[Federal Register Volume 62, Number 191 (Thursday, October 2, 1997)]
[Notices]
[Pages 51637-51643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26060]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
[I.D. 070197A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Oil and Gas Exploration Drilling Activities in the Beaufort Sea

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

ACTION: Notice of issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) to take small numbers of marine mammals 
by harassment incidental to conducting oil exploration drilling 
activities in Camden Bay, Beaufort Sea in waters off Alaska has been 
issued to ARCO Alaska, Inc. (ARCO).

DATES: This authorization is effective from September 25, 1997, through 
September 1, 1998.

ADDRESSES: The application and monitoring plan, authorization, and 
environmental assessment (EA) are available by writing to the Chief, 
Marine Mammal Division, Office of Protected Resources, NMFS, 1315 East-
West Highway, Silver Spring, MD 20910-3225, or by telephoning one of 
the contacts listed below.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2055, Brad Smith, Western Alaska 
Field Office, NMFS, (907) 271-5006.

SUPPLEMENTARY INFORMATION:

Background

     Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
directs the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and either regulations are issued or, if the taking is limited to 
harassment, notice of a proposed authorization is provided to the 
public for review.
    Permission may be granted if NMFS finds that the taking will have a 
negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and the permissible methods of taking 
and requirements pertaining to the monitoring and reporting of such 
taking are set forth. NMFS has defined ``negligible impact'' in 50 CFR 
216.103 as `` * * * an impact resulting from the specified activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.''
    On April 10, 1996 (61 FR 15884), NMFS published an interim rule 
establishing, among other things, procedures for issuing incidental 
harassment authorizations under section 101(a)(5)(D) of the MMPA for 
activities in Arctic waters, including requirements for peer-review of 
a monitoring program and a plan of cooperation between the applicant 
and affected subsistence users. For additional information on the 
procedures followed for this

[[Page 51638]]

authorization, please refer to that document.

Summary of Request

    On May 30, 1997, NMFS received an application from ARCO requesting 
a 1-year authorization for the possible harassment of small numbers of 
several species of marine mammals incidental to moving a Concrete 
Island Drilling System (CIDS) from Prudhoe Bay to Camden Bay, Alaska 
and drilling an oil exploration well at that location during the 
winter, 1997/98. Essentially, the project has several stages as 
summarized below: (a) Deballast the bottom-founded Global Marine 
Drilling Co. ``Glomar Beaufort Sea #1'' CIDS and move it to the well 
site in Camden Bay on or about August 15, 1997; (b) Transport drilling 
supplies, materials and other equipment to the CIDS. Transport fuel 
from Canada to the site; (c) Warm shutdown mode until such time as ice 
in Camden Bay is fully formed (estimated to be around November 1, 
1997). Crew change via helicopter during this and succeeding times; (d) 
Drilling operations after ice formation on or around November 1, 1997 
(drilling and well testing operations may occur from that date through 
mid-May 1998); (e) Cold shutdown mode from completion of drilling and 
well testing operations until around July 1, 1998; and (f) Towing CIDS 
from Camden Bay by tug boats to Prudhoe Bay or another location.
    A more detailed description of the work planned is contained in the 
application and is available upon request (see ADDRESSES). Moving the 
CIDS from Prudhoe Bay began on August 16, 1997. The barging of fuel, 
equipment and supplies will be completed on or before August 31, 1997.

Comments and Responses

    A notice of receipt of the application and proposed authorization 
was published on July 15, 1997 (62 FR 37881), and a 30-day public 
comment period was provided on the application and proposed 
authorization. During the comment period, comments received were from 
the Marine Mammal Commission (MMC), the Alaska Eskimo Whaling 
Commission (AEWC) and North Slope Borough (NSB), ARCO, Greenpeace 
Alaska (Greenpeace) and the Trustees for Alaska (Trustees). ARCO's 
comments which addressed contents in the EA are not discussed further 
in this document. Information on the activity and authorization request 
that are not subject to reviewer comments can be found in the proposed 
authorization notice and is not repeated here. Issues outside either 
the scope of the IHA process or on the impacts on marine mammals and/or 
subsistence needs for marine mammals are not addressed in this 
document.

Negligible impact concerns

    Comment 1: Trustees believe that NMFS fails to adequately discuss 
scientific information which found significant effects from disturbance 
on whales and other marine mammals. They believe NMFS provided little 
information in the notice and EA not found in ARCO's application.
    Response: The MMPA requires NMFS to use the best scientific 
information available when determining whether an activity will have a 
negligible impact on marine mammals (see the definition of negligible 
impact above or in 50 CFR 216.103). Extensive monitoring of impacts of 
oil exploration activities on marine mammals and analyses of the 
results from those studies have been conducted over the past two 
decades. This information has also been summarized elsewhere (e.g., 
Richardson et al. (1995b) on noise impacts). The EA also summarizes 
this information and incorporates other documentation by reference. 
Because the best scientific information to date available to NMFS 
indicates that oil and gas exploration activities in the Beaufort Sea 
are not having more than a negligible impact on marine mammals, and 
because Trustees and other commenters have not provided scientific 
information to the contrary, an incidental harassment authorization 
appears warranted.
     NMFS does not contradict commenters' position that bowhead whales 
and other marine mammals may be harassed by noise from aircraft, 
tugboats and oil drilling operations. However, the MMPA allows a take 
by harassment if certain findings are made and certain conditions are 
met. NMFS believes the level of incidental harassment by the ARCO 
activity will not adversely affect the species or stocks of marine 
mammals through effects on annual rates of recruitment or survival. 
Therefore, the taking is considered negligible.

Marine mammal concerns

    Comment 2: Greenpeace and Trustees both note that NMFS has failed 
to fully consider the impacts to the bowhead whale population. They 
believe NMFS should assess impacts from the first arrivals in the 
western Beaufort Sea and not just on impacts after August 31.
    Response: NMFS agrees and has modified the EA to address this 
concern. However, NMFS notes that the bowhead whale numbers referenced 
by Trustees as passing the Camden Bay site are overstated. Moore and 
Clark (1991) estimated in 1981 through 1983, up to 500 (range 0-500) 
bowheads may be offshore the Barter Island region; however, no whales 
were sighted west of that region prior to September 1 during those 
years. Most sighted bowheads were still in Canadian waters. While NMFS 
notes that in general, bowhead whales migrate westward through the 
Alaskan Beaufort Sea from late August to late October, only a portion 
of the population has been estimated as migrating during this time 
period. Other bowheads are either undetectable to observers (i.e., 
under the ice), migrated prior to surveys commencing, or did not 
migrate to the Canadian Beaufort Sea. As a result of ARCO's agreement 
with the AEWC to complete moving activities and barge traffic prior to 
September 1, NMFS believes the majority of the bowhead population will 
not hear noise emanating from the CIDS because of their presence in the 
Canadian Beaufort Sea.
    Most westward migrating bowheads sighted are in water ranging from 
20 to 50 m (65-165 ft) deep (Ljungblad et al. 1984). Scientific 
evidence indicates that bowhead whale distribution appears to be 
strongly influenced by ice (but see information provided by Traditional 
Knowledge discussed below). In heavy ice years, bowheads tend to 
migrate in deeper water (> 60 m (> 197 ft)), while in light ice years, 
a larger proportion sighted are found in shallow water (<40 m (< 131 
ft)) (NMFS 1996). A few may occur close to shore. Therefore, there is 
some potential that bowhead whales may be incidentally harassed while 
the CIDS is being towed westward and the supply activities prior to 
August 31. However, these numbers are considered to be small and the 
impact negligible. Additional information on this issue can be found in 
the EA.
    Comment 3: Trustees note that NMFS does not provide a specific date 
for start-up of drilling, nor when the spring bowhead whale migration 
period begins (when the CIDS should not be moved), nor does it prohibit 
drilling operations from the CIDS during this period, if drilling takes 
longer than expected.
    Response: NMFS notes that it is unaware whether ice-up needs to be 
complete prior to the CIDS commencing drilling. Therefore, recognizing 
that bowhead whales may be migrating westward through the offshore and 
nearshore Camden Bay area through late October, and drilling during 
this period of time could result in additional harassment takes that 
have not been considered in the negligible take analysis, NMFS has 
conditioned the IHA so that drilling activities prior to

[[Page 51639]]

November 1, 1997, are not covered by the IHA and any incidental 
harassment of bowheads resulting from an early start-up is a violation 
of the IHA and the MMPA.
    During the springtime eastward migration bowheads are presumed to 
first arrive offshore Camden Bay in late April to early May. This 
migration is also presumed to occur through the end of June. Because 
the leads through the ice at this time are usually well offshore (and 
the reason there is not a springtime subsistence hunt at Nuiqsuk and 
Kaktovik), no incidental harassment takings are presumed to occur from 
drilling activities. However, in order to ensure bowhead migration is 
not impeded by anthropogenic noise, a condition of the IHA prohibits 
any oil and gas exploration activity in the spring leads, including 
drilling or vessel noise. If on-site drilling activities are projected 
to continue into the time bowheads enter offshore Camden Bay, prior to 
modifying the IHA, NMFS will require submission and implementation of a 
revised monitoring program to ensure that bowheads will not be 
seriously affected by drilling activities while moving through the 
spring leads. In accordance with NMFS regulations, any modification of 
an IHA that does not involve emergency action to protect marine mammals 
is subject to a 30-day public comment period. For that reason, a 
request for an amendment to the IHA, and the accompanying monitoring 
plan will need to be provided to NMFS no later than March 1, 1998.
    If the CIDS remains under the control of, or under contract to ARCO 
after completion of the drilling operation, the IHA authorizes the 
harassment of bowheads and other marine mammals incidental to moving 
the CIDS to another site after the last bowhead migration pulse has 
completed its eastward migration. If necessary, NMFS will make a 
determination that the migration is complete and will notify interested 
parties.
    Comment 4: Greenpeace states that the impacts of industrial noise 
associated with exploratory drilling activities during the bowhead 
migration have not been adequately evaluated by NMFS.
    Response: Other than towing the CIDS and tug/barge traffic, no 
other activities related to the CIDS operation is anticipated to have 
an impact on bowhead whales. Impacts on bowheads from vessel noise was 
discussed in the EA.
    Comment 5: Trustees note that NMFS fails to make clear that the 
drill site is located in significant ringed seal habitat and that seals 
undergoing stresses such as reproduction (taking place during drilling 
activities) may be more vulnerable to the effects of contaminants or 
disturbance. Trustees also notes that NMFS fails to discuss impacts 
from seismic activities and vehicle traffic.
    Response: The biology, abundance and distribution of ringed seals 
and other pinnipeds were addressed in the EA. The EA notes that some 
reduction in density of ringed seals within an area of approximately 
2.3 nmi (3.7 km) of the CIDS could be expected. However, considering 
winter-time ringed seal densities of between 2-6 ringed seals/
nm2, few ringed seals should be affected by the CIDS, whose 
noise disturbance zone is limited to less than 1 nm. Because drilling 
operations will begin on or around November 1, 1997, well prior to 
ringed seals establishing birth lairs, and continue through mid-May 
1998, ringed seal pupping, (which starts in early April), is unlikely 
to take place in the vicinity of the CIDS. Therefore, NMFS expects few 
ringed seals would be affected and that impact will result, at worst, 
in some displacement. Considering the extensive habitat available to 
ringed seals and the size of the Alaskan ringed seal population, 
displacement would not result in more than a negligible impact on the 
species.
    Incidental harassment for either seismic activities or vehicle 
traffic over ice has not been requested by ARCO, is not being 
authorized, and is not anticipated by the applicant, except for the 
latter in emergency situations, such as an oil spill. NMFS notes 
however, that the incidental taking by this type of activity is the 
subject of a separate rulemaking action (see 62 FR 42737, August 8, 
1997).

Environmental concerns

    Comment 6: Trustees believe that the impacts to the Alaska National 
Wildlife Refuge (ANWR) have been ignored by NMFS. One of their concerns 
is that, to avoid impacts to marine mammals, helicopters would be 
required to fly over land. However, this would increase the magnitude 
and extent of impacts to the wilderness.
    Response: NMFS believes no more than a negligible impact will 
accrue to marine habitats of importance to marine mammals in the waters 
offshore of ANWR from the wintertime CIDS operation. Once the CIDS is 
in place and supplied prior to September 1, noise from the CIDS will be 
limited to generators operating in the warm shutdown mode, and possibly 
some noise from helicopters supplying the CIDS prior to beginning 
drilling. Oil drilling noises will not occur until ice-up is complete. 
Other than small numbers of seals and polar bears (for which the U.S. 
Fish and Wildlife Service has issued a small take authorization), 
marine mammals will be unaffected (but see comment 7 below regarding 
potential for oil spills and comment 8 regarding drilling muds). 
Impacts relating to issuance of an IHA were addressed in NMFS' EA, 
other impacts were addressed in the final Environmental Impact 
Statement (FEIS) for the Beaufort Sea Lease Sale 144 (BSLS 144) and an 
EA prepared by the Minerals Management Service (MMS) for ARCO's 
activities.
    ARCO will be required to comply with appropriate MMS and ANWR 
regulations regarding aircraft overflights. Also to mitigate noise 
levels for marine mammals, NMFS has conditioned the IHA to require 
aircraft to remain at an altitude of 1,000 ft (305 m) until within 0.5 
nm (926 m) of the CIDS, whenever the weather ceiling allows such 
heights.
    Comment 7: Both Greenpeace and Trustees expressed deep concern over 
the possibility of an oil spill in the vicinity of ANWR. There was 
concern that in the event of a crude oil blowout, harm to the marine 
mammals which reside on the barrier islands and in other habitats along 
the ANWR shoreline would be devastating.
    Trustees noted that the relief well plan calls for ice roads and 
support activities with ANWR. This is unacceptable.
    Response: When making a negligible impact determination, NMFS finds 
that a negligible impact determination may be appropriate if the 
probability of occurrence is low, but the potential effects may be 
significant. In this case, the probability of occurrence of impacts 
must be balanced with the potential severity of harm to the species or 
stock when determining negligible impact. In applying this balancing 
test, NMFS evaluates the risks involved and the potential impacts on 
marine mammal populations and habitat.
    NMFS recognizes that there is still considerable disagreement as to 
the effects of an oil spill on bowhead whales and other marine mammals 
in the Alaskan Beaufort Sea. MMS used Oil Spill Risk Analysis modelling 
to estimate the impacts of a worst-case spill on bowhead whales and 
concluded that this event would result in the mortality of a few 
individuals with expected recovery to the species' overall population 
level in 1 to 3 years. However, some data on the anatomy and migratory 
behavior of bowhead whales suggest that impacts from a large oil spill 
could pose a grave threat to this species, especially if substantial

[[Page 51640]]

amounts of oil got into the lead system during the spring migration 
(Albert 1981, Shotts et al. 1990). NMFS notes however, that to date no 
blowouts have occurred during drilling 81 exploratory wells in Alaskan 
waters as of 1994 (MMS 1996). As analyzed in more detail in MMS' EA and 
based upon information provided in that document and the FEIS for BSLS 
144, NMFS has determined that the potential for a significant oil spill 
from a single exploration activity site (as contrasted to an oil 
production site on which oil spill probabilistic analyses are based), 
and the potential therefore for significant impacts on marine mammals 
inhabiting the offshore and nearshore waters of Camden Bay, is 
negligible.
    NMFS notes that ARCO's Oil Spill Contingency Plan has been modified 
to eliminate all references to relief well planning involving 
construction on, or movement through, ANWR, including its lagoons.
    Comment 8: Both Greenpeace and Trustees believe NMFS fails to give 
meaningful consideration to impacts associated with chronic discharges 
of contaminants (drilling muds, cuttings, biocides, oil) associated 
with exploratory drilling operations. Greenpeace believes routine and 
accidental discharges are substantial.
    Response: The discharge of anthropogenic materials from oil 
platforms, (such as drilling muds, discharged materials and produced 
water) is regulated by the Environmental Protection Agency (EPA) under 
the National Pollutant Discharge Elimination System. A permit for oil 
exploration activities has been issued by EPA for this activity. While 
drilling muds are relatively non-toxic and the metals associated with 
drilling muds are virtually unavailable for bioaccumulation by marine 
organisms (Neff 1987), other anthropogenic materials could potentially 
harm bowhead whales by reducing or contaminating their food resources 
if found in sufficient quantities. The feeding strategy of bowhead 
whales could lead to ingestion of oil from oil-contaminated food, if 
the prey organisms accumulate petroleum hydrocarbons in their tissue. 
The effect of pollutants including heavy metals on the planktonic 
organisms (copepods, euphasiids) on which these whales feed is 
relatively unknown, but may result in either direct mortality or 
sublethal effects that inhibit growth, longevity and reproduction. If 
planktonic crustaceans have the ability to detoxify hydrocarbons, these 
hydrocarbons are less likely to persist and biomagnify in the bowhead 
whale. The National Research Council (1985) concluded that the risks to 
most outer continental shelf (OCS) benthic communities from exploratory 
drilling discharges are small and result primarily from physical 
benthic effects. In addition, the relatively small area of these 
discharges further limits their impact in the Beaufort Sea marine 
environment.
    NMFS has modified its EA to address this concern.

Subsistence concerns

    Comment 9: The AEWC has concerns that any major noise-producing 
activities, including those by ARCO, that occur in the vicinity of a 
village's subsistence hunt or in the ``upstream'' migration path of the 
bowhead whales have the potential to interfere with the bowhead 
subsistence hunt. As a result, the AEWC has requested that all Fall 
open-water industrial activities with the potential to interfere with 
the Fall bowhead whale subsistence hunt cease as of August 31, 1997. If 
the CIDS is not on location at the specified and represented time by 
ARCO, then the AEWC insists that an approved open water Conflict and 
Avoidance Agreement (CAA) must be in place prior to the IHA being 
issued. If the CAA is signed before NMFS issues an IHA, then the AEWC 
agrees with NMFS that the potential impacts should be sufficiently 
mitigated to warrant issuance of an IHA with no further mitigation 
requirements. If the CAA is not signed, the AEWC recommends additional 
specified mitigation measures. Greenpeace states that no operations 
should continue east of Cross Island after the end of August.
    Response: NMFS has been informed that a CAA between the AEWC and 
ARCO has been concluded. As part of that agreement, ARCO has agreed to 
cease all activities in the vicinity of the CIDS, including barge 
transport of supplies after August 31, 1997. Once the bowhead whale 
hunt has concluded, activities can continue as scheduled and discussed 
in the application and proposed authorization.
    Comment 10: Greenpeace asserts that the proposed action will have a 
significant impact on the bowhead whale and Inupiat communities that 
depend on the bowhead whale for subsistence. Because the impacts of the 
industrial noise associated with the exploratory drilling activities 
during the bowhead migration have not been adequately evaluated by 
NMFS, NMFS must deny ARCO's IHA application.
    Response: Impacts to bowhead whales from oil exploration activities 
were addressed above, in the EA, and in the notice of proposed 
authorization. NMFS has used the best scientific information available, 
along with Traditional Knowledge, to assess impacts of vessel, 
aircraft, and overwinter drilling activities on marine mammals. NMFS 
believes that a signed CAA supports NMFS determination that there will 
not be an unavoidable adverse impact on the availability of a species 
or stock for taking for subsistence needs.

Traditional knowledge concerns

    Comment 11: Trustees believe NMFS has ignored valid and relevant 
scientific information-known through Traditional Knowledge of Native 
Alaskans-which contradict conclusions that oil industry operations will 
have a negligible impact. Greenpeace notes that the whaling captains 
have presented compelling evidence that bowheads are displaced from 
their migratory route and feeding areas by seismic and drilling 
operations. Greenpeace also believes that NMFS has dismissed the subtle 
behavioral effects on bowhead whales (e.g. spookiness) that whaling 
captains discuss.
    Response: Traditional Knowledge provides information that 
industrial noise is detectable to bowhead whales at greater underwater 
distances than empirical scientific information has shown, and that 
bowheads will deflect from industrial noise, such as seismic airgun 
noise (up to 30-35 nmi from the airgun array), at great distances. 
Traditional Knowledge has been added as appropriate to the EA as 
requested by the AEWC on July 17, 1997.
    NMFS does not dismiss information on behavioral effects from 
industrial noise on bowheads. These issues are discussed whenever 
relevant (see for example, NMFS 1996 1). Because ARCO's 
application noted that activities potentially affecting bowhead whales 
would not take place during the time when the major portion of the 
stock migrates through the Beaufort Sea, and therefore, no adverse 
effects on subsistence takings would occur, lengthy discussion on 
behavioral effects was unnecessary.
---------------------------------------------------------------------------

    \1\ NMFS. 1996. Environmental Assessment: Request by BP 
Exploration (Alaska) Inc. for an Incidental Harassment Authorization 
to Allow the Incidental Take of Marine Mammals in the Beaufort Sea 
During the 1996 Northstar Seismic Exploration Program.
---------------------------------------------------------------------------

Monitoring

    Comment 12: Greenpeace finds that ARCO's 1997 proposed monitoring 
plan is not scientifically rigorous enough to determine impacts to 
Arctic pinnipeds and cetacean species. Greenpeace contends that ARCO's 
quasi-scientific experimental design of the monitoring program is aimed 
at trying to prove that exploratory and other disturbing

[[Page 51641]]

activities will have a negligible impact on the marine mammal 
populations.
    Response: Section 101(a)(5)(D)(ii)(III) of the MMPA mandates a 
monitoring program to assess impacts to marine mammals by the activity. 
NMFS has stated previously that a monitoring program should be 
appropriate to determine the distribution and behavioral responses of 
potentially affected species of marine mammals before, during, and 
after exposure to the activities. NMFS believes that timing of each 
phase of ARCO's activity has mitigated affects on marine mammals to the 
lowest extent practicable. While additional monitoring can certainly be 
required under the IHA, NMFS must weigh the information value of such 
monitoring with costs for conducting the monitoring. If costs outweigh 
benefits, then NMFS believes the monitoring may not be practical, 
unless extenuating circumstances exist, such as ongoing subsistence 
harvests, or critically endangered species are present. An example of 
unnecessary monitoring includes repeating transmission loss tests for a 
CIDS during oil drilling activities, even though bowhead whales will 
not be in the vicinity of the CIDS when it is active.
    Comment 13: Greenpeace believes NMFS must require a comprehensive 
monitoring plan that is fully subjected to independent peer design and 
review.
    Response: Section 101(a)(5)(D)(ii)(III) requires an IHA to 
prescribe, where applicable, the requirements for independent peer-
review of monitoring plans for activities where the proposed activity 
may affect the availability of a species or stock for taking for 
subsistence purposes. A signed CAA between the AEWC and the activity 
participants provides NMFS with documentation that the proposed 
activity will not have an unavoidable adverse impact on the 
availability of a species or stock for taking for subsistence needs. 
ARCO's proposed activity was discussed at the Peer-Review Workshop in 
Seattle on July 17, 1997, with the AEWC. In addition, the monitoring 
plan has been reviewed by scientists of NMFS and the MMC. The 
Scientific Director of the MMC, an independent reviewer, was of the 
opinion that the monitoring plan is adequate to verify that only small 
numbers of marine mammals are taken, that the taking is by harassment 
only, and that the impacts on the affected species and stocks are 
negligible. A similar assessment has been made by NMFS scientists who 
have reviewed the monitoring plan.
    If at any time NMFS believes that the incidental harassment process 
would benefit from peer-review, it will promptly conduct this review. 
For example, if ARCO's oil drilling activities continue into the spring 
or summer, NMFS will require ARCO to provide a revised monitoring plan. 
That plan will be independently peer-reviewed to ensure that impacts to 
bowhead whales are adequately assessed.
    Comment 14: Greenpeace states that NMFS must require ARCO to employ 
a full array of bottom-mounted hydrophones and deploy sonobuoys to 
accurately measure bowhead and other marine mammal vocalizations and 
ambient noise. The monitoring plan must be designed to substantiate the 
``zone of influence,'' however distant.
    Response: NMFS disagrees. Under the IHA, during drilling activity 
phase the harassment of bowhead whales is not authorized. As noted in 
the application, no drilling will occur prior to complete ice-up, at 
which time bowhead whales will be in the Bering Sea, and drilling will 
cease prior to springtime bowhead migration. If, as mentioned in 
comment 3, drilling activities were to extend into late spring, 1998, 
and bowheads enter the Camden Bay area, NMFS would require ARCO to 
request an amendment to its IHA. Included in that request would be a 
modified monitoring plan.
    Substantiating the zone of influence during wintertime for bowheads 
is viewed by NMFS as unnecessary in light of the above statement. 
Substantiating a zone of influence for seals would require disruptive 
research on seals in lairs which, while likely valuable research, is 
unnecessarily intrusive on the animals when implemented as a monitoring 
tool. Because of the potential for an increase in Arctic wintertime 
drilling and seismic work over the next few years, NMFS encourages MMS 
to fund additional studies on ringed seal behavior and effects from 
industrial development.

Authorization concerns

    Comment 15: Greenpeace and Trustees were concerned about the 
adequacy of time for NMFS to give adequate recognition to public 
comments.
    Response: As noted by this document, NMFS believes that it has 
given proper review of all public comments.
    Comment 16: ARCO believes that the operational restrictions set out 
in the IHA are not necessary because no takes of marine mammals are 
anticipated. For example, ARCO notes that September 1 is only a target 
date for completing the CIDS supply.
    Response: NMFS presumes that the operational restrictions refer to 
the mitigation measures proposed in the earlier notice. NMFS notes 
however, that activities that proceed prior to, or after, the dates 
ARCO has suggested for each phase of the project, may potentially 
harass marine mammals, especially activities that may affect bowhead 
migration in the spring leads. The potential for the incidental 
harassment of marine mammals having a more than negligible impact on 
marine mammals during these alternative times has simply not been 
evaluated at this time. As a result, incidental takings outside the 
periods specified cannot be authorized. NMFS notes however, that once 
the NSB has secured its whaleboats for the season, and notifies ARCO of 
this fact, ARCO may continue resupply of the CIDS via barges.

Cumulative impact concerns

    Comment 17: Trustees and Greenpeace believe NMFS ignores the 
cumulative impacts from oil exploration and development in the Arctic. 
Trustees provide a statement from one whaling captain that bowheads no 
longer enter Camden Bay due to industrial activity.
    Response: NMFS has not ignored the cumulative impact from oil and 
gas exploration on marine mammals or their habitat. Due to distances 
between oil and gas exploration activities, NMFS does not expect a 
cumulative impact in 1997. NMFS has identified two oil and gas 
exploration activities in the Central and Eastern U.S. Beaufort Sea 
this year, a seismic survey by BP Exploration (Alaska) and the proposed 
activity. Other than the potential for the CIDS being towed within 
proximity to the seismic survey during mid-August, and the resulting 
noise if the seismic array is operating at the time, no cumulative 
impacts are anticipated. In 1990, NMFS determined that in any one year 
between 1990 and 1995 in the Beaufort and Chukchi Seas, there may be 
between 2 and 5 drilling units operating in Federal waters and two 
drilling units in state waters. In addition up to 17,000 seismic 
trackline miles in the Beaufort and Chukchi Seas would be conducted 
over the five years. On July 16, 1990 (55 FR 29207), NMFS determined 
that this level of industrial activity would not result in more than a 
negligible impact on marine mammals. No new information has been 
provided since that time to require a reassessment of cumulative 
impacts.
    Traditional Knowledge indicates that oil exploration deflects 
whales further offshore, making them less accessible to whalers. While 
agreeing with this observation, NMFS notes that because no major oil 
and gas exploration activities have taken place in Camden

[[Page 51642]]

Bay since 1993, if bowhead whales are not following historic migratory 
routes (according to Traditional Knowledge), then one or more factors 
must be influencing their migration. These include: Ice conditions, 
food distribution and/or abundance, or conditioning by bowhead whales 
to the previous noise events. NMFS notes that a similar migratory 
modification has been made by California gray whales in their southward 
migration along the California coast in order to avoid recreational and 
commercial vessel traffic south of Pt. Conception.

National Environmental Policy Act (NEPA) concerns

    Comment 18: Trustees noted that the site-specific impacts of 
drilling a well in the proposed Warthog area on marine mammals were not 
addressed in BSLS 144 FEIS, nor in ARCO's exploration plan or oil spill 
contingency plan. Trustees believe that NMFS' IHA documentation fails 
to acknowledge the potential effects addressed in ARCO's Oil Spill 
Contingency Plan.
    Response: MMS released an EA that discusses ARCO's planned scope of 
work in Camden Bay, alternatives to those activities, and the impacts 
to the human environment from the proposed action and alternatives.
    Impacts of potential oil spills resulting from exploration 
activities on BSLS 144 were addressed in that Lease Sale's FEIS and in 
MMS' 1997 EA. To the extent that those impacts affect marine mammals 
and their habitat, appropriate parts have been incorporated by 
reference in NMFS' EA. Incorporation by reference is provided by 
Council on Environmental Quality regulations (40 CFR 1502.21).
    Comment 19: Greenpeace and Trustees believe that the proposed 
action will have a ``significant effect on the human environment'' and 
therefore NMFS needs to prepare an environmental impact statement (EIS) 
on the action. Greenpeace notes that ARCO proposes to introduce major 
sources of industrial noise and pollution to a pristine and 
ecologically significant area off the ANWR. Because the operations 
associated with, and subsequent exploratory drilling will affect 
species and habitats that the ANWR is designed to protect, NMFS must 
prepare a full EIS.
    Response: NMFS disagrees. Commenters have not provided scientific 
information that the impact would be more than negligible (i. e., 
significant). Since NMFS must analyze a request for an IHA to determine 
whether the proposed activity has no more than a negligible impact on a 
species or stock of marine mammals and does not have an unmitigable 
adverse impact on subsistence users, it believes that the issuance of a 
small take authorization only requires the preparation of an EA and not 
an EIS. In this case, the agency found through preparing an EA that the 
proposed action will not significantly affect the quality of the human 
environment thus making a finding of no significant impact. If the EA 
results in this finding, no additional documents are required by NEPA 
(NOAA Directives Manual 02-10).
    Comment 20: Greenpeace notes the alleged inadequacies of the draft 
EIS on BSLS 144, especially as it relates to marine mammals and 
habitat-use patterns. Greenpeace references a review of BSLS 144 by the 
MMC.
    Response: NMFS notes that the MMC comments were submitted in 
response to a draft EIS prepared by MMS for BSLS 144. Appropriate 
modifications and a response to MMC comments were provided in the FEIS. 
In addition, NMFS reviewed BSLS 144 under section 7 of the Endangered 
Species Act (ESA), and concluded formal consultation on November 16, 
1995. The finding of that consultation was that, based on the Arctic 
Regional Biological Opinion, oil exploration activities under BSLS 144 
is not likely to jeopardize the continued existence of listed species 
under its jurisdiction.
    NMFS also notes that ringed seal and other marine mammal biology, 
distribution and abundance, and impacts were provided in its EA on the 
proposed action.

Other concerns

    Comment 21: Greenpeace and Trustees believe that issuance of an IHA 
will violate the Coastal Zone Management Act (CZMA; 16 U.S.C. 1451-
1464). The CZMA provides that a Federal agency may not issue a license 
or permit to conduct an activity that affects a state's coastal zone 
before a state concurs with the license applicant's certification that 
the activity will be consistent with the provisions of the state's 
plan.
    Response: ARCO submitted the necessary information to the State of 
Alaska in order to evaluate the consistency of ARCO's activities with 
Alaska's coastal zone management plan (ACZMP). The State has worked 
with ARCO to address the State's coastal management concerns regarding 
ARCO's proposed activities in the Beaufort Sea. In managing Alaska's 
coastal zone, and in its evaluation of ARCO's proposed activities, the 
State must balance the competing objectives and purposes of the ACZMP. 
It is NMFS' understanding that the State has expressed no outstanding 
concerns regarding the consistency of ARCO's proposed activities with 
the enforceable policies of the ACZMP. An authorization to drill will 
not be provided to ARCO by MMS until ARCO has received the State's 
consistency determination.
    Comment 22: Trustees contend that an Alaska Native Interest Land 
Claims Act (ANILCA) section 810 study is required. They believe that 
because the IHA is a required aspect of the decision regarding use of 
OCS lands for drilling, and the proposed oil industry activities could 
also harm the availability and use of ANWR lands for subsistence and 
cause a restriction of subsistence uses, and ANILCA study is necessary.
    Response: The U.S. Supreme Court ruled in March 1987 that, by 
ANILCA's plain language, section 810 applies only to Federal lands 
within the State of Alaska's boundaries. ANILCA defines ``public 
lands'' to mean federal lands situated ``in Alaska,'' a phrase which 
has a precise geographic/political meaning that can be delineated with 
exactitude to include coastal waters to a point three miles from the 
coastline, where the OCS commences. Therefore, an ANILCA section 810 
analysis/report is not required for ARCO's Warthog project.
    Comment 23: Greenpeace and Trustees both believe ARCO, in 
deballasting the CIDS and moving the drilling unit to Camden Bay prior 
to receiving an authorization under the MMPA is in violation of the 
MMPA because marine mammals will be significantly affected by the 
action. In addition, NMFS, by not enforcing the MMPA and prohibiting 
the movement, has also violated the MMPA and the Administrative 
Procedure Act.
    Response: NMFS disagrees. NMFS believes that such an instruction is 
not authorized by the MMPA, since under the MMPA NMFS authorizes only 
the taking of marine mammals incidental to that activity, not the 
activity itself. However, initiating an action that might result in a 
taking of a marine mammal without an authorization under the MMPA 
places that activity in jeopardy of violating the MMPA moratorium on 
taking marine mammals.
    This issue was the subject of a District Court action by 
Greenpeace. On August 21, 1997, a U.S. District Court Judge for the 
District of Columbia disallowed Greenpeace's request to the Court for a 
Temporary Restraining Order to require NMFS to stop ARCO's moving the 
CIDS to Camden Bay.

[[Page 51643]]

Consultation

    Under section 7 of the ESA, NMFS has completed consultations on the 
issuance of this authorization.

NEPA

    In conjunction with the notice of proposed authorization, NMFS 
released a draft EA that addresses the impacts on the human environment 
from issuance of the authorization and the alternatives to the proposed 
action. Comments received on the draft EA, while leading to an improved 
EA, did not provide sufficient information that implementation of 
either the proposed action or the alternatives to that action would 
have a significant effect on the human environment. Therefore, as a 
result of the findings made in the EA, NMFS has concluded that 
implementation of either the preferred alternative or other identified 
alternatives would not have a significant impact on the human 
environment. As a result of that finding, an EIS will not be prepared. 
A copy of the EA is available upon request (see ADDRESSES).

Conclusions

    NMFS has determined that the short-term impact of exploration 
drilling and related activities in the Beaufort Sea will result, at 
worst, in a temporary modification in behavior by certain species of 
pinnipeds, and possibly some individual bowhead or beluga whales. While 
behavioral modifications may be made by these species of marine mammals 
to avoid the resultant noise from tugs either towing the CIDS or 
transporting supplies, or due to drilling activities, this behavioral 
change is expected to have a negligible impact on the animals.
    While the number of potential incidental harassment takes will 
depend on the distribution and abundance of marine mammals (which vary 
annually due to variable ice conditions and other factors) in the 
activity area, the number of potential harassment takings is estimated 
to be small. In addition, no take by injury and/or death is anticipated 
and takes will be at the lowest level practicable due to incorporation 
of the mitigation measures mentioned above. No rookeries, mating 
grounds, areas of concentrated feeding, or other areas of special 
significance for marine mammals occur within or near the planned area 
of operations during the season of operations.
    Because bowhead whales are in the Canadian Beaufort Sea until late 
August/early September, moving the CIDS during August will not impact 
subsistence hunting of bowhead whales. Appropriate mitigation measures 
to avoid an unmitigable adverse impact on the availability of bowhead 
whales for subsistence needs was the subject of consultation between 
ARCO and subsistence users. As a result of discussions between the two 
parties, a Conflict and Avoidance Agreement has been concluded. This 
Agreement consists of three main components: (1) Communications, (2) 
conflict avoidance, and (3) dispute resolution.
    Since NMFS is assured that the taking will not result in more than 
the incidental harassment (as defined by the MMPA) of small numbers of 
certain species of marine mammals, would have only a negligible impact 
on these stocks, will not have an unmitigable adverse impact on the 
availability of these stocks for subsistence uses, and would result in 
the least practicable impact on the stocks, NMFS has determined that 
the requirements of section 101(a)(5)(D) have been met and the 
authorization can be issued.

Authorization

    Accordingly, NMFS has issued an IHA to ARCO Alaska for the above 
described oil exploration drilling activities in Camden Bay, Beaufort 
Sea, AK, provided the mitigation, monitoring and reporting requirements 
described in the authorization are undertaken.

    Dated: September 25, 1997.
Patricia A. Montanio,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 97-26060 Filed 10-1-97; 8:45 am]
BILLING CODE 3510-22-F