Proposed Rule2026-02048
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Sea Ice Road and Trail Construction, Use, and Maintenance Activities Along the Beaufort Sea Coast in Alaska
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 2, 2026
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from Hilcorp Alaska, LLC (Hilcorp) for promulgation of incidental take regulations (ITR) and issuance of an associated Letter of Authorization (LOA) that would authorize continued take of marine mammals over 5 years (2026-2031) incidental to the construction, maintenance and use of sea ice roads, trails and adjacent ice pads after the expiration of the existing ITR and LOA. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations setting forth permissible methods of taking, other means of effecting the least practicable adverse impact on such marine mammal stocks (i.e., mitigation measures), and requirements pertaining to monitoring and reporting takes and requests comments on the proposed rule. NMFS will consider public comments prior to making any final decision on the promulgation of the requested ITR and issuance of the LOA; agency responses to public comments will be summarized in the final rule, if promulgated.
Full Text
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<title>Federal Register, Volume 91 Issue 21 (Monday, February 2, 2026)</title>
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[Federal Register Volume 91, Number 21 (Monday, February 2, 2026)]
[Proposed Rules]
[Pages 4468-4485]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02048]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 260123-0032]
RIN 0648-BN38
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Sea Ice Road and Trail
Construction, Use, and Maintenance Activities Along the Beaufort Sea
Coast in Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS has received a request from Hilcorp Alaska, LLC (Hilcorp)
for promulgation of incidental take regulations (ITR) and issuance of
an associated Letter of Authorization (LOA) that would authorize
continued take of marine mammals over 5 years (2026-2031) incidental to
the construction, maintenance and use of sea ice roads, trails and
adjacent ice pads after the expiration of the existing ITR and LOA.
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing
regulations setting forth permissible methods of taking, other means of
effecting the least practicable adverse impact on such marine mammal
stocks (i.e., mitigation measures), and requirements pertaining to
monitoring and reporting takes and requests comments on the proposed
rule. NMFS will consider public comments prior to making any final
decision on the promulgation of the requested ITR and issuance of the
LOA; agency responses to public comments will be summarized in the
final rule, if promulgated.
DATES: Comments and information must be received no later than March 4,
2026.
ADDRESSES: A plain language summary of this proposed rule is available
at: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2026-0265">https://www.regulations.gov/docket/NOAA-NMFS-2026-0265</a>.
Electronic Submissions: Submit all electronic public comments via
the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
enter NOAA-NMFS-2026-0265 in the Search box (note: copying and pasting
the FDMS Docket Number directly from this document may not yield search
results). Click on the ``Comment'' icon, complete the required fields,
and enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing at:
<a href="https://www.regulations.gov">https://www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected
Resources, NMFS, (301) 427-8401.
Purpose of Regulatory Action
This proposed rule, if promulgated, would establish a framework
under the authority of the MMPA (16 U.S.C. 1361 et seq.) to authorize,
for a 5-year period
[[Page 4469]]
(2026-2031), take of marine mammals incidental to Hilcorp's annual ice
roads, trails, and pads construction, use, and maintenance activities
along the Beaufort Sea coast in Alaska. NMFS received an application
from Hilcorp requesting the 5-year ITR and LOA to take a single stock
of marine mammal (Arctic stock of ringed seals). Take would occur by
Level B harassment incidental to ice roads, trails and pads
construction, use, and maintenance activities. A limited number of
takes by serious injury and mortality (M/SI) is also proposed to be
authorized due to the potential for such takes from ice roads, trails,
and pads construction, use, and maintenance activities.
Legal Authority for the Proposed Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional, taking of small numbers
of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if certain findings are made, regulations are promulgated, and public
notice and an opportunity for public comment are provided.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). If such findings are made, NMFS must prescribe the
permissible methods of taking and other ``means of effecting the least
practicable adverse impact'' on (1) the affected species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, and (2) the availability of
the species or stocks for taking for certain subsistence uses (referred
to as ``mitigation'') and requirements pertaining to the monitoring and
reporting of the takings. The definitions of all applicable MMPA
statutory terms used above are included in the relevant sections below.
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I provide the legal basis for proposing
and, if appropriate, promulgating 5-year regulations and for issuance
of any subsequent associated LOA. This rule would also establish
required mitigation, monitoring, and reporting requirements for
Hilcorp's activities.
Summary of Major Provisions Within the Proposed Rule
The major provisions of this proposed rule are as follows:
<bullet> The proposed authorization of take of a single marine
mammal stock by Level B harassment;
<bullet> The proposed authorization of a limited number of takes of
a single marine mammal stock by serious injury and mortality;
<bullet> Monitoring of the construction areas to detect the
presence of marine mammals before beginning construction activities;
<bullet> Any proposed new or workaround ice trail routes will avoid
suspected seal structures by 150 m after March 1;
<bullet> Required wildlife training for all project personnel; and
<bullet> Submission of annual and final marine mammal monitoring
reports.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review its proposed action (i.e., promulgation of regulations
and subsequent issuance of a LOA thereunder) with respect to potential
impacts on the human environment.
Accordingly, in 2020 NMFS prepared an Environmental Assessment (EA)
that considered environmental impacts associated with the issuance of
an ITR and LOAs for the same activities, including the construction,
maintenance, and operation of ice roads, trails, and pads. That ITR and
those LOAs expire on November 30, 2025 (85 FR 83451, December 22,
2020). NMFS developed a Supplemental Information Report (SIR) to assist
in determining whether a supplemental NEPA document is necessary
(Companion Manual for NOAA Administrative Order 216-6A, 2025). After
reviewing the SIR, NMFS has preliminarily determined that the proposed
action falls within the scope of the 2020 EA. NMFS will consider all
comments submitted in response to this notice prior to concluding the
NEPA process associated with the proposed ITR and LOA request.
Summary of Request
On December 22, 2020, NMFS promulgated regulations and issued LOAs
to Hilcorp and Eni US Operating Co. Inc. (Eni) for the take of the
Arctic stock of ringed seal incidental to ice roads, trails, and pads
construction, maintenance, and use activities on the Beaufort Sea coast
(85 FR 83451). The current regulations and LOAs are effective through
November 20, 2025.
On November 1, 2024, Hilcorp became the owner and operator of the
Nikaitchuq Unit and Oooguruk Unit (i.e., Western North Slope (WNS),
which includes Spy Island Drillsite (SID) and Oooguruk Drillsite
(ODS)), previously owned and operated by Eni. NMFS issued a revised LOA
to Hilcorp on November 6, 2024, following its acquisition of Eni (89 FR
88014). With the exception of changing the LOA holder's name, no other
changes were made to the revised LOA. Hilcorp and Eni complied with all
the requirements (e.g., mitigation, monitoring, and reporting) of the
previous LOAs and information regarding its monitoring results may be
found in the Estimated Take of Marine Mammals section.
On September 12, 2024, NMFS received an application from Hilcorp
requesting authorization for the take of marine mammals incidental to
construction, maintenance and use of ice roads, trails, and pads along
the Beaufort Sea coast. A revised application was submitted on April 3,
2025. We determined the application was adequate and complete on May 5,
2025. This request is similar to that submitted by Hilcorp and Eni for
the previous ITR and LOAs. The project area is unchanged, but the
methodology used to estimate take, the final take estimates, and the
mitigation and monitoring requirements are revised to reflect the best
scientific information available. On May 16, 2025, we published a
notice of receipt of Hilcorp's application in the Federal Register,
requesting comments and information related to the request for 30 days
(90 FR 21011). We received no public comments. Hilcorp requests
authorization to take members of the Arctic stock of ringed seal (Pusa
hispida) by Level B harassment M/SI. The proposed regulations would be
valid for 5 years (2026-2031).
Description of Proposed Activity
Overview
Hilcorp conducts oil and gas operations at Northstar and SID,
respectively, in coastal Beaufort Sea waters off of Alaska (figure 1).
During the ice-covered season, Hilcorp annually constructs sea ice
roads, trails, and pads to connect and allow access between West Dock
and Northstar. Prior to the new ownership by Hilcorp, Eni constructed
and utilized an ice road or trail connecting the Oliktok Production Pad
(OPP) and SID as well as an annual ice road from shore to the ODS.
[[Page 4470]]
Dates and Duration
The proposed regulations would be valid for a period of 5 years.
Ice roads, trails, and pads activities within Hilcorp's project area
would occur between December 1 and May 31 each year (i.e., up to 181
days each year), depending on weather and ice conditions. Hilcorp
begins constructing ice roads, trails, and pads as early as possible,
usually early to mid-December, depending on weather and ice conditions.
If weather conditions are not favorable, construction may be delayed as
late as January. Ice road construction takes about six weeks from
initial surveying until the ice is thick enough to allow travel by
wheeled vehicles. Maintenance and use of the ice roads, trails, and
pads continues until the ice becomes too unstable to access, usually
sometime between mid-April and mid-May.
Specific Geographic Region
Northstar, an artificial gravel island, is located in State of
Alaska coastal waters about 9.7 km (6 mi) offshore from Point
Storkersen in the Beaufort Sea (figure 1). Water depths along the ice
routes range from 0 to 10 m, the majority of which are at depths <9 m.
The 0.05 square kilometer [km\2\ ] (11-acre) SID is also an
artificial, gravel island constructed in shallow (1.8-2.4 m, 6-8 ft),
State of Alaska coastal waters approximately 4.8 km (3 mi) north of
Oliktok Point and just south of the Spy Island barrier island.
ODS consists of a 0.024 km\2\ (6-acre) gravel drill site
approximately 8 km (5 mi) offshore in 1.4 m (4.5 ft) of water. The site
is connected to an onshore facility by a flowline system consisting of
a 9.2 km (5.7 mi) subsea buried flowline bundle which transitions
onshore to a 3.7 km (2.3 mi) traditional North Slope aboveground
flowline support system.
All three of these locations are covered by landfast ice during
winter.
[GRAPHIC] [TIFF OMITTED] TP02FE26.012
Figure 1. Project Site for Hilcorp Sea Ice Routes and Trails
Detailed Description of the Specified Activity
The proposed activities include building, maintaining, and
operating vehicles on ice roads, trails, and adjacent ice pads. These
ice roads, trails, and pads are constructed each winter to transport
personnel, equipment, and supplies to the Northstar, ODS, and SID
production facilities. Below are more detailed descriptions of what
construction, maintenance and use activities would be employed at the
Northstar, ODS, and SID production facilities.
Northstar to West Dock
Annually, during the ice-covered season, Hilcorp builds sea ice
routes connecting the mainland to Northstar. These routes, which are in
water depths ranging from 0 to 10 meters (mostly under 9 meters), allow
for the transport of personnel, equipment, materials, and supplies.
The specific routes (shown in figure 1-3 in the application) can
change each year due to operational needs and weather. Not all routes
depicted are built every year. These routes can be thicker ice roads
for heavy vehicles or unimproved ice trails for tracked vehicles like
Tuckers or PistenBullys[supreg]. Ice trails are more frequently used,
while ice roads are built only when heavy construction or large
equipment is needed. Any ice trail built near the shoreline (in <1
meter water) is on grounded ice. Because the exact routes vary, Hilcorp
has assumed that there is a 40 km\2\ area where sea ice routes may be
constructed each year, with the understanding that not all routes are
built annually.
Depending on the specific operational needs from year-to-year
(i.e., what equipment is needed on the island), Northstar may construct
a sea ice road that connects Production Module 2, or this route may
also be constructed as an ice trail. For an ice road in water deeper
than about 3 m, sea ice must be approximately 2.5 m thick to support
the weight of heavier vehicles and equipment. The sea ice road is
typically constructed by special pumps with ice augers. Seawater for
creating the offshore ice road is obtained by drilling holes through
the existing sea ice using the augers and pumping salt water to flood
the existing ice surface. Rolligons[supreg]
[[Page 4471]]
move along the planned ice road corridor while flooding the surface.
Water trucks are used to spray a freshwater cap over the thickened sea
ice for durability. Sea ice road construction activities occur 24 hours
a day, 7 days a week during the construction phase and are halted
during unsafe conditions such as high winds or extremely low
temperatures.
Following construction, the ice road surface is maintained using
graders with snow wings and blowers, or front-end loaders with snow
blower attachments. Snow can also be cleared by personnel operating
snow blowers. Care is taken so that large berms or large piles of snow
are not created adjacent to the road or on the road shoulders. When
clearing snow with blowers, any active wind is used to disperse the
blown snow over a large area. Delineators may be used to mark the
roadway in about 15-m increments down the centerline of the road, and
at no more than 0.4 km increments on both sides of the ice road to
demarcate the intended path of vehicle travel and areas to be
maintained. Corners of rig mats, steel plates, and other materials used
to bridge sections of hazardous ice, are clearly marked or mapped using
global positioning system (GPS) coordinates of the locations. Ice roads
are generally constructed only in years when construction or large
maintenance projects are planned to facilitate access by large vehicles
and heavy loads. Depending on weather and ice conditions, portions of
the sea ice road may become unsafe for travel due to unstable sections.
If this occurs, Hilcorp may use unimproved sea ice trails to provide
safe transit to and from the island. Construction of sea ice trails may
occur later in the season (i.e., March through mid-May), depending on
conditions, as described in the following section.
Sea ice trails serve as unimproved access routes for tracked
vehicles. Unlike ice roads, ice trail construction does not involve
seawater flooding or freshwater caps. Instead, a tracked vehicle
typically pulls a drag to smooth the ice surface. This method
eliminates the need for augers, pumps, backhoes, or ditchwitches. While
a bulldozer might be used to build a ramp from the trail to the island,
it is not used on the ice trail itself. Occasionally, small rough
patches on a trail might require minor seawater flooding to allow
tracked vehicles to pass. For this, a hand auger powered by a small
generator can be used to drill into the ice and draw up water.
To establish a trail, snow machines and lightweight tracked
vehicles initially mark the corridor once it is deemed safe for access.
The unimproved sea ice trail then naturally thickens as ice and snow
are compacted by larger tracked vehicles. Generally, significant snow
removal or surface modifications are not needed for ice trails. For
grounded ice trails and roads, minimal freshwater flooding may be used
to cap the ice or repair cracks. Floating ice, however, requires
seawater flooding until it reaches a desired thickness, which is
determined by the required strength and integrity for safe travel. Once
the desired thickness is achieved, floating ice areas can also be
flooded with freshwater to cap the ice or repair cracks, minimizing the
overall freshwater needed.
Hilcorp may construct some or all of the sea ice trails depicted in
Figure 1-3 in the application each year. These trails typically range
from 15 to 52 km in length. As the season progresses, if unstable or
unsafe ice areas develop, Hilcorp may build several shorter ``work-
around'' or detour trails in previously undisturbed areas adjacent to
the main corridors. Due to safety considerations, these detours might
need to be constructed after March 1st. Work-around routes are
constructed as ice trails and are not flooded or capped with water.
Typically, these detours deviate approximately 20 to 45 meters from the
original road or trail, allowing crews to safely bypass soft spots or
cracks. Any such work-arounds or detours would remain within the 40
km\2\ area shown in Figure 1-3 in the application.
WNS: Oliktok Production Pad to SID
SID, an artificial gravel island offshore, serves as the base for
an annual ice road that extends about 7 km offshore to OPP and connects
to three ice pads (Figure 1-4 in the application). This road
incorporates both floating and grounded ice sections, with the initial
portion near the shore being grounded. Two of the three ice pads are on
floating ice: a 150-m by 60-m pad southeast of SID and a 90-m by 45-m
pad northeast of the island. The third ice pad is on grounded ice near
Oliktok Point at the end of the ice road. All ice pads are situated
within the ice road/trail buffer zone and are used for estimating
potential seal takes.
The construction of the SID sea ice road begins with surveying and
staking the route once the ice is thick enough to support personnel on
snow machines. Small vehicles equipped with augers and pumps then bore
holes and flood the staked route. The free-flood method is used for the
floating sections of the road. This involves using low-pressure pumps
to apply an initial 8-centimeter layer of seawater to the ice surface,
some of which may flow to lower areas. After the first water layer has
frozen, the next flood is then applied and so on until the desired ice
thickness is reached. Hand augers can be used to check the ice
thickness. Flooding operations occur 24 hours a day, 7 days a week
during this phase. The ice needs to be 41 to 51 cm thick to support
Rolligons[supreg], which have large tires designed to distribute weight
over a wider area. For heavier vehicles like passenger trucks, vacuum
trucks, drill trucks, and tractor trailers, the ice must reach
approximately 183 cm thick. The maintained ice road, including its
shoulder areas, is approximately 50 meters wide.
Rig mats are used to bridge small leads and cracks during both
construction and maintenance. For road surfacing and repairs during
maintenance activities, fresh water is utilized. Once the ice road is
fully flooded and open to traffic, snow loads on the surface must be
managed. Snow is cleared frequently, and the 50-meter width of the ice
road (including shoulders) is consistently maintained.
Using the same construction methods as at Northstar, an unimproved
ice trail is built near SID each year just west of and parallel to the
sea ice road corridor. The ice trail is located approximately 15 to 30
m west of the western edge of the ice road shoulder and is used when
the ice road is being constructed. Once the ice road is open to regular
traffic, the ice trail is not used. After March 1st, due to safety
considerations, Hilcorp may also need to use several shorter length
trails in undisturbed areas to work around unstable and unsafe areas of
ice as the season progresses. As described above, these work-around or
detour trails allow PistenBullys[supreg] or other tracked vehicles to
safely go around soft spots or cracks.
After March 1st, Hilcorp may also construct shorter, temporary
work-around or detour trails in previously undisturbed areas. These
detours are built to safely navigate unstable or unsafe ice sections,
allowing PistenBullys[supreg] and other tracked vehicles to go safely
around soft spots or cracks.
WNS: Oooguruk Drill Site Ice Route
ODS, a gravel drill site located 8 km offshore, constructs an
annual ice road and a staging area ice pad for its operations. The ice
road construction process is the same as that for the OPP to SID ice
road, as described previously. While ODS, similar to SID, is in water
depths generally unsuitable for ringed seal habitat, Hilcorp has
included ODS
[[Page 4472]]
in since there may be potential changes in ice conditions and ringed
seal habitat.
The typical or proposed ice road shown in figure 1-5 in the
application extends approximately 9 km offshore to ODS. An alternative
route (figure 1-6 in the application) is located in shallower water,
allowing it to be grounded and used earlier in the season. This
alternative route, extending about 11 km offshore, is used when early
road completion is necessary or when extra-heavy loads, such as a drill
rig, are anticipated. Each ice road can be up to 50 m wide, including
shoulders used for detours around equipment or during maintenance.
Additionally, a grounded ice pad staging area, measuring 140 m by
180 m, is constructed next to the southwest edge of ODS (figures 1-5
and 1-6 in the application). ODS is in 1-2 m of water, and the area
from the site to the shore typically becomes grounded landfast ice in
winter. Therefore, both the typical and alternative ice road routes are
on grounded, rather than floating, ice. Offshore ice trails are not
required for ODS operations.
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Proposed
Mitigation and Proposed Monitoring and Reporting).
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions instead of reprinting the information. Additional
information regarding population trends and threats may be found in
NMFS' Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 1 lists the only stock of marine mammals for which take is
expected and proposed to be authorized for this activity and summarizes
information related to the population or stock, including regulatory
status under the MMPA and Endangered Species Act (ESA) and potential
biological removal (PBR), where known. PBR is defined by the MMPA as
the maximum number of animals, not including natural mortalities, that
may be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (as described in
NMFS' SARs). PBR and annual serious injury and mortality (M/SI) from
anthropogenic sources are included here as gross indicators of the
status of the species or stocks and other threats.
Marine mammal abundance estimates presented in Table 1 represent
the total number of individuals that make up a given stock or the total
number estimated within a particular study or survey area. NMFS' stock
abundance estimates for most species represent the total estimate of
individuals within the geographic area, if known, that comprises that
stock. For some species, this geographic area may extend beyond U.S.
waters. All managed stocks in this region are assessed in NMFS' U.S.
Alaska SARs. All values presented in table 1 are the most recent
available at the time of publication (including from the draft 2024
SARs) and are available online at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.
Table 1--Species With Estimated Take From the Specified Activities
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ESA /MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
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Order Carnivora--Pinnipedia
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Family Phocidae (earless seals):
Ringed Seal..................... Pusa hispida........... Arctic................. T, D, Y 342,836 \5\ (UND, UND, UND 6,459
2013).
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\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>).
\2\ 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.
\3\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region/">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region/</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
\5\ Using a subset of data collected in 2012 by Moreland et al. (2013) from aerial abundance and distribution surveys over the entire ice-covered
portions of the Bering Sea, Conn et al. (2014) calculated an abundance estimate of 171,418 ringed seals (95% CI: 141,588-201,090). This estimate is
considered to be low by a factor of 2 or more because availability bias due to seals in the water at the time of the surveys was not accounted for and
the estimate did not include ringed seals in the shorefast ice zone (Young et al. 2023). Therefore, abundance of 171,418 has been multiplied by a
factor of 2 for this analysis (i.e., 342,836 animals).
As indicated above, only the Arctic stock of ringed seals
temporally and spatially co-occur with the activity to the degree that
take is reasonably likely to occur. While bearded seals (Erignathus
barbatus), spotted seals (Phoca largha), bowhead whales (Balaena
mysticetus) and beluga whales (Delphinapterus leucas) have been
documented in the area, the temporal occurrence of these species is
such that take is not expected to occur and they are not discussed
further beyond the explanation provided here. Bearded seals (Erignathus
barbatus) and spotted seals (Phoca largha) occur in the Beaufort Sea
only during the open water season (mid-July through mid-November) and
are not likely to be encountered in the project area during the ice-
covered months. Additionally, bowhead whales and beluga whales are not
proposed for authorized take because there is no temporal overlap of
cetaceans during the ice-covered season.
Ringed seals are distributed in all seasonally ice-covered seas of
the Northern Hemisphere (Lang et al. 2021, Muto et al. 2020). Five
subspecies of ringed seals are currently recognized, with only the
Arctic stock occurring in U.S. waters of the Arctic Ocean and Bering
Sea (Rice and Society for Marine
[[Page 4473]]
Mammalogy 1998). They are year-round residents of the Chukchi and
Beaufort seas and are generally the most encountered seal in the U.S.
Arctic.
Ringed seals are abundant in the winter and spring on shorefast and
pack ice in the northern Bering Sea, Norton Sound, Kotzebue Sound,
Chukchi Sea, and Beaufort Sea, where they utilize sea ice for pupping
and nursing as well as resting. Landfast ice has been shown to be the
best habitat for ringed seal pupping (Kelly 1988). Moulton et al.
(2002) found the highest concentrations of ringed seals on stable,
shorefast ice over water depths of about 10-20 m in late May and early
June; but waters less than 5 m deep are not preferred wintering areas
for ringed seals (Frost et al. 2004, Moulton et al. 2002). In the
summer months, they use sea ice as a platform for molting and resting,
although ringed seals can remain pelagic in productive foraging areas
for long periods of time. In the fall, ringed seals utilize sea ice as
a platform for resting, and rarely haul out in terrestrial habitats.
During the winter, ringed seals excavate and maintain breathing
holes in the ice and occupy lairs in accumulated snow (Smith and
Stirling 1975). Ringed seals give birth in lairs from mid-March through
April, nurse their pups in the lairs for 5 to 8 weeks, and mate in late
April and May (Hammill et al. 1991; Lydersen and Hammill 1993; as cited
in (Ireland et al. 2016)). Seal mothers continue to forage throughout
lactation and move young pups between a network of four to six lairs
(Ireland et al. 2016). Arctic ringed seals generally prefer landfast
ice along the shoreline for pupping. Frost et al. (2004) conducted
aerial surveys over the Beaufort Sea coast from Utqia[gdot]vik to
Kaktovik and determined that ringed seal density was greatest in water
depths between 16 and 115 ft. (5 and 35 m), and in relatively flat ice
close to the fast ice edge. Aerial surveys conducted in association
with construction near the Northstar facility found ringed seal annual
densities ranged from 0.39 to 0.83 seals per km\2\ (Moulton et al.
2005).
The ringed seal diet is composed predominantly of pelagic fish such
as cod (Crain et al. 2021) but also includes shrimp and planktonic
crustaceans; the relative importance of each type of prey depends on
local availability and season (Lowry et al. 1980, as cited in (Ireland
et al. 2016)). They have been shown to dive to depths of up to 46 m or
more while foraging. Ringed seals are hunted by killer whales and polar
bears. Spatial distributions and population fluctuations of ringed
seals and polar bears appear to be tightly correlated in some areas
(Stirling and [Oslash]ritsland 1995 as cited in (Ireland et al. 2016)).
Optimal overwintering areas for ringed seals in the Beaufort Sea
occur in waters between 10 and 35 m deep, preferably in the landfast
ice along the shoreline close to lead systems. In May 2022, two trained
wildlife-detection dogs were used to survey an area in Prudhoe Bay near
Northstar Island. A total of 61 ringed seal structures (47 breathing
holes and 14 lairs) were identified in an 88.2 km\2\ area resulting in
a density of 0.68 structures/km\2\. Lair density was higher in water
deeper than 5m; however, seal structures were found in all water depths
(Quakenbush et al. 2022). Ringed seal movements during winter and
spring are typically quite limited, especially where ice cover is
extensive (Kelly et al. 2010a).
On April 1, 2022, NMFS designated critical habitat for the Arctic
subspecies of ringed seals (87 FR 19232). On September 26, 2024, the
Alaska district court issued a decision in which it ruled in part for
Alaska, vacated NMFS' ice seal critical habitat designations, and
remanded the ringed and bearded seal critical habitat designation to
NMFS. State of Alaska v. Nat'l Marine Fisheries Serv., No. 3:23-cv-32-
SLG, 2024 WL 4298114 (Sept. 26, 2024) (1-FedER-003). Notwithstanding
the court decision vacating NMFS' critical habitat designations for ice
seals, the underlying information regarding the importance of the area
and associated features to ringed seals and their habitat remains
relevant to the discussion here. The critical habitat designation
covered areas of marine habitat in the Bering, Chukchi, and Beaufort
Seas. During the designation, NMFS considered three physical and
biological features (PBFs): (1) snow covered sea ice suitable for
subnivean birth lair formation and maintenance defined as waters 3 m or
more in-depth containing area of shorefast ice or dense stable pack ice
that contain snow drifts at least 54 cm deep to maintain lairs; (2) sea
ice suitable for basking and molting defined as waters 3 m or more in
depth with 15 percent or higher concentrations of sea ice; and (3)
primary prey resources to support ringed seals defined as small,
schooling fish and small crustaceans. The critical habitat designation
covered areas of marine habitat in the Bering, Chukchi, and Beaufort
seas and overlapped with the Hilcorp project area as shown in figure 4-
6 in the application. Note that identified ringed seal habitat
surrounds only Northstar; neither SID nor ODS is located in identified
ringed seal habitat as delineated by the 3 m isopleth offshore (see
Figure 4-6 in the application). However, as described later and in more
detail in the Potential Effects of Specified Activities on Marine
Mammals and their Habitat section, we do not anticipate physical
impacts to any marine mammal habitat as a result of Hilcorp's
activities, including impacts to ringed seal sea ice habitat suitable
as a platform for basking and molting and impacts on prey availability.
Further, this proposed rule includes mitigation measures, as described
in the Proposed Mitigation section, which would minimize or prevent
impacts to sea ice habitat suitable for the formation and maintenance
of subnivean birth lairs.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
The Estimated Take of Marine Mammals section later in this document
includes a quantitative analysis of the number of individuals that are
expected to be taken by this activity. The Negligible Impact Analysis
and Determination section considers the content of this section, the
Estimated Take of Marine Mammals section, and the Proposed Mitigation
section to draw conclusions regarding the likely impacts of these
activities on the reproductive success or survivorship of individuals
and whether those impacts are reasonably expected to, or reasonably
likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.
Ringed seals could be adversely affected by disturbance resulting
from visual stimuli. The majority of impacts are likely to occur due to
the physical presence of machinery and vehicles used for ice roads,
trails, and pads construction as well as associated human workers. In
an unlikely scenario, these activities could result in M/SI if an
animal is crushed by construction machinery or vehicle while in its
subnivean lair. While this is not expected, there is a prior record of
such an occurrence from 1998.
As described in Quakenbush et al. (2022, 2023b), respectively, two
different basking seals were observed not to be affected by the close
passage of a hovercraft and were observed to remain on the ice in 2022,
and ``active structures were found within 19.5 m of facilities and
within an active ice road.'' Annual marine mammal reports were
submitted to NMFS by Hilcorp and Eni in 2020, 2021, 2022 and 2023 (Eni
US Operating Co. Inc. 2020, 2021, 2022, Hilcorp 2022, 2023). The few
seals observed (49 seals total over 4 years)
[[Page 4474]]
from the ice routes were noted as sleeping, resting or basking, which
seems to indicate a lack of overt behavioral response to ice roads,
trails, and pads activities.
The associated noise from the machinery and vehicles could cause
pinniped behavioral modification and temporary displacement within the
vicinity of the project area if in-water and airborne noise levels are
high enough. As noted previously, nearly all construction, maintenance
and use activities would occur on the ice surface. While it is possible
that underwater noise associated with ice roads, trails, and pads
activities could potentially result in take, it is not considered
likely due to relatively low sound source levels associated with
construction, maintenance and use of ice roads/trails/pads. NMFS
recommends the use of acoustic criteria that identify the received
level of underwater sound above which exposed marine mammals would be
reasonably expected to be behaviorally harassed (equated to Level B
harassment) or to incur auditory injury (AUD INJ) of some degree
(equated to Level A harassment). We note that the criteria for AUD INJ
have been recently updated (NMFS 2024). Auditory injury for marine
mammal hearing (MMPA Level A harassment) is defined as permanent
threshold shift (PTS) from exposure to non-impulsive, acoustic sources
>195 dB re 1 [micro]Pa at 1 m. Greene et al (2008) presented in-water
auditory data recorded at Northstar for ice road construction including
dozing snow off the frozen surface, augering holes through the ice, and
pumping seawater up through the holes to flood the ice surface. The
highest recorded sound underwater was 189 dB re 1 Pa and was associated
with the bulldozer, which is less than 195 dB 195 dB re 1 [micro]Pa.
Therefore, take by Level A harassment is not reasonably expected to
occur. The current threshold for Level B harassment (non-impulsive
source) in-water is 120 dB re 1 [micro]Pa (NMFS 2016). Southall et al.
(2007) assessed relevant studies, found considerable variability among
pinnipeds, and determined exposures between approximately 90 and 140 dB
generally do not induce strong behavioral responses of pinnipeds in
water, but an increasing probability of avoidance and other behavioral
effects exists in the 120 to 160 dB range. The use of the Ditchwitch to
cut ice or from pumping at Northstar did not exceed 120 dB at 100 m
(Greene et al. 2008). At closer distances to the ice roads, trails, or
pads Level B thresholds could be exceeded by some construction
equipment such as a bulldozer. Kelly et al. (1986) reported that some
ringed seals temporarily departed their lairs when sound sources were
within 97 to 3,000 m but later returned to their lairs.
In-air noise associated with ice trail activities is not expected
to cause disturbance to ringed seals, as construction noise is not
likely to exceed 100 dB re 20 [mu]Pa at the source. Airborne sounds for
the bulldozer and Ditchwitch according to Greene et al. (2008) ranged
between 64.7 to 76.3 dB re 20 [micro]Pa. During the winter of 2000,
background unweighted in air noise levels from various machines
measured in the vicinity of Northstar ranged from 59 to 84 dB re 20
[mu]Pa, and this background noise level was related to wind speed
(Greene et al. 2008). Similar levels were reported during the winter of
2001 and 2002 by Blackwell et al. (2004a, b) with minimum background
unweighted in air noise levels of 44 to 52 dB re 20 [mu]Pa measured in
ice-covered conditions with low wind up to 10 km (6 mi) from Northstar
in Prudhoe Bay. As a result of the expected low levels, in-air noise
during construction, operation, and use of the ice roads, trails, and
pads is not expected to result in harassment of seals.
For ringed seals, the effects of underwater noise are contingent
upon their hearing capabilities. Due to the predominantly airborne and
relatively low noise levels generated by ice trail construction, it is
highly unlikely that seals in the vicinity would suffer any permanent
or temporary hearing damage (PTS or TTS). The most common reaction of
marine mammals to increased noise is a short-term behavioral change or
avoidance of the disturbed area (Richardson et al. 1995). While minor
disturbance from in-air or underwater noise (under ice) might occur due
to ice trail activities, any potential impacts on ringed seals exposed
to low-level noise would be more likely to involve masking and
temporary displacement. However, the probability that acoustic noise
associated with ice trail construction would result in masking any
acoustic signals of ringed seals during construction is very low. Ice
trail construction activities would be initiated prior to March 1st
when animals begin constructing dens prior to pupping and during
pupping when seals are minimally vocal in the dens to prevent predation
(Ireland et. al. 2016). The probability that the noise producing
activities associated with Hilcorp's proposed project would result in
masking acoustic signals important to the behavior and survival of
marine mammal species in the project area is so low as to be considered
negligible.
Permanent displacement of seals from ice trail construction is
considered unlikely but could occur. As described in Williams et al.
(2006), during three surveys conducted in November/December, March and
May of 2001 during Northstar construction activities, 181 ringed seal
structures were located and 118 (65 percent) were still actively used
by late May 2001. Active ringed seal structures appeared to be evenly
distributed across the Northstar study area in relation to the
facility. The noise heard through snow and ice and into the subnivean
lair or den location of the animal should be considerably weaker than
at the source due to sound being attenuated in the ice and snow. In
March 2002, sounds and vibrations from vehicles traveling along an ice
road along Flaxman Island (a barrier Island east of Prudhoe Bay) were
recorded in artificially constructed polar bear dens. Sounds were
attenuated strongly by the snow cover of the artificial dens; broadband
vehicle traffic noise was reduced by 30-42 dB. Due to attenuation of
noise through ice and snow, it is less likely that seals in lairs would
be exposed to levels exceeding 120 dB re 1 [mu]Pa underwater and that
such exposure would result in displacement.
Potential Effects on Marine Mammal Habitat
The construction and maintenance of ice trails is not expected to
cause significant impacts on habitat used by ringed seals or on their
food sources. Landfast ice near the shoreline is the best habitat for
ringed seal pupping (Kelly 1988), with water depth strongly dictating
whether ringed seals overwinter in a given area. Depths greater than
about 3 m (10 ft) are typically the minimum depth suitable for
successful lair construction (Miller et al. 1998, Link et al. 1999)
although more shallow areas with open leads or cracks can be attractive
to seals as described for the road between OPP and SID.
Though ringed seals might be present in the proposed project areas
during winter, their numbers are generally expected to be low during
ice trail activities. Ice trail construction is a short-term activity
likely to cause only minor habitat disruptions. Ringed seals primarily
feed on fish and various benthic species like crabs and shrimp.
Crucially, ice trail construction within the proposed project areas
will not impact the distribution of fish or zooplankton. Since these
trails melt annually, they have no lasting effect on
[[Page 4475]]
water circulation, substrate, fish presence, or benthic populations.
As noted previously, NMFS' identification of important habitat for
ringed seals identified three PBFs essential to the conservation of the
species. Disturbance associated with construction, operation and
maintenance of ice trails is unlikely to have long-term effects on the
availability of suitable sea ice habitat for the formation and
maintenance of subnivean birth lairs or as a platform for basking and
molting. Disturbances due to ice trail construction and maintenance
activities are not expected to have any effect on availability of
primary prey resources to support Arctic ringed seals because these
activities would not cause injury or mortality to fish species nor
would they displace food resources of ringed seals. Therefore, NMFS
does not expect meaningful impacts to marine mammal habitat, including
prey, from Hilcorp's proposed activities.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
proposed for authorization under the rulemaking, which informs NMFS'
consideration of ``small numbers,'' the negligible impact
determinations, and impacts on subsistence uses.
Harassment is one type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Most authorized takes would be by Level B harassment in the form of
behavioral reactions for individual marine mammals resulting from
disturbance associated with the use of various construction equipment
and vehicles and personnel on the ice. Level A harassment is neither
anticipated nor proposed to be authorized.
Based on a single mortality event which occurred in 1998 (i.e., a
Caterpillar[supreg] was clearing a trail for seismic vehicles in an
area where water depths were about 9 m when it went over a ringed seal
lair, resulting in mortality of the pup inside), there is a small
probability for take by M/SI for which Hilcorp requested take coverage.
Take Estimation
NMFS estimated take by analyzing previously submitted marine mammal
monitoring data from the Northstar, SID and ODS locations as described
below, and assuming that similar numbers of animals as were previously
observed may be present and taken as a result of the specified
activities.
Here, we describe how the best available data were synthesized to
produce a quantitative estimate of the take that is reasonably likely
to occur and proposed for authorization. Hilcorp and NMFS reviewed the
monitoring reports from Hilcorp and Eni between 2019 and 2023 (Eni US
Operating Co. Inc. 2020, 2021, 2022 and Hilcorp 2022, 2023).
Observations from four of these reports were tallied as shown in table
2. Seal structures observed between 2019-2023 by Hilcorp and Eni are
shown in table 3.
The observations performed under the Hilcorp and Eni LOAs were
taken at the same locations, at the same time of year, and while
engaged in the same activities as those presented in this proposed
rule. For these reasons, NMFS considers the data from these monitoring
reports to be the best available information for estimating take likely
to result from the specified activities.
Table 2--Ringed Seal Observations from Hilcorp Facilities 2019-2023 \1\
----------------------------------------------------------------------------------------------------------------
Annual
Location 2019-2020 2020-2021 2021-2022 2022-2023 Total average
----------------------------------------------------------------------------------------------------------------
Northstar \2\..................... 0 4 14 29 47 16
SID............................... 2 0 0 0 2 1
SID/ODS........................... 0 0 0 0 0 0
----------------------------------------------------------------------------------------------------------------
\1\ All observations were at distances beyond 50 m.
\2\ Northstar records for 2019-2020 are not available.
Table 3--Observed Ringed Seal Structures From Hilcorp Facilities 2019-2023 \1\
----------------------------------------------------------------------------------------------------------------
Annual
Location 2019-2020 2020-2021 2021-2022 2022-2023 Total average
----------------------------------------------------------------------------------------------------------------
Northstar......................... 0 0 1 1 2 0
SID............................... 0 0 0 0 0 0
SID/ODS........................... 0 0 0 0 0 0
----------------------------------------------------------------------------------------------------------------
The combined results from table 2 and table 3 are shown in table 4
which shows the average annual observations between 2019 and 2023.
While monitoring data for the 2023-2024 and 2024-2025 seasons has been
submitted, it does not specify the locations of observations or the
number of seal structures observed and is considered incomplete.
Therefore, for the purpose of estimating take for the proposed ITR,
Hilcorp and NMFS considered monitoring data from 2019 through 2023 and
assumed that all of the observations were equivalent to takes by Level
B harassment. This approach was taken since previous monitoring reports
submitted by Hilcorp and Eni recorded only animal observations and did
not clearly identify potential behavioral disturbances. The resulting
total takes requested by Hilcorp and proposed by NMFS are shown in
table 4. Note that this take estimate assumes that a seal structure
(i.e. breathing hole or lair) may contain a female and a pup; though
this was not observed during the reporting period. At that time of
year, pups are often inhabiting lairs. Nonetheless, the annual take
estimate for Northstar includes an additional 4 takes based on the
conservative assumption that a seal structure may include 2 seals.
[[Page 4476]]
Table 4--Estimated Ringed Seal Take by Level B Harassment
----------------------------------------------------------------------------------------------------------------
Total Requested
<50m of ice >50m of ice Observed Annual Level B Level B takes
route route ice seal takes requested * over 5-year
structures period
----------------------------------------------------------------------------------------------------------------
WNS: OPP-SID....................... 0 1 0 1 5
WNS: Oooguruk...................... 0 0 0 0 0
Northstar.......................... 0 16 2 * 20 100
----------------------------------------------------------------------------
Total Estimate--All Sites...... ........... ........... ........... ................. 105
----------------------------------------------------------------------------------------------------------------
* The take estimate assumes that a seal structure may contain a female and a pup; though this was not observed
during the reporting period. Nonetheless, the annual take estimate for Northstar includes an additional 4
takes based on the assumption that a seal structure may include 2 seals.
Routine monitoring results from all three sites (Northstar, SID and
ODS) from 2019-2023 indicate that serious injury and mortality of
ringed seals during ice road, trail, and pad construction, use, and
maintenance activities did not occur and is unlikely to occur in
future. As noted above, however, the probability of serious injury and
mortality is not zero. Thus, to account for the very low probability of
serious injury and mortality during ice roads, trails, and pads
construction, use, and maintenance activities, Hilcorp is requesting
and NMFS proposes to authorize a total of four serious injury/mortality
takes over the 5-year period. This total is based on the possibility,
albeit unlikely, that one serious injury/mortality take each would
occur at SID and ODS and two takes for serious injury/mortality would
occur in the larger Northstar area. The number of takes requested by
Hilcorp and proposed by NMFS by Level B Harassment as well as by
serious injury and mortality is shown in table 5. The maximum
percentage of stock taken in a single year is shown in table 6.
Table 5--Summary of All Marine Mammal Exposures Requested Over 5-Year Period
----------------------------------------------------------------------------------------------------------------
Level B
Annual Level B harassment Serious injury/ Total takes
harassment over 5-year mort requested over
period 5-year period
----------------------------------------------------------------------------------------------------------------
WNS: SID, ODS................................... 1 5 2 7
Northstar....................................... 20 100 2 102
---------------------------------------------------------------
Total....................................... .............. .............. .............. 109
----------------------------------------------------------------------------------------------------------------
Table 6--Maximum Percentage of Stock Taken in a Single Year
----------------------------------------------------------------------------------------------------------------
Maximum Take as a
Species Stock Total Level B serious injury/ Population percentage of
harassment mortality estimate the population
----------------------------------------------------------------------------------------------------------------
Ringed Seal................... Arctic.......... 21 2 \a\ 342,836 <0.01
----------------------------------------------------------------------------------------------------------------
\a\ Conn et al. (2014) calculated an abundance estimate of 171,418 using a subset of aerial survey data
collected in 2012 by Moreland et al. (2013) that covered the entire ice-covered portions of the Bering Sea.
This estimate is considered to be low and was multiplied by a factor of two (Young et al. 2023).
Proposed Mitigation
In order to allow the incidental take of marine mammals under
section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations
setting forth the permissible methods of taking pursuant to the
activity and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat, as
well as subsistence uses, considering the nature of the potential
adverse impact being mitigated (likelihood, scope, range). It further
considers the likelihood that the measure will be effective if
implemented (probability of accomplishing the mitigating result if
implemented as planned) and the likelihood of effective implementation
(probability implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, and impact on
operations.
The mitigation requirements described below were included in
Hilcorp's application or are the result of
[[Page 4477]]
subsequent coordination between NMFS and Hilcorp. Many of the proposed
mitigation requirements are similar to those currently in effect, and
Hilcorp has agreed that all are practicable. NMFS has fully reviewed
the specified activities and the mitigation measures and has determined
preliminarily that the proposed measures would result in the least
practicable adverse impact on marine mammals and their habitat.
The primary purposes of these mitigation measures would be to
minimize human-seal interactions, to avoid takes by serious injury/
mortality from the activities, and minimize the impact of any Level B
harassment.
The proposed mitigation measures and specific monitoring measures
that would be required to implement them are described below.
Additional proposed monitoring measures necessary for data collection
and reporting purposes are described in the Proposed Monitoring and
Reporting section.
Wildlife Training
Prior to initiation of ice roads, trails, and pads-related
activities, project personnel associated with ice road construction,
maintenance, use or decommissioning (i.e., ice road construction
workers, surveyors, security personnel, and the environmental team)
would receive annual training on implementing mitigation and monitoring
measures. Personnel would be advised that interactions with, or
approaching, any wildlife is prohibited. Annual training would also
include reviewing the company's Wildlife Management Plan. In addition
to the mitigation and monitoring plans, other topics in the training
would include Ringed Seal Identification and Brief Life History,
Physical Environment (habitat characteristics and how to potentially
identify habitat), Ringed Seal Use in the Ice Road Region (timing,
location, habitat use, birthing lairs, breathing holes, basking, etc.),
Potential Effects of Disturbance, and Importance of Lairs, Breathing
Holes and Basking to Ringed Seals.
In addition, personnel would be required to follow these mitigation
measures:
<bullet> Do not approach or interact with ringed seals;
<bullet> When traveling the ice road/trail, follow directions of
Security and posted signs;
<bullet> Notify appropriate personnel if a seal is observed within
50 m, or if a seal structure (i.e., breathing hole or lair) is observed
within 150 m of the centerline of the ice road/trail; or the edge of
the ice pad or on the ice pad; and
<bullet> Stay in the vehicle and continue traveling at a constant
speed if a seal is observed near the ice road/trail/pad. Do not slow
down, stop, or exit the vehicle.
General Mitigation Measures Implemented Throughout the Ice Road/Trail
Season
The following general mitigation measures would be required to be
implemented through the entire ice road/trail season (December through
May), including during construction, maintenance, use, and
decommissioning.
<bullet> Ice road/trail speed limits must be no greater than 45
miles per hour (mph)
<bullet> Delineators must mark the sea ice roads in a minimum of
0.4-km increments on both sides of the route to delineate the path of
vehicle travel. Delineators may also be used to mark the centerline of
the roadway. Delineators must be color-coded to indicate the direction
of travel and location of the ice road. These measures must ensure that
vehicles stay on disturbed ice roads/trails and must not deviate to
undisturbed areas.
<bullet> Corners of rig mats, steel plates, and other materials
used to bridge sections of hazardous ice must be clearly marked or
mapped using GPS coordinates of the locations to prevent vehicles
traveling on ice roads/trails from deviating to undisturbed areas.
<bullet> Personnel must remain in the vehicle and safely continue
if they encounter a ringed seal while driving on the road.
If a ringed seal or seal structure is observed within 50 m or 150 m
(respectively) of the centerline of the ice road/trail, the company
Environmental Specialist would be required to be informed of the
observation and the following would be required to occur:
<bullet> The seal must be avoided and the location of the seal must
be verbally described on the monitoring form relative to the location
of the ice road/trail and the observer's location.
<bullet> A seal structure must be physically marked within 15 m of
the edge of the sea ice road noting the location of the seal/seal
structure along the axis/edge of the road (maintaining a distance of at
least 15 m from the seal/structure);
<bullet> Construction or maintenance work must not occur within 50
m of the seal. These activities may continue if the seal is 50 m or
greater away. If the seal is within 50 m of these activities, they may
continue as soon as the seal, of its own accord, moves farther than 50
m distance away from activities or has not been observed within that
area for 24 hours. Transport vehicles may continue within the
designated route without stopping.
<bullet> All other personnel using the area must be notified
following the notification protocols described in the Wildlife
Management Plan;
<bullet> During the period in which a seal structure is
periodically monitored, as described in the Communication and
Monitoring Procedures for Seal and Seal Structure Observations section
(below), maintenance work must proceed in a manner that minimizes
impacts or disturbance to the area.
Blading and snow blowing of ice roads would be required to be
limited to the disturbed ice trail/shoulder areas to the extent safe
and practicable. Snow would be required to be plowed or blown from the
ice road surface. If snow is accumulating on a road within a 150-m
radius of an identified downwind seal or seal lair, measures would be
required to be implemented to avoid seal impacts, such as pushing snow
further down the road before blowing it off the roadway. Vehicles would
be prohibited from stopping within 50 m of identified seals or within
150 m of known seal structures.
Mitigation Measures After March 1st
Additional proposed mitigation measures proposed to be required
after March 1st would mitigate any potential disturbances to seals that
are actively pupping. If safety concerns due to unstable ice road/trail
conditions warrant the creation of a new or workaround route, the route
would be required to be surveyed for seal structures using a trained
observer in a tracked vehicle approximately 2 days prior to
establishing the route, weather permitting. During the construction of
the ice trail, behavioral disturbance of ringed seals may occur but is
expected to be limited given the proposed mitigation and monitoring
measures. The following protocol would be required to be used for these
surveys:
<bullet> During daylight hours with good visibility, a trained
wildlife observer must survey the route 2 days prior to route
construction to search for potential seal structures. The observer must
be dedicated to monitoring for seal structures while the driver
operates the tracked vehicle.
<bullet> If a suspected seal structure is observed within 150 m of
the centerline of the proposed new or workaround route, a marker must
be placed 15 m from the location and GPS coordinates must be recorded.
The new route must avoid any suspected seal structures by a 150-m
distance.
[[Page 4478]]
<bullet> To ensure a safe travel route, flooding and ice buildup or
maintenance activities may be conducted in new routes during non-
daylight hours, avoiding any identified seal structures by 150 m.
<bullet> Once the new ice trail is established, tracked vehicle
operation must be limited to the disturbed area to the extent
practicable and while ensuring the safety of personnel.
Based on our evaluation of the applicant's proposed measures, NMFS
has preliminarily determined that the proposed mitigation measures
provide the means of effecting the least practicable adverse impact on
the affected species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.
Proposed Monitoring and Reporting
In order to issue an LOA for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of taking authorized by the LOA. The MMPA
implementing regulations at 50 CFR 216.104(a)(13) provide that requests
for authorizations must include the suggested means of accomplishing
the necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical to both
compliance and ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements proposed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic) through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either (1)
long-term fitness and survival of individual marine mammals or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Monitoring
The monitoring and reporting requirements described below were
proposed by Hilcorp and/or are the result of subsequent coordination
between NMFS and Hilcorp. They are similar to the requirements
contained in the current 5-year regulations, and Hilcorp has agreed
that they are practicable.
If an ice road, trail or pad is being actively used, a dedicated
observer would be required to conduct either a ground-based survey (by
vehicle) or a survey assisted by Unmanned Aerial Systems (UAS) during
daylight conditions with good visibility to observe if any ringed seals
are within 50 m or ringed seal structures are within 150 m of the
centerline of the route(s). The following protocols would be required
to be followed:
<bullet> Surveys must be conducted once per week during daylight
hours. Survey protocol consists of either driving the ice road/trail or
using UAS to observe the route while stopping every 800 m to observe
each side of the corridor within 50 m to check for the presence of
seals and 150 m to check for seal structures.
<bullet> Use of UAS must comply with applicable Federal Aviation
Administration (FAA) regulations and applicable sections of NOAA's UAS
Policy 220-1-5 (NMFS 2021, NOAA 2019). UAS must be flown by only an
experienced operator. UASs must not be flown directly over pinnipeds
hauled out.
<bullet> UAS must be flown at altitudes between 60 and 120 m with
maximum altitude less than 457 m following FAA protocol (14 CFR part
107).
Observers for ice road/trail activities would not be required to be
trained Protected Species Observers, but they would be required to have
received the training described under Wildlife Training and understand
the applicable sections of the Wildlife Management Plan. Observers
would be required to be capable of detecting, observing and monitoring
ringed seal presence and behaviors, and recording data accurately,
consistent with the following protocol:
<bullet> Observers must have no other primary duties other than to
watch for and report observations related to ringed seals during
surveys.
<bullet> If the observer is driving a vehicle, then the survey must
be performed when the driver stops, at periodic intervals sufficient to
complete a thorough assessment of the area. If weather conditions
become unsafe, the monitoring activity must be discontinued until it is
safe to resume.
<bullet> If monitoring is conducted using UAS, a trained operator
must fly the aircraft while a dedicated observer monitors the aerial
imaging for the presence of ringed seals or seal structures within 50 m
or 150 m (respectively) of the ice routes.
If a seal or seal structure is observed within 50 m or 150 m
(respectively) of the centerline of the ice route, the location of the
seal or seal structure would be required to be reported to the
Environmental Specialist or Project Manager, who must relay the
location to all personnel using the ice road. In addition, the proposed
rule would require that personnel responsible for Wildlife Interaction
Management be notified following protocols described in each company's
specific Wildlife Interaction Plan. The following monitoring procedures
would also be required to be followed:
<bullet> As soon as practicable after the initial seal observation,
the Environmental Specialist or designated person must observe the seal
for approximately 15 minutes either on the ground (i.e., if safe and
logistically practicable to do so from a vehicle) or using UAS to
document the animal's location relative to the ice road/trail/pad.
<bullet> All work that is occurring when the seal is observed and
the behavior of the seal during this observation period must be
documented until the animal moves more than 50 m from the center of the
ice road/trail or is no longer observed. If the seal remains in the
area after the 15-minute observation period, monitoring must continue
every 6 hours during daylight conditions.
<bullet> Monitoring of a seal structure by the Environmental
Specialist or designated person must continue every 6 hours during
daylight conditions on the day of the initial observation to determine
whether a seal is present. Monitoring must consist of observing the
structure from a distance of at least 150 m for approximately 15
minutes each time. After the first 24 hours, monitoring (ground-based
or using UAS) for the seal must occur every other day while the
[[Page 4479]]
ice road/trail/pad is being used, unless it is determined the structure
is not actively being used (i.e., a seal is not observed at that
location during monitoring for 10 consecutive monitoring sessions).
During this monitoring period, maintenance work must proceed in a
manner that minimizes impacts or disturbance to the area and the
animal.
Data Collection and Reporting
This proposed rule would require the Environmental Specialist or
designated person to record the following information during survey
efforts and observation events:
<bullet> The date and start/stop time for each survey including
total number of hours of observation and a summary of environmental
conditions, such as visibility, that can affect the detection of seals
or seal structures (i.e., breathing holes and lairs);
<bullet> Date and time of each observation event (e.g., initial
observation of a seal or seal structure) and subsequent monitoring;
<bullet> Number of animals per observation event and number of
adults/juveniles/pups per observation event;
<bullet> Behaviors of seals during each observation event;
<bullet> Geographic coordinates of the observed animals or
structure (breathing hole or lair), with the position recorded by using
the most precise coordinates practicable (coordinates must be recorded
in decimal degrees, or similar standard, and defined coordinate
system);
<bullet> For observation events, mitigation measures implemented to
minimize impacts; and
<bullet> Observers must use standardized electronic data forms to
record data, and Hilcorp must submit all datasheets and/or raw sighting
data with the draft report.
NMFS proposes to require Hilcorp to submit a company-specific
annual monitoring report after the end of the ice road/trail season
that summarizes the activities performed during ice road/trail/pad
construction, maintenance, use, and de-commissioning that year. Records
associated with observations and monitoring of seals or seal structures
would be required to be transmitted to NMFS 90 days after the
decommissioning of the ice road/trail. The proposed rule would require
this report to be submitted with the measures specified in the Data
Collection described above and include:
(i) Date, time, location of observation;
(ii) Ringed seal characteristics (i.e., adult or pup) and behavior
(avoidance, resting, etc.);
(iii) Activities occurring during observation including equipment
being used and its purpose and approximate distance to ringed seal(s);
(iv) Actions taken to mitigate effects of interaction emphasizing
(A) which mitigation and/or monitoring measures were successful, (B)
which mitigation and/or monitoring measures may need to be improved to
reduce interactions with ringed seals, (C) the effectiveness and
practicality of implementing mitigation and monitoring measures, (D)
any issues or concerns regarding implementation of mitigation and/or
monitoring measures, and (E) potential effects of interactions based on
observation data.
Reporting Dead or Injured Marine Mammals
In the event that personnel involved in the project activities
covered by the authorization discover an injured or dead marine mammal,
this proposed rule would require Hilcorp to report the incident to the
Office of Protected Resources (OPR), NMFS
(<a href="/cdn-cgi/l/email-protection#6f3f3d41263b3f41220001061b001d0601083d0a1f001d1b1c2f01000e0e41080019"><span class="__cf_email__" data-cfemail="c69694e88f9296e88ba9a8afb2a9b4afa8a194a3b6a9b4b2b586a8a9a7a7e8a1a9b0">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#79302d295709180c1510171c3917161818571e160f"><span class="__cf_email__" data-cfemail="317865611f4150445d585f54715f5e50501f565e47">[email protected]</span></a>) and to the
Alaska regional stranding coordinator (907-586-7209) as soon as
feasible. The report would be required to include the following
information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338,
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
The discussion of our analysis applies only to the ringed seal,
which is proposed for take by Level B harassment and serious injury and
mortality.
Level B Harassment
Hilcorp requested and NMFS is proposing to authorize take of ringed
seals by Level B harassment. The amount of taking proposed to be
authorized is small relative to the stock's abundance. Potential
impacts of Hilcorp's proposed ice roads, trails, and pads construction
activities would mostly result from behavioral disturbances due to
exposure to machinery and human activity. It is highly unlikely that
behavioral disturbance from in-water exposure to machinery would result
in biologically significant effects on the seals (individually or to
the population). Additional proposed mitigation measures required after
March 1st would mitigate any potential disturbances to seals that are
actively pupping. During the construction of the ice trail, behavioral
disturbance of ringed seals may occur but is expected to be limited
given the proposed mitigation and monitoring measures. The potential
effect of the Level B harassment is expected to be localized and brief.
Furthermore, much of the construction, operation and use of ice roads,
trails, and pads is expected to be conducted entirely on grounded sea
ice which would not be suitable habitat for ringed seals and,
therefore, no harassment would be expected to occur in those areas.
Habitat
Identified ringed seal habitat surrounds only Northstar in the
project
[[Page 4480]]
area. Neither SID nor ODS are located in ringed seal habitat as
delineated by the 3 m isopleth. Disturbance associated with
construction, operation, and maintenance of ice roads/trails/pads is
unlikely to have long-term effects on the availability of sea ice
habitat identified in two of the three PBFs essential to the
conservation of the species. Disturbances due to ice road/trail/pad
construction, operation, and maintenance activities are not expected to
have any effect on the third PBF regarding availability of prey species
because these activities would not cause injury or mortality to fish
species, nor would they displace food resources of ringed seals.
Serious Injury and/or Mortality
NMFS is proposing to authorize a very limited number of mortalities
or serious injuries that could occur incidental to ice road/trail/pad
construction, operation, and maintenance. NMFS considers many factors
in making a negligible impact determination, including, but not limited
to, the status of the species or stock relative to the optimum
sustainable population (OSP) level (if known); whether the recruitment
rate for the species or stock is increasing, decreasing, stable, or
unknown; the size and distribution of the population; and existing
impacts and environmental conditions. The potential biological removal
(PBR) metric can help inform the potential effects of serious injury
and mortality caused by activities authorized under 101(a)(5)(A) on
marine mammal stocks.
PBR is defined in the MMPA (16 U.S.C. 1362(20)) as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population, and is a measure to be
considered when evaluating the effects of serious injury and mortality
on a marine mammal species or stock. Optimum sustainable population
(OSP) is defined by the MMPA (16 U.S.C. 1362(9)) as the number of
animals which will result in the maximum productivity of the population
or the species, keeping in mind the carrying capacity of the habitat
and the health of the ecosystem of which they form a constituent
element. PBR values are calculated by NMFS as the level of annual
removal from a stock that will allow that stock to equilibrate within
OSP at least 95 percent of the time.
To specifically use PBR, along with other factors, to evaluate the
effects of serious injury and mortality, we first calculate a metric
called ``residual PBR'' that incorporates information regarding ongoing
anthropogenic serious injury and mortality into the PBR value (i.e.,
PBR minus the total annual anthropogenic mortality/serious injury
estimate). We then consider how the anticipated potential incidental
serious injury and mortality from the activities being evaluated
compares to residual PBR. Anticipated or potential serious injury and
mortality that exceeds residual PBR is considered to have a higher
likelihood of adversely affecting rates of recruitment or survival,
while anticipated serious injury and mortality that is equal to or less
than residual PBR has a lower likelihood (both examples given without
consideration of other types of take, which also factor into a
negligible impact determination). For a species or stock with
incidental serious injury and mortality less than 10 percent of
residual PBR, we consider serious injury and mortality from the
specified activities to represent an insignificant incremental increase
in ongoing anthropogenic serious injury and mortality that alone (i.e.,
in the absence of any other take) should not affect annual rates of
recruitment and survival.
The PBR for the Arctic stock is 4,755 seals (158,507 x 0.06 x 0.5).
This PBR is negatively biased (i.e., lower than expected) because of
its dependence on the negatively biased NMIN estimate. The best
estimate of the mean annual level of human-caused mortality and serious
injury in the U.S. waters portion of the stock is 6,459 ringed seals,
which is greater than the negatively biased PBR of 4,755 seals (Muto et
al., 2021). However, because this exceedance of PBR stems from an
unrealistically low N<INF>MIN</INF>, it should not be taken as
indicative of a risk to this stock. The PBR was obtained from an
N<INF>MIN</INF> that is known to be an extreme underestimate of the
abundance in the U.S. waters of the Bering Sea, which in turn is just a
portion of the Arctic ringed seal stock in U.S. waters, and the best
estimate of human-caused mortality and serious injury is for the entire
U.S. portion of the stock, including, for example, Alaska Native
subsistence takes in the Chukchi and Beaufort seas. Previous estimates
from the U.S. waters of the Chukchi Sea (Bengtson et al. 2005) and
results from a recent (2016) NOAA survey of those waters indicate that
there are several hundreds of thousands of ringed seals in that region
that are not included in N<INF>MIN</INF> because the former results are
outdated and the latter have not yet been published. Furthermore,
ringed seals are known to remain abundant in the U.S. waters of the
Beaufort Sea (which are also not included in N<INF>MIN</INF>) based,
for example, on hunter reports to the ISC and NOAA test surveys
conducted in 2019. NMFS believes with high confidence that the number
of ringed seals in Alaska waters greatly exceeds the number of
individuals that would be required for the current take to balance the
PBR (i.e., N<INF>MIN</INF> x Mortality and Serious Injury/PBR = 215,310
individuals). Therefore, the apparent exceedance of PBR in this case
reflects inadequacy in the abundance estimates rather than an
indication of excessive take. The minimum estimated mean annual rate of
U.S. commercial fishery-related mortality and serious injury (5 seals)
added to the maximum annual M/SI total of 2 for the proposed Hilcorp
project is less than 10% of the negatively biased PBR (10% of PBR =
476) and, therefore, can be considered negligible.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect the species or stock
through effects on annual rates of recruitment or survival:
<bullet> Only 4 ringed seals would be authorized to be taken by
serious injury/mortality over 5 years, which would represent less than
0.1 percent of residual PBR;
<bullet> No Level A harassment (auditory injury) would be expected;
<bullet> No long-lasting modification in marine mammal habitat,
including designated critical habitat, would be expected;
<bullet> The only harassment would be Level B harassment in the
form of brief and localized behavioral disturbance and avoidance;
<bullet> The amount of takes proposed to be authorized overall is
low compared to population size; and
<bullet> The total area affected by ice route activities would be a
small portion of ringed seals' range.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may be authorized under sections
[[Page 4481]]
101(a)(5)(A) and (D) of the MMPA for specified activities other than
military readiness activities. The MMPA does not define small numbers
and so, in practice, where estimated numbers are available, NMFS
compares the maximum number of individuals taken in any year to the
most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted maximum annual
number of individuals to be taken is less than one-third of the species
or stock abundance, the take is considered to be of small numbers.
Additionally, other qualitative factors may be considered in the
analysis, such as the temporal or spatial scale of the activities.
The number of takes NMFS proposes to authorize is far below one-
third of the modeled abundance for the Arctic stock of ringed seal
(specifically, take of individuals is less than <0.01 percent). Based
on the analysis contained herein of the proposed activity (including
the proposed mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS preliminarily finds that small numbers of
marine mammals would be taken relative to the population size of the
affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
In order to issue an IHA, NMFS must find that the specified
activity will not have an ``unmitigable adverse impact'' on the
subsistence uses of the affected marine mammal species or stocks by
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50
CFR 216.103 as an impact resulting from the specified activity: (1)
that is likely to reduce the availability of the species to a level
insufficient for a harvest to meet subsistence needs by: (i) causing
the marine mammals to abandon or avoid hunting areas; (ii) directly
displacing subsistence users; or (iii) placing physical barriers
between the marine mammals and the subsistence hunters; and (2) that
cannot be sufficiently mitigated by other measures to increase the
availability of marine mammals to allow subsistence needs to be met.
Given the nature of the activity and the required mitigation
measures, serious injury and mortality of marine mammals is not
expected to occur. However, due to a single seal mortality event in
1998, very limited take by serious injury and mortality has been
proposed for authorization. The only marine mammals likely to be
affected are ringed seals and, beyond the aforementioned take by M/SI,
any impacts would be limited to temporary behavioral disturbances. As
described above, the required mitigation and monitoring measures are
expected to reduce the frequency and severity of takes of marine
mammals.
There is no documented subsistence hunting or use of ringed seals
in the project area. While subsistence use of ringed seals occurs
within proximity of three communities along the Beaufort Sea coast
(i.e., Utqiagvik, Nuiqsut and Kaktovik), these communities are 25 to 50
km from the project area. SID, ODS, and Northstar are not known ringed
seal hunting locations. The distances from communities to the project
are not conducive to subsistence hunting. Subsistence hunters harvest
ice seals primarily during the open water period of July through
August, when boat crews hunt ringed, spotted and bearded seals.
Additionally, since ice trail/road/pad activities occur during winter
months when it is dark most of the day, it is not likely hunting would
occur near those locations and during the activities.
Hilcorp frequently engages the subsistence communities along the
North Slope as part of routine operations. Hilcorp has and will
continue to meet with the North Slope Borough Department of Wildlife
Management and the Ice Seal Committee (ISC) to discuss planned
activities. Hilcorp has engaged in multiple coordination efforts with
the ISC and the North Slope Borough Department of Wildlife Management
(NSB DWM). These entities have never expressed concerns that ice trail/
road/pad activities at these locations are affecting the availability
of ringed seals for subsistence. For these reasons, a formal Plan of
Cooperation (POC) is not required.
Hilcorp plans to continue to engage with affected subsistence
communities regarding its ongoing North Slope operations, attend
established upcoming relevant meetings, and periodically meet with
affected communities in either one-on-one meetings or community
presentations. Hilcorp has requested and encourages all stakeholders to
contact Hilcorp directly if there are any concerns with Hilcorp
operations interfering with subsistence activities. There are no
mitigation or monitoring measures proposed specifically to address
subsistence use.
Based on the description of the specified activity, the measures
described to minimize adverse effects on the availability of marine
mammals for subsistence purposes, and the proposed mitigation and
monitoring measures, NMFS has preliminarily determined that there will
not be an unmitigable adverse impact on subsistence uses from Hilcorp's
proposed activities.
Adaptive Management
The regulations governing the take of marine mammals incidental to
Hilcorp's ice road/trail/pad activities would contain an adaptive
management component. The reporting requirements associated with this
proposed rule, if adopted, are designed to provide NMFS with monitoring
data to allow consideration of whether any changes are appropriate. The
use of adaptive management allows NMFS to consider new information from
different sources to determine (with input from Hilcorp regarding
practicability) on an annual or biennial basis if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or LOAs
issued pursuant to these regulations.
Endangered Species Act
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency insure that any action it authorizes,
funds, or carries out is not likely to jeopardize the continued
existence of any endangered or threatened species or result in the
destruction or adverse modification of designated critical habitat. To
ensure ESA compliance for the issuance of incidental take
authorizations, NMFS Office of Protected Resources (OPR) consults
internally whenever we propose to authorize take for endangered or
threatened species, in this case with the Alaska Regional Office
(AKRO).
NMFS is proposing to authorize take of ringed seal which are listed
under the ESA.
NMFS OPR has requested initiation of Section 7 consultation with
the NMFS AKRO for the issuance of the LOA. NMFS will conclude the ESA
consultation prior to reaching a
[[Page 4482]]
determination regarding the proposed issuance of the authorization.
Request for Information
NMFS requests interested persons to submit comments, information,
and suggestions concerning Hilcorp's request and the proposed
regulations (see ADDRESSES). All comments germane to this rulemaking
will be reviewed and evaluated as we prepare a final rule and make
final determinations on whether to issue the requested authorization.
This proposed rule and referenced documents provide all environmental
information relating to our proposed action for public review.
Classification
The Office of Management and Budget has determined that this
proposed rule is not significant for purposes of Executive Order 12866.
This proposed rule is not an Executive Order 14192 regulatory action
because this rule is not significant under Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
Hilcorp is the sole entity that would be subject to the requirements in
these proposed regulations, and Hilcorp is not a small governmental
jurisdiction, small organization, or small business, as defined by the
RFA. Because of this certification, a regulatory flexibility analysis
is not required and none has been prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number. This proposed rule
contains collection-of-information requirements subject to the
provisions of the PRA. These requirements have been approved by OMB
under control number 0648-0151 and include applications for
regulations, subsequent LOAs, and reports.
Dated: January 26, 2026.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 217 is proposed
to be amended as follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Add subpart P to part 217 to read as follows:
Subpart P--Takes of Marine Mammals Incidental to Specified
Activities; Taking Marine Mammals Incidental to Sea Ice Road and
Trail Activity Along the Beaufort Sea Coast
Sec.
217.150 Specified activity and specified geographical region.
217.151 Effective dates.
217.152 Permissible methods of taking.
217.153 Prohibitions.
217.154 Mitigation requirements.
217.155 Requirements for monitoring and reporting.
217.156 Letters of Authorization.
217.157 Renewals and modifications of Letters of Authorization.
217.158-217.159 [Reserved]
Sec. 217.150 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to Hilcorp Alaska, LLC
(Hilcorp) and those persons they authorize or fund to conduct
activities on their behalf for the taking of marine mammals that occurs
in the areas outlined in paragraph (b) of this section and that occurs
incidental to construction, use, and maintenance of ice roads/trails/
pads. Requirements imposed on Hilcorp must be implemented by those
persons it authorizes or funds to conduct activities on its behalf.
(b) The taking of marine mammals by Hilcorp may be authorized in a
Letter of Authorization (LOA) only if it occurs along the Beaufort Sea
coast on Alaska's North Slope.
Sec. 217.151 Effective dates.
Regulations in this subpart are effective for a period of 5 years
from the date of issuance.
Sec. 217.152 Permissible methods of taking.
Under LOAs issued pursuant to this subpart, the Holder of the LOA
(hereinafter ``Hilcorp'') may incidentally, but not intentionally, take
marine mammals within the area described in Sec. 217.150(b) by
mortality, serious injury or Level B harassment associated with ice
road/trail/pad construction, maintenance, and use activities, provided
the activities are in compliance with all terms, conditions, and
requirements of the regulations in this subpart and the appropriate
LOAs.
Sec. 217.153 Prohibitions.
Except for the taking described in Sec. 217.152 and authorized by
the LOAs issued under this subpart, it is unlawful for any person to do
any of the following in connection with the activities described in
Sec. 217.150:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or an LOA issued under this subpart;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner
other than as specified;
(d) Take a marine mammal specified in such LOAs after NMFS
determines such taking results in more than a negligible impact on the
species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs after NMFS
determines such taking results in an unmitigable adverse impact on the
species or stock of such marine mammal for taking for subsistence uses.
Sec. 217.154 Mitigation requirements.
When conducting the activities identified in Sec. 217.150(a), the
mitigation measures contained in any LOA issued under this subpart must
be implemented. These mitigation measures shall include but are not
limited to:
(a) General conditions.
(1) Copies of any issued LOAs must be in the possession of Hilcorp,
their designees, and work crew personnel operating under the authority
of the issued LOAs;
(2) Prior to initiation of sea ice road/trail/pad-related
activities, project personnel associated with ice road construction,
maintenance, use or decommissioning must receive annual training on
implementing mitigation and monitoring measures, including the
following:
(i) Personnel must be advised that interactions with any wildlife,
including approaching wildlife, is prohibited;
(ii) When traveling the ice road/trail, project personnel must
follow directions of security and posted signs;
(iii) Annual training must include reviewing Hilcorp's Wildlife
Management Plan;
(iv) Personnel must notify appropriate personnel if a seal is
observed within 50 m or if a seal structure (i.e., breathing hole or
lair) is observed within 150 m of the centerline of the ice road/trail
or the edge of the ice pad or on the ice pad;
(v) Personnel must stay in the vehicle and continue traveling at a
constant
[[Page 4483]]
speed if a seal is observed near the ice road/trail/pad and must not
slow down, stop, or exit the vehicle; and
(b) General mitigation measures throughout the Ice Road/Trail
Season (December through May).
(1) Sea ice routes must be surveyed and the snow/ice surface
altered (i.e., tracked) or route established prior to March 1st.
(2) Ice road/trail speed limits must be no greater than 45 miles
per hour (mph).
(3) Delineators must mark the sea ice roads in a minimum of 0.4-km
increments on both sides of the route to delineate the path of vehicle
travel. Delineators may also be used to mark the centerline of the
roadway. Delineators must be color-coded to indicate the direction of
travel and location of the ice road.
(4) Corners of rig mats, steel plates, and other materials used to
bridge sections of hazardous ice must be clearly marked or mapped using
GPS coordinates of the locations.
(5) Blading and snow blowing of ice roads must be limited to the
previously disturbed ice road/shoulder areas to the extent safe and
practicable. Snow must be plowed or blown from the ice road surface.
(6) In the event snow is accumulating on a road within a 150-m
radius of an identified downwind seal or seal lair, measures must be
taken to avoid seal impacts, such as pushing snow further down the road
before blowing it off the roadway. Vehicles must not stop within 50 m
of identified seals or within 150 m of known seal structures.
(7) Personnel must be instructed to remain in the vehicle and
safely continue if they encounter a ringed seal while driving on the
road.
(8) If a ringed seal or seal structure is observed within 50 m or
150 m (respectively) of the centerline of the ice road/trail, the
company Environmental Specialist must be informed of the observation
and the following will occur:
(i) The seal must be avoided and the location of the seal will be
verbally described on the monitoring form relative to the location of
the ice road/trail and the observer's location;
(ii) A seal structure must be physically marked within 15 m of the
edge of the sea ice road noting the location of the seal/seal structure
along the axis/edge of the road (maintaining a distance of at least 15
m from the seal/structure);
(iii) Construction or maintenance work must not occur within 50 m
of the seal. These activities may continue if the seal is 50 m or
greater away. If the seal is within 50 m of these activities, they may
continue as soon as the seal, of its own accord, moves farther than 50
m distance away from activities or has not been observed within that
area for 24 hours. Transport vehicles may continue within the
designated route without stopping;
(iv) All other personnel using the area must be notified following
the notification protocols described in the Wildlife Management Plan,
North Slope Fields, Alaska; and
(v) During the period in which a seal structure is periodically
monitored, as described in the Communication and Monitoring Procedures
for Seal and Seal Structure Observations section (below), maintenance
work must proceed in a manner that minimizes impacts or disturbance to
the area.
(c) Additional mitigation measures after March 1st: In addition to
the general mitigation measures listed in Sec. 217.154(b), the
following measures must be implemented after March 1st:
(1) If safety concerns due to unstable ice road/trail conditions
warrant the creation of a new or workaround route, the route must be
surveyed for seal structures using a trained observer in a tracked
vehicle approximately 2 days prior to establishing the route, weather
permitting. The following protocol must be used for these surveys:
(i) During daylight hours with good visibility, a trained wildlife
observer must survey the route 2 days prior to route construction to
search for potential seal structures. The observer must be dedicated to
monitoring for seal structures while the driver operates the tracked
vehicle.
(ii) If a suspected seal structure is observed within 150 m of the
centerline of the proposed new or workaround route, a marker must be
placed 15 m from the location and GPS coordinates must be recorded. The
centerline of the new route must avoid any suspected seal structures by
a 150-m distance.
(2) To ensure a safe travel route, flooding and ice buildup or
maintenance activities may be conducted in new routes during non-
daylight hours, avoiding any identified seal structures by 150 m.
(3) Once the new ice trail is established, tracked vehicle
operation must be limited to the disturbed area to the extent
practicable and when safety of personnel is ensured.
Sec. 217.155 Requirements for monitoring and reporting.
(a) If an ice road or trail is being actively used, a dedicated
observer must conduct either a ground-based survey (by vehicle) or with
the assistance of Unmanned Aerial Systems (UAS) along the ice road/
trail/pad during daylight conditions with good visibility to observe if
any ringed seals are within 50 m or ringed seal structures are within
150 m of the centerline of the route(s).
(b) The following protocols must be followed:
(1) Surveys must be conducted once per week during daylight hours.
Survey protocol consists of either driving the ice road/trail or using
UAS to observe the route while stopping every 800 m to observe each
side of the corridor within 50 m to check for the presence of seals and
150 m to check for seal structures.
(2) Use of UAS must comply with applicable Federal Aviation
Administration (FAA) regulations. UAS must be flown by only an
experienced operator. UAS must not be flown directly over pinnipeds
hauled out.
(3) UAS must be flown at altitudes between 60 and 120 m with
maximum altitude less than 457 m following FAA protocol (14 CFR part
107).
(4) UAS flights must be conducted in accordance with FAA
regulations and in accordance with applicable sections of NOAA's UAS
Policy 220-1-5 (NMFS 2021, NOAA 2019).
(5) A trained operator must fly the aircraft while a dedicated
observer monitors the aerial imaging for the presence of ringed seals
or seal structures within 50 m or 150 m (respectively) of the ice
routes.
(c) Observers for ice road/trail/pad activities need not be trained
Protected Species Observers, but they must have received the training
described under Wildlife Training and understand the applicable
sections of the Wildlife Management Plan. Observers must be capable of
detecting, observing, and monitoring ringed seal presence and behaviors
and accurately and completely recording data.
(d) Observers must have no other primary duties other than to watch
for and report observations related to ringed seals during surveys.
(e) If the observer is driving a vehicle, then the survey must be
performed when the driver stops at periodic intervals sufficient to
complete a thorough assessment of the area, given visibility
conditions. If weather conditions become unsafe, the monitoring
activity must be discontinued until it is safe to resume.
(f) If a seal or seal structure is observed within 50 m or 150 m
(respectively) of the centerline of the ice route, the location of the
seal or seal structure must be reported to the Environmental Specialist
or Project Manager, who will relay the location to all personnel using
the ice road. In addition, the personnel responsible for
[[Page 4484]]
Wildlife Interaction Management must be notified following protocols
described in each company's specific Wildlife Management Plan. The
following monitoring procedures must also be followed:
(1) As soon as practicable after the initial seal observation, the
Environmental Specialist or designated person must observe the seal for
approximately 15 minutes either on the ground (i.e., if safe and
logistically practicable to do so from a vehicle) or using UAS to
document the animal's location relative to the ice road/trail/pad.
(2) All work that is occurring when the seal is observed and the
behavior of the seal during this observation period must be documented
until the animal moves more than 50 m from the center of the ice road/
trail or is no longer observed. If the seal remains in the area after
the 15-minute observation period, monitoring must continue every 6
hours during daylight conditions.
(3) Monitoring of a seal structure by the Environmental Specialist
or designated person must continue every 6 hours during daylight
conditions on the day of the initial observation to determine whether a
seal is present.
(4) Monitoring must consist of observing the structure from a
distance of at least 150 m for approximately 15 minutes each time.
(5) After the first 24 hours, monitoring (ground-based or using
UAS) for the seal must occur every other day the ice road/trail/pad is
being used, unless it is determined the structure is not actively being
used (i.e., a seal is not observed at that location during monitoring
for 10 consecutive monitoring sessions). During this monitoring period,
maintenance work must proceed in a manner that minimizes impacts or
disturbance to the area and the animal.
(g) The following information must be recorded:
(1) Date and time of each observation event (e.g., initial
observation of a seal or seal structure) and subsequent monitoring;
(2) Environmental conditions during each observation event;
(3) Number of animals per observation event and number of adults/
juveniles/pups per observation event;
(4) Behaviors of seals during each observation event;
(5) Geographic coordinates of the observed animals or structure
(breathing hole or lair), with the position recorded by using the most
precise coordinates practicable (coordinates must be recorded in
decimal degrees or similar standard and defined coordinate system); and
(6) For observation events, mitigation measures implemented to
minimize impacts.
(h) Observers must use standardized electronic data forms to record
data, and Hilcorp must submit all datasheets and/or raw sighting data
with the draft report.
(i) A final end-of-season report compiling all ringed seal
observations must be submitted to NMFS Office of Protected Resources
within 90 days of decommissioning the ice road/trail. The report must
include:
(1) Date, time, location of each observation;
(2) Ringed seal characteristics (i.e., adult or pup) and behavior
(avoidance, resting, etc.);
(3) Activities occurring during observation including equipment
being used and its purpose and approximate distance to ringed seal(s);
(4) Actions taken to mitigate effects of interaction emphasizing:
(i) which mitigation and/or monitoring measures were successful;
(ii) which mitigation and/or monitoring measures may need to be
improved to reduce interactions with ringed seals;
(iii) the effectiveness and practicality of implementing mitigation
and monitoring measures;
(iv) any issues or concerns regarding implementation of mitigation
and/or monitoring measures; and
(v) potential effects of interactions based on observation data.
(j) In the event a seal is killed or seriously injured by ice road/
trail/pad activities, Hilcorp must immediately cease the specified
activities and report the incident to the NMFS Office of Protected
Resources NMFS (<a href="/cdn-cgi/l/email-protection#7a2a2854332e2a54371514130e150813141d281f0a15080e093a14151b1b541d150c"><span class="__cf_email__" data-cfemail="78282a56312c2856351716110c170a11161f2a1d08170a0c0b3816171919561f170e">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#6d24393d431d0c18010403082d03020c0c430a021b"><span class="__cf_email__" data-cfemail="e1a8b5b1cf9180948d888f84a18f8e8080cf868e97">[email protected]</span></a>) and Alaska Region Stranding Coordinator (907-586-
7209). The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the
animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the
animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s);
and
(6) General circumstances under which the animal was discovered.
Sec. 217.156 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, Hilcorp must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, Hilcorp may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, Hilcorp must
apply for and obtain a modification of the LOA as described in Sec.
217.157.
(e) The LOAs shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOAs shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within thirty days of a determination.
Sec. 217.157 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under this subpart for the activity identified in
Sec. 217.150(a) shall be renewed or modified upon request by the
applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOAs under these regulations were
implemented.
(b) For LOAs modification or renewal requests by the applicants
that include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in paragraph (c)(1) of this section) that do not change the
findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), NMFS may publish a notice of proposed LOAs in the
Federal Register, including
[[Page 4485]]
the associated analysis of the change, and solicit public comment
before issuing the LOA.
(c) The LOAs issued under Sec. Sec. 216.106 of this chapter and
217.156 for the activity identified in Sec. 217.150(a) may be modified
by NMFS under the following circumstances:
(1) Adaptive management. NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after
consulting with Hilcorp regarding the practicability of the
modifications) if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of the mitigation and monitoring
set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from Hilcorp's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of proposed LOA in the Federal Register and
solicit public comment.
(2) If NMFS determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in LOAs issued pursuant to Sec. Sec. 216.106 of this
chapter and 217.156, an LOA may be modified without prior notice or
opportunity for public comment. Notice would be published in the
Federal Register within thirty days of the action.
Sec. 217.158-217.159 [Reserved]
[FR Doc. 2026-02048 Filed 1-30-26; 8:45 am]
BILLING CODE 3510-22-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.