicated that only one gray whale take offshore drilling and production facility and gas in the Liberty Oil Field, Hilcorp was authorized per year. Two animals located on an artificial gravel island. is proposing to construct a 9.3-acre per year more adequately reflects Infrastructure and facilities necessary to artificial island (the LDPI) in 19 feet (ft) average group size. drill wells and process and export (5.8 meters (m)) of water in Foggy Island We also modified the mitigation approximately 60,000 to 70,000 barrels Bay, approximately 5 miles (mi) (8 measures during the Cross Island of oil per day to shore would be kilometers (km)) north of the bowhead whale hunt to comport with installed on the island. To transport oil, Kadleroshilik River and install the Bureau of Ocean Energy a pipeline from the island would be supporting infrastructure (e.g., ice roads, Management’s (BOEM) Record of installed, tying into the existing pipeline). Ice roads would be Decision for permitting the project. This Bandami pipeline located on shore constructed annually and begin resulted in additional mitigation to between the Sagavanirktok and December 2021. Island construction, ensure the taking of marine mammals Kadleroshilik Rivers on Alaska’s North which requires impact and vibratory authorized in these regulations will Slope. To access the island and move pile driving, is proposed to take one effect the least practicable adverse vehicles and equipment, ice roads year to complete, beginning in 2022. impact on subsistence uses as well as would be constructed annually. All Pile driving would primarily occur the least practicable adverse impact on island construction and pipeline during ice-covered season (only ice the species and their habitat. installation would occur as much as seals are present during this time Specifically, the proposed rule required possible during the winter months; period); however, up to two weeks of Hilcorp to cease impact pile driving however, pile driving and slope pile driving may occur during the open- during the Cross Island hunt. The new protection could occur during the open water season. Pipeline installation is mitigation measure mirrors BOEM’s water season. Drilling and production, anticipated to occur in 2023. Drilling measure, which requires that all pile once begun, would occur year round. and production is proposed to occur driving (impact and vibratory) must After island and pipeline construction, from 2023 through 2026. cease by August 1 and not resume until Hilcorp would commence and continue Hilcorp requests, and NMFS is the official end of the hunt or when the drilling and production for authorizing, the take, by Level A quota is met. In addition, Hilcorp may approximately 20 to 25 years at which harassment and Level B harassment, of not operate LDPI-related vessels outside time the island would be bowhead whales (Balaena mysticetus), the McClure Island Group during this decommissioned. The regulations and gray whales (Eschrichtius robustus), time. LOA cover the incidental take of marine beluga whales (Delphinapterus leucas), We also modified other mitigation mammals during LDPI construction and ringed seals (Phoca hispida), bearded and monitoring measures (e.g., requiring operation for the first five years of work. seals (Erignathus barbatus), and spotted ice road observers be equipped with Thereafter, data collected during these seals (Phoca largha) incidental to LDPI binoculars and protected species five years (e.g., acoustic monitoring construction and operation activities observers (PSOs) be equipped with laser during drilling, ice road marine

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mammal monitoring) would determine Other work, such as island slope Sea, about 8.9 km (5.5 mi) offshore in if future incidental take authorizations armoring, may also occur during open- 6.1 m (20 ft) of water, approximately 8 are warranted for continuing operations. water conditions. All island to 13 km (5 to 8 mi) east of the existing construction would commence and is Dates and Duration Endicott Satellite Drilling Island (SDI) expected to be completed in the first and approximately 32 km (20 mi) east The regulations are valid for a period year of the regulations (December 2021 of Prudhoe Bay. Hilcorp would of five years from December 1, 2021, through November 2022). Pipeline construct the Liberty project on three through November 30, 2026. Ice road installation would occur in year 2 of the leases, OCS–Y–1650, OCS–Y–1886, and construction and pipeline installation regulations (December 2022 through OCS–Y–1585. The proposed LDPI would be limited to winter months. November 2023), while drilling and would be constructed in 19 ft (5.8 m) of Island construction would be conducted production would begin in year 3 and water about 5 mi (8 km) offshore in primarily during winter months; continue through the life of the however, given that construction regulations. Ice road construction and Foggy Island Bay. The LDPI and all schedules are subject to delays for maintenance activities would occur associated infrastructure (e.g., ice roads) multiple reasons, Hilcorp anticipates, at each winter. are located inside the McClure barrier most, up to two weeks of open-water island group which separates Foggy sheet pile driving may be required in Specified Geographical Region Island Bay from the Beaufort Sea (Figure the first year to complete any pile The Liberty field is located in Federal 1). driving not finished during the winter. waters of Foggy Island Bay, Beaufort BILLING CODE 3510–22–P

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BILLING CODE 3510–22–C Exploration Alaska, Inc. (BPXA). In both production and operation as Detailed Description of Activities April 2014, BPXA announced the sale of ‘‘production’’). The mine site is located several North Slope assets to Hilcorp, inland of marine mammal habitat over The Liberty Prospect is located 8.85 including the area where the proposed km offshore in about 6 m of water, which NMFS has jurisdiction; therefore, inside the Beaufort Sea’s barrier islands. LDPI would be constructed and other its development will not be discussed Hilcorp, as the Liberty operator, is existing oil production islands further in this rule as no impacts to proposing to develop the Liberty Oil (Northstar, Endicott, Milne Point). The marine mammals under NMFS Field reservoir, located on the Outer Liberty Project has many similarities to jurisdiction would be affected by this Continental Shelf (OCS), in Foggy Island previous oil and gas islands constructed project component. Here, we discuss Bay, Beaufort Sea, Alaska. The Liberty on the North Slope, including Endicott, those activities that have the potential to reservoir is the largest delineated but Northstar, and Oooguruk. take marine mammals: Ice road undeveloped light oil reservoir on the The proposed LDPI project includes construction and maintenance, island North Slope. It is projected to deliver a development of a mine-site to supply construction (pile driving and slope peak production rate of between 60,000 gravel for the construction of the LDPI, armoring), pipeline installation, drilling, and 70,000 barrels of oil per day within construction of the island and annual and production. We also describe two years of initial production. Total ice roads, installation of an undersea auxiliary activities, including vessel and recovery over an estimated field life of pipeline that reaches shore from the aircraft transportation. A schedule of all 15 to 20 years is predicted to be in the LDPI and then connects to the existing phases of the project and a summary of range of 80 to 150 million stock tank above-ground Badami pipeline, drilling, equipment and activities involved are barrels of oil. The Liberty Oil Field production, and operation (for included in Table 1a with more details leases were previously owned by BP simplicity, hence forward we refer to on schedule provided in Table 1b.

TABLE 1a—LDPI PROJECT COMPONENTS, SCHEDULE, AND ASSOCIATED EQUIPMENT

Regulation Project component year Season Equipment and activity

Ice road construction, use, and 1–5 Ice-covered ...... Grader, ice auger, trucks (flood road, haul gravel, general maintenance. transit, maintenance). Island construction ...... * 1 Ice-covered, open water ...... Impact and vibratory pile and pipe driving, backhoe (digging), excavator (slope shaping, armor installation, ditchwitch (sawing ice). Pipeline installation ...... 2 Ice-covered ...... Ditchwitch (sawing ice), backhoe (digging), trucks. Drilling and production ...... 3–5 Ice-covered, open water ...... Drill rig, land-based equipment on island (e.g., generators). Marine vessel and aircraft sup- 1–5 Open-water, ice-covered (heli- Barge, tugs, crew boats, helicopter. port. copter only). Emergency and oil response 1–5 Ice-covered, open water ...... Vessels, hovercrafts, all-terrain vehicles, snow machines, etc. training. * Hilcorp has indicated a goal to complete all LDPI construction in the first year the regulations would be valid; however, they may need to in- stall foundation piles in year 2.

TABLE 1b—DOMINANT NOISE SOURCE BY MONTH AND DAYS OF EACH ACTIVITY

Season Month Year 1 Year 2 Year 3 Year 4 Year 5

Ice-covered Season ...... Dec, Jan ...... Ice Road Construction Ice Road Construction Drilling and Production Drilling and Production Drilling and Production (62 days). (62 days). (212 days). (212 days). (212 days) Feb, March, Island Construction Facility Construction April. (89 days). (150 days) May ...... Island Construction (14 days). Vibratory Sheet Pile Driving. (17 days). June ...... Vibratory Sheet Pile Driving (30 days)

Open-water Season ...... July ...... Vibratory Sheet Pile Foundation Piles In- Drilling and Production Drilling and Production Production (123 days). Driving (15 days).. stallation (31 days). (123 days). (123 days). Slope Shaping (16 days). Aug ...... Slope Shaping (31 Rig Mobilization & days). Well Prep (92 days) Sept, Oct ..... Rig Mobilization & Well Prep (61 days)

Ice-covered Season ...... Nov ...... Rig Mobilization & Drilling and Production Drilling and Production Drilling and Production Production (30 days) Well Prep (30 days). (30 days). (30 days). (30 days).

Ice Road and Ice Pad Construction and roads are a route across sea ice created may use grounded ice. Hilcorp would Maintenance by clearing and grading snow then clear away snow using a tractor, Hilcorp will construct ice roads and pumping seawater from holes drilled bulldozer, or similar piece of perform maintenance, as necessary. Ice through the floating ice. Some roads equipment, then pump seawater from

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holes drilled through floating ice, and 12 m (40 ft). It would cover In addition to the ice roads, three ice then flood the ice road. The ice roads approximately 160 acres of sea ice. pads are proposed to support will generally be constructed by pumper • Ice road #2 (approximately 11.3 km construction activities (year 2 and 3). units equipped with an ice auger to drill (7 mi)) will connect the LDPI to the These would be used to support LDPI, holes in the sea ice and then pump proposed Kadleroshilik River gravel pipeline (including pipe stringing and water from under the ice to flood the mine site and then will continue to the two stockpile/disposal areas), and surface of the ice. The ice augers and juncture with the Badami ice road facilities construction. A fourth staging pumping units will continue to move (which is ice road #4). It will be area ice pad (approximately 350 feet by along the ice road alignment to flood the approximately 15 m (50 ft) wide. 700 feet) would be built on the sea ice entire alignment, returning to a previous on the west side of the LDPI during • Ice road #3 (approximately 9.6 km area as soon as the flooded water has production well drilling operations. [6 mi], termed the ‘‘Midpoint Access frozen. The ice road will be maintained Other on-ice activities occurring prior Road’’) will intersect the SDI to LDPI ice and kept clean of gravel and other to March 1 could also include spill road and the ice road between the LDPI solids. Freshwater can be sprayed onto training exercises, pipeline surveys, and the mine site. It will be the road surface to form a cap over the snow clearing, and work conducted by approximately 12 m (40 ft) wide. main road structure for the top layer or other snow vehicles such as a Pisten • to repair any cracks. Ice road #4 (approximately 19.3 km Bully, snow machine, or rollagon. Prior Ice roads will be used for onshore and (12 mi)), located completely onshore, to March 1, these activities could occur offshore access, installing the pipeline, will parallel the Badami pipeline and outside of the delineated ice road/trail hauling gravel used to construct the connect the mine site with the Endicott and shoulder areas. island, moving equipment on/off island, road. LDPI Construction personnel and supply transit, etc. Ice All four ice roads would be roads are best constructed when constructed for the first three years to The LDPI will include a self- weather is ¥20 degrees Fahrenheit (F) support pipeline installation and contained offshore drilling and to ¥30 degrees F, but temperatures transportation from existing North Slope production facility located on an below 0 degree F are considered roads to the proposed gravel mine site, artificial gravel island with a subsea adequate for ice road construction. Ice and from the mine site to the proposed pipeline to shore. The LDPI will be road construction can typically be LDPI location in the Beaufort Sea. After located approximately 8 kilometers (km) initiated in mid- to late-December and year 3, only ice road #1 would be or 5 miles (mi) offshore in Foggy Island can be maintained until mid-May. At constructed to allow additional Bay and 11.7 km (7.3 mi) southeast of the end of the season, ice roads will be materials and equipment to be the existing SDI on the Endicott barricaded by snow berm and/or slotted mobilized to support LDPI, pipeline, causeway (see Figure 1). The LDPI will at the entrance to prevent access and and facility construction activities as all be constructed of reinforced gravel in allowed to melt naturally. Figure 1 island construction and pipeline 5.8 meters (m) (19 feet (ft)) of water and shows the locations of the proposed ice installation should be complete by year have a working surface of approximately roads. 3. Winter sea ice road/trail construction 3.8 hectares (ha) (9.3 acres (ac)). A steel • Ice road #1 will extend will begin as early as possible (typically sheet pile wall would surround the approximately 11.3 km (7 mi) over December 1 through mid-February). It is island to stabilize the placed gravel and shorefast sea ice from the Endicott SDI anticipated that all ice road construction the island would include slope to the LDPI (the SDI to LDPI ice road). activities will be initiated prior to protection bench, dock and ice road It will be approximately 37 m wide (120 March 1, before the time when female access, and a seawater intake area ft) with a driving lane of approximately ringed seals establish birth lairs. (Figure 2).

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Hilcorp would begin constructing the create a slope protection profile gravel island by protecting it from the LDPI during the winter immediately consisting of a 60-ft (18.3 m) wide bench erosive forces of waves, ice ride-up, and following construction of the ice road covered with a linked concrete mat that currents. A detailed inspection of the from the mine site to the island location. extends from a sheet pile wall island slope protection system will be Sections of sea ice at the island’s surrounding the island to slightly above conducted annually during the open- location would be cut using a mean low low water (MLLW) (Figure 3). water season to document changes in ditchwitch and removed. A backhoe and The linked concrete mat requires a high the condition of this system that have support trucks using the ice road would strength, yet highly permeable, woven occurred since the previous year’s move ice away. Once the ice is removed, polyester fabric under layer to contain inspection. Any damaged material gravel will be poured through the water the gravel island fill. The filter fabric would be removed. Above-water column to the sea floor, building the panels will be overlapped and tied activities will consist of a visual island structure from the bottom up. A together side-by-side (requiring diving inspection of the dock and sheet pile conical pile of gravel (hauled in from operations) to prevent the panels from enclosure that will document the trucks from the mine site using the ice separating and exposing the underlying condition of the island bench and road) will form on the sea floor until it gravel fill. Because the fabric is ramps. The below-water slopes will be reaches the surface of the ice. Gravel overlapped and tied together, no slope inspected by divers or, if water clarity hauling over the ice road to the LDPI protection debris would enter the water allows, remotely by underwater cameras construction site is estimated to column should it be damaged. Above contracted separately by Hilcorp. The continue for 50 to 70 days, and the fabric under layer, a robust geo-grid results of the below-water inspection conclude mid-April or earlier will be placed as an abrasion guard to will be recorded for repair if needed. No depending on road conditions. The prevent damage to the fabric by the vessels will be required. Multi-beam construction would continue with a linked mat armor. The concrete mat bathymetry and side-scan sonar imagery sequence of removing additional ice and system would continue at a 3:1 slope of the below-water slopes and adjacent pouring gravel until the surface size is another 86.5 ft into the water, sea bottom will be acquired using a achieved. Following gravel placement, terminating at a depth of ¥19 ft (¥5.8 bathymetry vessel. The sidescan sonar slope armoring and protection m). In total, from the sheet pile wall, the would operate at a frequency between installation would occur. Using island- bench and concrete mat would extend 200–400 kilohertz (kHz). The single- based equipment (e.g., backhoe, bucket- 146.5 ft. Island slope protection is beam echosounder would operate at a dredge) and divers, Hilcorp would required to assure the integrity of the frequency of about 210 kHz.

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Once the slope protection is in place, installed to prevent wave passage over the LDPI to the existing Bandami Hilcorp would install the sheet pile wall the wall. pipeline. Pipeline construction is around the perimeter of the island using Within the interior of the island, 16 planned for the winter after the island vibratory and, if necessary, impact steel conductor pipes would be driven is constructed. A schematic of the hammers. Hilcorp anticipates driving up to a depth of 160 ft (49 m) to provide pipeline can be found in Figure 2–3 of to 20 piles per day to a depth of 25 ft. the initial stable structural foundation BOEM’s Final Environmental Impact A vibratory hammer would be used first, for each oil well. They would be set in Statement (FEIS) available at https:// followed by an impact hammer to a well row in the middle of the island. www.boem.gov/Hilcorp-Liberty/. The ‘‘proof’’ the pile. Hilcorp anticipates Depending on the substrate, the pipeline will extend from the LDPI, each pile needing 100 hammer strikes conductor pipes would be driven by across Foggy Island Bay, and terminate over approximately 2 minutes of impact impact or vibratory methods or both. onshore at the existing Badami Pipeline driving to obtain the final desired depth During the construction of the nearby tie-in location. For the marine segment, construction will progress from for each sheet pile. This equates to a Northstar Island (located in deeper shallower water to deeper water with maximum of 40 minutes and 2,000 water), it took 5 to 8.5 hours to drive one conductor pipe (Blackwell et al., multiple construction spreads. strikes of impact hammering per day. 2004). For the Liberty LDPI, Hilcorp To install the pipeline, a trench will For vibratory driving, pile penetration anticipates it would take two hours of be excavated using ice-road based long- speed can vary depending on ground active pile driving per day to install a reach excavators with pontoon tracks. conditions, but a minimum sheet pile conductor pipe given the 5 to 8.5 hour The pipeline bundle will be lowered penetration speed is 20 inches (0.5 m) timeframe at Northstar includes pauses into the trench using side booms to per minute to avoid damage to the pile in pile driving and occurred in deeper control its vertical and horizontal or hammer (NASSPA 2005). For this water requiring deeper pile depths. In position, and the trench will be project, the anticipated duration is addition, approximately 700 to 1,000 backfilled by excavators using excavated based on a preferred penetration speed foundation piles may also be installed trench spoils and select backfill. Hilcorp greater than 40 inches (1 m) per minute, within the interior of the island should intends to place all material back in the resulting in 7.5 minutes to drive each engineering determine they are trench slot. All work will be done from pile. Given the high storm surge and necessary for island support. ice roads using conventional excavation larger waves that are expected to arrive and dirt-moving construction at the LDPI site from the west and Pipeline Installation equipment. The target trench depth is 9 northwest, the wall will be higher on Hilcorp would install a pipe-in-pipe to 11 ft (2.7 to 3.4 m) with a proposed the west side than on the east side. At subsea pipeline consisting of a 12-in maximum depth of cover of the top of the sheet-pile wall, diameter inner pipe and a 16-in approximately 7 ft (2.1 m). The pipeline overhanging steel ‘‘parapet’’ will be diameter outer pipe to transport oil from will be approximately 5.6 mi (9 km)

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long. Hydro-testing (pressure testing Investigation Agency, Eyak Preservation 15 days of open-water pile driving could using sea water) of the entire pipeline Council, Friends of the Earth, and occur. will be completed prior to Northern Alaska Environmental Center; Response: The estimated number of commissioning. AEWC; North Slope Borough (NSB); and marine mammals that may be seven private citizens. These comments Drilling and Production potentially exposed to noises exceeding and our responses are described below. NMFS’ established thresholds was The final drill rig has yet to be chosen Comment 1: The Commission calculated based on marine mammal by Hilcorp but has been narrowed to recommends that NMFS consult with density estimates, the ensonified area, two options and will accommodate external scientists and acousticians to and the duration of each project activity. drilling of 16 wells. The first option is determine the appropriate accumulation The Commission’s recommendation the use of an existing platform-style time that action proponents should use does not provide reason for why this drilling unit that Hilcorp owns and to determine the extent of the Level A standard approach is not acceptable. In operates in the Cook Inlet. Designated as harassment zones based on the addition, the Commission has Rig 428, the rig has been used recently associated cumulative sound exposure inaccurately characterized the Level A and is well suited in terms of depth and level (SELcum) thresholds for the harassment distance output of the horsepower rating to drill the wells at various types of sound sources, model as the distance at which an Liberty. A second option that is being including stationary sound sources. animal will immediately incur investigated is a new build drilling unit Response: The Commission has raised permanent threshold shift (PTS) if it that would be built to not only drill this concern before and NMFS has crosses that distance. However, this is Liberty development wells, but would previously responded that NMFS not the case as described in the be more portable and more adaptable to considers this a priority and has formed other applications on the North Slope. Technical Guidance (NMFS 2018). The a Working Group to focus on the issue Regardless of drill rig type, the well row Level A threshold distance represents of accumulation time. Once the NMFS arrangement on the island is designed to the distance at which an animal could internal Working Group develops a accommodate up to 16 wells. We note incur PTS if it remains at that distance proposal, it will be shared with Federal that while Hilcorp is proposing a 16- for the duration considered in the partners and other stakeholders. well design, only 10 wells would be model. An animal crossing this distance However, in the meantime, as we have drilled. The 6 additional well slots for a shorter period of time does not described previously, Hilcorp used a would be available as backups or for necessarily incur PTS. The Level A sophisticated modeling approach that potential in-fill drilling if needed during isopleth calculations included a considered the full duration of activity the project life. conservative 40 minutes of active Process facilities on the island will within a day which allows for a impact pile driving per day, which does separate crude oil from produced water conservative estimate of the distances at not consider the time it takes to reset for and gas. Gas and water will be injected which marine mammals could piles, and Footnote 2 in Table 4 into the reservoir to provide pressure potentially experience injurious sound indicates the average duration of impact support and increase recovery from the levels if they were subject to the full driving per day is closer to 20 minutes, field. A single-phase subsea pipe-in- duration of exposure. which would result in a much smaller pipe pipeline will transport sales- Comment 2: The Commission Level A harassment distance and, again, quality crude from the LDPI to shore, recommends that NMFS include in the the animal would have to remain at that where an aboveground pipeline will preamble of the final rule all of the distance for that period of time. The transport crude to the existing Badami inputs it used to estimate takes by Level Commission also states that Hilcorp pipeline. From there, crude will be A and B harassment, including the type would not be required to shut down if transported to the Endicott Sales Oil of activity that will occur during each a seal comes within the Level A Pipeline, which ties into Pump Station season and the number of days each harassment isopleth; however, as 1 of the TransAlaska Pipeline System season that each activity will occur. described in Hilcorp’s application, the (TAPS) for eventual delivery to a Response: All of the inputs into the proposed rule, and this final rule, if a refinery. Level A harassment analysis, including seal enters the Level A harassment zone ensonified areas, are included in the while pile driving is ongoing, work may Comments and Responses final rule. NMFS also provided a table continue until the pile is completed Notice of NMFS’s proposal to issue in the final rule that lists the activities (estimated to require approximately 15– regulations to Hilcorp was published in with the greatest potential for take and 20 minutes), but additional pile driving the Federal Register on May 29, 2019 the number of days each season that the must not be initiated until the animal (84 FR 24926). That document activities are anticipated to occur in has left the Level A harassment zone. described, in detail, Hilcorp’s proposed each year of the 5-year regulations The Commission also does not consider activity, the marine mammal species (Table 1b). seasonal density of ringed seals, which that may be affected by the activity, and Comment 3: The Commission believes is very low during the summer when the anticipated effects on marine that the number of Level A harassment impact pile driving during open-water mammals. At the request of the Alaska takes for ringed seals have been could occur, further reducing the Eskimo Whaling Commission (AEWC), underestimated and claims there is the potential for Level A harassment take. NMFS reopened the public comment potential for at least one ringed seal to For these reasons, NMFS does not agree period until July 31, 2019 (84 FR 32697; be taken by Level A harassment each with the Commission’s recommendation July 9, 2019). During the public day that impact pile driving occurs, and, as in the proposed rule, the final comment period, NMFS received particularly since it appears that impact rule authorizes the take, by Level A comments from the Marine Mammal pile driving could occur intermittently harassment, of five ringed seals in year Commission (the Commission); Alaska throughout a given day. The 1 incidental to pile driving as this is the Wilderness League (AWL), on behalf of Commission recommends that NMFS calculated Level A harassment take the Animal Welfare Institute, Center for increase the number of Level A based on seal density, the ensonified Biological Diversity, Defenders of harassment takes of ringed seals from 5 area, and the number of impact pile Wildlife, Earthjustice, Environmental to at least 15 during Year 1 considering driving days.

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Comment 4: The Commission the estimated density of gray whales in whale) approaches or enters the Level A recommends that NMFS revise the Foggy Island Bay is zero, therefore even harassment zone, pile driving would be numbers of Level B harassment takes for if different ensonified areas were used, shut down. This measure is designed to all species to account for vibratory the outcome of takes based solely on the provide the most protection practicable driving occurring at any of the five sides ensonified area would always be zero; for large whales included in subsistence of the island during the open-water however, by also including group size uses. If a mid-frequency cetacean season and, unless Hilcorp has contrary and previous monitoring data, the Level (beluga) or pinniped (seal) enters the data regarding how many days vibratory B harassment take estimate for gray Level A harassment zone during pile driving would occur at each of the five whales is two per year. driving, Hilcorp could complete setting sides of the island, assume that pile Comment 5: The Commission the pile (which takes ten to fifteen driving would occur for three days at recommends that NMFS increase the minutes from commencement) but not each of the five sides. This Level B harassment takes of gray whales initiate additional pile driving of new recommendation is based on the from one to two annually in Years 1 piles until the marine mammal has left proposed rule’s approach that Level B through 5 and that NMFS increase the and is on a path away from the Level A harassment takes during sheet pile Level B harassment takes of bowhead harassment zone. This measure is also driving during the open-water season whales to account for the typical group included in section 217.34 of the were based on an ensonified area of 64 size of two to five whales annually in proposed and final regulations. As such, km2 for each of the estimated 15 days Years 2 through 5. the Commission’s recommendation to of pile driving. That ensonified area is Response: Although gray whales and specify the Level A harassment zones associated with the southwest side of bowhead whales are extremely rare in equate to the shut-down zones is not the island, which was the smallest of Foggy Island Bay, NMFS agrees to necessary. The Commission and AWL’s the ensonified areas associated with conservatively account for group sizes confusion appears to be generated by each of the five sides of the island. of these species in the open Beaufort one statement in parentheses in the Sea. This final rule authorizes the take, proposed rule preamble that did not Response: Hilcorp stated several times by Level B harassment, of two gray in their application, correspondence clearly identify that the shut-down zone whales, annually for the life of the is equal to Level A harassment zone with NMFS, and during the peer-review regulations, and five bowhead whales, only for low frequency cetaceans. NMFS panel that they intend to conduct all annually in years 2–5 of the final rule, corrected this statement in the final rule sheet pile driving during the ice-covered incidental to the proposed project. As in to clarify the Level A zone is equal to season, as was done with Northstar. the proposed rule, NMFS estimates that the shut-down zone only for low This information is provided in their six bowhead whales may be taken by frequency cetaceans. description of the specified activity. Level B harassment in year 1 of the Comment 8. The Commission However, as a precautionary measure, regulations. recommends that NMFS make the two weeks to complete sheet piling Comment 6: If there is a possibility Wildlife Action Plan available to the driving during open water (early July) that pile driving could occur after the public and provide an additional have been included for estimating Nuiqsut Cross Island hunt, the opportunity for review and comment on potential marine mammal takes. Commission recommends that NMFS re- both the BMPs and the Wildlife Action Hilcorp’s construction process validates estimate the number of Level B Plan prior to issuing the final rule. the reason for using the southwest harassment takes, as well as Level A Response: NMFS posted both the perimeter acoustic model results (64 harassment takes for bowhead whales BMPs and the relevant sections of the km2) in the take estimate. Hilcorp since they occur in greater numbers, and Wildlife Action Plan during the initial proposes to begin vibratory sheet pile thus higher densities, in the fall public comment period. These driving on the north end of LDPI during (September through October). documents were also available during ice-covered conditions, progressing Response: Other than to account for the second public comment period. around the island perimeter and large group size (see above), NMFS did Comment 9: The Commission finishing with sheet pile driving on the not adjust bowhead whale take recommends that NMFS include the southwest side of the island. Therefore, numbers. It is very unlikely Hilcorp following requirements in the final rule: although ideally all pile driving would would conduct pile driving after the (1) That Hilcorp conduct PAM [passive be done during the ice-covered season, Cross Island hunt as this is not in their acoustic monitoring] using a hand-held the only part of the island which could project plan. Hilcorp intends to conduct hydrophone deployed through the ice be unfinished by the open-water period all sheet pile driving during the ice- during the ice-covered season and (2) is the southwest side of the island. The covered months as was done with Hilcorp include in its annual reports Commission’s recommendation to Northstar. Some sheet pile driving and final report an extrapolated total assume three days of pile driving at during the open-water season was take estimate for each species based on each of the five sides is inconsistent included in the rulemaking analysis to the number of marine mammals with Hilcorp’s construction plan. For conservatively account for any delays observed and the extent of the these reasons, NMFS used the SW resulting in the need for sheet pile harassment zones during the applicable ensonified area of 64 km2 to estimate driving during that time. construction activities. marine mammal takes while also Comment 7: The Commission Response: The proposed and final accounting for group size in its take recommends that NMFS specify in the rule includes the requirement that authorization, as presented in the final rule that the Level A harassment Hilcorp conduct PAM using a hand-held proposed rule. In addition, we note that zones equate to the shut-down zones hydrophone. This requirement is also in NMFS adjusted cetacean take numbers and the relevant circumstances when both the Marine Mammal Mitigation from a simple density estimate, which they apply. The AWL made a similar and Monitoring Plan (4MP) and the uses an ensonified area, to one that comment and we address both here. Acoustic Monitoring Plan which the accounts for group size and previous Response: As described in the Commission reviewed concurrently monitoring data, raising all take proposed rule (84 FR 24955) and this with the proposed rule. In the final rule, numbers born from estimates that solely final rule, in the unlikely event a low NMFS has added a requirement that relied on ensonified area. For example, frequency cetacean (bowhead or gray Hilcorp provide in its annual and final

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report an extrapolated total take on marine mammals in that NMFS maximum is 2,250 m. Similarly, the estimate for each species. ignores takes that will occur from median Level B harassment isopleth for Comment 10: The Commission operation of the Liberty project. impact driving pipe piles is 315 m while recommends that NMFS ensure the Response: Hilcorp requested the maximum is 400 m. Because take is minimum distance specified in the final authorization for the take of six species based on the density of animals in a rule, 4MP, and BMPs for avoidance of of marine mammals incidental to given area, the area (which is derived ringed seals and lairs is at least 150 m, construction and operation of the from isopleth distances) would have to not 150 ft (we note AWL provided a proposed LDPI during the five-year be 50 percent less to have a 50 percent similar comment) and that NMFS clarify period from December 1, 2021, through reduction in take. More importantly, all in the preamble to the final rule its November 30, 2026. NMFS does not predicted cetacean takes were adjusted rationale for not incorporating the peer- ignore takes that will occur from upwards to account for group size so the review panel’s recommendations to (1) operation of the Liberty project during actual take authorized is greater than increase the avoidance distance for that period. The acoustic models any predicted take based on density and ringed seals and lairs to 300 m and (2) indicate there is potential for NMFS harassment isopleth distances. For these investigate the availability of laser range Level B harassment thresholds to be reasons, we believe we have accurately finders that would improve the reached during drilling (i.e., operation) accounted for the potential for takes of resolution and range of detections of approximately 230 m and 55 m from the all species. marine mammals beyond 600 m. island during ice and open-water Regarding Level B harassment, based Response: The final rule makes conditions, respectively. Animal on the language and structure of the corrections and clarifies the minimum density, by species, was considered definition of Level B harassment, we distances of approach for ringed seals with respect to these ensonified areas interpret the concept of ‘‘potential to and ringed seal structures. The and accounted for in the take estimates. disturb’’ as embedded in the assessment minimum distance to avoid ringed seals Therefore, NMFS has analyzed and of the behavioral response that results remains as stated in the proposed rule authorized takes for operation (i.e., from an act of pursuit, torment, or and BMPs as 50 m. The minimum drilling) of the Liberty project. During annoyance (collectively referred to distance to avoid ringed seal structures the onset of drilling and production, hereafter as an ‘‘annoyance’’). The (e.g., lairs, breathing holes) in this final Liberty will perform acoustic definition refers to a ‘‘potential to rule is 150 m. The BMP entries, which measurements to determine if the model disturb’’ by causing disruption of appear to be the source of confusion for accurately predicted these harassment behavioral patterns. Thus, an analysis the Commission and AWL, have been isopleths, and future requests for take that indicates a disruption in behavioral modified and are available at https:// authorizations after the regulations have patterns establishes the ‘‘potential to www.fisheries.noaa.gov/permit/ expired will be contingent upon those disturb.’’ A separate analysis of incidental-take-authorizations-under- measurements. ‘‘potential to disturb’’ is not needed. marine-mammal-protection-act. With Comment 11: AWL expressed concern Comment 12: AWL believes NMFS respect to the peer-review panel’s that NMFS used the median range of ignores takes that will occur from ship recommendation, they provided no radial distances to NMFS Level B strikes and noise pollution from vessel justification for why the proposed harassment thresholds to determine the and air traffic associated with the avoidance distances were not ensonified area in which takes would Liberty project. These activities may appropriate nor did they provide occur. They assert that use of the cause takes of all the species analyzed justification for the 300-m median range could lead to roughly 50 in the agency’s proposed rule—bowhead recommendation. A 300-m avoidance percent of an exposed cohort whales, gray whales, beluga whales, distance of both seals and lairs is three experiencing impacts that are not spotted seals, ringed seals, and bearded times greater than the NMFS marine accounted for in NMFS’s analysis. They seals—as well as a host of other species mammal viewing guidelines assert NMFS’ approach contravenes the (North Pacific right whales, humpback recommendation and is not practicable precautionary nature of the MMPA and whales, minke whales, fin whales, killer for the applicant to carry out ice-road the statutory definition of harassment, whales, sperm whales, harbor porpoise, work. For these reasons, NMFS did not which includes not only those actions Dall’s porpoise, beaked whales, Steller accept the peer-review panel’s 300-m that will injure or disturb marine sea lions, harbor seals, and ribbon seals) avoidance recommendation. mammals, but those that have the not included in the analysis. We note that the peer-review panel’s potential to do so. Response: NMFS does not ignore report made one mention of range Response: It is NMFS standard impacts from ship strikes and noise finders and recommended user range practice to apply median source levels from vessel and air traffic associated finders that would improve resolution when determining distances to NMFS with the Liberty project. As described in and range detections of marine harassment thresholds. By using the the analysis, the probability of a ship mammals beyond 600 m. The 4MP median, we eliminate the few loud strike from the specified activities is indicates distances to nearby marine outliers in the data, better representing very low and, further, Hilcorp proposed, mammals will be estimated with the overall acoustic footprint of the and NMFS included, a number of binoculars containing a reticle to project. NMFS notes that using the measures to further reduce the measure the vertical angle of the line of median harassment isopleth also does likelihood of vessel interactions. sight to the animal relative to the not translate into underestimating an Accordingly, takes from ship strikes are horizon. However, for a more immediate exposed cohort by 50 percent as the neither anticipated nor authorized. distance estimator tool, NMFS has AWL asserts. This is because the Regarding ship traffic noise, the impacts included the requirement for PSOs to be median harassment isopleth distance is of vessel traffic from these activities are equipped with rangefinders. not half of the maximum isopleth assessed and considered in NMFS’ Comment 10: AWL asserts the (which is derived by applying the Biological Opinion, Hilcorp’s proposed rule employs an unlawful absolute maximum source level). For application, and the proposed rule (e.g., small numbers analysis that arbitrarily example, the median Level B 84 FR 24945, May 29, 2019), and while fails to consider the full suite of impacts harassment isopleth for impact driving marine mammals may respond to vessel from the operation of the Liberty project sheet piles is 2,050 m while the traffic, responses rising to the level of a

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take are considered unlikely to occur exposures within a day, the duration of criterion ends up being similar to the and are not authorized here. As for the exposure), for the purposes of negligible impact finding. aircraft, the critical angle necessary for consistency in tracking across projects Response: We disagree with AWL’s noise to enter the water column from and practicality for applicant characterization of our analysis—NMFS airborne sources is very small. While implementation, and in consideration of very clearly distinguishes our separate aircraft flying low directly overhead the fact that many marine mammal analyses for the small numbers and may be audible to a cetacean (whose behaviors and responses are linked to a negligible impact standards. As ears are adapted to underwater hearing), diel cycle, NMFS appropriately uses a described in the proposed rule (84 FR it is highly unlikely that noise would daily metric to count takes for the 24959, May 29, 2019), wherein the small cause changes to patterns of behavior purposes of authorization. Specifically numbers assessment is based solely on that would rise to a level of a take. For we do not consider one individual the number of takes in relation to the all species, including pinnipeds, animal as taken more than one time in abundance of the stock (a purely behavioral harassment would be a day and, the corollary of that—we numerical comparison), the negligible minimized through mitigation measures consider takes that occur in a impact analysis considers other factors, that establish minimum flight altitudes, subsequent 24-hour period a separate such as the nature of the anticipated as described in the Biological Opinion instance of take, even if they may be takes, the context of the exposures, the and which has been added as a accruing to the same individual. These life history and vulnerability of the mitigation measure to this final rule. basic rules allow for consistent and individuals of different species, effects Hence, NMFS disagrees these activities reliable estimation of take and, further, on habitat, the likely effectiveness of have the potential to take the species it is rarely the case that there is mitigation, and the status of the affected AWL believes NMFS did not include in adequate information to predict impacts stocks (among other things) to the analysis. with any precision at a more granular determine if the takes will affect the Comment 13: AWL believes NMFS level. Accordingly, we count multiple fitness of any individuals and, if so, improperly lumps together the take of exposures in one day to an individual whether the scale of any anticipated marine mammals that it acknowledges as one take, but our analysis considers impacts to reproduction or survivorship will occur. For example, NMFS ignores the severity and nature of each take in will adversely affect the species or the impacts of masking from pile our negligible impact analysis. stock. For a fuller description of how driving that might rise to Level B Comment 15: AWL asserts that NMFS conducts its small numbers harassment because it will occur NMFS’s analysis also improperly analysis, please see our final notice of concurrently with harassment already ignores the species-particular behaviors issuance for five IHAs for seismic considered in estimating takes from and life-stages of animals at the surveys in the Atlantic (83 FR 63375, December 7, 2018). vibratory and impact pile driving. anticipated times and places that takes Response: NMFS disagrees with Comment 17: AWL indicates that both would occur and that responses of AWL’s characterization. A detailed NMFS’s negligible impact determination marine mammals to noise generated by discussion on masking is presented on and its small numbers analysis ignore page 24944 of the proposed rule (84 FR the project may be markedly different the impacts of oil spills. Oil spills are 24926; May 29, 2019) and noted depending on what the animal is doing, an inevitable part of the Liberty project throughout the Auditory Effects section time of year (i.e., season), or life-stage of and should be considered. NMFS of that document. NMFS qualitatively the animal at the time of exposure. ignores the impacts of oil spills in its considers masking in its analysis. NMFS Response: NMFS analyzed both negligible impact and small numbers does not quantify and authorize separate species-specific behaviors and life- analysis by claiming that Hilcorp has Level B harassment takes based on the stages in the proposed rule. For not requested authorization of takes stressor (e.g., masking vs. stress, etc.), example, cetaceans are not present in from oil spills and oil spills are not part rather, we evaluate the number of takes Foggy Island Bay during the ice-covered of the ‘‘specified activity’’ for which anticipated to occur and then assess the periods; therefore, we determined there NMFS is authorizing takes. However, impacts of the authorized take on the was no potential for harassment to NMFS defines the ‘‘specified activity’’ individual (and subsequently the cetaceans during this time period. as the ‘‘construct[ion] and operat[ion] of population), qualitatively considering NMFS also investigated and described the LPDI, a self-contained offshore the nature of the takes that are the potential effects of ice road drilling and production facility located anticipated to occur, e.g., whether they construction during ringed seal lairing on an artificial gravel island.’’ And as are more or less severe, or what kind of time periods and specifically discussed the Final EIS makes clear, small oil stressor or stressors they are resulting that to offset impacts to reproductive spills are an inevitable part of the from. Accordingly, while all stressors behaviors by ringed seals (e.g., lairing, development and production and are appropriately considered in the pupping), Hilcorp would follow a therefore should be considered part of analysis (quantitatively or qualitatively), number of ice road BMPs developed in the ‘‘specified activity’’ for NMFS’s a total amount of Level B harassment coordination with NMFS ringed seal authorization. takes are authorized. experts. During the open-water season, Response: The Bureau of Safety and Comment 14: AWL asserts that NMFS identified in the proposed rule Environmental Enforcement (BSEE) has repeated exposures should be that cetaceans rarely use Foggy Island primary regulatory authority related to considered as separate takes, because Bay and has clarified in the final rule safety and prevention of pollution, they will repeatedly affect auditory and that Foggy Island Bay does not serve as including accidental oil spills, related to behavioral responses. AWL is concerned critical reproductive or foraging grounds offshore oil and gas operations. NMFS appears to count any exposure for any cetacean species. Pollution-prevention regulatory that occurs over the course of a given Comment 16: AWL believes NMFS’s requirements for oil, gas, and sulphur day as one take. analysis of small numbers improperly operations in the outer continental shelf Response: While NMFS’ analysis fully conflates this criterion with the separate are in 30 CFR part 250, subpart C, considers the nature of any takes that negligible impact requirement of the Pollution Prevention and Control. These will occur (e.g., the severity, whether statute. By defining small numbers to be regulations require operators that engage they are comprised of multiple relative to the overall population, the in activities such as exploration,

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development, production, and drilling to solid ice conditions (defined activity, although the potential for them transportation of oil and gas to take as 18 inches of ice in all areas 500 feet is discussed in the proposed rule and measures to prevent unauthorized of the LDPI) limits the risk of an oil spill their ongoing influence is considered discharge of pollutants into offshore and hence limits potential impacts on through their incorporation into the waters (30 CFR 250.300). Operators pinnipeds (note cetaceans are not baseline for our analysis (e.g., through shall not create conditions that will present and therefore unaffected by any the regulatory status of the species, pose unreasonable risks to public spills during the ice-covered season). marine mammal densities, and health, life, property, aquatic life, During the open-water season, when population trends). Further, these wildlife, recreation, navigation, both cetaceans and pinnipeds could be factors are considered in NMFS’ commercial fishing, or other uses of the subjected to an oil spill (albeit in low Biological Opinion (section 5.0) and ocean. If pollution occurs that damages abundance), BOEM anticipates that environmental analysis required under or threatens to damage life (including small refined spills that reach the open the National Environmental Policy Act fish and other aquatic life), property, water would be contained by booms or (NEPA). In the Biological Opinion, all any mineral deposits in leased and absorbent pads; these small spills would relevant future climate-related unleased areas, or the marine, coastal, or also evaporate and disperse within environmental conditions, such as those human environment, immediate hours to a few days. A 3 bbl refined oil caused by the projects AWL corrective action must be taken and the spill during summer is anticipated to acknowledges, in the action area are control and removal of the pollution evaporate and disperse within 24 hours, described in the environmental must be to the satisfaction of BSEE . and a 200 bbl refined oil spill during baseline. BOEM’s EIS, on which NOAA These regulations further mandate that summer is anticipated to evaporate and was a cooperating agency and which the operator conduct inspections of disperse within 3 days (BOEM 2017a). NMFS adopted for issuance of the final drilling and production facilities daily, In summary, as described in the EIS, rule, identifies the potential impacts of or at other approved or prescribed BOEM and BSEE evaluated the potential the additive effects from other oil and intervals, to determine if pollution is for impacts from oil spills and gas activities in the Arctic and climate occurring (30 CFR 250.301). If problems concluded that any potential oil spills change on the human environment, are detected, necessary maintenance or are likely to be small, and there are including marine mammals. The effects repairs must be made immediately. measures set in place to minimize of ongoing and future oil and gas BSEE and BOEM considered the impacts of any potential spill on projects in the Arctic, as well as climate potential risk of oil spills from the LDPI environmental resources, including change, are all included in BOEM’s project in the 2018 EIS. Based on BOEM marine mammals. For purposes of this cumulative impact analysis in the EIS. and BSEE’s oil spill analysis in the EIS, rulemaking, NMFS discussed the the only sized spills that are reasonably potential risk of oil spills in its Comment 19: AWL believes the likely to occur in association with the proposed rule (84 FR 24946; May 29, proposed activities will adversely affect LDPI operation are small spills (<1,000 2019), but as noted in the proposed rule, Nuiqsut’s subsistence activities, barrels (bbls)). Any crude oil spill the MMPA authorizes NMFS to issue including seal and bowhead whale would not occur prior to drilling and take from otherwise legal activities, of hunting, and these impacts may not be operations, which are likely to begin in which oil spills are not, and therefore, mitigable. AWL asserts NMFS’s year 3 of the effective period of the final NMFS cannot authorize, and is not proposed rule is inadequate because it rule. BOEM estimates about 70 small authorizing, takes of marine mammals fails to ensure that the proposed activity spills, most of which would be less than incidental to oil spills in the final rule. will not have an unmitigable adverse 10 bbls, would occur over the life of the Comment 18: AWL believes NMFS impact on Nuiqsut’s subsistence harvest Liberty Project, which is 25 years. ignores the additive effects from other of bowhead whales. AWL argues Because the first 2 years of the project oil and gas activities in the Arctic and construction and operation may cause: would not involve drilling, the time climate change. AWL asserts NMFS fails ‘‘(1) deflection of whale movements during which spills could occur is to consider whether the impacts of the farther offshore, (2) interference from limited to 23 years. Extrapolating this Liberty project will be negligible in light support vessels, (3) avoidance of the estimate to the effective period of the of ongoing and future oil and gas Proposed Action Area by Nuiqsut rule and during a time at which spills development in the Beaufort Sea and whalers due to the presence of the could occur (year 3–5), about 9 spills NPR–A, including the Endicott and proposed LDPI and production facilities (70 spills/23 years * 3 years) would be Northstar projects and Colville Delta 5 and potentially contaminated resources, estimated to occur in the three years the (CD–5), Greater Mooses Tooth (GMT) 1 (4) whaling conflicts with summer rule is valid. and 2, and Willow project in the NPR– construction activities such as sheet pile BOEM also explains in the EIS that A, among others. AWL states the Liberty driving (i.e., LDPI slope protection), and spills are more likely to occur when project will emit greenhouse gases and (5) oil spills.’’ AWL also asserts that BOEM is conducting reservoir drilling, exacerbate the climate change that is even if there are whales available near which is defined as initial development threatening the continued existence of the proposed LDPI, Nuiqsut whalers drilling (as opposed to workovers, these species through habitat will likely avoid the area and if whalers recompletions, and other such well destruction. AWL claims NMFS’s avoid the proposed LDPI site in such operations subsequently conducted on negligible impact determination fails to years their ‘‘opportunities to strike existing wells) beyond the shoe (base) of consider such impacts. whales could be severely reduced for the last casing string above the Kekiktuk Response: The MMPA requires NMFS one or more seasons . . . resulting in Formation (i.e. drilling that exposes the to allow, upon request, the incidental major impacts to subsistence whaling Kekiktuk Formation to an open, uncased take of marine mammals related to the for Nuiqsut.’’ AWL also argues that if wellbore). Hilcorp is required by BOEM specified activity, which we have there were to be a large oil spill from the to limit reservoir drilling to the ice- identified as the first five years of LDPI proposed LDPI, communities across the covered season. During the ice-covered construction and operation. The North Slope would suffer. AWL asserts season, any spill would be contained by additive effects from other oil and gas NMFS’ explanation of its subsistence the ice and hence have limited impact activities in the Arctic and climate finding cites consultation and on marine mammals. Limiting reservoir change are not part of that specified mitigation without explaining how

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these measures will address the specific would effect the least practicable impact mitigation option of lookouts to protect adverse impacts of the proposed activity on marine mammals, by requiring marine mammals (in that case from on subsistence activities. AWL believes mitigation measures that are unclear or military sonar), especially knowing that NMFS’s proposed rule is therefore ineffective, and by failing to adopt many potential disruptions to marine inadequate because NMFS has not additional mitigation measures. AWL mammal behavior will be difficult to demonstrated that the proposed activity states that NMFS must clarify in the detect or avoid through lookouts. AWL will not have an unmitigable adverse final rule that the shutdown zone is asserts that, here, NMFS should require impact on subsistence activities. coextensive with the Level A Hilcorp to deploy long-term acoustic Response: AWL makes a number of harassment zone. monitors consistent with the assumptions that are unsupported and Response: The Level A harassment recommendations of the peer-review contradictory to NMFS’ analysis of the threshold distances and ensonified areas panel in order to obtain data both on the potential impact on subsistence use of are identified in the proposed and final presence of marine mammals and sound marine mammals. Importantly, the rule. As described in our response to levels generated during pile driving North Slope Borough (NSB) raised no Comment 7 above, which responds to activities. AWL acknowledges NMFS is significant concerns with the project the Commission’s comment on this requiring Hilcorp to collect and both the NSB’s and AEWC’s matter, the Level A harassment zone measurements using hand-held comment letters on the project equates to the shutdown zone for gray hydrophones lowered in a hole drilled commended Hilcorp for its outreach and whales and bowhead whales, and pile- through the ice during pile driving commitment to the CAA during the driving cannot commence or continue if activities; however, AWL feels that, rulemaking process. The proposed a gray whale or bowhead whale is seen while this option would at least collect project would not deflect whale within or approaching that zone; if a some noise monitoring data during the movement father offshore because the mid-frequency cetacean (beluga) or ice-covered season, the peer-review acoustic footprint of the project within pinniped (seal) enters the Level A panel noted that it is only feasible in which we would expect any disruption harassment zone during pile driving, shallower water and would cover a of behavioral patterns (e.g., avoidance) Hilcorp could complete setting the pile much shorter time frame than acoustic is almost entirely confined to within but not initiate additional pile driving of recorders deployed before the start of Foggy Island Bay, where bowhead and new piles until the marine mammal has winter. gray whales do not migrate. In addition, left and is on a path away from the Response: Hilcorp is required to abide BOEM has included a condition in Level A harassment zone. Hilcorp is by marine mammal mitigation measures Hilcorp’s permit to minimize also required to implement a number of NMFS consistently requires in pile interference with subsistence whaling mitigation measures that would driving incidental take authorizations, near Cross Island, wherein all pipe- and minimize impacts to marine mammals as they are considered effective at pile-driving activities and support through both the BOEM permitting minimizing the impact to marine vessel traffic outside the barrier islands process and the final rule as well as mammals. While Hilcorp is relying on will cease by August 1 and not resume throughout their own construction visual monitoring to detect marine until the official end of the hunt or until methodology proposals. These include mammals, they are implementing an the quota has been met, whichever scheduling island construction during unmanned aircraft system (UAS) occurs first. This mitigation measure is the ice-covered season, minimizing monitoring program that will allow carried over to this final rule. AWL’s impact pile driving, avoiding pile detection farther than island-based assumption that whalers would avoid driving during the bowhead whale observers can monitor. Hilcorp is also the area on their own is unfounded and migration period, reservoir drilling conducting acoustic monitoring in unsupported. NSB and AEWC did not during solid ice conditions, using pile accordance with the peer-review panel’s raise this concern and, in contrast to driving ramp-ups, and implementing recommendations, which will aid in AWL’s assumption, requested Hilcorp to the aforementioned shut down zones. long-term detection analysis. The peer- allow whalers to use the LDPI for safe Hilcorp, in coordination with NMFS review panel specifically recommended harbor during the whaling season. and in consideration of the public Hilcorp deploy acoustic recorders Access to the LDPI by subsistence users comments on the proposed rule, has during ice-covered periods to obtain was a mitigation measure included in also clarified measures in the ice-road data on both the presence of marine the proposed rule and is included in the BMPs which must be followed per the mammals and the sound levels final rule to ensure the specified final rule. AWL discussed concerns generated during pile driving activities. activities do not have an unmitigable with monitoring but did not propose Deployment of autonomous, long-term adverse impact on subsistence users. In any specific additional mitigation recorders during winter is not the unlikely event of a large oil spill, measures. After evaluating all of the practicable as recorders, and the data impacts could reach both marine applicable information, NMFS has housed within them, would likely be mammal and subsistence communities, concluded that the required mitigation lost to sea ice. AWL did not offer as with any large oil spill in the Arctic; measures will effect the least practicable alternative methods of recording during however, as described in the response to adverse impact on the affected marine winter; therefore, absent any new Comment 17 above, large oil spills are mammal species and stocks and their information, the peer-review panel’s neither anticipated during the course of habitat. recommendation has been adopted and this 5-year rule nor part of Hilcorp’s Comment 21: AWL believes NMFS satisfied. specified activity, and NMFS is not relies on visual monitoring (or lookouts) Comment 22: AWL also notes that the authorizing takes of marine mammals and other mitigation measures for peer-review panel encouraged Hilcorp incidental to oil spills. Further, BOEM marine mammals proposed by Hilcorp to consider deployment of additional and BSEE are responsible for permitting that are known to be ineffective and acoustic recorders during the open- the construction and operation of the inadequate to protect the species at water season approximately 15 km LDPI and for Hilcorp’s oil spill response issue. AWL states that in Conservation northwest of the project area to facilitate plan, respectively, not NMFS. Council for Hawaii v. National Marine a broader, multi-year approach to Comment 20: AWL believes NMFS Fisheries Service, the court determined analyzing the effect of sound exposure has failed to implement measures that that NMFS may not choose the lesser on marine mammals by various LDPI

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and non-LDPI sources. AWL believes it previously investigated the success of Comment 25: AWL notes that if a seal is not clear that Hilcorp’s proposal to using ground penetrating radar over is observed within 150 feet of an ice position recorders at unspecified ranges known lairs in order to see whether road or trail, BMP 6 requires the from the project activities will capture there was a reliable thermal signal. observer to alert Hilcorp’s the same level of sound exposure on Ground penetrating radar was not found Environmental Specialist, who will then marine mammals from multiple known to be a useful tool in this regard either. monitor the seal until it is no longer sources. AWL argues the final rule must The use of trained dogs was also within 150 feet of the road. The AWL incorporate the peer review panel’s questionable as there was concern over believes disruptive activities may monitoring recommendations or the cost/benefit ratio of effectiveness simply continue while the seal is within otherwise ensure that this exposure is versus the trace of dog scent potentially the monitoring buffer, and that the final measured. attracting polar bears to actively used rule should ensure a sufficient buffer Response: Hilcorp’s Acoustic ice seal structures, but more relevant is area to avoid disturbance to seals during Monitoring Plan, dated December 24, the fact that there are currently no the pre-March 1 construction season. 2018, and their 4MP, dated February 12, trained dogs available. NMFS Response: The 150 ft distance 2019, and made available during the considered this and other new referenced by AWL refers to a public comment period, explain that the information obtained during ice road monitoring area. As described in recorder arrangement will be configured investigations from Northstar to develop response to comment #10, corrections each year based on the anticipated a suite of practicable mitigation and clarifications were made to the activities for that season and the measures to implement during ice road original BMPs and proposed rule to modelled sound propagation estimates construction for the Liberty project. clearly state that ice road construction for the relevant sources. This approach Those BMPs reflect the best available and maintenance activities will avoid a will provide for the most effective and science and minimize the impact of the seal structure by 150 m and a seal by 50 relevant monitoring each year, and work on ringed seals. Harassment that m on ice roads regardless of time of makes a set location unnecessary. The cannot be avoided through this year. Therefore, AWL’s assumption that recorders will be onsite during each comprehensive suite of mitigation activities could simply continue season and placed to provide data on measures may be authorized in LOAs without action prior to March 1 is ambient noise conditions and pursuant to this final rule. erroneous. The final rule and final ice characterize or verify the long-range Comment 24: AWL states that the road BMPs clarify this requirement propagation of sounds emanating from BMPs assume that seals will avoid the Comment 26: AWL is concerned that the LDPI during construction activities area on their own because of the after March 1, the BMPs call for daytime at an offshore location. As such, AWL’s construction activity, and NMFS should observation of seals and lairs every concern, as well as the peer-review support this assumption with reference other day when activity occurs on ice panel’s recommendation, are satisfied to monitoring and reporting information roads or trails and, unlike other because the recorders will provide long- related to the extensive previous ice observers noted in Hilcorp’s Marine term data sets in both the near and far road construction and use in seal habitat Mammal Monitoring and Mitigation fields. on the North Slope. plan (4M plan), these observers need not Comment 23: AWL notes that the Response: Although AWL did not be certified Protected Species Observers proposed rule requires implementation provide the language in the ice road (PSOs). AWL believe it is unclear why of BMPs to avoid and minimize ice seal BMPs to which they are referring, we PSO certification is not required and and habitat disturbance during ice road assume it is the statement, ‘‘Prior to why the observations only occur every construction, maintenance, and use. establishing lairs, ringed seals are other operation day instead of all days AWL claims, however, that the ice road mobile and are expected to generally of operation. AWL asserts the final rule BMPs fail to reflect the best available avoid the ice roads/trails and and BMPs should require observers to science and information and thus may construction activities.’’ In our proposed be PSO certified and present on all days not minimize the impacts of these rule (84 FR 24939; May 29, 2019), we of operation, or explain why this would activities on seals. discuss how ice seals utilize and may be not constitute a best practice. Response: The ice road BMPs, attracted to ice roads as the construction Response: Prior to the initiation of sea developed in consultation with Hilcorp of such roads tends to create cracks in ice road- and ice trail-related activities, and NMFS’ leading ice seal biologist, the ice along the edges. Cracks and project personnel associated with ice are specifically designed to minimize thinned ice, occurring either naturally road construction, maintenance, use or impacts to ringed seals. NMFS Office of or adjacent to ice roads, are easily decommissioning (i.e., ice road Protected Resources (OPR) and Alaska exploitable habitat for ringed seals. We construction workers, surveyors, Region (AKR) closely coordinated with supplement that discussion with data security personnel, and the the leading ice seal experts in our from Williams et al. (2006), which environmental team) will receive annual Alaska Fisheries Science Center (AFSC) compiles monitoring efforts during training on mitigation and monitoring to better understand the new, best construction and operation of the measures. In addition to mitigation and available science regarding how ice Northstar drilling island and the two monitoring measures, annual training seals use ice roads (e.g., how ice road recent ice seal encounters on ice roads includes: Ringed Seal Identification and construction can lead to fissures recently reported (voluntarily) by Brief Life History; Physical Environment conducive to constructing lairs on the Hilcorp and another industry company. (habitat characteristics and how to outer edges, general distances from the While NMFS has determined that the potentially identify habitat); Ringed Seal shoulder where lairs have been found) mitigation and monitoring measures Use in the Ice Road Region (timing, and detection methods. During contained in the BMP document location, habitat use, birthing lairs, development of the BMPs, we support our least practicable adverse breathing holes, basking, etc.); Potential investigated detection methods such as impact determination and has included Effects of Disturbance; Importance of the previous requirement to use them in these final regulations, the BMP Lairs, Breathing Holes and Basking to specially trained dogs and infrared (IR) document itself was drafted by Hilcorp, Ringed Seals; and a Summary of imagery. AFSC found that IR failed to and NMFS’ does not necessarily support Regulatory Requirements (i.e., MMPA detect seals in lairs. AFSC also every statement contained therein. and the Endangered Species Act (ESA)).

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Monitoring for ringed seals along the ice disclosure and analysis of Liberty’s throughout the document relative to road is a considerably simpler task than contribution to greenhouse gas pollution each resources and are summarized in observing for several species of seal in and climate change; (2) accurately and Table ES–1. The EIS does not discuss open water and this training will be thoroughly assess the likelihood and Hilcorp’s previous environmental sufficient to ensure that any seals within potential impacts of a significant oil compliance record; however, as the monitoring zone are recorded. In spill; (3) take a hard look at Liberty’s described in response to Comment #38, 2018, Hilcorp reported zero seal impacts on marine mammals and other this is beyond the scope of NMFS’ observations along the Northstar ice species; (4) adequately consider the action and inclusion in the EIS is not roads. To ensure safe travel, it is project’s effects on subsistence and its required for us to adopt the EIS for important to limit the number of disproportionate effect on purposes of issuing the regulations. vehicles traveling ice roads. Therefore, environmental justice communities; (5) Comment 29: AWL notes that NMFS for safety reasons and due to the low consider the cumulative effects of the considered new information provided likelihood of observing seals within the project in combination with all past, by Hilcorp that was not covered in the monitoring zone, conducting monitoring present, and reasonably foreseeable EIS. Specifically, on February 4, 2019, every other day will be sufficient to actions; and (6) disclose and consider Hilcorp provided ‘‘details on a record seals that may occur. In addition, Hilcorp’s track record of spills, previously undescribed component of as described in response to the next accidents, and regulatory violations. the project (installation of foundation comment, the dedicated observer is not Response: Section 2.2.11 of BOEM’s piles in the interior of the LDPI), and revised marine mammal density and the single source of reporting. Any seals Liberty Drilling and Production Plan EIS estimated take numbers.’’ AWL believes observed by drivers or workers, both clearly explains NMFS’ permitting role this additional information could affect day and night, are also required to in the Liberty project. The EIS states the agency’s analysis of the effects of the report the sighting to Hilcorp’s that given the widespread presence of project on marine mammals. environmental coordinator. several species of marine mammals in Comment 27: AWL asserts that seal Response: Foundation piles are the Beaufort Sea and the nature of oil lairs are difficult to detect, and NMFS described in BOEM’s EIS on pages 2–12 and gas production facility construction should require more vigorous efforts to and, as described in the proposed rule, and, potentially, operational activities, detect them, for example, that the BMPs the installation of foundation piles was there is the potential that some activities should require operators to employ found to result in very low noise levels, associated with Hilcorp’s LDPI may trained dogs or thermal imaging equivalent to driving conductor pipe techniques along the ice road routes to result in the take of marine mammals piles. Given these piles are driven on better support a conclusion that there incidental to the introduction of noise the interior of the island, there is no are no lairs present. AWL states the into the marine environment and ice potential for Level A harassment and Open Water Review Panel specifically road construction activities. Because of the Level B harassment isopleth extends recommended that NMFS investigate the potential for these activities to take only 315 m from the island. Therefore, the viability of these and other potential marine mammals, Hilcorp has the potential for take is very limited. detection methods. AWL asserts submitted an Incidental Take The EIS does not contain take estimates, employing observers working only in Authorization (ITA) application to and therefore, despite specific details daylight hours, only after March 1, only NMFS. NMFS provided extensive and the very small amount of additional every other day of operation, and only comments to BOEM on the draft and take for foundation pile installation equipped with their eyesight does not final EIS to strengthen their analysis of being absent from the EIS, the appear to constitute a best practice. marine mammal impacts in information would not alter the analysis Response: See response to Comment consideration of Hilcorp’s request for in the EIS. Requirements under NEPA 23 regarding the use of trained dogs and the authorization to take marine are separate from those required to issue thermal imaging as detection methods. mammals incidental to construction and an MMPA incidental take authorization, As for the use of observers every other operation of the LDPI. The EIS describes and NMFS has satisfied the day during daylight hours, NMFS NMFS’ action and no action requirements for both statutes in issuing believes this is an appropriate amount alternatives, which include issuing the this final rule. of coverage because the dedicated requested incidental take authorization Comment 30: AWL asserts that observer is not the single source of and denying the requested incidental BOEM’s FEIS does not consider reporting. Any seals observed by drivers take authorization, respectively. As for alternatives to NMFS’s proposed rule. or workers, both day and night, are also the six topical areas AWL raises, the AWL believes NMFS must consider a no required to report the sighting to FEIS addresses all of these. The bulk of action alternative, under which NMFS Hilcorp’s environmental coordinator. In the EIS is dedicated to discussing the would deny Hilcorp’s request for addition, we provide subsequent impacts on the human environment incidental take authorization, as well as justification of adequate monitoring in from small and very large oil spills alternatives that would further reduce response to comment #26 above. (Chapter 4), and Chapter 5 is dedicated harm to marine mammals, such as Observers would be equipped with solely to a cumulative effects prohibiting construction activity during binoculars so AWL is incorrect in their assessment. Greenhouse gases emission the open-water season, requiring assertion that only the naked eye would from the LDPI are quantified in Chapter Hilcorp to cease pile driving if an ice be used. 4 (e.g., Table 4–6 in BOEM’s EIS) and seal is seen in the area, requiring the use Comment 28: AWL believes BOEM’s climate change impacts on marine of long-term acoustic monitors, or FEIS is inadequate in numerous mammals are addressed in Chapter 4 requiring all vessels associated with the respects, does not fully cover the scope (e.g., Section 3.2.4.6.6) and Chapter 5 Liberty project to travel at no more than of NMFS’s proposed rule, and does not (e.g., section 5.1.3). The impacts of the 10 knots. consider alternatives to the proposed LDPI on marine mammals is also Response: As described above, rule, and therefore, NMFS cannot satisfy thoroughly discussed in Chapter 4 BOEM’s FEIS included NMFS’ action its obligations under NEPA by adopting which includes both construction and and no action alternatives, which are, BOEM’s FEIS. They assert that the EIS operation analysis. Subsistence uses and respectively, to issue the requested fails to (1) provide meaningful potential impacts are described incidental take authorization, with

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required mitigation measures, or to deny and pile- driving by August 1, annually, and manage the project. Their concerns the requested incidental take and not resume until the end of the stem from an incident earlier this year authorization. Both the EIS and/or official hunt season or if subsistence when Hilcorp’s underwater gas pipeline NMFS’ regulations include a suite of users have met the whale quota. This in Alaska’s Cook Inlet leaked for nearly mitigation measures to reduce adverse mitigation measure is included in the four months because the company said impacts to marine mammals, including final rule. the presence of sea ice prevented its no pile driving just before and during Comment 34: The AEWC commended repair. the bowhead whale hunt, long-term Hilcorp for keeping the AEWC informed Response: NMFS’ authority and these acoustic monitoring, and vessel speed throughout their planning process for final regulations allow for issuance of a restrictions where appropriate. These Liberty, their commitment to continuing Letter of Authorization to authorize measures were included in both the their participation in the Open Water takes of marine mammals incidental to FEIS and the final rule. Hilcorp will also Season Conflict Avoidance Agreement island construction and operation. minimize disturbance to ice seals (CAA) and the Annual CAA Process, BOEM and BSEE have authority over through the incorporation of mitigation and expressed their appreciation for the permitting of the project and measures such as ramp-up. We have Hilcorp’s work with the AEWC, the Hilcorp’s oil spill response plan, authorized Level A harassment and community of Nuiqsut, and the North respectively; therefore, this comment is Level B harassment for ice seals, Slope Borough. beyond the scope of NMFS’s authority however; therefore, Hilcorp is not Response: NMFS will work with under this rulemaking. required to cease pile driving should a Hilcorp throughout the life of the NMFS notes, however, that Cook Inlet seal be observed in the area, as regulations to support communication presents different ice conditions than suggested by the AWL. and coordination with the AEWC, the the Arctic where the Liberty project is Comment 31: The NSB requested the community of Nuiqst, and the NSB to be located. Ice roads are not regulations require Hilcorp to continues. constructed in Cook Inlet which limited participate in the annual in-person peer Comment 35: Several members of the response capabilities. However, in the review sponsored by NMFS for public opposed drilling due to the Arctic, ice roads and thick sea ice allow companies operating in areas subject to potential for an oil spill. for other means of spill response. As marine mammal subsistence harvest and Response: NMFS’ authority and these analyzed by BOEM, the effectiveness of to annually meet with Borough final regulations allow for issuance of a cleanup operations is highly dependent representatives to discuss the results Letter of Authorization to authorize on volume, location, and time of year in and findings from Hilcorp’s Marine takes of marine mammals incidental to Alaska. A small spill occurring during Mammal Mitigation and Monitoring island construction and operation. winter on solid ice and snow can be Plan. The AEWC similarly NMFS has no authority over whether readily cleaned up using conventional recommended findings from the this project, or any other drilling, is land-based equipment such as shovels, mitigation and monitoring plan be permitted. BOEM is the entity snow blowers, and bulldozers, resulting reviewed annually by NMFS. responsible for deciding whether to in a near 100% recovery rate. In the Response: Hilcorp is required to permit the project. event of a winter blowout, response submit annual monitoring reports to Comment 36: One commenter was methods would be similar to those NMFS in a timely manner. NMFS concerned about polar bear impacts and employed on shore. Instead of using conducts peer-review panels when discussed incidental take permit boats and skimmers to mount a activities are proposed in Arctic waters, requirements for this species. response, responders would utilize and whether the meetings are in-person Response: Polar bears, and any permit front-end loaders, bulldozers, vacuum or virtual depends on the level of related to the taking of polar bears under trucks, dump trucks, and front-end expected activity necessitating MMPA the MMPA or ESA, fall within the mounted ice trimmers to collect and authorization and the availability of jurisdiction of the U.S. Fish and remove the oil contaminated snow and travel resources for NMFS staff. For the Wildlife Service. Therefore, this ice. To facilitate response, ice roads LDPI, NMFS will provide the NSB and comment is outside NMFS’ authority would have to be constructed to the public all of Hilcorp’s annual and the scope of the rulemaking. adequately support the equipment and monitoring reports as well as any Comment 37: One commenter urged maintain safe operating conditions. In interim reports (e.g., initial acoustic review of the drilling plan for oil spill addition to heavy equipment, response monitoring reports) for their review. protection and earthquake contingencies operations would also include the use of Throughout the life of the regulations, and indicated that if a Deepwater snow blowers, shovels, and snow NMFS will engage with Hilcorp as well Horizon event occurred in the Beaufort machines/ATVs with sleds to collect as the NSB to address any deficiencies Sea, it would take decades to recover. and remove the oil. In situ burning or issues with those reports. In addition, Response: NMFS remains interested would also be utilized to remove oil Hilcorp has committed to participating in reviewing Hilcorp’s oil spill response from the ice surface. A release in solid in the annual peer-review panel, of plan and, as indicated on page 24946 of ice conditions is easier to respond to which NSB is an invitee, to discuss data the proposed rule, we have proactively because ice contains oil, limiting its collected during marine mammal and engaged with BSEE (the Federal agency dispersal into the marine environment. acoustic monitoring as a means to carry charged with reviewing and approving Comment 39: One commenter out this coordination. Hilcorp’s oil spill response plan) and recommended the LDPI project should Comment 33: The NSB recommends recommended measures to be included not be implemented until further the regulations prohibit any pile driving in the oil spill response plan. BSEE has technology can promise this project will during, and two weeks prior to, the indicated that NMFS will have an not impact the ocean negatively. whale hunting season in Nuiqsut, unless opportunity to review the oil spill Response: Under the MMPA, NMFS Hilcorp can conclusively demonstrate response plan once they receive all the must evaluate each request for an that such vibratory pile driving does not information necessary to move forward incidental take authorization on the alter the migratory paths of bowheads. with their process. merits of the application and the Response: Per the BOEM permit Comment 38: One commenter had specified activity. Here, NMFS is not conditions, Hilcorp shall cease all pipe- concerns about Hilcorp’s ability to build authorizing the take of marine mammals

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from activities other than island of beluga whales in Cook Inlet to a Description of Marine Mammals in the construction and operation for 5 years. robust, far-ranging, non-ESA listed, Area of the Specified Activity NMFS found, through a robust analysis stock in the Arctic. The final rule does Sections 3 and 4 of the application of the potential effects of these activities not authorize any mortality or serious summarize available information on marine mammals and their habitat, injury of beluga whales incidental to the regarding status and trends, distribution that: The specified activities would have construction and operations of the LDPI and habitat preferences, and behavior a negligible impact on the affected and NMFS does not believe any would and life history of the potentially species and stocks and would not have potentially occur. The population of the affected species. Additional information an unmitigable adverse impact on Beaufort Sea stock of beluga whales is regarding population trends and threats subsistence uses, and; that the estimated at 39,258 individuals may be found in NMFS’ Stock prescribed mitigation measures would (compared to the Cook Inlet beluga Assessment Reports (SARs; https:// effect the least practicable adverse whale stock of 327 whales) and has a www.fisheries.noaa.gov/national/ impact on such species and stocks. much greater habitat range than Cook marine-mammal-protection/marine- NMFS has no authority to delay Inlet belugas. Any harassment to issuance of an ITA if the findings mammal-stock-assessments), and more belugas in Foggy Island Bay incidental general information about these species described above are made. to pile driving or operations (e.g., Comment 40: One commenter (e.g., physical and behavioral recommended the project should not be drilling) would be very limited, as pile descriptions) may be found on NMFS’ allowed to proceed unless it does not driving would primarily occur during website (www.nmfs.noaa.gov/pr/ harm or kill marine life. the ice-covered months when beluga species/mammals/). Additional Response: NMFS does not issue whales are not present and, if any information may be found in BOEM’s permits to construct and operate the belugas are present during any pile Final EIS for the project which is LDPI (i.e., allow or not allow the driving or drilling activity, that activity available online at https:// underlying activity). NMFS issues would only impact a very small number www.boem.gov/Hilcorp-Liberty/. authorization to take marine mammals of whales, as Foggy Island Bay is not Table 2 lists all species with expected incidental to the specified activity. The heavily used by cetaceans, including potential for occurrence in Foggy Island MMPA prohibits, with certain beluga whales. Bay and the surrounding Beaufort Sea exceptions, the take of marine Comment 42: One commenter and summarizes information related to mammals. However, the MMPA allows, believed Hilcorp’s activity may also the population or stock, including upon request, the incidental, but not affect the salmon populations upon regulatory status under the MMPA and intentional, taking of small numbers of which endangered whales depend and ESA and potential biological removal marine mammals by U.S. citizens who that allowing Hilcorp to take even a (PBR), where known. For taxonomy, we engage in a specified activity within a small number of protected animals will follow Committee on Taxonomy (2016). specified geographic region. Hilcorp result in a psychological acceptance of PBR is defined by the MMPA as the maximum number of animals, not applied for an incidental take harming these creatures and thus lead to including natural mortalities, that may authorization in accordance with the even more animals being harmed. MMPA and its implementing be removed from a marine mammal regulations and NMFS followed the Response: The potential impacts to stock while allowing that stock to reach required process in promulgating marine mammal prey from the LDPI are or maintain its optimum sustainable incidental take regulations. evaluated in a number of assessments population (as described in NMFS’ Accordingly, NMFS is issuing including the proposed rule, ESA SARs). PBR and annual serious injury regulations and will issue an LOA section 7 consultation completed for and mortality from anthropogenic authorizing the take of marine mammals issuance of the rule (see NMFS sources are included here as gross incidental to the construction and Biological Opinion issued August 30, indicators of the status of the species operation of the LDPI in accordance 2019), and BOEM’s EIS. Those and other threats. with the MMPA. assessments determined the LDPI would Marine mammal abundance estimates Comment 41: One commenter was have a minimal impact on marine presented in this document represent concerned that allowing Hilcorp to mammal prey, given, among other the total number of individuals that harass and harm belugas, possibly things, the LDPI’s location outside make up a given stock or the total resulting in their deaths, would critical foraging habitats and number estimated within a particular decrease the beluga population in that implementation of measures designed to study or survey area. NMFS’ stock area, and that this population would reduce impacts to marine mammals and abundance estimates for most species also not be able to recover losses. The their habitat, including prey. The represent the total estimate of commenter referred to the Cook Inlet regulations, issued pursuant to the individuals within the geographic area, beluga whale population status and lack MMPA, allow the taking of marine if known, that comprises that stock. For of recovery after subsistence hunting mammals incidental to the specified some species, this geographic area may was restricted as justification for the activity. NMFS evaluates and, if extend beyond U.S. waters. All managed comment. appropriate, issues an ITA based on the stocks in this region are assessed in Response: The commenter believes information contained within an ITA NMFS’ U.S. 2017 SAR for Alaska (Muto the specified activities would result in application and the best available et al., 2018). All values presented in beluga whale mortality and science. The take authorized is limited Table 2 are the most recent available at inappropriately compares a very small, to the 5-year period the regulations are the time of publication and are available isolated and critically endangered stock effective. in the 2017 SARs (Muto et al., 2018).

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TABLE 2—MARINE MAMMALS WITH EXPECTED POTENTIAL OCCURRENCE IN BEAUFORT SEA, ALASKA

ESA/ MMPA Stock abundance Annual Common name Scientific name Stock status; (CV, N , most recent PBR min M/SI 3 strategic abundance survey) 2 (Y/N) 1

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Eschrichtiidae: Gray whale ...... Eschrichtius robustus ...... Eastern North Pacific ..... -;N 20,990 (0.05, 20,125, 2011) ..... 624 132 Family Balaenidae: Bowhead whale ...... Balaena mysticetus ...... Western Arctic ...... E/D; Y 16,820 (0.052, 16,100, 2011) ... 161 46 Humpback whale ...... Megaptera novaeangliae) ...... Central North Pacific E/D; Y 10,103 (0.3, 7,891, 2006) ...... 83 26 Stock. Minke whale ...... Alaska ...... -;N unk ...... undet. 0 Fin whale ...... Northeast Pacific ...... E/D; Y 3,168 (0.26, 2,554, 2013)6 ...... 5.1 0.6

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Delphinidae: Beluga whale ...... Delphinapterus leucas ...... Beaufort Sea ...... -; N 39,258 (0.229, N/A, 1992) ...... Und. 139 Eastern Chukchi ...... -; N 20,752 (0.70, 12,194, 2012) ..... 244 67 Killer whale ...... Orcinus orcas ...... Eastern North Pacific -;N 587 (n/a, 587, 2012) ...... 5.9 0 Gulf of Alaska, Aleu- tian Islands, and Ber- ing Sea Transient.

Order Carnivora—Superfamily Pinnipedia

Family Otariidae (eared seals and sea lions): Steller sea lion ...... Eumatopias jubatus ...... Eastern U.S ...... -; N 41,638 (-, 41,638, 2015) ...... 2,498 108 Western U.S ...... E/D;Y 53,303 (-, 53,303, 2016) ...... 320 241 Family Phocidae (earless seals): Ringed Seal ...... Pusa hispida ...... Alaska ...... T, D; Y 170,000 (-, 170,000, 2012) 4 ..... Und. 1,054 Bearded seal ...... Erignathus barbatus ...... Alaska ...... T, D; Y 299,174 (-, 273,676) 5 ...... Und. 391 Spotted seal ...... Phoca largha ...... Alaska ...... 423,625 (-, 423,237, 2013) ...... 12,697 329 Ribbon seal ...... Histriophoca fasciata ...... Alaska ...... 184,000 (-, 163,086, 2013) ...... 9,785 3.9 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: www.nmfs.noaa.gov/pr/sars/. CV is the 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., subsistence use, 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 The population provided here was derived using a very limited sub-sample of the data collected from the U.S. portion of the Bering Sea in 2012 (Conn et al., 2014). 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., 2018). Reli- able estimates of abundance are not available for the Chukchi and Beaufort seas (Muto et al., 2018). 5 In the spring of 2012 and 2013, surveys were conducted in the Bering Sea and the Sea of Okhotsk; these data do not include seals in the Chukchi and Beaufort Seas at the time of the survey. 6 NBEST, NMIN, and PBR have been calculated for this stock; however, important caveats exist. See Stock Assessment Report text for details. Note Italicized species are not authorized to be taken.

All species that could potentially occur and Wildlife Service and is not authorized to be taken by Hilcorp’s in the Beaufort Sea are included in considered further in this document. specified activities from these Table 2. However, the temporal and/or On October 11, 2016, NOAA released documents and provide a summary and spatial occurrence of minke, fin, the Final Environmental Impact any relevant updates on species status humpback whales, killer whales, Statement (FEIS) for the Effects of Oil here. narwhals, harbor porpoises, and ribbon and Gas Activities in the Arctic Ocean Bowhead Whale seals are such that a take is not expected (81 FR 72780, October 21, 2016) to occur, and they are not discussed regarding geological and geophysical The only bowhead whale stock found further beyond the explanation (i.e., seismic) activities, ancillary within U.S. waters is the Western Arctic provided here. These species regularly activities, and exploratory drilling. The stock, also known as the Bering- occur in the Chukchi Sea, but not as Final EIS may be found at https:// Chukchi-Beaufort stock (Rugh et al., commonly in the Beaufort Sea. www.fisheries.noaa.gov/national/ 2003) or Bering Sea stock (Burns et al., Narwhals, Steller sea lions, and hooded marine-mammal-protection/ 1993). The majority of the Western seals are considered extralimital to the environmental-impact-statement-eis- Arctic stock migrates annually from proposed action area. These species effects-oil-and-gas-activities. Although wintering areas (December to March) in could occur in the Beaufort Sea, but are no seismic activities are proposed by the northern Bering Sea, through the either uncommon or extralimital east of Hilcorp, the EIS contains detailed Chukchi Sea in the spring (April Barrow (located in the Foggy Island Bay information on marine mammal species through May), to the eastern Beaufort area and surveys within the Bay have proposed to be potentially taken by Sea where they spend much of the revealed zero sightings). Hilcorp’s specified activities. More summer (June through early to mid- In addition, the polar bear may be recently, BOEM released a final EIS on October), before returning again to the found in Foggy Island Bay. However, the Liberty Project. We incorporate by Bering Sea in the fall (September this species is managed by the U.S. Fish reference the information on the species through December) to overwinter

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(Braham et al., 1980, Moore and Reeves the Beaufort Sea, bowhead whales identified nine BIAs. The spring (April– 1993, Quakenbush et al., 2010a, Citta et generally select shelf waters (Citta et al., May) migratory corridor BIA for al., 2015). Some bowhead whales are 2015). In winter in the Bering Sea, bowheads is far offshore of the LDPI but found in the western Beaufort, Chukchi, bowhead whales often use areas with within the transit portion of the action and Bering seas in summer, and these ∼100 percent sea-ice cover, even when area, while the fall (September–October) are thought to be a part of the expanding polynyas are available (Quakenbush et migratory corridor BIA (western Western Arctic stock (Rugh et al., 2003; al., 2010a, Citta et al., 2015). Beaufort on and north of the shelf) for Clarke et al., 2013, 2014, 2015; Citta et From 2006 through 2014, median bowheads is further inshore and closer al., 2015). The most recent population distance of bowhead whales from shore to the LDPI. Clarke et al. (2015) also parameters (e.g., abundance, PBR) of was 23.6 km (14.7 mi) in the East Region identified four BIAs for bowheads that western Arctic bowhead whales are and 24.2 km (15.0 mi) in the West are important for reproduction and provided in Table 2. Region during previous low-ice years, encompassed areas where the majority Bowhead whale distribution in the with annual median distances ranging of bowhead whales identified as calves Beaufort Sea during summer-fall has from as close as 6.3 km (3.9 mi) in 2009 were observed each season; none of been studied by aerial surveys through to 37.6 km (23.4 mi) in 2013 (Clarke et these reproductive BIAs overlap with the Bowhead Whale Aerial Survey al., 2015b). Median depth of sightings the LDPI, but they may be encompassed Project (BWASP). This project was during previous low-ice years was 39 m in indirect areas such as vessel transit funded or contracted by the Minerals (128 ft) in the East Region and 21 m (69 routes. Finally, three bowhead feeding Management Service (MMS)/Bureau of ft) in the West Region; in 2014, median BIAs were identified. Again, there is no Ocean Energy Management (BOEM) and depth of on-transect sightings was 20 m spatial overlap of the activity area with Bureau of Land Management (BLM) (66 ft) and 19 m (62 ft), respectively these BIAs. annually from 1979 to 2010. The focus (Clarke et al., 2015b). In September and From July 8, 2008, through August 25, of the BWASP aerial surveys was the October 2014, bowhead whales in the 2008, BPXA conducted a 3D seismic autumn migration of bowhead whales East Region of the study area were survey in the Liberty Prospect, Beaufort through the Alaskan Beaufort Sea, sighted in shallower water and closer to Sea. During the August survey, a mixed- although data were collected on all shore than in previous years of light sea species group of whales was observed in marine mammals sighted. The NMFS ice cover; in the West Region, bowhead one sighting near the barrier islands that National Marine Mammal Laboratory sightings in fall 2014 were in shallower included bowhead and gray whales (NMML) began coordinating BWASP in water than in previous light ice years, (Aerts et al., 2008). This is the only 2007, with funding from MMS. In 2011, but the distance from shore did not known survey sighting of bowhead an Interagency Agreement between the differ (Clarke et al., 2015b). Behaviors whales within Foggy Island Bay despite BOEM and NMML combined BWASP included milling, swimming, and industry surveys occurring during the with COMIDA under the auspices of a feeding, to a lesser degree. The highest open water season in 2010, 2014, and single survey called Aerial Surveys of numbers of sightings were in the central 2015, and NMFS aerial surveys flown Arctic Marine Mammals (ASAMM) Beaufort Sea and east of Point Barrow. inside Foggy Island Bay in 2016 and (Clarke et al., 2012); both studies are Overall, the most shoreward edge of the 2017. funded by BOEM. In September to mid- bowhead migratory corridor for Alaska Natives have been taking October, bowheads begin their western bowhead extends approximately 40 km bowhead whales for subsistence migration out of the Canadian Beaufort (25 mi) north from the barrier islands, purposes for at least 2,000 years Sea to the Chukchi Sea (Figure 3.2–10). which are located approximately 7 km (Marquette and Bockstoce, 1980, Stoker Most westward travel across the (4 mi) north of Liberty Project. The and Krupnik, 1993). Subsistence takes Beaufort Sea by tagged whales was over closest approach of a tagged whale have been regulated by a quota system the shelf, within 100 km (62 mi) of occurred in August 2016, when it came under the authority of the IWC since shore, although a few whales traveled within 16 km of the proposed LDPI 1977. Alaska Native subsistence farther offshore (Quakenbush et al., (Quakenbush, 2018). hunters, primarily from 11 Alaska 2012). Historically, there have been few communities, take approximately 0.1– During winter and spring, bowhead spring, summer, or autumn observations 0.5 percent of the population per annum whales are closely associated with sea of bowheads in larger bays such as (Philo et al., 1993, Suydam et al., 2011). ice (Moore and Reeves 1993, Camden, Prudhoe, and Harrison Bays, The average annual subsistence take (by Quakenbush et al., 2010a, Citta et al., although some groups or individuals Natives of Alaska, Russia, and Canada) 2015). The bowhead whale spring have occasionally been observed feeding during the 5-year period from 2011 migration follows fractures in the sea ice around the periphery of or, less through 2015 is 43 landed bowhead around the coast of Alaska, generally in commonly, inside the bays as migration whales (Muto et al., 2018). the shear zone between the shorefast ice demands and feeding opportunities and the mobile pack ice. During permit. Observations indicate that Gray Whale summer, most of the population is in juvenile, sub-adult, and cow-calf pairs The eastern North Pacific population relatively ice-free waters in the of bowheads are the individuals most of gray whales migrates along the coasts southeastern Beaufort Sea (Citta et al., frequently observed in bays and of eastern Siberia, North America, and 2015), an area often exposed to nearshore areas of the Beaufort, while Mexico (Allen and Angliss 2010; Weller industrial activity related to petroleum more competitive whales are found in et al., 2002), and its population size has exploration (e.g., Richardson et al., the Canadian Beaufort and Barrow been steadily increasing, potentially 1987, Davies, 1997). Summer aerial Canyon, as well as deeper offshore reaching carrying capacity (Allen and surveys conducted in the western waters (Clarke et al., 2011b, 2011c, Angliss, 2010, 2012). Abundance Beaufort Sea during July and August of 2011d, 2012, 2013, 2014, 2015b; Koski estimates will likely rise and fall in the 2012–2014 have had relatively high and Miller, 2009; Quakenbush et al., future as the population finds a balance sighting rates of bowhead whales, 2010). with the carrying-capacity of the including cows with calves and feeding Clarke et al. (2015) evaluated environment (Rugh et al., 2005). The animals (Clarke et al., 2013, 2014, 2015). biologically important areas (BIAs) for steadily increasing population During the autumn migration through bowheads in the U.S. Arctic region and abundance warranted delisting the

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eastern North Pacific gray whale stock open water season in 2010, 2014, and Migration through Alaskan waters lasted in 1994, as it was no longer considered 2015, and NMFS aerial surveys flown an average of 15 days. In 1997, all of the endangered or threatened under the inside Foggy Island Bay in 2016 and tagged belugas reached the western ESA (Rugh et al., 1999). A five-year 2017. Chukchi Sea (westward of 170° W) status review determined that the stock between September 15 and October 9. Beluga Whale was neither in danger of extinction nor Overall, the main fall migration corridor likely to become endangered in the Five beluga whale stocks are present for beluga whales is believed to be foreseeable future, thus, retaining the in Alaska, including the Cook Inlet, approximately 62 mi (100 km) north of non-threatened classification (Rugh et Bristol Bay, eastern Bering Sea, eastern the Project Area (Richard et al., 1997, al., 1999). Table 2 provides population Chukchi Sea, and Beaufort Sea stocks 2001). Both the spring (April–May) and parameters for this stock. (O’Corry-Crowe et al., 1997, Allen and fall (September–October) migratory The gray whale migration may be the Angliss, 2015). The eastern Chukchi and corridor BIAs for belugas are far north longest of any mammalian species. They Beaufort Sea stocks are thought to of the proposed action area because migrate over 8,000 to 10,000 km (5,000 overlap in the Beaufort Sea. Both stocks sightings of belugas from aerial surveys to 6,200 mi) between breeding lagoons are closely associated with open leads in the western Beaufort Sea are in Mexico and Arctic feeding areas each and polynyas in ice-covered regions primarily on the continental slope, with spring and fall (Rugh et al., 1999). The throughout Arctic and sub-Arctic waters relatively few sightings on the shelf southward migration out of the Chukchi of the Northern Hemisphere. (Clarke et al., 2015). No reproductive Sea generally begins during October and Distribution varies seasonally. Whales and feeding BIAs exist for belugas in the November, passing through Unimak from both the Beaufort Sea and eastern action area (Clarke et al., 2015). Pass in November and December, then Chukchi Sea stocks overwinter in the O’Corry et al. (2018) studied genetic continues along a coastal route to Baja Bering Sea. Belugas of the eastern marker sets in 1,647 beluga whales. The California (Rice et al., 1984). The Chukchi may winter in offshore, data set was from over 20 years and northward migration usually begins in although relatively shallow, waters of encompassed all of the whales’ major mid-February and continues through the western Bering Sea (Richard et al., coastal summering regions in the Pacific May (Rice et al. 1984). 2001), and the Beaufort Sea stock may Ocean. The genetic marker analysis of Gray whales are the most coastal of all winter in more nearshore waters of the the migrating whales revealed that the large whales and inhabit primarily northern Bering Sea (R. Suydam, pers. while both the wintering and inshore or shallow, offshore continental comm. 2012c). In the spring, belugas summering areas of the eastern Chukchi shelf waters (Jones and Swartz, 2009); migrate to coastal estuaries, bays, and Sea and eastern Beaufort Sea however, they are more common in the rivers. Annual migrations may cover subpopulations may overlap, the timing Chukchi than in the Beaufort Sea. thousands of kilometers (Allen and of spring migration differs such that the Throughout the summers of 2010 and Angliss, 2010, 2012a). whales hunted at coastal sites in 2011, gray whales regularly occurred in Satellite telemetry data from 23 Chukotka, the Bering Strait (i.e., small groups north of Point Barrow and whales tagged in Kaseguluk Lagoon in Diomede), and northwest Alaska (i.e., west of Barrow (George et al., 2011; 1998 through 2002 provided Point Hope) in the spring and off of Shelden et al., 2012). In 2011, there information on movements and Alaska’s Beaufort Sea coast in summer were no sightings of gray whales east of migrations of eastern Chukchi Sea were predominantly from the eastern Point Barrow during ASAMM aerial belugas. Animals initially traveled north Beaufort Sea population. Earlier genetic surveys (Clarke et al., 2012); however, and east into the northern Chukchi and investigations and recent telemetry they were observed east of Point western Beaufort seas after capture studies show that the spring migration Barrow, primarily in the vicinity of (Suydam et al., 2001, 2005). Movement of eastern Beaufort whales occurs earlier Barrow Canyon, from August to October patterns between July and September and through denser sea ice than eastern 2012 (Clarke et al., 2013). Gray whales vary by age and/or sex classes. Adult Chukchi Sea belugas. The discovery that were again observed east of Point males frequent deeper waters of the a few individual whales found at some Barrow in 2013, with all sightings in Beaufort Sea and Arctic Ocean (79–80° of these spring locations had a higher August except for one sighting in late N), where they remain throughout the likelihood of having eastern Chukchi October (Clarke et al., 2014). In 2014, summer. Immature males moved farther Sea ancestry or being of mixed-ancestry, sightings in the Beaufort Sea included a north than immature females but not as indicates that the Bering Strait region is few whales east of Point Barrow and one far north as adult males. All of the also an area where the stock mix in north of Cross Island near Prudhoe Bay belugas frequented water deeper than spring. Citta et al. (2016) also observed (Clarke et al., 2015b). Gray whales 200m (656 ft) along and beyond the that tagged eastern Beaufort Sea whales prefer shoal areas (<60 m (197 ft) deep) continental shelf break. Use of the migrated north in the spring through the with low (<7 percent) ice cover (Moore inshore waters within the Beaufort Sea Bering Strait earlier than the eastern and DeMaster, 1997). These areas Outer Continental Shelf lease sale area Chukchi belugas, so they had to pass provide habitat rich in gray whale prey was rare (Suydam et al., 2005). through the latter’s primary wintering (amphipods, decapods, and other Most information on the distribution area. Therefore, the eastern Chukchi invertebrates). and movements of belugas of the stock should not be present in the action From July 8, 2008 through August 25, Beaufort Sea stock was similarly derived area at any time in general, but 2008, BPXA conducted a 3D seismic using satellite tags. A total of 30 belugas especially during summer-late fall, survey in the Liberty Prospect, Beaufort were tagged in the Mackenzie River when the beluga exposures would be Sea. During the August survey, a mixed- Delta, Northwest Territories, Canada, anticipated for this project. Therefore, species group of whales was observed in during summer and autumn in 1993, we assume all belugas impacted by the one sighting near the barrier islands that 1995, and 1997 (Richard et al., 2001). proposed project are from the Beaufort included bowhead and gray whales Approximately half of the tagged whales Sea stock. (Aerts et al., 2008). This is the only traveled far offshore of the Alaskan Beluga whales were regularly sighted known survey sighting of gray whales coastal shelf, while the remainder during the September–October BWASP within Foggy Island Bay despite traveled on the shelf or near the and the more recent ASAMM aerial industry surveys occurring during the continental slope (Richard et al., 2001). surveys of the Alaska Beaufort Sea

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coast. Burns and Seaman (1985) suggest the foreseeable future (77 FR 76706). gene flow within the species (Kelly et al. that beluga whales are strongly However, on March 11, 2016, the U.S. 2010b). During April to early June (the associated with the ice fringe and that District Court for the District of Alaska reproductive period), radio-tagged the route of the autumn migration may issued a decision in a lawsuit ringed seals inhabiting shorefast ice be mainly determined by the location of challenging the listing of ringed seals near Prudhoe Bay had home range sizes the drift ice margin. Relatively few under the ESA (Alaska Oil and Gas generally less than 1,336 ac (500 ha) in beluga whales have been observed in Association et al. v. National Marine area (Kelly et al., 2005). Sub-adults, the nearshore areas (on the continental Fisheries Service, Case No. 4:14–cv– however, were not constrained by the shelf outside of the barrier islands) of 00029–RRB). The decision vacated need to defend territories or maintain Prudhoe Bay. However, groups of NMFS’ listing of Arctic ringed seals as birthing lairs and followed the belugas have been detected nearshore in a threatened species. However, On advancing ice southward to winter September (Clarke et al., 2011a) and February 12, 2018, in Alaska Oil & Gas along the Bering Sea ice edge where opportunistic sightings have been Association v. Ross, Case No. 16–35380, there may be enhanced feeding recorded from Northstar Island and the U.S. Court of Appeals for the Ninth opportunities and less exposure to Endicott. These sightings are part of the Circuit reversed the district court’s 2016 predation (Crawford et al., 2012). Sub- fall migration which generally occurs decision. As such, Arctic ringed seals adult ringed seals tagged in the farther offshore, although a few remain listed as threatened under the Canadian Beaufort Sea similarly sightings of a few individuals do occur ESA. undertook lengthy migrations across the closer to the shore and occasionally During winter and spring in the continental shelf of the Alaskan inside the barrier islands of Foggy United States, ringed seals are found Beaufort Sea into the Chukchi Sea, Island Bay. During the 2008 seismic throughout the Beaufort and Chukchi passing Point Barrow prior to freeze-up survey in Foggy Island Bay, three Seas; they occur in the Bering Sea as far in the central Chukchi Sea (Harwood et sightings of eight individuals were south as Bristol Bay in years of al., 2012). Factors most influencing seal observed at a location about 3 mi (4.8 extensive ice coverage. Most ringed densities during May through June in km) east of the Endicott Satellite seals that winter in the Bering and the central Beaufort Sea between Drilling Island (Aerts et al., 2008). In Chukchi Seas are thought to migrate Oliktok Point and Kaktovik were water 2014, during a BPXA 2D HR shallow northward in spring with the receding depth, distance to the fast ice edge, and geohazard survey in July and August, ice edge and spend summer in the pack ice deformation. The highest densities PSOs recorded eight groups of ice of the northern Chukchi and of seals were at depths of 5 to 35 m (16 approximately 19 individual beluga Beaufort Seas. to 144 ft) and on relatively flat ice near whales, five of which were juveniles Ringed seals are resident in the the fast ice edge (Frost et al., 2004). (Smultea et al., 2014). During the open Beaufort Sea year-round, and based on Sexual maturity in ringed seals varies water season between July 9 and July results of previous surveys in Foggy with population status. It can be as early 19, 2015, five sightings of belugas Island Bay (Aerts et al., 2008, Funk et as 3 years for both sexes and as late as occurred (Cate et al., 2015). Also in al., 2008, Savarese et al., 2010, Smultea 7 years for males and 9 years for 2015, acoustic monitoring was et al., 2014), and monitoring from females. Ringed seals breed annually, conducted in Foggy Island Bay between Northstar Island (Aerts and Richardson, with timing varying regionally. Mating July 6 and September 22, 2015, to 2009, 2010), they are expected to be the takes place while mature females are characterize ambient sound conditions most commonly occurring pinniped in still nursing their pups on the ice and and to determine the acoustic the action area year-round. is thought to occur under the ice near occurrence of marine mammals near Ringed seals are present in the birth lairs. In all subspecies except the Hilcorp’s Liberty prospect in Foggy nearshore and sea ice year-round, Okhotsk, females give birth to a single Island Bay (Frouin-Jouy et al., 2015). maintaining breathing holes and pup hidden from view within a snow- Two recorders collected underwater excavating subnivean lairs in the covered birth lair. Ringed seals are sound data before, during, and after landfast ice during the ice-covered unique in their use of these birth lairs. Hilcorp’s 2015 geohazard survey (July season. Ringed seals overwinter in the Pups learn how to dive shortly after 6–Sept. 22). Detected marine mammal landfast ice in and around the LDPI birth. Pups nurse for 5 to 9 weeks and, vocalizations included those from action area. There is some evidence when weaned, are four times their birth beluga whales and pinnipeds. Belugas indicating that ringed seal densities are weights. Ringed seal pups are more were detected on five days by passive- low in water depths of less than 3 m, aquatic than other ice seal pups and recorders inside the bay during the where landfast ice extending from the spend roughly half their time in the three-month survey period (Frouin-Jouy shoreline generally freezes to the sea water during the nursing period et al., 2015). During the 2016 and 2017 bottom in very shallow waters during (Lydersen and Hammill, 1993). Pups are ASAMM surveys flown inside Foggy the course of the winter (Moulton et al., normally weaned before the break-up of Island Bay, no belugas were observed. 2002a, Moulton et al., 2002b, spring ice. Beluga whales are the cetacean most Richardson and Williams, 2003). Ringed Ringed seals are an important likely to be encountered during the seals that breed on shorefast ice may resource for Alaska Native subsistence open-water season in Foggy Island Bay, either forage within 100 km (62.1 mi) of hunters. Approximately 64 Alaska albeit few in abundance. their breeding habitat or undertake Native communities in western and extensive foraging trips to more northern Alaska, from Bristol Bay to the Ringed Seal productive areas at distances of between Beaufort Sea, regularly harvest ice seals One of five Arctic ringed seal stocks, 100–1,000 kilometers (Kelly et al., (Ice Seal Committee, 2016). Based on the Alaska stock, occurs in U.S. waters. 2010b). Adult Arctic ringed seals show the harvest data from 12 Alaska Native The Arctic subspecies of ringed seals site fidelity, returning to the same communities, a minimum estimate of was listed as threatened under the ESA subnivean site after the foraging period the average annual harvest of ringed on December 28, 2012, primarily due to ends. Movements are limited during the seals in 2009–2013 is 1,050 seals (Muto expected impacts on the population ice-bound months, including the et al., 2016). from declines in sea and snow cover breeding season, which limits their Other sources of mortality include stemming from climate change within foraging activities and may minimize commercial fisheries and predation by

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marine and terrestrial predators bearded seal remain listed as threatened and Negri, 2006, Green et al., 2007, including polar bears, arctic foxes, under the ESA. Funk et al., 2008, Hauser et al., 2008, walrus, and killer whales. During 2010– For the purposes of MMPA stock Savarese et al., 2010, Clarke et al., 2011, 2014, incidental mortality and serious assessments, the Beringia DPS is Reiser et al., 2011). In addition, eight injury of ringed seals was reported in 4 considered the Alaska stock of the bearded seal sightings were documented of the 22 federally-regulated commercial bearded seal (Muto et al., 2016). The during shallow geohazard seismic and fisheries in Alaska monitored for Beringia DPS of the bearded seal seabed mapping surveys conducted in incidental mortality and serious injury includes all bearded seals from breeding July and August 2014 (Smultea et al., by fisheries observers: The Bering Sea/ populations in the Arctic Ocean and 2014). Frouin-Mouy et al. (2016) Aleutian Islands flatfish trawl, Bering adjacent seas in the Pacific Ocean conducted acoustic monitoring in Foggy Sea/Aleutian Islands pollock trawl, between 145° E longitude Island Bay from early July to late Bering Sea/Aleutian Islands Pacific cod (Novosibirskiye) in the East Siberian Sea September 2014, and detected pinniped trawl, and Bering Sea/Aleutian Islands and 130° W longitude in the Canadian vocalizations on 10 days via the Pacific cod longline fisheries (Muto et Beaufort Sea, except west of 157° W nearshore recorder and on 66 days via al., 2016). From May 1, 2011 to longitude in the Bering Sea and west of the recorder farther offshore. Although December 31, 2016, 657 seals, which the Kamchatka Peninsula (where the the majority of these detections were included 233 dead stranded seals, 179 Okhotsk DPS is found). They generally unidentified pinnipeds, bearded seal subsistence hunted seals, and 245 live prefer moving ice that produces natural vocalizations were positively identified seals, were stranded or sampled during openings and areas of open-water on two days (Frouin-Mouy et al., 2016). permitted health assessments studies. (Heptner et al., 1976, Fedoseev, 1984, Bearded seals are an important The species involved were primarily ice Nelson et al., 1984). They usually avoid resource for Alaska Native subsistence seals including ringed, bearded, ribbon, areas of continuous, thick, shorefast ice hunters. Approximately 64 Alaska and spotted seals in northern and and are rarely seen in the vicinity of Native communities in western and western Alaska. The investigation unbroken, heavy, drifting ice or large northern Alaska, from Bristol Bay to the identified that clinical signs were likely areas of multi-year ice (Fedoseev, 1965, Beaufort Sea, regularly harvest ice seals due to an abnormality of the molt, but Burns and Harbo, 1972, Burns and (Ice Seal Committee, 2016). However, a definitive cause for the abnormal molt Frost, 1979, Burns, 1981, Smith, 1981, during 2009–2013, only 12 of 64 coastal was not determined. Fedoseev, 1984, Nelson et al., 1984). communities were surveyed for bearded Spring surveys conducted in 1999– seals; and, of those communities, only 6 Bearded Seal 2000 along the Alaska coast indicate were surveyed for two or more that bearded seals are typically more consecutive years (Ice Seal Committee, Two subspecies of bearded seal have abundant 20–100 nautical miles (nmi) 2016). Based on the harvest data from been described: E. b. barbatus from the from shore than within 20 nmi from these 12 communities (Table 2), a Laptev Sea, Barents Sea, North Atlantic shore, except for high concentrations minimum estimate of the average Ocean, and Hudson Bay (Rice 1998); nearshore to the south of Kivalina annual harvest of bearded seals in 2009– and E. b. nauticus from the remaining (Bengtson et al., 2005; Simpkins et al., 2013 is 390 seals. Harvest surveys are portions of the Arctic Ocean and the 2003). designed to estimate harvest within the Bering and Okhotsk seas (Ognev, 1935, Although bearded seal vocalizations surveyed community, but because of Scheffer, 1958, Manning, 1974, Heptner (produced by adult males) have been differences in seal availability, cultural et al., 1976). On December 28, 2012, recorded nearly year-round in the hunting practices, and environmental NMFS listed two distinct population Beaufort Sea (MacIntyre et al., 2013, conditions, extrapolating harvest segments (DPSs) of the E. b. nauticus MacIntyre et al., 2015), most bearded numbers beyond that community is not subspecies of bearded seals—the seals overwinter in the Bering Sea. In appropriate (Muto et al., 2016). Beringia DPS and Okhotsk DPS—as addition, during late winter and early Of the 22 federally-regulated U.S. threatened under the ESA (77 FR spring, Foggy Island Bay is covered with commercial fisheries in Alaska 76740). Similar to ringed seals, the shorefast ice and the nearest lead monitored for incidental mortality and primary concern for these DPSs is the systems are at least several kilometers serious injury by fisheries observers, 12 ongoing and projected loss of sea-ice away, making the area unsuitable fisheries could potentially interact with cover stemming from climate change, habitat for bearded seals. Therefore, bearded seals. During 2010–2014, which is expected to pose a significant bearded seals are not expected to be incidental mortality and serious injury threat to the persistence of these seals in encountered in or near the LDPI portion of bearded seals occurred in three the foreseeable future (based on of the action area during this time (from fisheries: The Bering Sea/Aleutian projections through the end of the 21st late winter through early spring). Islands pollock trawl, Bering Sea/ century; Cameron et al., 2010). Similar During the open-water period, the Aleutian Islands flatfish trawl, and to ringed seals, the ESA listing of the Beaufort Sea likely supports fewer Bering Sea/Aleutian Islands Pacific cod Beringia and Okhotsk DPSs of bearded bearded seals than the Chukchi Sea trawl fisheries (Muto et al., 2016). This seal was challenged in the U.S. District because of the more extensive foraging species was also part of the Court for the District of Alaska, and on habitat available to bearded seals in the aforementioned 2011–2016 UME. July 25, 2014, the court vacated NMFS’ Chukchi Sea. In addition, as a result of listing of those DPSs of bearded seals as shallow waters, the sea floor in Foggy Spotted Seal threatened under the ESA (Alaska Oil Island Bay south of the barrier islands Spotted seals are distributed along the and Gas Association et al. v. Pritzker, is often scoured by ice, which limits the continental shelf of the Bering, Chukchi, Case No. 4:13–cv–00018–RRB). presence of bearded seal prey species. and Beaufort seas, and the Sea of However, the U.S. Court of Appeals for Nevertheless, aerial and vessel-based Okhotsk south to the western Sea of the Ninth Circuit reversed the district surveys associated with seismic Japan and northern Yellow Sea. Eight court’s 2016 decision on October 24, programs, barging, and government main areas of spotted seal breeding have 2016 (Alaska Oil & Gas Association v. surveys in this area between 2005 and been reported (Shaughnessy and Fay, Pritzer, Case No. 14–35806). As such, 2010 reported several bearded seal 1977) and Boveng et al. (2009) grouped the Beringia and Okhotsk DPSs of sightings (Green and Negri. 2005, Green those breeding areas into three DPSs:

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The Bering DPS, which includes annual harvest of spotted seals in 2010– estimated to occur between breeding areas in the Bering Sea and 2014 is 328 seals. approximately 7 (hertz) Hz and 35 kHz; portions of the East Siberian, Chukchi, From 2011–2015, incidental mortality • Mid-frequency cetaceans (larger and Beaufort seas that may be occupied and serious injury of spotted seals toothed whales, beaked whales, and outside the breeding period; the occurred in 2 of the 22 federally- most delphinids): Generalized hearing is Okhotsk DPS; and the Southern DPS, regulated U.S. commercial fisheries in estimated to occur between which includes spotted seals breeding Alaska monitored for incidental approximately 150 Hz and 160 kHz; • in the Yellow Sea and Peter the Great mortality and serious injury by fisheries High-frequency cetaceans Bay in the Sea of Japan. For the observers: The Bering Sea/Aleutian (porpoises, river dolphins, and members purposes of MMPA stock assessments, Islands flatfish trawl and Bering Sea/ of the genera Kogia and NMFS defines the Alaska stock of Aleutian Islands Pacific cod longline Cephalorhynchus; including two spotted seals to be that portion of the fisheries. In 2014, there was one report members of the genus Lagenorhynchus, Bering DPS in U.S. waters. of a mortality incidental to research on on the basis of recent echolocation data The distribution of spotted seals is the Alaska stock of spotted seals, and genetic data): Generalized hearing seasonally related to specific life-history resulting in a mean annual mortality is estimated to occur between events that can be broadly divided into and serious injury rate of 0.2 spotted approximately 275 Hz and 160 kHz; • Pinnipeds in water; Phocidae (true two periods: Late-fall through spring, seals from this stock in 2011–2015. This seals): functional hearing is estimated to when whelping, nursing, breeding, and species was also part of the occur between approximately 50 Hz to molting occur in association with the aforementioned 2011–2016 UME. presence of sea ice on which the seals 86 kHz; and Marine Mammal Hearing • Pinnipeds in water; Otariidae haul out, and summer through fall when (eared seals): functional hearing is seasonal sea ice has melted and most Hearing is the most important sensory estimated to occur between spotted seals use land for hauling out modality for marine mammals approximately 60 Hz and 39 kHz. (Boveng et al., 2009). Spotted seals are underwater, and exposure to For more detail concerning these most numerous in the Bering and anthropogenic sound can have groups and associated frequency ranges, Chukchi seas (Quakenbush, 1988), deleterious effects. To appropriately please see NMFS (2018) for a review of although small numbers do range into assess the potential effects of exposure available information. Six marine the Beaufort Sea during summer (Rugh to sound, it is necessary to understand mammal species (three cetacean and et al., 1997; Lowry et al., 1998). the frequency ranges marine mammals three phocid pinniped) have the At Northstar, few spotted seals have are able to hear. Current data indicate potential to co-occur with Hilcorp’s been observed. A total of 12 spotted that not all marine mammal species LDPI project. Of the three cetacean seals were positively identified near the have equal hearing capabilities (e.g., species that may be present, two are source-vessel during open-water seismic Richardson et al., 1995; Wartzok and classified as low-frequency cetaceans programs in the central Alaskan Ketten, 1999; Au and Hastings, 2008). (i.e., all mysticete species) and one is Beaufort Sea, generally occurring near To reflect this, Southall et al. (2007 and classified as a mid-frequency cetacean Northstar from 1996 to 2001 (Moulton 2019) recommended that marine (beluga whale). and Lawson, 2002). The number of mammals be divided into functional spotted seals observed per year ranged hearing groups based on directly Potential Effects of the Specified from zero (in 1998 and 2000) to four (in measured or estimated hearing ranges Activity on Marine Mammals and Their 1999). on the basis of available behavioral Habitat During a seismic survey in Foggy response data, audiograms derived This section includes a summary and Island Bay, PSOs recorded 18 pinniped using auditory evoked potential discussion of the ways that components sightings, of which one was confirmed techniques, anatomical modeling, and of the specified activity may impact as a spotted seal (Aerts et al., 2008). other data. Note that no direct marine mammals and their habitat. The Spotted seals were the second most measurements of hearing ability have Estimated Take by Incidental abundant seal species observed by PSOs been successfully completed for Harassment section later in this during Hilcorp’s geohazard surveys in mysticetes (i.e., low-frequency document includes a quantitative July–August 2014 (Smultea et al., 2014) cetaceans). Subsequently, NMFS (2016) analysis of the number of individuals and in July 2015 (Cate et al., 2015). described generalized hearing ranges for that are expected to be taken by this Given their seasonal distribution and these marine mammal hearing groups. activity. The Negligible Impact Analysis low numbers in the nearshore waters of Generalized hearing ranges were chosen and Determination section considers the the central Alaskan Beaufort Sea, no based on the approximately 65 dB content of this section, the Estimated spotted seals are expected in the action threshold from the normalized Take by Incidental Harassment section, area during late winter and spring, but composite audiograms, with an and the Mitigation section, to draw they could be present in low numbers exception for lower limits for low- conclusions regarding the likely impacts during the summer or fall. frequency cetaceans where the result of these activities on the reproductive Similar to other ice seal species, was deemed to be biologically success or survivorship of individuals spotted seals are an important resource implausible and the lower bound from and how those impacts on individuals for Alaska Native subsistence hunters. Southall et al. (2007) retained. The are likely to impact marine mammal Of the 12 communities (out of 64) functional groups and the associated species or stocks. surveyed during 2010–2014, the frequencies are indicated below (note The potential impacts of the LDPI on minimum annual spotted seal harvest that these frequency ranges correspond marine mammals involve both non- estimates totaled across 12 out of 64 to the range for the composite group, acoustic and acoustic effects. Potential user communities surveyed ranged from with the entire range not necessarily non-acoustic effects could result from 83 (in 2 communities) to 518 spotted reflecting the capabilities of every the physical presence of personnel, seals (in 10 communities). Based on the species within that group): structures and equipment, construction harvest data from these 12 communities, • Low-frequency cetaceans or maintenance activities, and the a minimum estimate of the average (mysticetes): Generalized hearing is occurrence of oil spills. The LDPI

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project also has the potential to result in easily in cracked or thin ice. The lair day and a half. This seal was seen in an mortality and serious injury of ringed will then be excavated (snow must be area with an estimated water depth of 6 seals via direct physical interaction on present for lair construction). Later in to 7 m (20 to 24 ft) (Hilcorp, 2018b). The ice roads and harass (by Level A the season, basking holes may be third reported incident occurred on harassment and Level B harassment) created from collapsed lairs or new April 28, 2018, when a contractor cetaceans and seals via acoustic basking holes will be excavated; both of performing routine maintenance disturbance. We first discuss the effects which must have breathing holes and activities to relocate metal plates of ice road and ice trail construction and surface access (pers. comm., M. beneath the surface of the ice road from maintenance on ringed seals with Williams, August 17, 2018). Oliktok Point to Spy Island Drill site respect to direct human interaction Williams et al. (2006) provides the spotted a ringed seal pup next to what followed by an in-depth discussion on most in-depth discussion of ringed seal may have been a lair site. No adult was sound and potential effects on marine use around Northstar Island, the first observed in the area. The pup appeared mammals from acoustic disturbance. offshore oil and gas production facility to be acting normally and was seen The potential for and potential impacts seaward of the barrier islands in the going in and out of the opening several from both small and large oil spills are Alaskan Beaufort Sea. Northstar is times (Eni, 2018). discussed in more detail later in this located 9.5 km from the mainland on a Overall, NMFS does not anticipate the section; however, please note Hilcorp manmade gravel island in 12 m of potential for mortality or serious injury did not request, nor is NMFS proposing water. In late 2000 and early 2001, sea of ringed seals to be high given there has to authorize, takes from oil spills. ice in areas near Northstar Island where been only one documented mortality summer water depth was greater than over 25 years of ice road construction in Mortality, Serious Injury and Non- 1.5 m were searched for ringed seal the Arctic. However, the potential does Acoustic Harassment—Ice Seals structures. At Northstar, ringed seals exist; therefore, we are including a small This section discusses the potential were documented creating and using sea amount of mortality or serious injury (n impacts of ice road construction, use, ice structures (basking holes, breathing = 2) in this rule over the five-year life and maintenance on ringed seals, the holes, or birthing lairs) within 11 to of the regulations. To mitigate this risk, only species likely to be encountered 3,500 m (36 to 11,482 ft) of Northstar NMFS and Hilcorp have developed a during this activity. Acoustic impacts infrastructure which includes ice roads, number of BMPs aimed at reducing the from this and other activities (e.g., pile pipeline, and the island itself (Williams potential of disturbing (e.g., crushing) driving) are provided later in the et al., 2006). Birth lairs closest to ice seal structures on ice roads (see document. To assess the potential Northstar infrastructure were 882 m and Mitigation and Monitoring sections). impacts from ice roads, one must 144 m (2,894 and 374 ft) from the island Potential Acoustic Impacts—Level A understand sea ice dynamics, the and ice road, respectively (Williams et Harassment and Level B Harassment influence of ice roads on sea ice, and ice al., 2006). Two basking holes were seal ecology. found within 11 and 15 m (36 and 49 In the following discussion, we Sea ice is constantly moving and ft) from the nominal centerline of a provide general background information flexing due to winds, currents, and Northstar ice road and were still in use on sound before considering potential snow load. Sea ice grows (thickens) to by the end of the study (Williams et al., effects to marine mammals from sound its maximum in March, then begins to 2006). Although located in deeper water produced by construction and operation degrade once solar heating increases outside of the barrier islands, we of the LDPI. above the necessary threshold. Sea ice anticipate ringed seals would use ice Description of Sound Sources will thin and crack due to atmospheric around the LDPI and associated ice pressure and temperature changes. In roads in a similar manner. This section contains a brief technical the absence of ice roads, sea ice is Since 1998, there have been three background on sound, on the constantly cracking, deforming (creating documented incidents of ringed seal characteristics of certain sound types, pressure ridges and hummocks), and interactions on North Slope ice roads, and on metrics used in this proposal thickening or thinning. Ice road with one recorded mortality. On April inasmuch as the information is relevant construction interrupts this dynamic by 17, 1998, during a vibroseis on-ice to the specified activity and to a permanently thickening and stabilizing seismic operation outside of the barrier discussion of the potential effects of the the sea ice for the season; however, it islands east of Bullen Point in the specified activity on marine mammals thins and weakens sea ice adjacent to eastern Beaufort Sea, a ringed seal pup found later in this document. For ice roads due to the weight of the ice was killed when its lair was destroyed general information on sound and its road and use as the speed and load of by a Caterpillar tractor clearing an ice interaction with the marine vehicles using the road creates pressure road. The lair was located on ice over environment, please see, e.g., Au and waves in the ice, cracking natural ice water 9 m (29 ft) deep with an ice Hastings (2008); Richardson et al. adjacent to the road (pers. comm., M. thickness of 1.3 m (4.3 ft). It was (1995); Urick (1983). Williams, August 17, 2018). These reported that an adult may have been Sound travels in waves, the basic cracks and thinned ice, occurring either present in the lair when it was components of which are frequency, naturally or adjacent to ice roads, are destroyed. Crew found blood on the ice wavelength, velocity, and amplitude. easily exploitable habitat for ringed near an open hole approximately 1.3 km Frequency is the number of pressure seals. (0.8 mi) from the destroyed lair; this waves that pass by a reference point per As discussed in the Description of could have been from a wounded adult unit of time and is measured in Hz or Marine Mammals section, ringed seals (MacLean, 1998). On April 24, 2018, a cycles per second. Wavelength is the build lairs which are typically Tucker (a tracked vehicle used in snow distance between two peaks or concentrated along pressure ridges, conditions) traveling on a Northstar sea corresponding points of a sound wave cracks, leads, or other surface ice trail broke through a brine pocket. (length of one cycle). Higher frequency deformations (Smith and Stirling 1975, After moving the Tucker, a seal pup sounds have shorter wavelengths than Hammill and Smith, 1989, Furgal et al., climbed out of the hole in the ice, but lower frequency sounds, and typically 1996). To build a lair, a pregnant female no adult was seen in the area. The seal attenuate (decrease) more rapidly, will first excavate a breathing hole, most pup remained in the area for the next except in certain cases in shallower

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water. Amplitude is the height of the (omnidirectional sources), as is the case sound levels can be expected to vary sound pressure wave or the ‘‘loudness’’ for sound produced by the pile driving widely over both coarse and fine spatial of a sound and is typically described activity considered here. The and temporal scales. Sound levels at a using the relative unit of the decibel compressions and decompressions given frequency and location can vary (dB). A sound pressure level (SPL) in dB associated with sound waves are by 10–20 decibels (dB) from day to day is described as the ratio between a detected as changes in pressure by (Richardson et al., 1995). The result is measured pressure and a reference aquatic life and man-made sound that, depending on the source type and pressure (for underwater sound, this is receptors such as hydrophones. its intensity, sound from the specified 1 microPascal (mPa)), and is a Even in the absence of sound from the activity may be a negligible addition to logarithmic unit that accounts for large specified activity, the underwater the local environment or could form a variations in amplitude; therefore, a environment is typically loud due to distinctive signal that may affect marine relatively small change in dB ambient sound, which is defined as mammals. corresponds to large changes in sound environmental background sound levels Sounds are often considered to fall pressure. The source level (SL) lacking a single source or point into one of two general types: Pulsed represents the SPL referenced at a (Richardson et al., 1995). The sound and non-pulsed (defined in the distance of 1 m from the source level of a region is defined by the total following). The distinction between (referenced to 1 mPa), while the received acoustical energy being generated by these two sound types is important level is the SPL at the listener’s position known and unknown sources. These because they have differing potential to (referenced to 1 mPa). sources may include physical (e.g., cause physical effects, particularly with Root mean square (rms) is the wind and waves, earthquakes, ice, regard to hearing (e.g., Ward, 1997 in quadratic mean sound pressure over the atmospheric sound), biological (e.g., Southall et al., 2007). See Southall et al. duration of an impulse. Root mean sounds produced by marine mammals, (2007) for an in-depth discussion of square is calculated by squaring all of fish, and invertebrates), and these concepts. The distinction between the sound amplitudes, averaging the anthropogenic (e.g., vessels, dredging, these two sound types is not always squares, and then taking the square root construction) sound. A number of obvious, as certain signals share of the average (Urick, 1983). Root mean sources contribute to ambient sound, properties of both pulsed and non- square accounts for both positive and including wind and waves, which are a pulsed sounds. A signal near a source negative values; squaring the pressures main source of naturally occurring could be categorized as a pulse, but due makes all values positive so that they ambient sound for frequencies between to propagation effects as it moves farther may be accounted for in the summation 200 Hz and 50 kHz (Mitson, 1995). In from the source, the signal duration of pressure levels (Hastings and Popper, general, ambient sound levels tend to becomes longer (e.g., Greene and 2005). This measurement is often used increase with increasing wind speed Richardson, 1988). in the context of discussing behavioral and wave height. Precipitation can Pulsed sound sources (e.g., airguns, effects, in part because behavioral become an important component of total explosions, gunshots, sonic booms, effects, which often result from auditory sound at frequencies above 500 Hz, and cues, may be better expressed through possibly down to 100 Hz during quiet impact pile driving) produce signals averaged units than by peak pressures. times. Marine mammals can contribute that are brief (typically considered to be Sound exposure level (SEL; significantly to ambient sound levels, as less than one second), broadband, atonal represented as dB re 1 mPa2-s) represents can some fish and snapping shrimp. The transients (ANSI, 1986, 2005; Harris, the total energy in a stated frequency frequency band for biological 1998; NIOSH, 1998; ISO, 2003) and band over a stated time interval or contributions is from approximately 12 occur either as isolated events or event, and considers both intensity and Hz to over 100 kHz. Sources of ambient repeated in some succession. Pulsed duration of exposure. The per-pulse SEL sound related to human activity include sounds are all characterized by a is calculated over the time window transportation (surface vessels), relatively rapid rise from ambient containing the entire pulse (i.e., 100 dredging and construction, oil and gas pressure to a maximal pressure value percent of the acoustic energy). SEL is drilling and production, geophysical followed by a rapid decay period that a cumulative metric; it can be surveys, sonar, and explosions. Vessel may include a period of diminishing, accumulated over a single pulse or noise typically dominates the total oscillating maximal and minimal calculated over periods containing ambient sound for frequencies between pressures, and generally have an multiple pulses. Cumulative SEL 20 and 300 Hz. In general, the increased capacity to induce physical represents the total energy accumulated frequencies of anthropogenic sounds are injury as compared with sounds that by a receiver over a defined time below 1 kHz and, if higher frequency lack these features. window or during an event. Peak sound sound levels are created, they attenuate Non-pulsed sounds can be tonal, pressure (also referred to as zero-to-peak rapidly. narrowband, or broadband, brief or sound pressure or 0-pk) is the maximum The sum of the various natural and prolonged, and may be either instantaneous sound pressure anthropogenic sound sources that continuous or intermittent (ANSI, 1995; measurable in the water at a specified comprise ambient sound at any given NIOSH, 1998). Some of these non- distance from the source, and is location and time depends not only on pulsed sounds can be transient signals represented in the same units as the rms the source levels (as determined by of short duration but without the sound pressure. current weather conditions and levels of essential properties of pulses (e.g., rapid When underwater objects vibrate or biological and human activity) but also rise time). Examples of non-pulsed activity occurs, sound-pressure waves on the ability of sound to propagate sounds include those produced by are created. These waves alternately through the environment. In turn, sound vessels, aircraft, machinery operations compress and decompress the water as propagation is dependent on the such as drilling or dredging, vibratory the sound wave travels. Underwater spatially and temporally varying pile driving, and active sonar systems. sound waves radiate in a manner similar properties of the water column and sea The duration of such sounds, as to ripples on the surface of a pond and floor, and is frequency-dependent. As a received at a distance, can be greatly may be either directed in a beam or result of the dependence on a large extended in a highly reverberant beams or may radiate in all directions number of varying factors, ambient environment.

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The impulsive sound generated by any overt behavioral or physiological the signal’s frequency spectrum (i.e., impact hammers is characterized by response. The next zone corresponds how animal uses sound within the rapid rise times and high peak levels. with the area where the signal is audible frequency band of the signal; e.g., Vibratory hammers produce non- to the animal and of sufficient intensity Kastelein et al., 2014b), and their impulsive, continuous noise at levels to elicit behavioral or physiological overlap (e.g., spatial, temporal, and significantly lower than those produced responsiveness. Third is a zone within spectral). by impact hammers. Rise time is slower, which, for signals of high intensity, the Marine mammals exposed to high- reducing the probability and severity of received level is sufficient to potentially intensity sound, or to lower-intensity injury, and sound energy is distributed cause discomfort or tissue damage to sound for prolonged periods, can over a greater amount of time (e.g., auditory or other systems. Overlaying experience hearing threshold shift (TS), Nedwell and Edwards, 2002; Carlson et these zones to a certain extent is the which is the loss of hearing sensitivity al., 2005). area within which masking (i.e., when a at certain frequency ranges (Finneran, sound interferes with or masks the 2015). TS can be permanent (PTS), in Acoustic Effects ability of an animal to detect a signal of which case the loss of hearing We previously provided general interest that is above the absolute sensitivity is not fully recoverable, or background information on marine hearing threshold) may occur; the temporary (TTS), in which case the mammal hearing (see ‘‘Description of masking zone may be highly variable in animal’s hearing threshold would Marine Mammals in the Area of the size. recover over time (Southall et al., 2007). Specified Activity’’). Here, we discuss Potential effects from impulsive Repeated sound exposure that leads to the potential effects of sound on marine sound sources can range in severity TTS could cause PTS. In severe cases of mammals. from effects such as behavioral PTS, there can be total or partial Potential Effects of Underwater disturbance or tactile perception to deafness, while in most cases the animal Sound—Note that, in the following physical discomfort, slight injury of the has an impaired ability to hear sounds discussion, we refer in many cases to a internal organs and the auditory system, in specific frequency ranges (Kryter, review article concerning studies of or mortality (Yelverton et al., 1973). 1985). noise-induced hearing loss conducted Non-auditory physiological effects or When PTS occurs, there is physical from 1996–2015 (i.e., Finneran, 2015). injuries that theoretically might occur in damage to the sound receptors in the ear For study-specific citations, please see marine mammals exposed to high level (i.e., tissue damage), whereas TTS that work. Anthropogenic sounds cover underwater sound or as a secondary represents primarily tissue fatigue and a broad range of frequencies and sound effect of extreme behavioral reactions is reversible (Southall et al., 2007). In levels and can have a range of highly (e.g., change in dive profile as a result addition, other investigators have variable impacts on marine life, from of an avoidance reaction) caused by suggested that TTS is within the normal none or minor to potentially severe exposure to sound include neurological bounds of physiological variability and responses, depending on received effects, bubble formation, resonance tolerance and does not represent levels, duration of exposure, behavioral effects, and other types of organ or physical injury (e.g., Ward, 1997). context, and various other factors. The tissue damage (Cox et al., 2006; Southall Therefore, NMFS does not consider TTS potential effects of underwater sound et al., 2007; Zimmer and Tyack, 2007; to constitute auditory injury. from active acoustic sources can Tal et al., 2015). The construction and Relationships between TTS and PTS potentially result in one or more of the operational activities associated with thresholds have not been studied in following: temporary or permanent the LDPI do not involve the use of marine mammals, and there is no PTS hearing impairment, non-auditory devices such as explosives or mid- data for cetaceans, but such physical or physiological effects, frequency tactical sonar that are relationships are assumed to be similar behavioral disturbance, stress, and associated with these types of effects. to those in humans and other terrestrial masking (Richardson et al., 1995; mammals. PTS typically occurs at Gordon et al., 2004; Nowacek et al., Auditory Threshold Shifts exposure levels at least several decibels 2007; Southall et al., 2007; Go¨tz et al., NMFS defines threshold shift (TS) as above (a 40-dB threshold shift 2009). The degree of effect is a change, usually an increase, in the approximates PTS onset; e.g., Kryter et intrinsically related to the signal threshold of audibility at a specified al., 1966; Miller, 1974) that inducing characteristics, received level, distance frequency or portion of an individual’s mild TTS (a 6-dB threshold shift from the source, and duration of the hearing range above a previously approximates TTS onset; e.g., Southall sound exposure. In general, sudden, established reference level (NMFS, et al. 2007). Based on data from high level sounds can cause hearing 2018). The amount of threshold shift is terrestrial mammals, a precautionary loss, as can longer exposures to lower customarily expressed in decibels assumption is that the PTS thresholds level sounds. Temporary or permanent (ANSI, 1995). Threshold shift can be for impulse sounds (such as impact pile loss of hearing will occur almost permanent (PTS) or temporary (TTS). As driving pulses as received close to the exclusively for noise within an animal’s described in NMFS (2018), there are source) are at least 6 dB higher than the hearing range. We first describe specific numerous factors to consider when TTS threshold on a peak-pressure basis manifestations of acoustic effects before examining the consequence of TS, and PTS cumulative sound exposure providing discussion specific to pile including, but not limited to, the signal level thresholds are 15 to 20 dB higher driving. temporal pattern (e.g., impulsive or non- than TTS cumulative sound exposure Richardson et al. (1995) described impulsive), likelihood an individual level thresholds (Southall et al., 2007). zones of increasing intensity of effect would be exposed for a long enough Given the higher level of sound or that might be expected to occur, in duration or to a high enough level to longer exposure duration necessary to relation to distance from a source and induce a TS, the magnitude of the TS, cause PTS as compared with TTS, it is assuming that the signal is within an time to recovery (seconds to minutes or considerably less likely that PTS could animal’s hearing range. First is the area hours to days), the frequency range of occur. within which the acoustic signal would the exposure (i.e., spectral content), the TTS is the mildest form of hearing be audible (potentially perceived) to the hearing and vocalization frequency impairment that can occur during animal but not strong enough to elicit range of the exposed species relative to exposure to sound (Kryter, 1985). While

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experiencing TTS, the hearing threshold portion of an individual’s hearing range Behavioral responses to sound are rises, and a sound must be at a higher above a previously established reference highly variable and context-specific and level in order to be heard. In terrestrial level’’ (NMFS, 2016). A TTS of 6 dB is any reactions depend on numerous and marine mammals, TTS can last from considered the minimum threshold shift intrinsic and extrinsic factors (e.g., minutes or hours to days (in cases of clearly larger than any day-to-day or species, state of maturity, experience, strong TTS). In many cases, hearing session-to-session variation in a current activity, reproductive state, sensitivity recovers rapidly after subject’s normal hearing ability auditory sensitivity, time of day), as exposure to the sound ends. Few data (Schlundt et al., 2000; Finneran et al., well as the interplay between factors on sound levels and durations necessary 2000; Finneran et al., 2002, as reviewed (e.g., Richardson et al., 1995; Wartzok et to elicit mild TTS have been obtained in Southall et al., 2007 for a review). al., 2003; Southall et al., 2007; Weilgart, for marine mammals. TTS can last from minutes or hours to 2007). Behavioral reactions can vary not Marine mammal hearing plays a days (i.e., there is recovery), occur in only among individuals but also within critical role in communication with specific frequency ranges (i.e., an an individual, depending on previous conspecifics, and interpretation of animal might only have a temporary experience with a sound source, environmental cues for purposes such loss of hearing sensitivity between the context, and numerous other factors as predator avoidance and prey capture. frequencies of 1 and 10 kHz)), and can (Ellison et al., 2012), and can vary Depending on the degree (elevation of be of varying amounts (for example, an depending on characteristics associated threshold in dB), duration (i.e., recovery animal’s hearing sensitivity might be with the sound source (e.g., whether it time), and frequency range of TTS, and temporarily reduced by only 6 dB or is moving or stationary, number of the context in which it is experienced, reduced by 30 dB). Currently, TTS sources, distance from the source). TTS can have effects on marine measurements exist for only four Please see Appendices B–C of Southall mammals ranging from discountable to species of cetaceans (bottlenose et al. (2007) for a review of studies serious. For example, a marine mammal dolphins, belugas, harbor porpoises, and involving marine mammal behavioral may be able to readily compensate for Yangtze finless porpoise) and three responses to sound. a brief, relatively small amount of TTS species of pinnipeds (Northern elephant Habituation can occur when an in a non-critical frequency range that seal, harbor seal, and California sea animal’s response to a stimulus wanes occurs during a time where ambient lion). These TTS measurements are from with repeated exposure, usually in the noise is lower and there are not as many a limited number of individuals within absence of unpleasant associated events competing sounds present. these species. Alternatively, a larger amount and Depending on the degree (elevation of (Wartzok et al., 2003). Animals are most longer duration of TTS sustained during threshold in dB), duration (i.e., recovery likely to habituate to sounds that are times when communication is critical time), and frequency range of TTS, and predictable and unvarying. It is for successful mother/calf interactions the context in which it is experienced, important to note that habituation is could have more serious impacts. TTS can have effects on marine appropriately considered as a Currently, TTS data only exist for four mammals ranging from discountable to ‘‘progressive reduction in response to species of cetaceans (bottlenose dolphin serious (similar to those discussed in stimuli that are perceived as neither (Tursiops truncatus), beluga whale auditory masking, below). For example, aversive nor beneficial,’’ rather than as, (Delphinapterus leucas), harbor a marine mammal may be able to readily more generally, moderation in response porpoise, and Yangtze finless porpoise compensate for a brief, relatively small to human disturbance (Bejder et al., (Neophocoena asiaeorientalis)) and amount of TTS in a non-critical 2009). The opposite process is three species of pinnipeds (northern frequency range that takes place during sensitization, when an unpleasant elephant seal, harbor seal, and a time when the animal is traveling experience leads to subsequent California sea lion) exposed to a limited through the open ocean, where ambient responses, often in the form of number of sound sources (i.e., mostly noise is lower and there are not as many avoidance, at a lower level of exposure. tones and octave-band noise) in competing sounds present. As noted, behavioral state may affect the laboratory settings (Finneran, 2015). Alternatively, a larger amount and type of response. For example, animals TTS was not observed in trained spotted longer duration of TTS sustained during that are resting may show greater (Phoca largha) and ringed (Pusa time when communication is critical for behavioral change in response to hispida) seals exposed to impulsive successful mother/calf interactions disturbing sound levels than animals noise at levels matching previous could have more serious impacts. We that are highly motivated to remain in predictions of TTS onset (Reichmuth et note that reduced hearing sensitivity as an area for feeding (Richardson et al., al., 2016). In general, harbor seals and a simple function of aging has been 1995; NRC, 2003; Wartzok et al., 2003). harbor porpoises have a lower TTS observed in marine mammals, as well as Controlled experiments with captive onset than other measured pinniped or humans and other taxa (Southall et al., marine mammals have showed cetacean species (Finneran, 2015). 2007), so we can infer that strategies pronounced behavioral reactions, Additionally, the existing marine exist for coping with this condition to including avoidance of loud sound mammal TTS data come from a limited some degree, though likely not without sources (Ridgway et al., 1997; Finneran number of individuals within these cost. et al., 2003). Observed responses of wild species. There are no data available on Behavioral Effects—Behavioral marine mammals to loud pulsed sound noise-induced hearing loss for disturbance from elevated noise sources (typically airguns or acoustic mysticetes. For summaries of data on exposure may include a variety of harassment devices) have been varied TTS in marine mammals or for further effects, including subtle changes in but often consist of avoidance behavior discussion of TTS onset thresholds, behavior (e.g., minor or brief avoidance or other behavioral changes suggesting please see Southall et al. (2007), of an area or changes in vocalizations), discomfort (Morton and Symonds, 2002; Finneran and Jenkins (2012), Finneran more conspicuous changes in similar see also Richardson et al., 1995; (2015), and NMFS (2018). behavioral activities, and more Nowacek et al., 2007). However, many NMFS defines TTS as ‘‘a temporary, sustained and/or potentially severe delphinids approach low-frequency reversible increase in the threshold of reactions, such as displacement from or airgun source vessels with no apparent audibility at a specified frequency or abandonment of high-quality habitat. discomfort or obvious behavioral change

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(e.g., Barkaszi et al., 2012), indicating between prey availability, foraging effort affected region if habituation to the the importance of frequency output in and success, and the life history stage of presence of the sound does not occur relation to the species’ hearing the animal. (e.g., Blackwell et al., 2004; Bejder et al., sensitivity. Variations in respiration naturally 2006; Teilmann et al., 2006). Available studies show wide variation vary with different behaviors and A flight response is a dramatic change in response to underwater sound; alterations to breathing rate as a in normal movement to a directed and therefore, it is difficult to predict function of acoustic exposure can be rapid movement away from the specifically how any given sound in a expected to co-occur with other perceived location of a sound source. particular instance might affect marine behavioral reactions, such as a flight The flight response differs from other mammals perceiving the signal. If a response or an alteration in diving. avoidance responses in the intensity of marine mammal does react briefly to an However, respiration rates in and of the response (e.g., directed movement, underwater sound by changing its themselves may be representative of rate of travel). Relatively little behavior or moving a small distance, the annoyance or an acute stress response. information on flight responses of impacts of the change are unlikely to be Various studies have shown that marine mammals to anthropogenic significant to the individual, let alone respiration rates may either be signals exist, although observations of the stock or population. However, if a unaffected or could increase, depending flight responses to the presence of sound source displaces marine on the species and signal characteristics, predators have occurred (Connor and mammals from an important feeding or again highlighting the importance of Heithaus, 1996). The result of a flight breeding area for a prolonged period, understanding species differences in the response could range from brief, impacts on individuals and populations tolerance of underwater noise when temporary exertion and displacement could be significant (e.g., Lusseau and determining the potential for impacts from the area where the signal provokes Bejder, 2007; Weilgart, 2007; NRC, resulting from anthropogenic sound flight to, in extreme cases, marine 2005). However, there are broad exposure (e.g., Kastelein et al., 2001, mammal strandings (Evans and categories of potential response, which 2005, 2006; Gailey et al., 2007; Gailey et England, 2001). However, it should be we describe in greater detail here, that al., 2016). noted that response to a perceived include alteration of dive behavior, Marine mammals vocalize for predator does not necessarily invoke alteration of foraging behavior, effects to different purposes and across multiple flight (Ford and Reeves, 2008), and breathing, interference with or alteration modes, such as whistling, echolocation whether individuals are solitary or in of vocalization, avoidance, and flight. click production, calling, and singing. groups may influence the response. Changes in dive behavior can vary Changes in vocalization behavior in Behavioral disturbance can also widely and may consist of increased or response to anthropogenic noise can impact marine mammals in more subtle decreased dive times and surface occur for any of these modes and may ways. Increased vigilance may result in intervals as well as changes in the rates result from a need to compete with an costs related to diversion of focus and of ascent and descent during a dive (e.g., increase in background noise or may attention (i.e., when a response consists Frankel and Clark, 2000; Costa et al., reflect increased vigilance or a startle of increased vigilance, it may come at 2003; Ng and Leung, 2003; Nowacek et response. For example, in the presence the cost of decreased attention to other al.; 2004; Goldbogen et al., 2013a, of potentially masking signals, critical behaviors such as foraging or 2013b). Variations in dive behavior may humpback whales and killer whales resting). These effects have generally not reflect interruptions in biologically have been observed to increase the been demonstrated for marine significant activities (e.g., foraging) or length of their songs (Miller et al., 2000; mammals, but studies involving fish they may be of little biological Foote et al., 2004), while right whales and terrestrial animals have shown that significance. The impact of an alteration have been observed to shift the increased vigilance may substantially to dive behavior resulting from an frequency content of their calls upward reduce feeding rates (e.g., Beauchamp acoustic exposure depends on what the while reducing the rate of calling in and Livoreil, 1997; Fritz et al., 2002; animal is doing at the time of the areas of increased anthropogenic noise Purser and Radford, 2011). In addition, exposure and the type and magnitude of (Parks et al., 2007). In some cases, chronic disturbance can cause the response. animals may cease sound production population declines through reduction Disruption of feeding behavior can be during production of aversive signals of fitness (e.g., decline in body difficult to correlate with anthropogenic (Bowles et al., 1994). condition) and subsequent reduction in sound exposure, so it is usually inferred Avoidance is the displacement of an reproductive success, survival, or both by observed displacement from known individual from an area or migration (e.g., Harrington and Veitch, 1992; Daan foraging areas, the appearance of path as a result of the presence of a et al., 1996; Bradshaw et al., 1998). secondary indicators (e.g., bubble nets sound or other stressors, and is one of However, Ridgway et al. (2006) reported or sediment plumes), or changes in dive the most obvious manifestations of that increased vigilance in bottlenose behavior. As for other types of disturbance in marine mammals dolphins exposed to sound over a five- behavioral response, the frequency, (Richardson et al., 1995). For example, day period did not cause any sleep duration, and temporal pattern of signal gray whales are known to change deprivation or stress effects. presentation, as well as differences in direction—deflecting from customary Many animals perform vital functions, species sensitivity, are likely migratory paths—in order to avoid noise such as feeding, resting, traveling, and contributing factors to differences in from airgun surveys (Malme et al., socializing, on a diel cycle (24-hour response in any given circumstance 1984). Avoidance may be short-term, cycle). Disruption of such functions (e.g., Croll et al., 2001; Nowacek et al.; with animals returning to the area once resulting from reactions to stressors 2004; Madsen et al., 2006; Yazvenko et the noise has ceased (e.g., Bowles et al., such as sound exposure are more likely al., 2007). A determination of whether 1994; Goold, 1996; Stone et al., 2000; to be significant if they last more than foraging disruptions incur fitness Morton and Symonds, 2002; Gailey et one diel cycle or recur on subsequent consequences would require al., 2007). Longer-term displacement is days (Southall et al., 2007). information on or estimates of the possible, however, which may lead to Consequently, a behavioral response energetic requirements of the affected changes in abundance or distribution lasting less than one day and not individuals and the relationship patterns of the affected species in the recurring on subsequent days is not

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considered particularly severe unless it responses are well-studied through after the sound exposure, from masking, could directly affect reproduction or controlled experiments and for both which occurs during the sound survival (Southall et al., 2007). Note that laboratory and free-ranging animals exposure. Because masking (without there is a difference between multi-day (e.g., Holberton et al., 1996; Hood et al., resulting in TS) is not associated with substantive behavioral reactions and 1998; Jessop et al., 2003; Krausman et abnormal physiological function, it is multi-day anthropogenic activities. For al., 2004; Lankford et al., 2005). Stress not considered a physiological effect, example, just because an activity lasts responses due to exposure to but rather a potential behavioral effect. for multiple days does not necessarily anthropogenic sounds or other stressors The frequency range of the potentially mean that individual animals are either and their effects on marine mammals masking sound is important in exposed to activity-related stressors for have also been reviewed (Fair and determining any potential behavioral multiple days or, further, exposed in a Becker, 2000; Romano et al., 2002b) impacts. For example, low-frequency manner resulting in sustained multi-day and, more rarely, studied in wild signals may have less effect on high- substantive behavioral responses. populations (e.g., Romano et al., 2002a). frequency echolocation sounds Stress Responses—An animal’s For example, Rolland et al. (2012) found produced by odontocetes but are more perception of a threat may be sufficient that noise reduction from reduced ship likely to affect detection of mysticete to trigger stress responses consisting of traffic in the Bay of Fundy was communication calls and other some combination of behavioral associated with decreased stress in potentially important natural sounds responses, autonomic nervous system North Atlantic right whales. These and such as those produced by surf and responses, neuroendocrine responses, or other studies lead to a reasonable some prey species. The masking of immune responses (e.g., Seyle, 1950; expectation that some marine mammals communication signals by Moberg, 2000). In many cases, an will experience physiological stress anthropogenic noise may be considered animal’s first and sometimes most responses upon exposure to acoustic as a reduction in the communication economical (in terms of energetic costs) stressors and that it is possible that space of animals (e.g., Clark et al., 2009) response is behavioral avoidance of the some of these would be classified as and may result in energetic or other potential stressor. Autonomic nervous ‘‘distress.’’ In addition, any animal costs as animals change their system responses to stress typically experiencing TTS would likely also vocalization behavior (e.g., Miller et al., involve changes in heart rate, blood experience stress responses (NRC, 2000; Foote et al., 2004; Parks et al., pressure, and gastrointestinal activity. 2003). 2007; Di Iorio and Clark, 2009; Holt et These responses have a relatively short Auditory Masking—Sound can al., 2009). Masking can be reduced in duration and may or may not have a disrupt behavior through masking, or situations where the signal and noise significant long-term effect on an interfering with, an animal’s ability to come from different directions animal’s fitness. detect, recognize, or discriminate (Richardson et al., 1995), through Neuroendocrine stress responses often between acoustic signals of interest (e.g., amplitude modulation of the signal, or involve the hypothalamus-pituitary- those used for intraspecific through other compensatory behaviors adrenal system. Virtually all communication and social interactions, (Houser and Moore, 2014). Masking can neuroendocrine functions that are prey detection, predator avoidance, be tested directly in captive species affected by stress—including immune navigation) (Richardson et al., 1995; (e.g., Erbe, 2008), but in wild competence, reproduction, metabolism, Erbe et al., 2016). Masking occurs when populations it must be either modeled and behavior—are regulated by pituitary the receipt of a sound is interfered with or inferred from evidence of masking hormones. Stress-induced changes in by another coincident sound at similar compensation. There are few studies the secretion of pituitary hormones have frequencies and at similar or higher addressing real-world masking sounds been implicated in failed reproduction, intensity, and may occur whether the likely to be experienced by marine altered metabolism, reduced immune sound is natural (e.g., snapping shrimp, mammals in the wild (e.g., Branstetter et competence, and behavioral disturbance wind, waves, precipitation) or al., 2013). (e.g., Moberg, 1987; Blecha, 2000). anthropogenic (e.g., shipping, sonar, Masking affects both senders and Increases in the circulation of seismic exploration) in origin. The receivers of acoustic signals and can glucocorticoids are also equated with ability of a noise source to mask potentially have long-term chronic stress (Romano et al., 2004). biologically important sounds depends effects on marine mammals at the The primary distinction between on the characteristics of both the noise population level as well as at the stress (which is adaptive and does not source and the signal of interest (e.g., individual level. Low-frequency normally place an animal at risk) and signal-to-noise ratio, temporal ambient sound levels have increased by ‘‘distress’’ is the cost of the response. variability, direction), in relation to each as much as 20 dB (more than three times During a stress response, an animal uses other and to an animal’s hearing in terms of SPL) in the world’s ocean glycogen stores that can be quickly abilities (e.g., sensitivity, frequency from pre-industrial periods, with most replenished once the stress is alleviated. range, critical ratios, frequency of the increase from distant commercial In such circumstances, the cost of the discrimination, directional shipping (Hildebrand, 2009). All stress response would not pose serious discrimination, age or TTS hearing loss), anthropogenic sound sources, but fitness consequences. However, when and existing ambient noise and especially chronic and lower-frequency an animal does not have sufficient propagation conditions. signals (e.g., from vessel traffic), energy reserves to satisfy the energetic Under certain circumstances, marine contribute to elevated ambient sound costs of a stress response, energy mammals experiencing significant levels, thus intensifying masking. resources must be diverted from other masking could also be impaired from Potential Effects of Hilcorp’s functions. This state of distress will last maximizing their performance fitness in Activity—As described previously (see until the animal replenishes its survival and reproduction. Therefore, ‘‘Description of the Specified Activity’’), energetic reserves sufficient to restore when the coincident (masking) sound is Hilcorp proposes to build ice roads, normal function. man-made, it may be considered install a pipeline, construct and operate Relationships between these harassment when disrupting or altering a gravel island using impact and physiological mechanisms, animal critical behaviors. It is important to vibratory pile driving, and drill for oil behavior, and the costs of stress distinguish TTS and PTS, which persist in Foggy Island Bay. These activities

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would occur under ice and open water For all noise-related activities, responses in pinnipeds exposed to conditions (with the exception of ice bowhead and gray whales are not continuous sounds in water. Hilcorp roads). These activities have the anticipated to be exposed to noise above will conduct acoustic monitoring during potential to harass marine mammals NMFS harassment threshold often. As drilling to determine if future incidental from acoustic disturbance (all species) previously described, Hilcorp aims to take authorizations are warranted from and via human disturbance/presence on conduct all pile driving during the ice- LDPI operation. ice (ice seals). There is also potential for covered season, as was done at The biological significance of many of ice seals, specifically ringed seals, to be Northstar; however, they are allowing these behavioral disturbances is difficult killed in the event a lair is crushed for unforeseen scheduling delays. to predict, especially if the detected during ice road construction and Bowheads are not present near LDPI disturbances appear minor. However, maintenance in undisturbed areas after during the winter and are not normally the consequences of behavioral March 1, annually. found in the development area during modification could be expected to be NMFS analyzed the potential effects mid-summer (July through mid-August) biologically significant if the change of oil and gas activities, including when the whales are further east in the affects growth, survival, or construction of a gravel island and Canadian Beaufort. Therefore, there are reproduction. Significant behavioral associated infrastructure, in its 2016 EIS no impacts on foraging habitat for modifications that could lead to effects on the Effects of Oil and Gas Activities bowhead whales during mid-summer. on growth, survival, or reproduction, in the Arctic Ocean (NMFS, 2016; Starting in late August and continuing such as drastic changes in diving/ available at https:// until late October, bowheads may be surfacing patterns or significant habitat www.fisheries.noaa.gov/resource/ exposed to sounds from the proposed abandonment are extremely unlikely in document/effects-oil-and-gas-activities- activities at LDPI or may encounter this area (i.e., shallow waters in arctic-ocean-final-environmental- vessel traffic to and from the island. It modified industrial areas). impact). Although that document is unlikely that any whales would be The onset of behavioral disturbance focuses on seismic exploration, there is displaced from sounds generated by from anthropogenic sound depends on a wealth of information in that activities at the LDPI due to their both external factors (characteristics of document on marine mammal impacts distance from the offshore migrating sound sources and their paths) and the from anthropogenic noise. More specific whales, and the effects of buffering from specific characteristics of the receiving to the proposed project, BOEM provides the barrier islands. Any displacement animals (hearing, motivation, a more detailed analysis on the potential would be subtle and involve no more experience, demography) and is difficult impacts of the Liberty LDPI in its EIS on than a small proportion of the passing to predict (Southall et al., 2007). Whether impact or vibratory driving, the Liberty Development and bowheads, likely less than that found at sound sources would be active for Production Plan, Beaufort Sea, Alaska, Northstar (Richardson, 2003, 2004; relatively short durations, with relation on which NMFS was a cooperating Mcdonald et al., 2012). This is due to agency (BOEM, 2018; available at to the durations animals use sound the baffling-effect of the barrier island (either emitting or receiving) on a daily https://www.boem.gov/Hilcorp-Liberty/). between the construction activity and We refer to those documents, basis, and over a small spatial scale the main migratory pathway of bowhead relative to marine mammal ranges. specifically Chapter 4 of each of those whales. Moreover, mitigation such as documents, as a comprehensive impact Therefore, the potential impacts from avoiding pile driving during the fall masking are limited in both time and assessment but provide a summary and bowhead whale hunt further reduces complementary analysis here. space. Further, the frequencies output of potential for harassment as whales are The effects of pile driving on marine pile driving are low relative to the range migrating offshore. mammals are dependent on several of frequencies used by most species for factors, including the size, type, and Ongoing activities such as drilling vital life functions such as depth of the animal; the depth, could harass marine mammals; communication or foraging. In intensity, and duration of the pile however, drilling sounds from artificial summary, we expect some masking to driving sound; the depth of the water islands are relatively low. As occur; however, the biological impacts column; the substrate of the habitat; the summarized in Richardson et al. (1995), of any potential masking are anticipated standoff distance between the pile and beluga whales (the cetacean most likely to be negligible. Finally, any masking the animal; and the sound propagation to occur in Foggy Island Bay) are often that might rise to Level B harassment properties of the environment. With observed near drillsites within 100 to under the MMPA would occur both types of pile driving, it is likely 150 m (328.1 to 492.1 ft) from artificial concurrently within the zones of that the onset of pile driving could islands. Drilling operations at Northstar behavioral harassment already result in temporary, short term changes facility during the open-water season estimated for vibratory and impact pile in an animal’s typical behavioral resulted in brief, minor localized effects driving, and which have already been patterns and/or avoidance of the on ringed seals with no consequences to taken into account in the exposure affected area. These behavioral changes ringed seal populations (Richardson and analysis. may include (as summarized in Williams, 2004). Adult ringed seals Richardson et al., 1995): changing seem to tolerate drilling activities. Oil Spills durations of surfacing and dives, Brewer et al. (1993) noted ringed seals During the life of the regulations, number of blows per surfacing, or were the most common marine mammal Hilcorp would be actively drilling for moving direction and/or speed; sighted and did not seem to be crude oil in Foggy Island Bay and reduced/increased vocal activities; disturbed by drilling operations at the transporting that oil via a single-phase changing/cessation of certain behavioral Kuvlum 1 project in the Beaufort Sea. subsea pipe-in-pipe pipeline from the activities (such as socializing or Southall et al. (2007) reviewed literature LDPI to shore, where an above-ground feeding); visible startle response or describing responses of pinnipeds to pipeline will transport crude to the aggressive behavior (such as tail/fluke continuous sound and reported that the existing Badami pipeline. From there, slapping or jaw clapping); avoidance of limited data suggest exposures between crude will be transported to the Endicott areas where sound sources are located; ∼90 and 140 dB re 1 mPa generally do Sales Oil Pipeline, which ties into Pump and/or flight responses. not appear to induce strong behavioral Station 1 of the TransAlaska Pipeline

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System (TAPS) for eventual delivery to spills were calculated for the proposed observed feeding within oil slicks a refinery. Whenever oil is being action. Based on the mean spill number, (Goodale et al., 1981). extracted or transported, there is a Poisson distribution indicates there is The potential effects on cetaceans are potential for a spill. Accidental oil spills a 99.33 percent chance that no large expected to be less than those on seals have a varying potential to occur and spill occurs over the development and (described later in this section of the with varying impacts on marine production phases of the project, and a document). Cetaceans tend to occur well mammals. For example, if a spill or 0.67 percent chance of one or more large offshore where cleanup activities (in the pipeline leak occurs during the winter, spills occurring over the same period. open-water season) are unlikely to be as oil would be trapped by the ice. The statistical distribution of large spills concentrated. Also, cetaceans are However, response may be more and gas releases shows that it is much transient and, during the majority of the difficult due in part to the presence of more likely that no large spills or year, absent from the area. Further, ice. If a spill or leak occurs during the releases occur than that one or more drilling would be postponed during the open-water season, oil may disperse occur over the life of the project. bowhead whale hunt every fall; more widely; however, response time However, a large spill has the potential therefore, the risk to cetaceans during may be more prompt. Spills may also be to seriously harm ESA-listed species this time, when marine mammal large or small. Small spills are defined and their environment. Assuming one presence and subsistence use is high, as spills of less than 1,000 barrels (bbls), large spill occurs instead of zero allows has been fully mitigated. and a large spill is greater than 1,000 BOEM to more fully estimate and Pinnipeds bbls. For reference, 1 bbl equates to 42 describe potential environmental effects gallons. (BOEM, 2017a). Ringed, bearded, and spotted seals are Based on BOEM’s oil spill analyses in Hilcorp is currently developing its oil present in open-water areas during its EIS, the only sized spills that are spill response plan in coordination with summer and early autumn, and ringed reasonably likely to occur in association the Bureau of Safety and Environmental seals remain in the area through the ice- with the proposed action are small Enforcement (BSEE) who must approve covered season. Therefore, an oil spill spills (<1,000 bbls) (BOEM, 2017a). the plan. BSEE oversees oil spill from LDPI or its pipeline could affect Small spills, although accidental, occur planning and preparedness for oil and seals. Any oil spilled under the ice also during oil and gas activities with gas exploration, development, and has the potential to directly contact generally routine frequency and are production facilities in both state and seals. The most relevant data of considered likely to occur during Federal offshore waters of the U.S. pinnipeds exposed to oil is from the development, production, and/or NMFS provided BSEE with its Exxon Valdez oil spill (EVOS). decommissioning activities associated recommended marine mammal oil spill The largest documented impact of a with the proposed action. BOEM response protocols available at https:// spill, prior to the EVOS, was on young estimates about 70 small spills, most of www.fisheries.noaa.gov/resource/ seals in January in the Gulf of St. which would be less than 10 bbls, document/pinniped-and-cetacean-oil- Lawrence (St. Aubin, 1990). Intensive would occur over the life of the Liberty spill-response-guidelines. NMFS has and long-term studies were conducted Project. Small crude oil spills would not provided BSEE with recommended after the EVOS in Alaska. There may likely occur before drilling operations marine mammal protocols should a spill have been a long-term decline of 36 begin. Small refined oil spills may occur occur. BSEE has indicated that NMFS percent in numbers of molting harbor during development, production, and will have an opportunity to provide seals at oiled haul-out sites in Prince decommissioning. The majority of small comments on Hilcorp’s plan during a William Sound following EVOS (Frost spills are likely to occur during the Federal agency public comment period. et al., 1994a). However, in a reanalysis approximate 22-year production period, As noted above, Hilcorp did not request, of those data and additional years of which is an average of about 3 spills per and NMFS is not proposing to surveys, along with an examination of year. authorize, takes of marine mammals assumptions and biases associated with The majority of small spills would be incidental to oil spills. NMFS does not the original data, Hoover-Miller et al. contained on the proposed LDPI or authorize incidental takes from oil spills (2001) concluded that the EVOS effect landfast ice (during winter). BOEM under section 101(a)(5)(A) of the MMPA had been overestimated. Harbor seal anticipates that small refined spills that in general, and oil spills are not part of pup mortality at oiled beaches was 23% reach the open water would be the specified activity in this case. to 26%, which may have been higher contained by booms or absorbent pads; than natural mortality, although no these small spills would also evaporate Cetaceans baseline data for pup mortality existed and disperse within hours to a few days. While direct mortality of cetaceans is prior to EVOS (Frost et al., 1994a). A 3 bbl refined oil spill during summer unlikely, exposure to spilled oil could Adult seals rely on a layer of blubber is anticipated to evaporate and disperse lead to skin irritation, baleen fouling for insulation, and oiling of the external within 24 hours, and a 200 bbl refined (which might reduce feeding efficiency), surface does not appear to have adverse oil spill during summer is anticipated to respiratory distress from inhalation of thermoregulatory effects (Kooyman et evaporate and disperse within 3 days hydrocarbon vapors, consumption of al., 1976, 1977; St. Aubin, 1990). (BOEM, 2017a). some contaminated prey items, and However, newborn seal pups rely on A large spill is a statistically unlikely temporary displacement from their fur for insulation. Newborn ringed event. The average number of large contaminated feeding areas. Geraci and seal pups in lairs on the ice could be spills for the proposed action was St. Aubin (1990) summarize the effects contaminated through contact with calculated by multiplying the spill rate of oil on marine mammals, and Bratton oiled mothers. There is the potential (Bercha International Inc., 2016; BOEM, et al. (1993) provides a synthesis of that newborn ringed seal pups that were 2017a), by the estimated barrels knowledge of oil effects on bowhead contaminated with oil could die from produced (0.11779 bbl or 117.79 Million whales. The number of whales that hypothermia. Further, contact with oil Barrels). By adding the mean number of might be contacted by a spill would on the external surfaces can potentially large spills from the proposed LDPI and depend on the size, timing, and cause increased stress and irritation of wells (∼0.0043) and from pipelines duration of the spill. Whales may not the eyes of ringed seals (Geraci and (∼0.0024), a mean total of 0.0067 large avoid oil spills, and some have been Smith, 1976; St. Aubin, 1990). These

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effects seemed to be temporary and reduce the likelihood of direct contact group size; hence, none of these reversible, but continued exposure of with oil. Impacts to subsistence uses of modifications affected our required eyes to oil could cause permanent marine mammals are discussed later in findings. damage (St. Aubin, 1990). Corneal this document (see the ‘‘Impact on Except with respect to certain ulcers and abrasions, conjunctivitis, and Availability of Affected Species or Stock activities not pertinent here, section swollen nictitating membranes were for Taking for Subsistence Uses’’ 3(18) of the MMPA defines observed in captive ringed seals placed section). ‘‘harassment’’ as: Any act of pursuit, in crude oil-covered water (Geraci and torment, or annoyance which (i) has the Potential Take From Oil Spills Smith, 1976), and in seals in the potential to injure a marine mammal or Antarctic after an oil spill (Lillie, 1954). Hilcorp did not request, and NMFS is marine mammal stock in the wild (Level Marine mammals can ingest oil if not proposing to authorize, takes of A harassment); or (ii) has the potential their food is contaminated. Oil can also marine mammals incidental to oil spills. to disturb a marine mammal or marine be absorbed through the respiratory tract Should an oil spill occur and marine mammal stock in the wild by causing (Geraci and Smith, 1976; Engelhardt et mammals are killed, injured, or disruption of behavioral patterns, al., 1977). Some of the ingested oil is harassed by the spill, the ‘‘taking’’ including, but not limited to, migration, voided in vomit or feces but some is would be unauthorized. However, breathing, nursing, breeding, feeding, or absorbed and could cause toxic effects NMFS is including mitigation and sheltering (Level B harassment). (Engelhardt, 1981). When returned to reporting measures within these Authorized takes would primarily be clean water, contaminated animals can regulations to minimize risk to marine by Level B harassment, as use of pile depurate this internal oil (Engelhardt, mammals. Should an oil spill occur at hammers, drill rigs, and ice-based 1978, 1982, 1985). In addition, seals the drill site and that oil enter the equipment (e.g., augers, trucks) have the exposed to an oil spill are unlikely to marine environment such that marine potential to result in disruption of ingest enough oil to cause serious mammals are at risk of exposure, NMFS behavioral patterns for individual internal damage (Geraci and St. Aubin, has included a mitigation measure that marine mammals. There is also some 1980, 1982). Hilcorp notify NMFS immediately and potential for auditory injury (Level A Since ringed seals are found year- cease drilling until NMFS can assess the harassment) to result during pile round in the U.S. Beaufort Sea and more severity of the spill and potential driving. The mitigation and monitoring specifically in the project area, an oil impacts to marine mammals. Should the measures are expected to minimize the spill at any time of year could pipeline leak, crude oil transport via the severity of such takes to the extent potentially have effects on ringed seals. pipeline would also cease immediately practicable. However, they are more widely until the pipeline is repaired. In the case No mortality or serious injury is dispersed during the open-water season. of any spill, Hilcorp would immediately anticipated as a result of exposure to Spotted seals are unlikely to be found in initiate communication and response acoustic sources; however, mortality the project area during late winter and protocol per its Oil Spill Response Plan. and serious injury of ringed seals may spring. Therefore, they are more likely Finally, Hilcorp must maintain the occur from ice road construction, use, to be affected by a spill in the summer frequency of oil spill response training and maintenance conducted after March or fall seasons. Bearded seals typically at no less than one two-hour session per 1, annually. Below we describe how we overwinter south of the Beaufort Sea. week. estimated mortality and serious injury However, some have been reported from ice road work followed by a around Northstar during early spring Anticipated Effects on Marine Mammal detailed acoustic harassment estimation (Moulton et al., 2003b). Habitat method. We described the potential impacts to Oil Spill Cleanup Activities marine mammal habitat, pathways by Mortality/Serious Injury (Ice Seals) Oil spill cleanup activities could which the project could affect marine The only species with the potential to increase disturbance effects on either mammal prey and the corresponding incur serious injury or mortality during whales or seals, causing temporary potential impact on marine mammals in the proposed project are ringed seals disruption and possible displacement the proposed rule. No new data has during ice road construction, use, and (BOEM, 2018). General issues related to been released or was described in public maintenance. Other ice seal species are oil spill cleanup activities are discussed comments to warrant any additional not known to use ice roads within the earlier in this section for cetaceans. In analysis. Therefore, our analysis action area. As described in the the event of a large spill contacting and remains the same and therefore we do Description of Marine Mammals section, extensively oiling coastal habitats, the not repeat it here. pregnant ringed seals establish lairs in presence of response staff, equipment, shorefast sea ice beginning in early and the many aircraft involved in the Estimated Take March where pups are born and nursed cleanup could (depending on the time This section provides an estimate of throughout spring (March through May). of the spill and the cleanup) potentially the number of incidental takes As described in the Potential Effects displace seals. If extensive cleanup anticipated to result from the specified of the Specified Activity on Marine operations occur in the spring, they activity and analyzed in this final rule, Mammals and Their Habitat section could cause increased stress and and which may be authorized in the above, there have been only three reduced pup survival of ringed seals. associated LOA, which will inform both documented interactions with ringed Oil spill cleanup activity could NMFS’ consideration of ‘‘small seals despite over 20 years of ice road exacerbate and increase disturbance numbers’’ and the negligible impact construction on the North Slope; one effects on subsistence species, cause determination. As noted in the Changes mortality in 1998 and two non-lethal localized displacement of subsistence from Proposed to Final Rule section interactions in 2018. All three animals species, and alter or reduce access to above, we made minor adjustments to involved were seal pups in or near their those species by hunters. On the other this section based on public comment. lairs. The two recent interactions in hand, the displacement of marine None of these changes were substantial 2018 led NMFS to work with the mammals away from oil-contaminated as many were related to clarity or only companies involved in the interactions, areas by cleanup activities would slightly increased takes to account for including Hilcorp, to better understand

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the circumstances behind the Acoustic Thresholds drilling) and above 160 dB re 1 mPa interactions and to develop a list of (rms) for non-explosive impulsive (e.g., Using the best available science, BMPs designed to avoid and minimize seismic airguns) or intermittent (e.g., NMFS has developed acoustic potential harassment. Hilcorp has scientific sonar) sources. thresholds that identify the received adopted these BMPs (see Mitigation and Hilcorp’s Liberty Project includes the Monitoring section); however, the level of underwater sound above which exposed marine mammals would be use of continuous, non-impulsive potential for mortality remains, albeit (vibratory pile driving, drilling, low. Because lairs can include both a reasonably expected to be behaviorally harassed (equated to Level B auguring) and intermittent, impulsive pup and its mother, though interactions (impact pile driving) sources, and with ringed seals are relatively harassment) or to incur PTS of some degree (equated to Level A harassment). therefore the 120 and 160 dB re 1 mPa uncommon, NMFS authorizes the (rms) thresholds are applicable. taking, by mortality or serious injury, of Level B Harassment for non-explosive Level A harassment for non-explosive two ringed seals over the course of five sources—Though significantly driven by sources—NMFS’ Technical Guidance years of ice road construction. received level, the onset of behavioral disturbance from anthropogenic noise for Assessing the Effects of Acoustic Harassment exposure is also informed to varying Anthropogenic Sound on Marine Generally speaking, we estimate takes degrees by other factors related to the Mammal Hearing (Version 2.0) by considering: (1) Acoustic thresholds source (e.g., frequency, predictability, (Technical Guidance, 2018) identifies above which NMFS believes the best duty cycle), the environment (e.g., dual criteria to assess auditory injury available science indicates marine bathymetry), and the receiving animals (Level A harassment) to five different mammals will be behaviorally harassed (e.g., hearing, motivation, experience, marine mammal groups (based on or incur some degree of permanent demography, behavioral context) and hearing sensitivity) as a result of hearing impairment; (2) the area or can be difficult to predict (Southall et exposure to noise from two different volume of water that will be ensonified al., 2007, Ellison et al., 2012). Based on types of sources (impulsive or non- above these levels in a day; (3) the what the available science indicates and impulsive). Hilcorp’s proposed activity density or occurrence of marine the practical need to use a threshold includes the use of impulsive (e.g., mammals within these ensonified areas; based on a factor that is both predictable impact pile driving) and non-impulsive and, (4) the number of days of activities. and measurable for most activities, (e.g., vibratory pile driving, slope We note that while these basic factors NMFS uses a generalized acoustic shaping, trenching) sources. can contribute to a basic calculation to threshold based on received level to These thresholds are provided in provide an initial prediction of takes, estimate the onset of Level B Table 3. The references, analysis, and additional information that can harassment. NMFS predicts that marine methodology used in the development qualitatively inform take estimates is mammals are likely to be harassed in a of the thresholds are described in NMFS also sometimes available (e.g., previous manner we consider Level B harassment 2018 Technical Guidance, which may monitoring results or average group when exposed to underwater be accessed at https:// size). Below, we describe the factors anthropogenic noise above received www.fisheries.noaa.gov/national/ considered here in more detail and levels of 120 dB re 1 mPa (rms) for marine-mammal-protection/marine- present the take estimate. continuous (e.g., vibratory pile-driving, mammal-acoustic-technical-guidance.

TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

PTS onset acoustic thresholds * Hearing group (received level) Impulsive Non-impulsive

Low-Frequency (LF) Cetaceans ...... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ...... Cell 2: LE,LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans ...... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ...... Cell 4: LE,MF,24h: 198 dB. High-Frequency (HF) Cetaceans ...... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ...... Cell 6: LE,HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) ...... Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ...... Cell 8: LE,PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) ...... Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ...... Cell 10: LE,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impul- sive sound has the potential to exceed the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. 2 Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.

Ensonified Area In shallow water noise propagation is transferred directly into the sea floor. highly dependent on the properties of Overall, the transmission loss in Here, we describe operational and the bottom and the surface, among other shallow water is a combination of environmental parameters of the activity things. Parameters such as depth and cylindrical spreading effects, bottom that will feed into identifying the area the bottom properties can vary with interaction effects at lower frequencies ensonified above the acoustic distance from the source. There is a low- and scattering losses at high thresholds, which include source levels frequency cut-off related to the water frequencies. To estimate ensonified and transmission loss coefficient. depth, below which energy is area, Hilcorp used the parabolic

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equation (PE) modelling algorithm RAMGeo is an efficient and reliable obtained one-third octave source RAMGeo (Collins, 1993) to calculate the PE algorithm for solving range- spectral levels via reference spectral transmission loss between the source dependent acoustic problems with fluid curves with their subsequent corrections and the receiver (SLR, 2017). The full seabed geo-acoustic properties. The based on their corresponding overall modeling report, including details on noise sources were assumed to be source levels. Table 4 contains modeling methodology and procedure omnidirectional and modelled as point estimated source levels and Appendix B and ensonification area figures, can be sources. In practice many sources are in Hilcorp’s acoustic modeling report found in the Underwater and Airborne directional, this assumption is contains source spectrum shape used in Noise Modelling Report attached as conservative. To estimate Level A the model (SLR, 2018). Appendix A in Hilcorp’s application. harassment and Level B harassment We provide a summary here. threshold distances, Hilcorp first

TABLE 4—ESTIMATED SOURCE LEVELS AND DURATION

Underwater source levels μ (db re: 1 Pa) Airborne Number of Maximum duration Activity μ Ice-covered Open-water (db re: 20 Pa) piles per day per day season season

Pipeline installation (trucks on ice, backhoe, 169.6–179.1 N/A 74.8–78 @100 m .. N/A 12 hrs. ditchwitch). Sheet pile—vibratory ...... 221 185 81 @100 m ...... 20 2.5 hrs.1 Sheet pile—impact ...... 235.7 210 93 @160 m ...... 40 min.2 Conductor pipe-vibratory ...... 16 2.5 hrs (proxy from sheet piles). Conductor pipes/foundation piles—impact .... 171.7 196 ...... 2 hrs.3 Slope shaping/armoring ...... n/a 167 64.7 @100 m ...... n/a 9.6 hrs. Drilling and production ...... 170.5 151 80 @200 m ...... n/a 24 hrs. 1 Estimated based on 20 piles per day, 7.5 min per pile. 2 Average duration estimate is 20 min per day. 3 Hilcorp estimates 440–6300 strikes per day.

Hilcorp relied on operational data time two pipes were driven. The conditions. The following discussion on from Northstar construction activities to observation period each day included PTS potential is limited to the open- estimate LDPI construction activity all pipe driving time, but driving was water season. methods and durations. Greene et al. never continuous during the entire Table 5 summarizes Hilcorp’s (2008) indicates impact pile driving at observation period. Hilcorp applied a modeled distances to NMFS PTS correction factor to the Northstar Northstar was required only to finish off thresholds using the maximum duration, assuming pipe driving at the each pile after vibratory driving it into durations identified above (see also LDPI would actually occur for 20 the frozen material of old Seal Island. Tables 16 through 18 in Appendix A of Since Liberty will be a newly percent of the total installation time logged at Northstar. Hilcorp’s application for shorter constructed gravel island, driving sheet The scenarios with theoretical durations). We note that marine piles should be easier than was the case potential for PTS onset are slope mammals would have to be extremely at Northstar. Impact sheet pile driving shaping, vibratory driving, and impact close to the island during slope shaping therefore may not be required at Liberty pile driving and pipe driving during the and pile driving for an extended period and is included in the application as a open-water season. Hilcorp did not of time to potentially incur PTS. We precaution. Hilcorp assumed model distances to PTS thresholds find these durations at distance are approximately 2 minutes and 100 during ice-covered conditions because highly unlikely and have concluded the strikes per pile with a maximum of 20 no cetaceans are present in the region potential for PTS from slope shaping piles installed per day. Blackwell et al. during this time and noise levels are and vibratory pile driving for any (2004a) observed impact pipe driving at expected to attenuate very rapidly under marine mammal hearing group does not Northstar. On most days, one conductor ice conditions. Hilcorp did not request, exist. Table 6 summarizes distances and pipe was driven in a day over a period nor does NMFS anticipate, takes by ensonified areas to NMFS Level B of 5 to 8.5 hours. The longest day of Level A harassment (PTS) during island harassment thresholds during ice- observation was 10.5 hours in which construction conducted under ice covered and open water conditions.

TABLE 5—RADIAL DISTANCES TO NMFS LEVEL A HARASSMENT THRESHOLDS AND ENSONIFIED AREA DURING THE OPEN- WATER SEASON

Activity (duration) and distance to threshold (ensonified area) Marine mammal hearing group (species) Slope shaping Vibratory sheet piling Impact sheet piling Impact pipe driving (9.6 hrs) (2.5 hrs) (40 min) (2 hrs)

Low frequency cetaceans (bowhead, gray <10 m (0 km2) ...... 50 m (164 ft) ...... 1,940 (11.8 km2) ...... 87 m (2.38 km2). whales). Mid frequency cetaceans (belugas) ...... n/a ...... <10 m (0 km2) ...... 60 m (0.01 km2) ...... 27 m (0.002 km2).

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TABLE 5—RADIAL DISTANCES TO NMFS LEVEL A HARASSMENT THRESHOLDS AND ENSONIFIED AREA DURING THE OPEN- WATER SEASON—Continued

Activity (duration) and distance to threshold (ensonified area) Marine mammal hearing group (species) Slope shaping Vibratory sheet piling Impact sheet piling Impact pipe driving (9.6 hrs) (2.5 hrs) (40 min) (2 hrs)

Phocid Pinnipeds (bearded, ringed, spotted <10 m (0 km2) ...... 20 m (66 ft) ...... 526 m (0.87 km2) ...... 240 m (0.18 km2). seals).

TABLE 6—RADIAL DISTANCES TO NMFS LEVEL B HARASSMENT THRESHOLDS AND ENSONIFIED AREAS

Activity Ice-covered season Open-water season 1 Airborne

Ice road construction and maintenance ...... 170 m (0.09 km2) ...... n/a ...... <15 m (<0.001 km2). Pipeline construction ...... 210 m (0.14km2) ...... n/a. Sheet pile driving—vibratory ...... 390 m (0.48 km2) ...... 14,800 m (63.9 km2) 2. Sheet pile driving—impact ...... 90 m (0.03 km2) ...... 2050 m (13.20 km2) ...... 100 m (0.031 km2). Conductor pipe/foundation pile driving—impact ...... 11 m ( <0.01 km2) ...... 315 m (0.31 km2). Slope shaping/armoring ...... n/a ...... 1160 m (4.23 km2) ...... <15 m (<0.001 km2). Helicopter (take-off/landing) ...... n/a ...... n/a ...... 67 m (0.041 km2). Drilling and Production ...... 230 m (0.17 km2) ...... 55 m (<0.01 km2) ...... 30 m (0.003 km2). 1 Open water modeling results in the proposed rule were presented as minimum, median and maximum distances to the appropriate noise threshold across all depths calculated in the direction of maximum noise propagation from the source, away from shore. For this final rule, NMFS determined the median distance was appropriate to implement as the Level B harassment area. As in the proposed rule, these median distances were used to estimate take. 2 The ensonified area considers the noise absorption effect of the McClure Islands.

Marine Mammal Occurrence marine mammals on effort for 10,993 whale densities were calculated in a Each fall and summer, NMFS and km and 11,047 km, respectively, from two-step approach; they first calculated BOEM conduct an aerial survey in the 2011 through 2017 (Table 7). Data from a sighting rate of whales per km, then Arctic, the Aerial Survey of Arctic those surveys are used for this analysis. they multiplied the transect length by Marine Mammals (ASAMM) surveys. We note the location of the proposed the effective strip width using the The goal of these surveys is to document LDPI project is in ASAMM survey block modeled species-specific effective strip the distribution and relative abundance 1; the inshore boundary of this block width for an aero commander aircraft of bowhead, gray, right, fin and beluga terminates at the McClure Island group. calculated by Ferguson and Clarke whales and other marine mammals in It was not until 2016 that on-effort (2013). Where the effective strip width areas of potential oil and natural gas surveys began inside the McClure Island is the half-strip width, it must be exploration, development, and group (i.e., Foggy Island Bay) since multiplied by 2 in order to encompass production activities in the Alaskan bowhead whales, the focus of the both sides of the transect line. Thus Beaufort and northeastern Chukchi surveys, are not likely to enter the bay. whale density was calculated as follows: Seas. Traditionally, only fall surveys No marine mammals have been Whales per km2 = whales per kilometer/ were conducted but then, in 2011, the observed during ASAMM surveys in (2 × the effective strip width). The Foggy Island Bay. Therefore, the density first dedicated summer survey effort effective strip width for bowhead estimates provided here are an began in the ASAMM Beaufort Sea whales was calculated to be 1.15 km overestimate because they rely on study area. Hilcorp used these ASAMM (CV = 0.08). Table 7 contains pooled offshore surveys where marine surveys as the data source to estimate data from 2011 through 2017 Block 1 mammals are concentrated. seasonal densities of cetaceans ASAMM surveys and resulting (bowhead, gray and beluga whales) in Bowhead Whale densities. the project area. The ASAMM surveys are conducted within blocks that Summer and fall bowhead whale The resulting densities are expected overlay the Beaufort and Chukchi Seas densities were calculated using the to be overestimates for the LDPI analysis oil and gas lease sale areas offshore of results from ASAMM surveys from 2011 because data is based on sighting effort Alaska (Figure 6–1 in Hilcorp’s through 2017. The surveys provided outside the barrier islands, and application), and provide sighting data sightings and effort data by month and bowhead and gray whales rarely occur for bowhead, gray, and beluga whales season (summer and fall), as well as within the barrier islands, while belugas during summer and fall months. During each survey block (Clarke et al., 2012, also are found in higher abundance the summer and fall, NMFS observed for 2013a, 2014, 2015, 2017). Bowhead outside of Foggy Island Bay.

TABLE 7—BOWHEAD WHALE SIGHTING DATA FROM 2011 THROUGH 2017 AND RESULTING DENSITIES

Transect Number Year Season Month whale whale/km whale/km2 effort (km) sighted

2011 ...... Summer ...... Jul–Aug ...... 346 1 0.003 0.001 Fall ...... Sept–Oct ...... 1,476 24 0.016 0.007 2012 ...... Summer ...... Jul–Aug ...... 1,493 5 0.003 0.001 Fall ...... Sept–Oct ...... 1,086 14 0.013 0.006

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TABLE 7—BOWHEAD WHALE SIGHTING DATA FROM 2011 THROUGH 2017 AND RESULTING DENSITIES—Continued

Transect Number Year Season Month whale whale/km whale/km2 effort (km) sighted

2013 ...... Summer ...... Jul–Aug ...... 1,582 21 0.013 0.006 Fall ...... Sept–Oct ...... 1,121 21 0.019 0.008 2014 ...... Summer ...... Jul –Aug ...... 1,393 17 0.012 0.005 Fall ...... Sept–Oct ...... 1,538 79 0.051 0.022 2015 ...... Summer ...... Jul–Aug ...... 1,262 15 0.012 0.005 Fall ...... Sept–Oct ...... 1,663 17 0.010 0.004 2016 ...... Summer ...... Jul–Aug ...... 1,914 74 0.039 0.017 Fall ...... Sept–Oct ...... 2,360 19 0.008 0.004 2017 ...... Summer ...... Jul–Aug ...... 3,003 8 0.003 0.001 Fall ...... Sept–Oct ...... 1,803 85 0.047 0.020

Total ...... Summer 10,993 141 1 0.012 1 0.005 Fall 11,047 259 1 0.023 1 0.0010 1 Value represents average, not total, across all years per relevant season.

Gray Whales 21,000 miles of trackline effort, for a requested, and NMFS proposes to resulting density of zero (Table 8). authorize, the take, by Level B Gray whales are rare in the project However, a group of baleen whales harassment, of two gray whales area and ASAMM aerial survey block 1. comprised of both bowhead and gray annually during the effective period of From 2011 through 2017 only two gray whales was observed during industry the regulations on the chance gray whales have been observed during marine mammal surveys in Foggy Island whales enter the ensonified zone during ASAMM block 1 surveys despite over Bay in 2008. Therefore, Hilcorp has LDPI activities.

TABLE 8—GRAY WHALE SIGHTING DATA FROM 2011 THROUGH 2017 AND RESULTING DENSITIES

Transect Number Year Season Month whale whale/km whale/km2 effort (km) sighted

2011 ...... Summer ...... Jul–Aug ...... 346 0 0.000 0.000 Fall ...... Sept–Oct ...... 1,476 0 0.000 0.000 2012 ...... Summer ...... Jul–Aug ...... 1,493 0 0.000 0.000 Fall ...... Sept–Oct ...... 1,086 0 0.000 0.000 2013 ...... Summer ...... Jul–Aug ...... 1,582 0 0.000 0.000 Fall ...... Sept–Oct ...... 1,121 0 0.000 0.000 2014 ...... Summer ...... Jul–Aug ...... 1,393 0 0.000 0.000 Fall ...... Sept–Oct ...... 1,538 1 0.001 0.000 2015 ...... Summer ...... Jul–Aug ...... 1,262 0 0.000 0.000 Fall ...... Sept–Oct ...... 1,663 0 0.000 0.000 2016 ...... Summer ...... Jul–Aug ...... 1,914 1 0.001 0.000 Fall ...... Sept–Oct ...... 2,360 0 0.000 0.000 2017 ...... Summer ...... Jul–Aug ...... 3,003 0 0.001 0.000 Fall ...... Sept–Oct ...... 1,803 0 0.000 0.000

Total ...... Summer 10,993 1 0 0.000 Fall 11,047 1 0 0.000

Beluga Whales density inside the bay or integration numbers presented in this rule are into the ASAMM survey data. The adjusted based on expected presence in As with the large whales, beluga ASAMM surveys were recently the entire bay based on marine mammal whale presence is anticipated to be extended into Foggy Island Bay; monitoring by industry in Foggy Island higher outside the barrier islands. however, no beluga whales or any other Bay, NMFS did not pursue investigating Sighting data collected during industry cetaceans were observed while within the raw data further and believe the marine mammal surveys in Foggy Island the Bay. Table 9 presents block 1 values here are a reasonable and Bay (as described in the Description of ASAMM survey data and resulting conservative representation of density Marine Mammals section) are used to densities for beluga whales. We note the in survey block 1 based on comparison estimate likelihood of presence when 2012 and 2013 ASAMM reports to other ASAMM survey year sighting deriving final take numbers; however, stratified beluga whale sightings by rates where sightings by blocks are these data were not collected in a depth rather than by survey block. available. manner that allows for a derivation of Because the final beluga whale take

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TABLE 9—BELUGA WHALE SIGHTING DATA FROM 2011 THROUGH 2017 AND RESULTING DENSITIES

Transect Number Year Season Month whale whale/km whale/km2 effort (km) sighted

2011 ...... Summer ...... Jul–Aug ...... 346 0 0.000 0.000 Fall ...... Sept–Oct ...... 1,476 0 0.000 0.000 2012 ...... Summer ...... Jul–Aug ...... 5,001 47 0.009 0.008 Fall ...... Sept–Oct ...... 4,868 5 0.001 0.001 2013 ...... Summer ...... Jul–Aug ...... 4,270 75 0.018 0.014 Fall ...... Sept–Oct ...... 3,372 2 0.001 0.001 2014 ...... Summer ...... Jul–Aug ...... 1,393 13 0.009 0.008 Fall ...... Sept–Oct ...... 1,538 9 0.006 0.005 2015 ...... Summer ...... Jul–Aug ...... 1,262 37 0.029 0.024 Fall ...... Sept–Oct ...... 1,663 3 0.002 0.001 2016 ...... Summer ...... Jul–Aug ...... 1,914 1 0 1 0.00 1 0.000 Fall ...... Sept–Oct ...... 2,360 1 1 1 0.000 1 0.000 2017 ...... Summer ...... Jul–Aug ...... 3,003 4 0.001 0.001 Fall ...... Sept–Oct ...... 1,803 0 0.000 0.000

Total ...... Summer 17,189 521 0 1 0.008 Fall 17,080 34 0 1 0.001 1 The proposed rule contained an error in reporting the 2016 sighting data. Fewer whales were observed than reported, overestimating density. However, the amount of beluga whale take authorized has not changed from the proposed rule because take numbers were increased from the calculated density estimates.

Ringed Seals their estimate of the average number of Bearded Seals lairs used by a seal was an Limited data are available on ringed Industry monitoring surveys for the underestimate (the denominator used). seal densities in the southern Beaufort Northstar development during the Sea during the winter months; however, For spring ringed seal densities, aerial spring seasons in 1999 (Moulton et al., ringed seals winter ecology studies surveys flown in 1997 through 2002 2000), 2000 (Moulton et al., 2001), 2001 conducted in the 1980s (Kelly et al., over Foggy Island Bay and west of (Moulton et al., 2002a), and 2002 1986, Frost and Burns, 1989) and Prudhoe Bay during late May and early (Moulton et al., 2003) counted 47 surveys associated with the Northstar June (Frost et al., 2002, Moulton et al., bearded seals (annual mean of 11.75 development (Williams et al., 2001) 2002b, Richardson and Williams, 2003), seals during an annual mean of 3,997.5 2 provide information on both seal ice- when the greatest percentage of seals km of effort); these data were structure use (where ice structures have abandoned their lairs and are insufficient to calculate a reliable include both breathing holes and hauled out on the ice (Kelly et al., 2010), density estimate in each year, no other subnivean lairs), and on the density of provides the best available information data on bearded seal presence were ice structures. on ringed seal densities. available. Annual reports (Richardson, 2008) for years 2000 through 2002 Kelly et al. (1986) found that in the Because densities were consistently include similar figures. A winter and southern Beaufort Sea and Kotzebue very low where water depth was less spring density using the four years of Sound, radio-tagged seals used between than 3 m (and these areas are generally Northstar development data equates to 1 and at least 4 subnivean lairs. The frozen solid during the ice-covered 0.003 bearded seals per km2. distances between lairs was up to 4 km season), densities have been calculated For the open-water season (summer (10 mi), with numerous breathing holes where water depth was greater than 3 m and fall), bearded seal density was in-between (Kelly et al., 1986). While deep (Moulton et al., 2002a, Moulton et calculated as a proportion of the ringed Kelly et al. (1986) calculated the average al., 2002b, Richardson and Williams, seal summer density based on the number of lairs used per seal to be 2.85, 2003). Based on the average density of percentage of pinniped sightings during they also suggested that this was likely surveys flown between 1997 and 2002, monitoring surveys in 1996 (Harris et to be an underestimate. To estimate the uncorrected average density of al., 2001), 2008 (Aerts et al., 2008, winter ringed seal density within the ringed seals during the spring is Hauser et al., 2008), and 2012 (HDR, project area, sea-ice structure density expected to be 0.548 ringed seals/km2. 2012). During these surveys, 63 percent surveyed in 1982 (3.6 structures/km2; Because the number of seals is expected were ringed seals, 17 percent were Frost and Burns, 1982), 1983 (0.81 to be much lower during the open-water bearded seals, and 20 percent were structures/km2; Kelly et al., 1983), 1999 season, we estimated summer (open- spotted seals. Thus, the density of (0.71 structures/km2, Williams et al., water) ringed seal density to be 50 bearded seals during the open-water 2001), and 2000 (1.2 structures/km2, percent of the spring densities, resulting season (summer and fall) was calculated Williams et al., 2001) were averaged to in an estimated density of 0.27 ringed as 17 percent of the ringed seal density produce an average ice structure density seals/km2. Ringed seals remain in the of 0.27 seals/km2. This results in an of 1.58/km2. That was divided by the water through the fall and in to the estimated summer density for bearded average number of ice structures used winter, however, due to the lack of seals of 0.05 seals/km2. by an individual seal of 2.85 (SD = 2.51; available data on fall densities within Kelly et al., 1986), resulting in an the LDPI action area we have assumed Spotted Seals estimated density of 0.55 ringed seals/ the same density of ringed seals as in Given their seasonal distribution and km2 during the winter months. This the summer; 0.27 ringed seals/km2 (see low numbers in the nearshore waters of density is likely to be overestimated due Hilcorp’s application and NMFS (2018) the central Alaskan Beaufort Sea, no to Kelly et al. (1986)’s suggestion that for more data details). spotted seals are expected in the action

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area during late winter and spring, but (summer and fall) was calculated as 20 A summary of marine mammal a few individuals could be expected percent of the ringed seal summer densities used to estimate exposures is during the summer or fall. Using the density estimate (0.27 seals/km2) in the provided, by season and species, in same monitoring data described in the LDPI Project Area. This results in an Table 10. bearded seal section above, spotted seal estimated density of 0.05 seals/km2. density during the open-water season

TABLE 10—SUMMARY OF MARINE MAMMAL DENSITIES

Winter Spring Summer Fall Species Stock (Nov–Mar) (Apr–Jun) (Jul–Aug) (Sept–Oct)

Bowhead whale ...... Western Arctic ...... 0 0 0.005 0.01 Gray whale ...... Eastern N Pacific ...... 0 0 0 0 Beluga whale ...... Beaufort Sea ...... 0 0 0.008 0.001 Ringed seal ...... Alaska ...... 0.548 0.548 0.27 0.27 Bearded seal ...... Alaska ...... 0.003 0.003 0.05 0.05 Spotted seal ...... Alaska ...... 0 0 0.05 0

Exposure Estimates D of Hilcorp’s application), where amount of the Level B harassment To quantitatively assess exposure of bowheads are more likely to be found. exposures were allocated to Level A marine mammals to noise from the As described in the Marine Mammal harassment for the first year of work Occurrence section, we used density various activities associated with the (i.e., pile driving during open water). based on surveys conducted outside of Liberty Project, Hilcorp used the median For seals, a straight density estimate the McClure Islands; therefore, Hilcorp range to which Level A harassment and was used following the method has likely overestimated potential takes. Level B harassment thresholds were described above. In assessing the However, given the sensitivities reached for ice road construction and calculated results; there was no need to surrounding species in the Arctic, we maintenance, island construction, adjust take numbers for Level B believe a precautionary approach is vibratory and impact sheet pile driving, harassment. appropriate here to conservatively impact conductor pipe driving, slope assess the potential effects on the stock The amount and manner of takes shaping, drilling, and production. and subsistence use. Hilcorp requested, and NMFS Hilcorp considered the potential for Bowhead, gray, and beluga whales authorizes, for each species is takes on any given day based on the have the potential to be present and summarized in Table 11 below. There largest Level B harassment zone for that exposed to noise during the open-water was a slight adjustment to the number day. season. Work during ice conditions (e.g., of Level B harassment takes for For each species, exposure estimates pipeline installation, ice road bowhead whales and gray whales from were calculated in a multi-step process. construction) does not have the the proposed to final rule to account for On any given day of the year, the potential to harass cetaceans because an average group size of 2 and 5 expected take for that day per species they are not present in the action area. animals, respectively, should these × was calculated as: density ensonified Hilcorp anticipates conducting a species come within Foggy Island Bay. area (of the largest Level B harassment maximum of 15 days of open-water pile NMFS also slightly adjusted ringed seal zone for that day). Results were then driving and could conduct slope takes in years 2–5 as the calculations summed for the year to provide total shaping throughout the summer. The previously presented by Hilcorp exposure estimates per species. method described above was used to mistakenly omitted 15 days of work and In some cases, however, the estimate take, by Level B harassment, in used drilling as the dominant noise calculated densities alone do not reflect year 1 when the LDPI would be source in the take equations in lieu of the full potential of exposure. For constructed. ice road construction in December and example, beluga whale densities are There is a very low potential for large January in years 4 and 5. These changes quite low; however, previous marine whale Level A harassment (PTS) from resulted in an insignificant increase in mammal surveys in Foggy Island Bay the specified activities given the rarity the number of animals potentially taken have identified the potential for them to of bowhead and gray whales entering from the proposed rule (no more than 5 be there in greater numbers than Foggy Island Bay. However, in an additional takes in years 2–5). Given the reflected based on NMFS survey data abundance of caution, Hilcorp has very low density of bearded and spotted alone. In other cases, the potential for requested, and NMFS authorizes, seals in the area, no changes to the take exposure is almost discountable (e.g., limited Level A harassment takes per estimate were necessary for these calculated gray whale takes are zero) but year of each species potentially exposed species given this slight modification to given they could appear in Foggy Island to impact pile driving noise (Table 11). the take calculations. Therefore, all Bay, Hilcorp has requested take Group size was considered in Level B other takes remains the same as in the authorization. Hilcorp also requested harassment take requests in cases where proposed rule. In addition to the takes take authorization for bowhead whales sighting data and group size indicate listed below, Hilcorp requests, and despite the lack of project-related noise potential for a greater amount of takes NMFS authorizes, a total of two ringed above NMFS harassment thresholds than calculated based on density (e.g., seal mortalities over the life of the extending much beyond the McClure beluga whale take request is higher than regulations incidental to ice road Islands (e.g., see Figure 02 in Appendix calculated take estimate). A small construction, use, and maintenance.

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TABLE 11—ANNUAL AND TOTAL AMOUNT OF TAKES, BY LEVEL A HARASSMENT AND LEVEL B HARASSMENT, AUTHORIZED INCIDENTAL TO HILCORP’S LDPI PROJECT

Species (stock) Year Bowhead Gray Beluga Ringed seal Bearded seal Spotted seal (W Arctic) (ENP) (Beaufort) (AK) (AK) (AK)

Level A harassment

1 ...... 2 2 10 5 2 2 2 ...... 0 0 0 0 0 0 3 ...... 0 0 0 0 0 0 4 ...... 0 0 0 0 0 0 5 ...... 0 0 0 0 0 0

Total Level A harassment ...... 2 2 10 5 2 2

Level B harassment

1 ...... 6 2 40 336 58 58 2 ...... 5 2 20 9 1 1 3 ...... 5 2 20 23 1 1 4 ...... 5 2 20 23 1 1 5 ...... 5 2 20 20 1 1

Total Level B harassment ...... 26 10 120 411 62 62

Mitigation effective if implemented (probability of During the open-water season, the In order to issue an ITA under Section accomplishing the mitigating result if following mitigation measures apply: 101(a)(5)(A) and (D) of the MMPA, implemented as planned), and the Hilcorp will station two protected NMFS must set forth the permissible likelihood of effective implementation species observers (PSOs) on elevated methods of taking pursuant to such (probability implemented as planned), platforms on the island during all pile activity, and other means of effecting and; driving in open-water conditions (see the least practicable impact on such (2) the practicability of the measures Monitoring and Reporting for more species or stock and its habitat, paying for applicant implementation, which details). Marine mammal monitoring particular attention to rookeries, mating may consider such things as cost, shall take place from 30 minutes prior grounds, and areas of similar impact on operations, and, in the case to initiation of pile driving activity significance, and on the availability of of a military readiness activity, through 30 minutes post-completion of such species or stock for taking for personnel safety, practicality of pile driving activity. Pre-activity certain subsistence uses. implementation, and impact on the monitoring shall be conducted for 30 NMFS regulations require applicants effectiveness of the military readiness minutes to ensure that the shutdown for incidental take authorizations to activity. zone is clear of marine mammals, and include information about the The mitigation measures presented pile driving may commence when availability and feasibility (economic here are a product of Hilcorp’s observers have declared the shutdown and technological) of equipment, application, recommendations from the zone (which equates to the Level A methods, and manner of conducting Arctic peer-review panel (available at harassment zone in Table 5) is clear of such activity or other means of effecting https://www.fisheries.noaa.gov/permit/ marine mammals. In the event of a delay the least practicable adverse impact incidental-take-authorizations-under- or shutdown of activity resulting from upon the affected species or stocks and marine-mammal-protection-act), NMFS’ marine mammals in the shutdown zone, their habitat (50 CFR 216.104(a)(11)). animals shall be allowed to remain in In evaluating how mitigation may or recommendations, and public comments on the Federal Register the shutdown zone (i.e., must leave of may not be appropriate to ensure the their own volition) and their behavior least practicable adverse impact on Notice of Receipt and the proposed rule. shall be monitored and documented. species or stocks and their habitat, as Construction Mitigation Measures well as subsistence uses where If a marine mammal is approaching a applicable, we carefully consider two Hilcorp will aim to construct the Level A harassment zone and pile primary factors: island, including the completion of all driving has not commenced, pile (1) The manner in which, and the pile driving, during the ice-covered driving shall be delayed. Pile driving degree to which, the successful season (as was done for Northstar). may not commence or resume until implementation of the measure(s) is Should an ice seal be observed on or either the animal has voluntarily left expected to reduce impacts to marine near the LDPI by any Hilcorp personnel, and been visually confirmed beyond the mammals, marine mammal species or the sighting will be reported to Hilcorp’s shutdown zone; 15 minutes have passed stocks, and their habitat, as well as Environmental Specialist. No without subsequent detections of small subsistence uses. This considers the construction activity should occur cetaceans and pinnipeds; or 30 minutes nature of the potential adverse impact within 10 m of an ice seal and any have passed without subsequent being mitigated (likelihood, scope, vehicles used should use precaution detections of large cetaceans. NMFS range). It further considers the and not approach any ice seal within 10 may adjust the shutdown zones pending likelihood that the measure will be m. review and approval of an acoustic

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monitoring report (see Monitoring and incidental-take-authorizations-under- Wildlife Interaction Plan, which has Reporting). marine-mammal-protection-act. been modified to include reference to Hilcorp will use soft start techniques The ice road BMPs are applicable to the BMPs and reporting protocol. In when impact pile driving. Soft start construction and maintenance of Liberty addition to the BMPs, other topics in the requires contractors to provide an initial sea ice roads and sea ice trails in areas training may include ringed seal set of strikes at reduced energy, where water depth is greater than 10 reproductive ecology (e.g., temporal and followed by a thirty-second waiting feet (ft) (the minimum depth required to spatial lairing behavior, habitat period, then two subsequent reduced establish ringed seal lairs) as well as any characteristics, potential disturbance energy strike sets. A soft start must be open leads in the sea ice requiring a effect, etc.) and a summary of applicable implemented at the start of each day’s temporary bridge during the ice road laws and regulatory requirements impact pile driving and at any time season. They are organized into the including, but not limited to, MMPA following cessation of impact pile following categories: (1) Wildlife incidental take authorization driving for a period of thirty minutes or training; (2) general BMPs implemented requirements. longer. throughout the ice road season; (3) General BMPs To Be Implemented In the unlikely event a low frequency BMPs to be implemented prior to March Throughout Season—Hilcorp would cetacean (bowhead or gray whale) 1st; (4) BMPs to be implemented after establish ice road speed limits, delineate approaches or enters the Level A March 1; and (5) reporting. We refer the the roadways with highly visible harassment zone, pile driving would be reader to the complete BMP document markers (to avoid vehicles from driving shut down. If a mid-frequency cetacean on our website but provide a summary off roadway where ice seals may be (beluga) or pinniped (seal) enters the of provisions here. more likely to lair), and clearly mark Level A harassment zone during pile Timing—Hilcorp will construct sea corners of rig mats, steel plates, and driving, Hilcorp proposes to complete ice roads as early as possible (typically other materials used to bridge sections December 1 through mid-February) so setting the pile (which takes ten to of hazardous ice (to allow for easy fifteen minutes from commencement) that the entire corridor is disturbed location of materials when removed, but will not initiate additional pile prior to March 1, the known onset of minimizing disturbance to potentially driving of new piles until the marine lairing season. Blading and snow nearby ice seals). Construction, mammal has left and is on a path away blowing of ice roads/trails will be maintenance or decommissioning from the Level A harassment zone. limited to the previously disturbed and activities associated with ice roads and Hilcorp would not commence pile delineated areas to the extent safe and trails will not occur within 50 m of any driving if any species is observed practicable. Snow will be plowed or observed ring seal, but may proceed as approaching or within the Level A blown from the ice surface so as to soon as the ringed seal, of its own harassment zone during the pre- preserve the safety and integrity of the accord, moves farther than 50 m construction monitoring period. ice surface for continued use. If a species for which authorization After March 1, annually, blading and distance away from the activities or has has not been granted, or a species for snow blowing of ice roads will be not been observed within that area for which authorization has been granted limited to the previously disturbed ice at least 24 hours. All personnel would but the authorized takes are met, is road/shoulder areas to the extent safe be prohibited from closely approaching observed approaching or within the and practicable. However, when safety any seal and would be required to report monitoring zone (which equates to the requires a new ice trail to be constructed all seals sighted within 50 m of the Level B harassment zone in Table 6), after March 1st, construction activities center of the ice road to the designated pile driving and removal activities must such as drilling holes in the ice to Environmental Specialist. shut down immediately using delay and determine ice quality and thickness, Once the new ice trail is established, shut-down procedures. Activities must will be conducted only during daylight tracked vehicle operation will be not resume until the animal has been hours with good visibility. All identified limited to the disturbed area to the confirmed to have left the area or the ringed seal structures will be avoided by extent practicable and when the safety observation time period, as indicated a minimum of 150 m during ice road of personnel is ensured. If an ice road above, has elapsed. construction and maintenance. or trail is being actively used under Hilcorp shall install the pipeline Personnel—Hilcorp will employ a daylight conditions with good visibility, during the ice-covered season, thereby NMFS-approved, trained environmental a dedicated observer (not the vehicle minimizing noise impacts to marine field specialist who will serve as the operator) will conduct a survey along mammals as noise does not propagate primary ice seal monitor and main point the sea ice road/trail to observe if any well in ice and cetaceans are not present of contact for any ice seal observations ringed seals are within 150 m of the in the action area during winter. made by other Hilcorp staff, employees, roadway corridor. or contractors. This person shall be in Mitigation for Subsistence Uses of Mitigation for Ice Road Construction, charge of conducting monitoring Maintenance, and Use Marine Mammals or Plan of surveys every other day while the ice Cooperation During ice road construction, Hilcorp road is being actively used. The would follow several BMPs recently specialist will also be responsible for Regulations at 50 CFR 216.104(a)(12) developed through a collaborative effort alerting all crew to ice seal sightings and further require incidental take with NMFS. These BMPs are informed reporting to the appropriate officials. authorization (ITA) applicants by the best available information on Training—Prior to initiation of annual conducting activities that take place in how ice roads are constructed and sea ice road activities, all project Arctic waters to provide a Plan of maintained and ice seal lairing personnel associated with ice road Cooperation (POC) or information that knowledge. They are designed to construction or use (i.e., construction identifies what measures have been minimize disturbance and set forth a workers, surveyors, vehicle drivers taken and/or will be taken to minimize monitoring and reporting plan to security personnel, and the adverse effects on the availability of improve knowledge. The complete BMP environmental team) will receive annual marine mammals for subsistence document is available on our website at training on these BMPs. Annual training purposes. A plan must include the https://www.fisheries.noaa.gov/permit/ also includes reviewing the company’s following:

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• A statement that the applicant has hunt, which usually occurs from the last monitoring and reporting of the notified and provided the affected week of August through mid-September. authorized taking. NMFS’ MMPA subsistence community with a draft We have modified this measure to align implementing regulations further plan of cooperation; with BOEM’s permitting measure, describe the information that an • A schedule for meeting with the which requires Hilcorp to cease all pile- applicant should provide when affected subsistence communities to and pipe-driving (both impact and requesting an authorization (50 CFR discuss proposed activities and to vibratory) starting August 1, annually. 216.104(a)(13)), including the means of resolve potential conflicts regarding any This restriction is in place until the accomplishing the necessary monitoring aspects of either the operation or the official end of the hunt or until the and reporting that will result in plan of cooperation; quota has been met, whichever occurs increased knowledge of the species and • A description of what measures the first. the level of taking or impacts on applicant has taken and/or will take to We have also modified the measure populations of marine mammals. ensure that proposed activities will not included in the proposed rule that Monitoring and reporting interfere with subsistence whaling or stated Hilcorp must schedule all non- requirements prescribed by NMFS sealing; and essential boat, hovercraft, barge, and air should contribute to improved • What plans the applicant has to traffic to avoid conflicting with the understanding of one or more of the continue to meet with the affected timing of the Cross Island bowhead following: communities, both prior to and while hunt. The new measure requires Hilcorp • Occurrence of significant conducting the activity, to resolve to avoid operating LDPI-support vessels interactions with marine mammal conflicts and to notify the communities seaward of the barrier islands starting species in action area (e.g., animals that of any changes in the operation. August 1, annually, to better align with came close to the vessel, contacted the Hilcorp submitted a POC to NMFS, BOEM’s permitting requirement. This gear, or are otherwise rare or displaying dated April 18, 2018, which includes all restriction is in place until the official unusual behavior); the required elements included in the end of the hunt or until the quota has • Nature, scope, or context of likely aforementioned regulations (available at been met, whichever occurs first. marine mammal exposure to potential https://www.fisheries.noaa.gov/permit/ During the comment period on stressors/impacts (individual or incidental-take-authorizations-under- BOEM’s EIS for this project and our cumulative, acute or chronic), through marine-mammal-protection-act). The NOR announcing receipt of Hilcorp’s better understanding of: (1) Action or POC documents Hilcorp’s stakeholder application, the AEWC submitted environment (e.g., source engagement activities, which began in comments pertaining to potential effects characterization, propagation, ambient 2014 for this project, with subsistence on subsistence use. The AEWC noise); (2) affected species (e.g., life communities within the North Slope indicated that Hilcorp’s continued history, dive patterns); (3) co-occurrence Region including Nuiqsut, Barrow and participation in the Open Water Season of marine mammal species with the Kaktovik, the closest villages to the CAA and the Good Neighbor Policy action; or (4) biological or behavioral Project Area. The POC includes a (GNP), along with its willingness to context of exposure (e.g., age, calving or description of the project, how access to work with the Nuiqsut Whaling feeding areas); the Project Area will occur, pipeline and Captains to mitigate subsistence harvest • Individual marine mammal island construction techniques, and concerns, are central to the AEWC’s responses (behavioral or physiological) drilling operations. The plan also support for the Liberty Project. Further, to acoustic stressors (acute, chronic, or describes the ongoing community the peer-review panel recommended the cumulative), other stressors, or outreach cooperation and coordination existing POC and CAA should be cumulative impacts from multiple and measures that will be implemented renewed and implemented annually to stressors; by Hilcorp to minimize adverse effects ensure that project activities are • How anticipated responses to on marine mammal subsistence. The coordinated with the North Slope stressors impact either: (1) Long-term POC is a living document and will be Borough and Alaska Native whaling fitness and survival of individual updated throughout the LDPI review captains. Therefore, in addition to the marine mammals; or (2) populations, and permitting process. As such, activity specific mitigation measures species, or stocks; Hilcorp intends to maintain open above, NMFS is requiring Hilcorp to • Effects on marine mammal habitat communication with all stakeholders abide by the POC and remain committed (e.g., marine mammal prey species, throughout the Liberty permitting and to the GNP throughout the life of the acoustic habitat, or important physical development process. In addition, regulations. In addition, Hilcorp has components of marine mammal habitat); Hilcorp, along with several other North committed to following the CAA. and Slope Industry participants, has entered Based on our evaluation of the • Mitigation and monitoring into a Conflict Avoidance Agreement measures incorporated in this final rule, effectiveness. (CAA) with the AEWC for all North NMFS has determined that the Marine Mammal Monitoring During the Slope oil and gas activities to minimize mitigation measures provide the means Open-Water Season potential interference with bowhead of effecting the least practicable impact subsistence hunting. By nature of the on the affected species or stocks and Hilcorp shall employ NMFS approved measures, the mitigation described their habitat, paying particular attention PSOs and conduct marine mammal above also minimizes impacts to to rookeries, mating grounds, and areas monitoring per the Marine Mammal subsistence users and is not repeated of similar significance, and on the Monitoring Plan, dated February 12, here. Additional mitigation measures availability of such species or stock for 2019. Two PSOs will be placed on specific to subsistence use were subsistence uses. either side of the island where pile/ included in the proposed rule; however, pipe-driving or slope shaping activities we made minor modifications to better Monitoring and Reporting are occurring. For example, one PSO align with BOEM’s permit conditions. In order to issue an LOA for an would be placed on the side where The proposed rule included the measure activity, Section 101(a)(5)(A) of the construction activities are taking place to avoid impact pile and pipe driving MMPA states that NMFS must set forth and the other placed on the opposite during the Cross Island bowhead whale requirements pertaining to the side to provide complete observer

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coverage around the island. PSO determined GPS location(s) away from associated with construction, stations will be moved around the the LDPI. Each DASAR will be maintenance or decommissioning) may island as needed during construction connected by a ground line to an anchor continue their route within the activities to provide full coverage. PSOs on the seafloor. At the end of the open designated road/trail without stopping. will be switched out such that they will water season, the DASAR will be If a ringed seal structure (i.e., observe for no more than 4 hours at a retrieved by dragging grappling hooks breathing hole or lair) is observed time and no more than 12 hours in a 24- on the seafloor, perpendicular to and within 150 m of the ice road/trail, the hour period. over the location of the ground line, as location of the structure will be reported A third island-based PSO will work defined by the GPS locations of the to the Environmental Specialist who closely with an aviation specialist to anchor and DASAR. All activities will then carry out a notification monitor the Level B harassment zone conducted during the open-water season protocol. A qualified observer will during all open-water pile and pipe will be monitored. Goals of the acoustic monitor the structure every six hours on driving using an unmanned aircraft monitoring plan are to characterize LDPI the day of the initial sighting to system (UAS). This third PSO and the construction and operation noises, determine whether a ringed seal is UAS pilot will be located on the island. ambient sound levels, and verify (or present. Monitoring for the seal will UAS monitoring will also be used amend) modeled distances to NMFS occur every other day the ice road is during slope shaping, which may occur harassment thresholds. Recorder being used unless it is determined the in open water intermittently until arrangement will be configured each structure is not actively being used (i.e., August 31 the first year the regulations year based on the anticipated activities a seal is not sighted at that location are valid. Should foundation piles be for that season and the modelled sound during monitoring). installed the subsequent year, the propagation estimates for the relevant Monitoring Plan Peer Review requirement for UAS will be dependent sources. Hilcorp’s acoustic monitoring upon the success of the program in the plan can be found at https:// The MMPA requires that monitoring previous year and results of any www.fisheries.noaa.gov/permit/ plans be independently peer reviewed preliminary acoustic analysis during incidental-take-authorizations-under- where the proposed activity may affect year 1 construction (e.g., impact driving marine-mammal-protection-act. the availability of a species or stock for conductor pipes). Should UAS not be taking for subsistence uses (16 U.S.C. deemed effective and construction is Marine Mammal Monitoring During Ice 1371(a)(5)(D)(ii)(III)). Regarding this ongoing during the open-water season, a Road Construction, Maintenance and requirement, NMFS’ implementing vessel-based PSO shall observe the Use regulations state, upon receipt of a monitoring zone during pile and pipe Hilcorp has prepared a complete monitoring plan, and at its driving. comprehensive ice seal monitoring and discretion, NMFS will either submit the During the open-water season, marine mitigation plan via development of a plan to members of a peer-review panel mammal monitoring will take place BMP document which is available at for review or, within 60 days of receipt from 30 minutes prior to initiation of https://www.fisheries.noaa.gov/permit/ of the monitoring plan, schedule a pile and pipe driving activity through incidental-take-authorizations-under- workshop to review the plan (50 CFR 30 minutes post-completion of pile marine-mammal-protection-act. Hilcorp 216.108(d)). driving activity. Pile driving may would be required to implement these NMFS established an independent commence when observers have BMPs; we provide a summary here but peer review panel (PRP) to review declared the shutdown zone clear of encourage the public to review the full Hilcorp’s 4MP for the proposed LDPI marine mammals. In the event of a delay BMP document. project in Foggy Island Bay. NMFS or shutdown of activity resulting from Seal surveys will be conducted every provided the PRP with Hilcorp’s ITA marine mammals in the shutdown zone, other day during daylight hours. application and monitoring plan and animals must be allowed to remain in Observers for ice road activities need asked the panel to answer the following the shutdown zone (i.e., must leave of not be trained PSOs, but they must have questions: their own volition) and their behavior received the species observation 1. Will the applicant’s stated must be monitored and documented. training and understand the applicable objectives effectively further the During the ice-covered season, in sections of Hilcorp’s Wildlife understanding of the impacts of their addition to ice road monitoring (see Management Plan. In addition, they activities on marine mammals and below), Hilcorp personnel will report must be capable of detecting, observing otherwise accomplish the goals stated any ice seal sightings on or near the and monitoring ringed seal presence above? If not, how should the objectives LDPI to Hilcorp’s Environmental and behaviors, and accurately and be modified to better accomplish the Specialist. completely recording data. Observers goals above? will have no other primary duty than to 2. Can the applicant achieve the Acoustic Monitoring During the Open- watch for and report observations stated objectives based on the methods Water Season related to ringed seals during this described in the plan? Hilcorp will conduct acoustic survey. If weather conditions become 3. Are there technical modifications to monitoring of island construction unsafe, the observer may be removed the proposed monitoring techniques and activities during the open-water season from the monitoring activity. methodologies proposed by the in accordance with its Acoustic Construction, maintenance or applicant that should be considered to Monitoring Plan available on our decommissioning activities associated better accomplish their stated website. In summary, Hilcorp proposes with ice roads and trails will not occur objectives? to annually conduct underwater within 50 m of the observed ring seal, 4. Are there techniques not proposed acoustic monitoring during the open- but may proceed as soon as the ringed by the applicant (i.e., additional water season (July through the seal, of its own accord, moves farther monitoring techniques or beginning of October) using Directional than 50 m distance away from the methodologies) that should be Autonomous Seafloor Acoustic activities or has not been observed considered for inclusion in the Recorders (DASARs). One or more within that area for at least 24 hours. applicant’s monitoring program to better DASARs will be deployed at a pre- Transport vehicles (i.e., vehicles not accomplish their stated objectives?

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5. What is the best way for an acoustic recorders during the open- effectiveness of the BMPs recently applicant to present their data and water season approximately 15 km developed in coordination with NMFS results (formatting, metrics, graphics, northwest of the project area to facilitate and any proposed updates to the BMPs etc.) in the required reports that are to a broader, multi-year approach to or Wildlife Management Plan as a result be submitted to NMFS (i.e., 90-day analyzing the effect of sound exposure of the encounter. A final report shall be report and comprehensive report)? on marine mammals by various LDPI prepared and submitted within thirty The PRP met in May 2018 and and non-LDPI sources. The deployment days following the resolution of subsequently provided a final report to of multiple recorders would provide a comments on the draft report from NMFS containing recommendations that measure of redundancy and avoid the NMFS. the panel members felt were applicable risk of losing all of the season’s data if to Hilcorp’s monitoring plans. The PRP the recorders are lost or malfunction. Hilcorp must submit more immediate concluded that the objectives for both Hilcorp will position multiple recorders reports to NMFS should a marine the visual and acoustic monitoring are simultaneously to record sound levels at mammal be unexpectedly killed or appropriate, and agrees that the multiple ranges from the project seriously injured by the specified objective of real-time mitigation of activities. Data recorded during times activity or a dead or injured marine potential disturbance of marine with no project activities, if such times mammal is observed by a PSO or mammals would be met through visual exist, will be analyzed for ambient Hilcorp personnel. These are standard monitoring. The PRP’s primary sound level statistics. The recorder measures required by NMFS; details on recommendations and comments are arrangement will be configured each reporting timelines and information can summarized and addressed below. The year based on the anticipated activities be found in the regulations. PRP’s full report is available on our for that season. website at https://www.fisheries.noaa The PRP recommended that the LDPI Construction and Operation .gov/permit/incidental-take- existing POC and CAA be renewed and Reporting authorizations-under-marine-mammal- implemented annually to ensure that protection-act. project activities are coordinated with Each day of marine mammal The PRP recommended Hilcorp the North Slope Borough and Alaska monitoring, PSOs will complete field consult with biologists at the NMFS Native whaling captains. Hilcorp is sheets containing information NMFS Marine Mammal Laboratory and other required to implement the POC and has typically requires for pile driving and scientists and users familiar with the agreed to implement a CAA with the construction activities. The full list of use and limitations of UAS technology AEWC. data is provided in Hilcorp’s Marine for studying marine mammals at sea Mammal Monitoring and Mitigation Reporting regarding appropriate protocols and Plan and in the regulations below. Data procedures for the proposed project. General—Hilcorp will submit a draft include, but are not limited to, Hilcorp will implement a safe, effective report to NMFS within 90 days of the information on daily activities UAS monitoring program, as described completion of monitoring for each year occurring, marine mammal sighting in the Marine Mammal Monitoring Plan. the regulations are valid. The report will information (e.g., species, group size, The PRP noted marine mammal include marine mammal observations and behavior), manner and amount of pre-activity, during-activity, and post- monitoring would not be conducted take, and any mitigation actions taken. during the ice-covered season. Since the activity during pile driving days, and Data in these field sheets will be PRP met, Hilcorp has developed a will also provide descriptions of any summarized and Hilcorp will provide a marine mammal monitoring plan that behavioral responses to construction would be enacted during ice-covered activities by marine mammals, a draft annual report to NMFS no later months along the ice roads and ice complete description of all mitigation than 90 days post marine mammal trails. These roads lead up to the LDPI; shutdowns and the results of those monitoring efforts. Hilcorp would also therefore, marine mammal monitoring actions, and an extrapolated total take submit an annual acoustic monitoring would occur during the ice-covered estimate based on the number of marine report no later than 90 days after season and occur at the LDPI. NMFS has mammals observed during the course of acoustic recorders are recovered each also included a provision requiring that construction. A final report must be season. The acoustic monitoring reports any ice seals observed on or near the submitted within 30 days following shall contain measured dB rms, SEL, LDPI be reported to Hilcorp’s resolution of comments on the draft and peak values as well as ambient Environmental Specialist, and that no report. Hilcorp will also submit a noise levels, per the Acoustic personnel shall approach or operate comprehensive annual summary report Monitoring Plan and as described below equipment within 10 m of the seal. covering all activities conducted under in the regulations. The PRP was concerned that no the incidental take regulations no more Hilcorp will also submit to NMFS a acoustic monitoring would be than 90 days after the regulations draft final report on all marine mammal conducted during the winter months expire. monitoring conducted under the and recommended Hilcorp deploy multiple acoustic recorders during ice- Ice Road Reporting regulations no later than ninety calendar covered periods to obtain data on both On an annual basis, Hilcorp will also days of the completion of marine the presence of marine mammals and submit a draft report to NMFS AKR and mammal and acoustic monitoring or sound levels generated during pile OPR compiling all ringed seal sixty days prior to the issuance of any driving activities. Hilcorp is not observations within 90 days of subsequent regulations, if necessary, for deploying long-term bottom mounted decommissioning the ice road and ice this project, whichever comes first. A hydrophones, but will collect trails. The report will include final report shall be prepared and measurements using hand-held information about activities occurring at submitted within thirty days following hydrophones lowered in a hole drilled time of sighting, ringed seal age class the resolution of comments on the draft through the ice. and behavior, and actions taken to report from NMFS. The PRP also encouraged Hilcorp to mitigate disturbance. In addition, the consider deployment of additional report will include an analysis of the

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Negligible Impact Analysis and incidental take of marine mammals in may be reasonably certain to achieve the Determination commercial fishing operations. Congress goals of the MMPA. For example, directed NMFS to develop and calculation of the minimum population Introduction recommend a new long-term regime to estimate (Nmin) incorporates the level of NMFS has defined negligible impact govern such incidental taking (see precision and degree of variability as an impact resulting from the MMC, 1994). The need to develop a associated with abundance information, specified activity that cannot be system suited to the unique while also providing reasonable reasonably expected to, and is not circumstances of commercial fishing assurance that the stock size is equal to reasonably likely to, adversely affect the operations led NMFS to suggest a new or greater than the estimate (Barlow et species or stock through effects on conceptual means and associated al., 1995), typically by using the 20th annual rates of recruitment or survival regulatory framework. That concept, percentile of a log-normal distribution (50 CFR 216.103). A negligible impact PBR, and a system for developing plans of the population estimate. In general, finding is based on the lack of likely containing regulatory and voluntary the three factors are developed on a adverse effects on annual rates of measures to reduce incidental take for stock-specific basis in consideration of recruitment or survival (i.e., population- fisheries that exceed PBR were one another in order to produce level effects). An estimate of the number incorporated as sections 117 and 118 in conservative PBR values that of takes alone is not enough information the 1994 amendments to the MMPA. In appropriately account for both on which to base an impact Conservation Council for Hawaii v. imprecision that may be estimated, as determination. In addition to National Marine Fisheries Service, 97 F. well as potential bias stemming from considering estimates of the number of Supp.3d 1210 (D. Haw. 2015), which lack of knowledge (Wade, 1998). marine mammals that might be ‘‘taken’’ concerned a challenge to NMFS’ Congress called for PBR to be applied by mortality, serious injury, and Level A regulations and LOAs to the Navy for within the management framework for harassment or Level B harassment, we activities assessed in the 2013–2018 commercial fishing incidental take consider other factors, such as the likely Hawaii-Southern California Training under section 118 of the MMPA. As a nature of any behavioral responses (e.g., and Testing (HSTT) MMPA rulemaking, result, PBR cannot be applied intensity, duration), the context of any the Court ruled that NMFS’ failure to appropriately outside of the section 118 such responses (e.g., critical consider PBR when evaluating lethal regulatory framework without reproductive time or location, takes in the negligible impact analysis consideration of how it applies within migration), as well as effects on habitat, under section 101(a)(5)(A) violated the the section 118 framework, as well as and the likely effectiveness of requirement to use the best available how the other statutory management mitigation. We also assess the number, science. frameworks in the MMPA differ from intensity, and context of estimated takes PBR is defined in section 3 of the the framework in section 118. PBR was by evaluating this information relative MMPA as the maximum number of not designed and is not used as an to population status. Consistent with the animals, not including natural absolute threshold limiting commercial 1989 preamble for NMFS’ implementing mortalities, that may be removed from a fisheries. Rather, it serves as a means to regulations (54 FR 40338; September 29, marine mammal stock while allowing evaluate the relative impacts of those 1989), the impacts from other past and that stock to reach or maintain its activities on marine mammal stocks. ongoing anthropogenic activities are optimum sustainable population (OSP) Even where commercial fishing is incorporated into this analysis via their and, although not controlling, can be causing M/SI at levels that exceed PBR, impacts on the environmental baseline one measure considered among other the fishery is not suspended. When (e.g., as reflected in the regulatory status factors when evaluating the effects of M/ M/SI exceeds PBR in the commercial of the species, population size and SI on a marine mammal species or stock fishing context under section 118, growth rate where known, ongoing during the section 101(a)(5)(A) process. NMFS may develop a take reduction sources of human-caused mortality, and OSP is defined in section 3 of the plan, usually with the assistance of a specific consideration of take by M/SI MMPA as the number of animals which take reduction team. The take reduction previously authorized for other NMFS will result in the maximum productivity plan will include measures to reduce research activities). of the population or the species, keeping and/or minimize the taking of marine in mind the carrying capacity of the mammals by commercial fisheries to a Serious Injury and Mortality habitat and the health of the ecosystem level below the stock’s PBR. That is, NMFS is proposing to authorize a of which they form a constituent where the total annual human-caused very small number of serious injuries or element. Through section 2, an M/SI exceeds PBR, NMFS is not mortalities that could occur incidental overarching goal of the statute is to required to halt fishing activities to ice road construction, use, and ensure that each species or stock of contributing to total M/SI but rather maintenance. We note here that the marine mammal is maintained at or utilizes the take reduction process to takes from ice road construction, use, returned to its OSP. further mitigate the effects of fishery and maintenance enumerated below PBR values are calculated by NMFS as activities via additional bycatch could result in non-serious injury, but the level of annual removal from a stock reduction measures. In other words, their worst potential outcome that will allow that stock to equilibrate under section 118 of the MMPA, PBR (mortality) is analyzed for the purposes within OSP at least 95 percent of the does not serve as a strict cap on the of the negligible impact determination. time, and is the product of factors operation of commercial fisheries that In addition, we discuss here the relating to the minimum population may incidentally take marine mammals. connection, and differences, between estimate of the stock (Nmin), the Similarly, to the extent PBR may be the legal mechanisms for authorizing productivity rate of the stock at a small relevant when considering the impacts incidental take under section 101(a)(5) population size, and a recovery factor. of incidental take from activities other for activities such as LDPI construction Determination of appropriate values for than commercial fisheries, using it as and operation, and for authorizing these three elements incorporates the sole reason to deny (or issue) incidental take from commercial significant precaution, such that incidental take authorization for those fisheries. In 1988, Congress amended application of the parameter to the activities would be inconsistent with the MMPA’s provisions for addressing management of marine mammal stocks Congress’s intent under section

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101(a)(5), NMFS’ long-standing context, ‘‘it has treated PBR as only one incorporates information regarding regulatory definition of ‘‘negligible ‘quantitative tool’ and [has not used it] ongoing anthropogenic M/SI from all impact,’’ and the use of PBR under as the sole basis for its impact sources into the PBR value (i.e., PBR section 118. The standard for analyses.’’ Further, the agency’s minus the total annual anthropogenic authorizing incidental take for activities thoughts regarding the appropriate role mortality/serious injury estimate in the other than commercial fisheries under of PBR in relation to MMPA programs SAR), which is called ‘‘residual PBR.’’ section 101(a)(5) continues to be, among outside the commercial fishing context (Wood et al., 2012). We first focus our other things that are not related to PBR, have evolved since the agency’s early analysis on residual PBR because it whether the total taking will have a application of PBR to section 101(a)(5) incorporates anthropogenic mortality negligible impact on the species or decisions. Specifically, NMFS’ denial of occurring from other sources. If the stock. Nowhere does section a request for incidental take ongoing human-caused mortality from 101(a)(5)(A) reference use of PBR to authorization for the U.S. Coast Guard other sources does not exceed PBR, then make the negligible impact finding or in 1996 seemingly was based on the residual PBR is a positive number, and authorize incidental take through multi- potential for lethal take in relation to we consider how the anticipated or year regulations, nor does its companion PBR and did not appear to consider potential incidental M/SI from the provision at 101(a)(5)(D) for authorizing other factors that might also have activities being evaluated compares to non-lethal incidental take under the informed the potential for ship strike in residual PBR using the framework in the same negligible-impact standard. NMFS’ relation to negligible impact (61 FR following paragraph. If the ongoing MMPA implementing regulations state 54157; October 17, 1996). anthropogenic mortality from other that take has a negligible impact when The MMPA requires that PBR be sources already exceeds PBR, then it does not ‘‘adversely affect the species estimated in SARs and that it be used residual PBR is a negative number and or stock through effects on annual rates in applications related to the we consider the M/SI from the activities of recruitment or survival’’—likewise management of take incidental to being evaluated as described further without reference to PBR. When commercial fisheries (i.e., the take below. reduction planning process described in Congress amended the MMPA in 1994 When ongoing total anthropogenic section 118 of the MMPA and the to add section 118 for commercial mortality from the applicant’s specified determination of whether a stock is fishing, it did not alter the standards for activities does not exceed PBR and ‘‘strategic’’ as defined in section 3), but authorizing non-commercial fishing residual PBR is a positive number, as a nothing in the statute requires the incidental take under section 101(a)(5), simplifying analytical tool we first implicitly acknowledging that the application of PBR outside the management of commercial fisheries consider whether the specified activities negligible impact standard under could cause incidental M/SI that is less section 101(a)(5) is separate from the interactions with marine mammals. Nonetheless, NMFS recognizes that as a than 10 percent of residual PBR (the PBR metric under section 118. In fact, ‘‘insignificance threshold,’’ see below). in 1994 Congress also amended section quantitative metric, PBR may be useful as a consideration when evaluating the If so, we consider M/SI from the 101(a)(5)(E) (a separate provision specified activities to represent an governing commercial fishing incidental impacts of other human-caused activities on marine mammal stocks. insignificant incremental increase in take for species listed under the ESA) to ongoing anthropogenic M/SI for the add compliance with the new section Outside the commercial fishing context, and in consideration of all known marine mammal stock in question that 118 but retained the standard of the human-caused mortality, PBR can help alone (i.e., in the absence of any other negligible impact finding under section inform the potential effects of M/SI take) will not adversely affect annual 101(a)(5)(A) (and section 101(a)(5)(D)), requested to be authorized under rates of recruitment and survival. As showing that Congress understood that 101(a)(5)(A). As noted by NMFS and the such, this amount of M/SI would not be the determination of negligible impact U.S. Fish and Wildlife Service in our expected to affect rates of recruitment or and application of PBR may share implementation regulations for the 1986 survival in a manner resulting in more certain features but are, in fact, amendments to the MMPA (54 FR than a negligible impact on the affected different. 40341, September 29, 1989), the stock unless there are other factors that Since the introduction of PBR in Services consider many factors, when could affect reproduction or survival, 1994, NMFS had used the concept available, in making a negligible impact such as Level A and/or Level B almost entirely within the context of determination, including, but not harassment, or other considerations implementing sections 117 and 118 and limited to, the status of the species or such as information that illustrates the other commercial fisheries management- stock relative to OSP (if known); uncertainty involved in the calculation related provisions of the MMPA. Prior whether the recruitment rate for the of PBR for some stocks. In a few prior to the Court’s ruling in Conservation species or stock is increasing, incidental take rulemakings, this Council for Hawaii v. National Marine decreasing, stable, or unknown; the size threshold was identified as the Fisheries Service and consideration of and distribution of the population; and ‘‘significance threshold,’’ but it is more PBR in a series of section 101(a)(5) existing impacts and environmental accurately labeled an insignificance rulemakings, there were a few examples conditions. In this multi-factor analysis, threshold, and so we use that where PBR had informed agency PBR can be a useful indicator for when, terminology here, as we did in the deliberations under other MMPA and to what extent, the agency should Atlantic Fleet Training and Testing sections and programs, such as playing take an especially close look at the (AFTT) Proposed (83 FR 10954; March a role in the issuance of a few scientific circumstances associated with the 13, 2017) and Final Rules (83 FR 57076; research permits and subsistence potential mortality, along with any other November 14, 2018). Assuming that any takings. But as the Court found when factors that could influence annual rates additional incidental take by Level A or reviewing examples of past PBR of recruitment or survival. Level B harassment from the activities consideration in Georgia Aquarium v. When considering PBR during in question would not combine with the Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga. evaluation of effects of M/SI under effects of the authorized M/SI to exceed 2015), where NMFS had considered section 101(a)(5)(A), we first calculate a the negligible impact level, the PBR outside the commercial fisheries metric for each species or stock that anticipated M/SI caused by the

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activities being evaluated would have a impact’’) are directly connected, when for consideration of other unrelated negligible impact on the species or in fact nowhere in the MMPA is it activities and their impacts on the stock. However, M/SI above the 10 indicated that these two terms are species or stock. In fact, in response to percent insignificance threshold does equivalent. public comments on the implementing not indicate that the M/SI associated Specifically, PBR was designed as a regulations NMFS explained that such with the specified activities is tool for evaluating mortality and is effects are not considered in making approaching a level that would defined as the number of animals that negligible impact findings under section necessarily exceed negligible impact. can be removed while ‘‘allowing that 101(a)(5), although the extent to which Rather, the 10 percent insignificance stock to reach or maintain its OSP.’’ a species or stock is being impacted by threshold is meant only to identify OSP is defined as a population that falls other anthropogenic activities is not instances where additional analysis of within a range from the population level ignored. Such effects are reflected in the the anticipated M/SI is not required that is the largest supportable within the baseline of existing impacts as reflected because the negligible impact standard ecosystem to the population level that in the species’ or stock’s abundance, clearly will not be exceeded on that results in maximum net productivity, distribution, reproductive rate, and basis alone. and thus is an aspirational management other biological indicators. Where the anticipated M/SI is near, goal of the overall statute with no NMFS guidance for commercial at, or above residual PBR, consideration specific timeframe by which it should fisheries provides insight when of other factors (positive or negative), be met. PBR is designed to ensure evaluating the effects of an applicant’s including those outlined above, as well minimal deviation from this overarching incidental take as compared to the as mitigation is especially important to goal, with the formula for PBR typically incidental take caused by other entities. assessing whether the M/SI will have a ensuring that growth towards OSP is not Parallel to section 101(a)(5)(A), section negligible impact on the species or reduced by more than 10 percent (or 101(a)(5)(E) of the MMPA provides that stock. PBR is a conservative metric and equilibrates to OSP 95 percent of the NMFS shall allow the incidental take of not sufficiently precise to serve as an time). As PBR is applied by NMFS, it ESA-listed endangered or threatened absolute predictor of population effects provides that growth toward OSP is not marine mammals by commercial upon which mortality caps would reduced by more than 10 percent, which fisheries if, among other things, the appropriately be based. For example, in certainly allows a stock to ‘‘reach or incidental M/SI from the commercial some cases stock abundance (which is maintain its OSP’’ in a conservative and fisheries will have a negligible impact one of three key inputs into the PBR precautionary manner—and we can calculation) is underestimated because therefore clearly conclude that if PBR on the species or stock. As discussed marine mammal survey data within the were not exceeded, there would not be earlier, the authorization of incidental U.S. Exclusive Economic Zone (EEZ) are adverse effects on the affected species or take resulting from commercial fisheries used to calculate the abundance even stocks. Nonetheless, it is equally clear and authorization for activities other when the stock range extends well that in some cases the time to reach this than commercial fisheries are under two beyond the U.S. EEZ. An underestimate aspirational OSP level could be slowed separate regulatory frameworks. of abundance could result in an by more than 10 percent (i.e., total However when it amended the statute in underestimate of PBR. Alternatively, we human-caused mortality in excess of 1994 to provide a separate incidental sometimes may not have complete M/SI PBR could be allowed) without take authorization process for data beyond the U.S. EEZ to compare to adversely affecting a species or stock commercial fisheries, Congress kept the PBR, which could result in an through effects on its rates of requirement of a negligible impact overestimate of residual PBR. The recruitment or survival. Thus even in determination for this one category of accuracy and certainty around the data situations where the inputs to calculate species, thereby applying the standard that feed any PBR calculation, such as PBR are thought to accurately represent to both programs. Therefore, while the the abundance estimates, must be factors such as the species’ or stock’s structure and other standards of the two carefully considered to evaluate abundance or productivity rate, it is still programs differ such that evaluation of whether the calculated PBR accurately possible for incidental take to have a negligible impact under one program reflects the circumstances of the negligible impact on the species or stock may not be fully applicable to the other particular stock. M/SI that exceeds PBR even where M/SI exceeds residual PBR program (e.g., the regulatory definition may still potentially be found to be or PBR. of ‘‘negligible impact’’ at 50 CFR negligible in light of other factors that As noted above, PBR is helpful in 216.103 applies only to activities other offset concern, especially when robust informing the analysis of the effects of than commercial fishing), guidance on mitigation and adaptive management mortality on a species or stock because determining negligible impact for provisions are included. it is important from a biological commercial fishing take authorizations In Conservation Council for Hawaii v. perspective to be able to consider how can be informative when considering National Marine Fisheries Service, the total mortality in a given year may incidental take outside the commercial which involved the challenge to NMFS’ affect the population. However, section fishing context. In 1999, NMFS issuance of LOAs to the Navy in 2013 101(a)(5)(A) of the MMPA indicates that published criteria for making a for activities in the HSTT Study Area, NMFS shall authorize the requested negligible impact determination the Court reached a different incidental take from a specified activity pursuant to section 101(a)(5)(E) of the conclusion, stating, ‘‘Because any if we find that the total of such taking MMPA in a notice of proposed permits mortality level that exceeds PBR will i.e., from the specified activity will have for certain fisheries (64 FR 28800; May not allow the stock to reach or maintain a negligible impact on such species or 27, 1999). Criterion 2 stated ‘‘If total its OSP, such a mortality level could not stock. In other words, the task under the human-related serious injuries and be said to have only a ‘negligible statute is to evaluate the applicant’s mortalities are greater than PBR, and impact’ on the stock.’’ As described anticipated take in relation to their fisheries-related mortality is less than above, the Court’s statement take’s impact on the species or stock, 0.1 PBR, individual fisheries may be fundamentally misunderstands the two not other entities’ impacts on the permitted if management measures are terms and incorrectly indicates that species or stock. Neither the MMPA nor being taken to address non-fisheries- these concepts (PBR and ‘‘negligible NMFS’ implementing regulations call related serious injuries and mortalities.

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When fisheries-related serious injury considered. And we reiterate the threshold because we do not expect and mortality is less than 10 percent of considerations discussed above for why them to be close to the source the total, the appropriate management it is not appropriate to consider PBR an (especially large whales who primarily action is to address components that absolute cap in the application of this stay outside the McClure Island group) account for the major portion of the guidance. Accordingly, we use PBR as a and impact pile driving (the source with total.’’ This criterion addresses when trigger for concern while also the greatest potential to cause PTS) total human-caused mortality is considering other relevant factors to would only occur for a maximum of 40 exceeding PBR, but the activity being provide a reasonable and appropriate minutes per day. Therefore, the assessed is responsible for only a small means of evaluating the effects of potential for large threshold shifts is portion of the mortality. In incidental potential mortality on rates of unlikely. Further, the frequency range of take authorizations in which NMFS has recruitment and survival, while hearing that may be impaired is limited recently articulated a fuller description acknowledging that it is possible to to the frequency bands of the source. of how we consider PBR under section exceed PBR (or exceed 10 percent of Pile driving exhibits energy in lower 101(a)(5)(A), this situation had not PBR in the case where other human- frequencies. While low-frequency arisen, and NMFS’ description of how caused mortality is exceeding PBR but baleen whales are most susceptible to we consider PBR in the section 101(a)(5) the specified activity being evaluated is such bands, these are the species that authorization process did not, therefore, an incremental contributor, as described are unlikely to come very close to the include consideration of this scenario. in the last paragraph) by some small source. Mid-frequency cetaceans and However, the analytical framework we amount and still make a negligible phocids do not hear best within these use here appropriately incorporates impact determination under section lower frequency bands; therefore, the elements of the one developed for use 101(a)(5)(A). resulting impact of any threshold shift under section 101(a)(5)(E) and because Regarding the impacts of the specified is less likely to impair vital hearing. All the negligible impact determination activities analyzed here, a stock-wide other noise generated from the project is under section 101(a)(5)(A) focuses on PBR for ringed seals is unknown; expected to be low level from activities the activity being evaluated, it is however, Muto et al. (2018) estimate such as slope-shaping and drilling and appropriate to utilize the parallel that PBR for ringed seals in the Bering not result in PTS. concept from the framework for section Sea alone is 5,100 seals. Total annual Cetaceans are infrequent visitors to 101(a)(5)(E). mortality and serious injury is 1,054 for Foggy Island Bay with their primary Accordingly, we are using a similar an r-PBR of 4,046, which means that the habitat lying outside the McClure criterion in our negligible impact 10 percent insignificance threshold is Islands. Any taking within Foggy Island analysis under section 101(a)(5)(A) to 405 seals. No mortality or serious injury Bay is not expected to impact evaluate the relative role of an of ringed seals is currently authorized reproductive or survival activities as the applicant’s incidental take when other under any other incidental take bay is not known to contain such sources of take are causing PBR to be authorization issued pursuant to section critical areas as rookeries, mating exceeded, but the take of the specified 101(a)(5)(A) of the MMPA. In the case grounds, or other areas of similar activity is comparatively small. Where of the LDPI, the authorized taking, by significance. Some ringed seals do lair this occurs, we may find that the mortality, of two ringed seals over the in Foggy Island Bay; however, the area impacts of the taking from the specified course of 5 years, which equates to 0.4 impacted by the project is small activity may (alone) be negligible even mortality takes annually, is less than 10 compared to available habitat. Further, when total human-caused mortality percent r-PBR when considering to offset impacts to reproductive from all activities exceeds PBR if (in the mortality and serious injury caused by behaviors by ringed seals (e.g., lairing, context of a particular species or stock): other anthropogenic sources. This pupping), Hilcorp would follow a the authorized mortality or serious takings amount, by mortality and number of ice road BMPs developed in injury would be less than or equal to 10 serious injury, is considered percent of PBR and management insignificant and therefore supports our coordination with NMFS ringed seal measures are being taken to address negligible impact finding. experts. Hilcorp would also not impact serious injuries and mortalities from the pile drive during the bowhead whale Harassment other activities (i.e., other than the hunt, thereby minimizing impacts to specified activities covered by the Hilcorp requests, and NMFS whales during peak migration periods incidental take authorization under authorizes takes, by Level A harassment (we note the peak migratory pathway for consideration). We must also determine, and Level B harassment, of six species bowhead whales is well outside the though, that impacts on the species or of marine mammals. The amount of McClure Islands). Finally, for reasons stock from other types of take (i.e., taking analyzed, and which may be described above, the taking of two harassment) caused by the applicant do authorized pursuant to these ringed seals, by mortality, over the not combine with the impacts from regulations, is low compared to marine course of 5 years is not expected to have mortality or serious injury to result in mammal abundance. Potential impacts impacts on the species’ rates of adverse effects on the species or stock of LDPI activities include PTS, TTS, and recruitment and survival. through effects on annual rates of behavioral changes due to exposure to In summary and as described above, recruitment or survival. construction and operation noise. The the following factors primarily support As discussed above, however, while potential for Level A harassment occurs our preliminary determination that the PBR is useful in informing the during impact pile driving. As impacts resulting from this activity are evaluation of the effects of M/SI in discussed in the Potential Effects of the not expected to adversely affect the section 101(a)(5)(A) determinations, it is Specified Activity on Marine Mammals species or stock through effects on just one consideration to be assessed in and Their Habitat section, PTS is a annual rates of recruitment or survival: combination with other factors and is permanent shift in hearing threshold • Only two ringed seals are not determinative, including because, as and the severity of the shift is authorized to be taken by mortality over explained above, the accuracy and determined by a myriad of factors. Here, 5 years; certainty of the data used to calculate we expect cetaceans to incur only a • Any PTS would be of a small PBR for the species or stock must be slightly elevated shift in hearing degree;

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• The amount of takes, by Based on the analysis contained available NMFS compares the number harassment, is low compared to herein of the likely effects of the of individuals taken to the most population sizes; specified activity on marine mammals appropriate estimation of abundance of • The area ensonified by Hilcorp’s and their habitat, and taking into the relevant species or stock in our activities does not occur in any known consideration the implementation of the determination of whether an important areas for marine mammals monitoring and mitigation measures, authorization is limited to small and is a de minimis subset of habitat NMFS finds that the total marine numbers of marine mammals. used by and available to marine mammal taking from the proposed Additionally, other qualitative factors mammals; activity will have a negligible impact on may be considered in the analysis, such • Impacts to critical behaviors such as all affected marine mammal species or as the temporal or spatial scale of the lairing and pupping by ringed seals stocks. would be avoided and minimized activities. through implementation of ice road Small Numbers The amount of total taking (i.e., Level BMPs; and As noted above, only small numbers A harassment, Level B harassment, and, • Hilcorp would avoid noise- of incidental takes may be authorized for ringed seals, mortality) of any generating activities during the under Section 101(a)(5)(A) of the MMPA marine mammal stock over the course of bowhead whale hunt; thereby for specified activities. The MMPA does 5 years, is less than one percent of any minimizing impact to critical behavior not define small numbers and so, in population (Table 12). (i.e., migration). practice, where estimated numbers are

TABLE 12—AMOUNT OF TAKING, BY SPECIES, AUTHORIZED RELATIVE TO POPULATION ESTIMATES (Nbest)

Population Total Percent of Species Stock estimate taking population

Bowhead whale ...... Arctic ...... 16,820 28 <1 Gray whale ...... ENP ...... 20,990 12 <1 Beluga whale ...... Beaufort Sea ...... 39,258 130 <1 Ringed seal ...... Alaska ...... 170,000 416 <1 Bearded seal ...... Alaska ...... 299,174 64 <1 Spotted seal ...... Alaska ...... 423,625 64 <1

Based on the analysis contained conducting the majority of work in management process: (1) Results from herein of the proposed activity winter when bowhead whales are not monitoring reports, as required by (including the mitigation and present), and the incorporation of MMPA authorizations; (2) results from monitoring measures) and the several mitigation measures, we have general marine mammal and sound anticipated taking of marine mammals, determined that the total taking of research; and (3) any information which NMFS finds that small numbers of affected species or stocks would not reveals that marine mammals may have marine mammals will be taken relative have an unmitigable adverse impact on been taken in a manner, extent, or to the population sizes of the affected the availability of such species or stocks number not authorized by these species or stocks. for taking for subsistence purposes. regulations or subsequent LOAs. In addition, results of the annual peer- Impact on Availability of Affected Adaptive Management review panel, of which Hilcorp has Species for Taking for Subsistence Uses The regulations governing the taking agreed to participate, may warrant As described in the Marine Mammal of marine mammals incidental to modifications through the adaptive section of the document, all species Hilcorp’s LPDI construction and management process. potentially taken by Hilcorp’s specified operational activities would contain an activities are key subsistence species, in adaptive management component. National Environmental Policy Act particular the bowhead whales and ice The reporting requirements associated To comply with the National seals. Hilcorp has proposed and NMFS with this rule are designed to provide Environmental Policy Act of 1969 has included several mitigation NMFS with monitoring data from the (NEPA; 42 U.S.C. 4321 et seq.) and measures to address potential impacts previous year to allow consideration of NOAA Administrative Order (NAO) on the availability of marine mammals whether any changes are appropriate. 216–6A, NMFS must evaluate our for subsistence use. The AEWC The use of adaptive management allows proposed action (i.e., the promulgation expressed support for Hilcorp’s efforts NMFS to consider new information of regulations and subsequent issuance to reduce impacts to subsistence use from different sources to determine of incidental take authorization) and and offered no objection to the final (with input from Hilcorp regarding alternatives with respect to potential rule. Hilcorp is required to abide by the practicability) on an annual or biennial impacts on the human environment. POC. In addition, mitigation measures basis if mitigation or monitoring On August 23, 2018, the Bureau of designed to minimize impacts on measures should be modified (including Ocean Energy Management (BOEM) marine mammals also minimize impacts additions or deletions). Mitigation released a Final Environmental Impact to subsistence users (e.g., avoid impact measures could be modified if new data Statement (EIS) analyzing the possible pile driving during the fall bowhead suggests that such modifications would environmental impacts of Hilcorp’s whale hunt). Hilcorp and NMFS have have a reasonable likelihood of reducing proposed Liberty development and also developed a comprehensive set of adverse effects to marine mammals and production plan (DPP). BOEM’s Draft BMPs to minimize impacts to ice seals if the measures are practicable. EIS was made available for public during ice-covered months. Considering The following are some of the comment from August 18, 2017 through the coordination with the AEWC, possible sources of applicable data to be December 8, 2017. The final EIS may be Hilcorp’s proposed work schedule (i.e., considered through the adaptive found at https://www.boem.gov/hilcorp-

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liberty/. NMFS is a cooperating agency economic impact on a substantial Subpart D—Taking Marine Mammals on the EIS. NMFS has conducted an number of small entities. Hilcorp is the Incidental to Construction and independent evaluation of the EIS, sole entity that is subject to the Operation of the Liberty Drilling and including consideration of public requirements in these regulations, and Production Island comments on the proposed rule, and Hilcorp is not a small governmental found that the EIS includes adequate jurisdiction, small organization, or small § 217.30 Specified activity and specified information analyzing the effects on the business, as defined by the RFA. geographical region. human environment of issuing this final Because of this certification, a (a) Regulations in this subpart apply rule. Therefore, NMFS has adopted the regulatory flexibility analysis is not only to Hilcorp LLC (Hilcorp) and those EIS and signed a Record of Decision required and none has been prepared. persons it authorizes or funds to documenting NMFS’ finding. All NEPA Notwithstanding any other provision conduct activities on its behalf for the documents are available on the project’s of law, no person is required to respond taking of marine mammals that occurs website at https:// to nor shall a person be subject to a in the areas outlined in paragraph (b) of www.fisheries.noaa.gov/permit/ penalty for failure to comply with a this section and that occurs incidental incidental-take-authorizations-under- collection of information subject to the to construction, maintenance, and marine-mammal-protection-act. requirements of the Paperwork operation of the Liberty Drilling and Production Island (LDPI) and associated Endangered Species Act (ESA) Reduction Act (PRA) unless that collection of information displays a infrastructure. Section 7(a)(2) of the Endangered currently valid OMB control number. (b) The taking of marine mammals by Species Act of 1973 (ESA: 16 U.S.C. This final rule contains collection-of- Hilcorp may be authorized in a Letter of 1531 et seq.) requires that each Federal information requirements subject to the Authorization (LOA) only if it occurs agency insure that any action it provisions of the PRA. These within the Beaufort Sea, Alaska. authorizes, funds, or carries out is not requirements have been approved by § 217.31 Effective dates. likely to jeopardize the continued OMB under control number 0648–0151 existence of any endangered or and include applications for regulations, Regulations in this subpart are threatened species or result in the subsequent LOAs, and reports. effective from December 1, 2021, destruction or adverse modification of through November 30, 2026. designated critical habitat. To ensure List of Subjects in 50 CFR Part 217 § 217.32 Permissible methods of taking. ESA compliance for the issuance of Administrative practice and ITAs, NMFS consults internally, in this procedure, Alaska, Endangered and Under LOAs issued pursuant to case with the Alaska Regional Office, threatened species, Indians, Marine §§ 216.106 of this chapter and 217.36, whenever we propose to authorize take mammals, Oil and gas exploration, the Holder of the LOA (hereinafter for endangered or threatened species. Reporting and recordkeeping ‘‘Hilcorp’’) may incidentally, but not Specific to the LDPI, the bowhead requirements, Wildlife. intentionally, take marine mammals whale, ringed seal, and bearded seal within the area described in § 217.30(b) Dated: December 11, 2019. (Beringia DPS) are listed under the ESA by mortality, serious injury, Level A Samuel D. Rauch III, (see Table 2). harassment, or Level B harassment The Permit and Conservation Division Deputy Assistant Administrator for associated with the LDPI construction requested initiation of Section 7 Regulatory Programs, National Marine and operation activities, including Fisheries Service. consultation with the Alaska Regional associated infrastructure, provided the Office on the promulgation of five-year For reasons set forth in the preamble, activities are in compliance with all regulations and the subsequent issuance 50 CFR part 217 is amended as follows: terms, conditions, and requirements of of LOAs to Hilcorp under section the regulations in this subpart and the PART 217—REGULATIONS 101(a)(5)(A) of the MMPA. On August appropriate LOA. GOVERNING THE TAKE OF MARINE 30, 2019, NMFS Alaska Region (AKR) MAMMALS INCIDENTAL TO § 217.33 Prohibitions. issued a Biological Opinion on the SPECIFIED ACTIVITIES Liberty Oil and Gas Development and Notwithstanding takings contemplated in § 217.32 and Production Plan Activities, Beaufort ■ 1. The authority citation for part 217 authorized by an LOA issued under Sea, Alaska to NMFS OPR concluding continues to read as follows: the promulgation of regulations and §§ 216.106 of this chapter and 217.36, subsequent issuance of the LOA would Authority: 16 U.S.C. 1361 et seq., unless no person in connection with the otherwise noted. not jeopardize the continued existence activities described in § 217.30 may: of any endangered or threatened species ■ 2. Add subpart D to part 217 to read (a) Violate, or fail to comply with, the or destroy or adversely modify any as follows: terms, conditions, and requirements of designated critical habitat. Subpart D—Taking Marine Mammals this subpart or an LOA issued under §§ 216.106 of this chapter and 217.36; Classification Incidental to Construction and Operation of the Liberty Drilling and Production Island (b) Take any marine mammal not Pursuant to the procedures Sec. specified in such LOAs; established to implement Executive 217.30 Specified activity and specified (c) Take any marine mammal Order 12866, the Office of Management geographical region. specified in such LOAs in any manner and Budget has determined that this 217.31 Effective dates. other than as specified; final rule is not significant. 217.32 Permissible methods of taking. (d) Take a marine mammal specified Pursuant to section 605(b) of the 217.33 Prohibitions. in such LOAs if the National Marine Regulatory Flexibility Act (RFA), the 217.34 Mitigation requirements. Fisheries Service (NMFS) determines Chief Counsel for Regulation of the 217.35 Requirements for monitoring and such taking results in more than a reporting. Department of Commerce has certified 217.36 Letters of Authorization. negligible impact on the species or to the Chief Counsel for Advocacy of the 217.37 Renewals and modifications of stocks of such marine mammal; or Small Business Administration that this Letters of Authorization. (e) Take a marine mammal specified final rule would not have a significant 217.38–217.39 [Reserved] in such LOAs if NMFS determines such

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taking results in an unmitigable adverse (c) Liberty Drilling Production Island confirmed to have left the area or the impact on the species or stock of such construction. (1) For all pile driving and observation time period, as indicated in marine mammal for taking for construction activities involving heavy paragraph (c)(5) of this section, has subsistence uses. equipment, Hilcorp must implement a elapsed; minimum shutdown zone of 10 meters (7) Hilcorp must use soft start § 217.34 Mitigation requirements. (m) from any marine mammal in water techniques when impact pile driving. When conducting the activities or seals on land. If a marine mammal Soft start requires contractors to provide identified in § 217.30(a), the mitigation comes within or is about to enter the an initial set of strikes at reduced measures contained in any LOA issued shutdown zone, such operations must energy, followed by a thirty-second under § 216.106 of this chapter must be cease immediately; waiting period, then two subsequent implemented. These mitigation (2) For all pile driving activity, reduced energy strike sets. A soft start measures shall include but are not Hilcorp shall implement shutdown must be implemented at the start of each limited to: zones with radial distances as identified day’s impact pile driving and at any (a) General conditions. (1) Hilcorp in any LOA issued under §§ 216.106 of time following cessation of impact pile must renew, on an annual basis, the this chapter and 217.36. If a marine driving for a period of thirty minutes or Plan of Cooperation (POC), throughout mammal comes within or is about to longer; the life of the regulations in this enter the shutdown zone, such (8) All pipe- and pile-driving subpart; operations must cease immediately. activities (impact and vibratory) and (2) A copy of any issued LOA must be NMFS may adjust the shutdown zones LDPI support vessel traffic outside the in the possession of Hilcorp, its pending review and approval of an barrier islands must cease by August 1, designees, and work crew personnel acoustic monitoring report (see annually, and not resume until the operating under the authority of the § 217.35); official end of the hunt or until the (3) Hilcorp must employ NMFS- issued LOA; quota has been met, whichever occurs approved protected species observers (3) Hilcorp must conduct briefings for first. Hilcorp must coordinate annually (PSOs) and designate monitoring zones construction and ice road supervisors with subsistence users on the dates of with radial distances as identified in and crews, and the marine mammal and these hunts; and acoustic monitoring teams prior to the any LOA issued under §§ 216.106 of this chapter and 217.36. NMFS may adjust (9) Should an ice seal be observed on start of annual ice road or LDPI or near the LDPI by any Hilcorp construction, and when new personnel the monitoring zones pending review and approval of an acoustic monitoring personnel, during construction or join the work, in order to explain operation, the sighting must be reported responsibilities, communication report (see § 217.35); (4) If a bowhead whale or other low to Hilcorp’s Environmental Specialist. procedures, the marine mammal frequency cetacean enters the Level A No construction activity should occur monitoring protocol, and operational harassment zone, pile or pipe driving within 10 m of an ice seal and any procedures; must be shut down immediately. If a vehicles used should use precaution (4) Hilcorp must allow subsistence beluga whale or pinniped enters the and not approach any ice seal within 10 hunters to use the LDPI for safe harbor Level A harassment zone while pile m. during severe storms, if requested by driving is ongoing, work may continue (d) Vessel restrictions. When hunters; until the pile is completed (estimated to operating vessels, Hilcorp must: (5) In the unanticipated event of an oil require approximately 15–20 minutes), (1) Reduce vessel speed to 5 knots spill during LDPI operational years, but additional pile driving must not be (kn) if a whale is observed within 500 Hilcorp must notify NMFS of the spill initiated until the animal has left the m (1641 feet (ft)) of the vessel and is on within 48 hours, regardless of size, and Level A harassment zone. During this a potential collision course with the implement measures contained within time, PSOs must monitor the animal vessel, or if a vessel is within 275 m the Liberty Oil Spill Response Plan; and and record behavior; (902 ft) of whales, regardless of course (6) Hilcorp must strive to complete (5) If a marine mammal is relative to the vessel; pile driving and pipeline installation approaching a Level A harassment zone (2) Avoid multiple changes in vessel during the ice-covered season. and pile driving has not commenced, direction; (7) Except during takeoff and landing pile driving must be delayed. Pile (3) Not approach within 800 m (2,624 and in emergency situations, aircraft driving may not commence or resume ft) of a North Pacific right whale or must maintain an altitude of at least 457 until either the animal has voluntarily within 5.6 km (3 nautical miles) of m (1,500 ft). If a marine mammal is left and been visually confirmed beyond Steller sea lion rookeries or major observed, then a horizontal distance of the shutdown zone; 15 minutes have haulouts; and 305 m (100 ft) of whales or seals will be passed without subsequent detections of (4) Avoid North Pacific right whale maintained between the aircraft and the small cetaceans and pinnipeds; or 30 critical habitat or, if critical habitat observed marine mammals. minutes have passed without cannot be avoided, reduce vessel speed (b) Ice road construction, subsequent detections of large during transit. maintenance, and operation. (1) Hilcorp cetaceans; must implement the NMFS-approved (6) If a species for which § 217.35 Requirements for monitoring and Ice Road and Ice Trail Best Management authorization has not been granted, or a reporting. Practices (BMPs) and the Wildlife species for which authorization has (a) All marine mammal and acoustic Action Plan. These documents may be been granted but the authorized takes monitoring must be conducted in updated as needed throughout the life of are met, is observed approaching or accordance to Hilcorp’s Marine the regulations in this subpart, in within the monitoring zone (which Mammal Mitigation and Monitoring consultation with NMFS. equates to the Level B harassment zone), Plan (4MP) and Acoustic Monitoring (2) Hilcorp must not approach ringed pile driving and removal activities must Plan, which includes acoustic seal structures (i.e., lairs or breathing shut down immediately using delay and monitoring during both the open-water holes) within 150 m or ringed seals shut-down procedures. Activities must and ice-covered seasons. These plans within 50 m. not resume until the animal has been may be modified throughout the life of

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the regulations in this subpart upon (iii) Where a team of three or more (iv) Water conditions (e.g., sea state, NMFS review and approval. observers are required, one observer tide state); (b) Monitoring must be conducted by must be designated as lead observer or (v) Species, numbers, and, if possible, NMFS-approved PSOs, who must have monitoring coordinator. The lead sex and age class of marine mammals no other assigned tasks during observer must have prior experience observed; monitoring periods and be equipped working as an observer; and (vi) Description of any observable with, at minimum, binoculars and (iv) Hilcorp must submit PSO marine mammal behavior patterns, rangefinders. At minimum, two PSOs curricula vitae (CVs) for approval by including bearing and direction of travel must be placed on elevated platforms on NMFS prior to the onset of pile driving. and distance from construction activity; the island during the open-water season (2) PSOs must have the following (vii) Distance from construction when island construction activities are additional qualifications: activities to marine mammals and occurring. These observers will monitor (i) Ability to conduct field distance from the marine mammals to for marine mammals and implement observations and collect data according the observation point; shutdown or delay procedures when to assigned protocols; (viii) An extrapolated total take applicable through communication with (ii) Experience or training in the field estimate for each species based on the the equipment operator. identification of marine mammals, number of marine mammals observed (c) One PSO will be placed on the including the identification of and the extent of the harassment zones side where construction activities are behaviors; during the applicable construction taking place and the other placed on the (iii) Sufficient training, orientation, or activities; opposite side of the LDPI; both experience with the construction (ix) Histograms of the perpendicular observers will be on elevated platforms. operation to provide for personal safety distance at which marine mammals (d) PSOs will rotate duties such that during observations; were sighted by the PSOs; they will observe for no more than 4 (iv) Writing skills sufficient to prepare (x) Description of implementation of hours at a time and no more than 12 a report of observations including, but mitigation measures (e.g., shutdown or hours in a 24-hour period. not limited to, the number and species delay); (e) An additional island-based PSO of marine mammals observed; dates and (xi) Locations of all marine mammal will work with an aviation specialist to times when in-water construction observations; (xii) An estimate of the effective strip use an unmanned aircraft system (UAS) activities were conducted; dates, times, width of the island-based PSOs and the to detect marine mammals in the and reason for implementation of UAS imagery; and monitoring zones during pile and pipe mitigation (or why mitigation was not (xiii) Sightings and locations of driving and slope shaping. Should UAS implemented when required); and marine mammals associated with monitoring not be feasible or be deemed marine mammal behavior; and acoustic detections. ineffective, a boat-based PSO must (v) Ability to communicate orally, by (2) Annually, Hilcorp must submit a monitor for marine mammals during radio or in person, with project report within 90 days of ice road pile and pipe driving. personnel to provide real-time decommissioning. The report must (f) During the open-water season, information on marine mammals include the following: marine mammal monitoring must take observed in the area as necessary. (i) Date, time, location of observation; place from 30 minutes prior to initiation (h) Hilcorp must deploy autonomous (ii) Ringed seal characteristics (i.e., of pile and pipe driving activity through sound recorders on the seabed to adult or pup, behavior (avoidance, 30 minutes post-completion of pile conduct underwater passive acoustic resting, etc.)); driving activity. Pile driving may monitoring in the open-water season the (iii) Activities occurring during commence when observers have first four years of the project such that observation, including equipment being declared the shutdown zone clear of island construction activities, including used and its purpose, and approximate marine mammals. In the event of a delay pile driving, and drilling operations are distance to ringed seal(s); or shutdown of activity resulting from recorded. Acoustic monitoring will be (iv) Actions taken to mitigate the marine mammals in the shutdown zone, conducted for the purposes of sound effects of interaction, emphasizing: animals must be allowed to remain in source verification to verify distances which BMPs were successful; which the shutdown zone (i.e., must leave of from noise sources at which underwater BMPs may need to be improved to their own volition) and their behavior sound levels reach thresholds for reduce interactions with ringed seals; must be monitored and documented. potential marine mammal harassment. the effectiveness and practicality of (g) After island construction is (i) Hilcorp must submit incident and implementing BMPs; any issues or complete but drilling activities are monitoring reports. concerns regarding implementation of occurring, a PSO will be stationed on (1) Hilcorp must submit a draft annual BMPs; and potential effects of the LDPI for approximately 4 weeks marine mammal and acoustic summary interactions based on observation data; during the month of August to monitor report to NMFS not later than 90 days (v) Proposed updates (if any) to the for the presence of marine mammals following the end of each calendar year. NMFS-approved Wildlife Management around the island in the monitoring Hilcorp must provide a final report Plan(s) or the ice-road BMPs; and zone. within 30 days after receipt of NMFS’ (vi) Reports should be able to be (1) Marine mammal monitoring comments on the draft report. The queried for information. during pile driving and removal must be reports must contain, at a minimum, the (3) Hilcorp must submit a final 5-year conducted by NMFS-approved PSOs in following: comprehensive summary report to a manner consistent with the following: (i) Date and time that monitored NMFS not later than 90 days following (i) At least one observer must have activity begins or ends; the expiration of this subpart and LOA. prior experience working as an observer; (ii) Description of construction (4) Hilcorp must submit acoustic (ii) Other observers may substitute activities occurring during each monitoring reports per the Acoustic education (degree in biological science observation period; Monitoring Plan. or a related field) or training for (iii) Weather parameters (e.g., wind (5) Hilcorp must report on observed experience; speed, percent cloud cover, visibility); injured or dead marine mammals.

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(i) In the unanticipated event that the documentation of the stranded animal changes to the activity or the mitigation, activity defined in § 217.30 clearly sighting to NMFS. Photographs may be monitoring, or reporting (excluding causes the take of a marine mammal in taken once the animal has been moved changes made pursuant to the adaptive a prohibited manner, Hilcorp must from the waterfront area. management provision in paragraph immediately cease such activity and (c)(1) of this section) that do not change report the incident to the Office of § 217.36 Letters of Authorization. the findings made for this subpart or Protected Resources (OPR), NMFS, and (a) To incidentally take marine result in no more than a minor change to the Alaska Regional Stranding mammals pursuant to this subpart, in the total estimated number of takes Coordinator, NMFS. Activities must not Hilcorp must apply for and obtain an (or distribution by species or years), resume until NMFS is able to review the LOA. NMFS may publish a notice of proposed circumstances of the prohibited take. (b) An LOA, unless suspended or LOA in the Federal Register, including NMFS will work with Hilcorp to revoked, may be effective for a period of the associated analysis of the change, determine what measures are necessary time not to exceed the expiration date and solicit public comment before to minimize the likelihood of further of this subpart. issuing the LOA. prohibited take and ensure Marine (c) If an LOA expires prior to the (c) An LOA issued under §§ 216.106 Mammal Protection Act (MMPA) expiration date of this subpart, Hilcorp of this chapter and 217.36 for the compliance. Hilcorp may not resume may apply for and obtain a renewal of activity identified in § 217.30(a) may be their activities until notified by NMFS. the LOA. modified by NMFS under the following (d) In the event of projected changes The report must include the following circumstances: information: to the activity or to mitigation and (1) Adaptive management. NMFS may (A) Time, date, and location (latitude/ monitoring measures required by an modify (including augment) the existing longitude) of the incident; LOA, Hilcorp must apply for and obtain (B) Description of the incident; a modification of the LOA as described mitigation, monitoring, or reporting (C) Environmental conditions (e.g., in § 217.37. measures (after consulting with Hilcorp wind speed and direction, Beaufort sea (e) The LOA shall set forth: regarding the practicability of the state, cloud cover, visibility); (1) Permissible methods of incidental modifications) if doing so creates a (D) Description of all marine mammal taking; reasonable likelihood of more observations in the 24 hours preceding (2) Means of effecting the least effectively accomplishing the goals of the incident; practicable adverse impact (i.e., the mitigation and monitoring set forth (E) Species identification or mitigation) on the species, its habitat, in this subpart. description of the animal(s) involved; and on the availability of the species for (i) Possible sources of data that could (F) Fate of the animal(s); and subsistence uses; and contribute to the decision to modify the (G) Photographs or video footage of (3) Requirements for monitoring and mitigation, monitoring, or reporting the animal(s). Photographs may be taken reporting. measures in an LOA: once the animal has been moved from (f) Issuance of the LOA shall be based (A) Results from Hilcorp’s monitoring the waterfront area. on a determination that the level of from the previous year(s). (H) In the event that Hilcorp discovers taking will be consistent with the an injured or dead marine mammal and (B) Results from other marine findings made for the total taking mammal and/or sound research or determines that the cause of the injury allowable under this subpart. or death is unknown and the death is studies. (g) Notice of issuance or denial of an (C) Any information that reveals relatively recent (e.g., in less than a LOA shall be published in the Federal moderate state of decomposition), marine mammals may have been taken Register within thirty days of a in a manner, extent, or number not Hilcorp must immediately report the determination. incident to OPR and the Alaska authorized by this subpart or Regional Stranding Coordinator, NMFS. § 217.37 Renewals and modifications of subsequent LOAs. The report must include the information Letters of Authorization. (ii) If, through adaptive management, identified in paragraph (i)(5)(i) of this (a) An LOA issued under §§ 216.106 the modifications to the mitigation, section. Activities may continue while of this chapter and 217.36 for the monitoring, or reporting measures are NMFS reviews the circumstances of the activity identified in § 217.30(a) shall be substantial, NMFS will publish a notice incident. NMFS will work with Hilcorp renewed or modified upon request by of proposed LOA in the Federal to determine whether additional the applicant, provided that: Register and solicit public comment. mitigation measures or modifications to (1) The proposed specified activity (2) Emergencies. If NMFS determines the activities are appropriate. and mitigation, monitoring, and that an emergency exists that poses a (ii) In the event Hilcorp discovers an reporting measures, as well as the significant risk to the well-being of the injured or dead marine mammal and anticipated impacts, are the same as species or stocks of marine mammals determines that the injury or death is those described and analyzed for this specified in LOAs issued pursuant to not associated with or related to the subpart (excluding changes made §§ 216.106 of this chapter and 217.36, activities defined in § 217.30 (e.g., pursuant to the adaptive management an LOA may be modified without prior previously wounded animal, carcass provision in paragraph (c)(1) of this notice or opportunity for public with moderate to advanced section); and comment. Notice would be published in decomposition, scavenger damage), (2) NMFS determines that the the Federal Register within thirty days Hilcorp must report the incident to OPR mitigation, monitoring, and reporting of the action. and the Alaska Regional Stranding measures required by the previous LOA Coordinator, NMFS, within 24 hours of under this subpart were implemented. § § 217.38–217.39 [Reserved] the discovery. Hilcorp must provide (b) For LOA modification or renewal [FR Doc. 2019–27049 Filed 12–19–19; 8:45 am] photographs or video footage or other requests by the applicant that include BILLING CODE 3510–22–P

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