[Federal Register Volume 66, Number 26 (Wednesday, February 7, 2001)]
[Notices]
[Pages 9291-9298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3182]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 083000A]


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.

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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 exploration drilling activities 
during the winter in the U.S. Beaufort Sea, offshore Prudhoe Bay, has 
been issued to Phillips Alaska, Inc. (Phillips).

DATES: Effective from February 1, 2001, until August 1, 2001.

ADDRESSES: The application, authorization, monitoring plan, and a list 
of references used in this document are available by writing to Donna 
Wieting, Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910-3225, or by telephoning one of the contacts listed here.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2055, ext. 128, or Brad Smith, 
Western Alaska Field Office, NMFS, (907) 271-5006.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    Permission may be granted if NMFS finds that the taking will have 
no more than 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 subsistence uses and if the permissible methods 
of taking and requirements pertaining to the monitoring and reporting 
of such taking are set forth.
    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 to be followed for this authorization, please refer to that 
document.

Summary of Request

    On August 1, 2000, NMFS received an application from Phillips 
requesting a 1-year authorization for the possible harassment of small 
numbers of marine mammals incidental to constructing an ice road and an 
ice island at the McCovey Prospect Area and incidental to drilling one 
or more oil exploration wells at that location during the winter,

[[Page 9292]]

2000/2001. The drilling location at McCovey is approximately 14 mi 
(22.5 kilometers (km)) north of East Dock at Prudhoe Bay, 7 mi (11.3 
km) northwest of Cross Island, and 12 mi (19.3 km) east of the 
Northstar Unit.
    The purpose of the operation is to evaluate the oil and gas 
potential of Phillips' operated leases in the McCovey area. The well 
will be drilled from an ice island constructed at the beginning of the 
winter drilling season. Some equipment may be staged on Reindeer Island 
prior to freeze-up; however, a majority of the equipment will be staged 
using the ice road.
    Ice island construction is expected to begin when ice conditions 
are thick enough to allow heavy equipment to be transported to the 
location via the ice road (approximately December 2000). One well is 
planned to be drilled from a surface location in Outer Continental 
Shelf Lease Block Y-1577. Depending on the results found from this 
well, well tests may be performed and a sidetrack may be drilled as 
length of season permits. All drilling and well-testing operations will 
be performed only during the 2000-2001 winter drilling season and will 
be discontinued in May 2001 before ice break-up (which usually occurs 
in late June or July). Drilling and testing operations will not be 
conducted in broken ice or open water periods. The McCovey exploration 
well will be plugged and abandoned regardless of any commercial value 
demonstrated during well testing and reservoir evaluation. The 
exploration well is expected to be moved back down the ice road after 
operations are completed. This is expected to occur between 
approximately April 20 and May 2.
    Prior to freeze-up in late October, 2000, materials will be barged 
to Reindeer Island for staging. This includes pumps, rolligons and 
diesel fuel in storage tanks. The storage tanks will be in a 
containment capable of holding 110 percent of the capacity of the 
tanks. An ice pad will be constructed at Reindeer Island. A 12 to 14 mi 
(19.3 to 22.5 km) ice road will be constructed from either West Dock or 
East Dock in Prudhoe Bay out to the McCovey location. The actual 
location and length of the ice road will depend on ice conditions prior 
to commencing operations. The ice road will then be used to transport 
the ice island construction equipment and the drilling rig out to the 
McCovey location.
    The ice roads are expected to be completed and ready for heavy 
traffic by mid-February. Following construction, the road will be 
maintained using graders with snow wings and front-end loaders with 
snow blowers until ice-road travel is no longer possible, typically in 
mid-May.
    The McCovey Ice Island will be located in 37 ft (11.2 m) of water. 
Pumps will be used to spray seawater into the cold air to form ice-
crystals. The sprayed seawater is first used to thicken the ice at the 
island location to 2 to 3 m (6.6 to 9.8 ft). Then the water will be 
redirected to the center of the island to ground the island core. The 
ice island diameter is expected to be 950 ft (290 m) at the waterline 
and 700 ft (213.4 m) at the working surface above the water.
    After completion of the ice road and island, a land-based drilling 
rig will be transported to the location. The support camp will be 
located on an ice pad constructed on Reindeer Island throughout the 
drilling operations. Reindeer Island is approximately 4.5 mi (7.2 km) 
from the ice island location. All drilling materials will be 
transported to the ice island by ice road and staged on the ice island. 
Muds and cuttings will be discharged to the sea ice in accordance with 
the General Offshore National Pollution Discharge Elimination System 
permit requirements.
    A more detailed description of the work planned is contained in the 
application (Phillips, 2000) and is available upon request (see 
ADDRESSES).

Comments and Responses

    On October 11, 2000 (65 FR 60407), NMFS published a notice of 
receipt and a 30-day public comment period was provided on the 
application and proposed authorization. During the 30-day public 
comment period, comments were received from the Marine Mammal 
Commission (MMC), the Alaska Eskimo Whaling Commission (AEWC) and 
Phillips. In addition, Phillips provided technical data to assist NMFS 
in its response to certain technical comments. Finally, on November 8 
and 9, 2000, NMFS convened a peer review workshop in Seattle, WA, to 
discuss appropriate monitoring for marine mammals by the oil and gas 
industry during the winter season in the Beaufort Sea. The 
recommendations of that workshop are reflected in the requirements for 
Phillips' monitoring its activity's impact on marine mammals. This 
monitoring is discussed later in this document.
    Comment 1: Phillips notes that the proposed activity has been 
modified in the following aspects. First, because Reindeer Island has 
eroded, Phillips plans to locate the support camp during ice road and 
island construction at the Prudhoe Bay West Dock Staging Pad instead of 
the ice pad at Reindeer Island. The ice pad at Reindeer Island will 
still be used for staging equipment. Second, the diameter of the ice 
island work surface has been increased from 600 ft (182.9 m) to 700 ft 
(213.4 m). Although this increases the diameter of the island at the 
water line from 850 ft (259.1 m) to 950 ft (290 m), this increase in 
size (.005 km2 ( mi2)) does not change the original estimate of the 
number of ringed seals that may potentially be harassed. Also, Phillips 
has now obtained a Letter of Authorization (LOA) from the U.S. Fish and 
Wildlife Service (USFWS) for the unintentional taking of polar bears 
incidental to its proposed activity.
    Response: Thank you for updating the status of your activity. These 
modifications have been noted in this document. NMFS believes that 
these amendments will not result in any increase or decrease in the 
number of seals potentially impacted by the proposed exploratory 
drilling project.
    Comment 2: Phillips expresses concern that NMFS has stated that it 
may suspend or terminate the IHA if it determines that dogs are 
available but are not used by Phillips. Phillips states that IHAs can 
only be suspended after notice and opportunity for public comment, 
except in an emergency where a ``significant risk to the well-being of 
the species or stocks of marine mammals concerned'' exists. Given the 
expected low density of ringed seals and the unlikelihood of a 
biologically significant take, an ``emergency'' of this sort is 
unlikely. Second, the intent behind the suspension clause is to protect 
marine mammals (50 CFR 216.107(f))- it would seem inappropriate to 
suspend an IHA merely because one monitoring method was used over 
another, as regulations do not require the use of dogs and when our 
operations are not expected to have any biological significance on 
ringed seals.
    Response: Phillips is correct that suspension or termination of an 
IHA requires public notice and opportunity for comment, unless an 
emergency exists which poses a significant risk to the well-being of 
the species or stocks of marine mammals involved. However, failure to 
comply with the conditions and/or the requirements of an authorization, 
such as monitoring, taking unauthorized marine mammals, or taking 
marine mammals in a manner not authorized, may result not only in a 
modification, suspension or termination of an authorization (after 
public notice and opportunity for comment), it may also result in 
subjecting affected individuals to the penalties provided under the 
MMPA (50 CFR 216.107(h)). Employing alternative monitoring, especially 
monitoring

[[Page 9293]]

identified as being less effective, without either verbal or written 
approval by NMFS, and, steps being taken by NMFS to modify the IHA (if 
the monitoring requirement is in the IHA), is viewed by NMFS as a 
violation of the permit conditions.
    Comment 3: The MMC notes that the discussion of harassment in the 
proposed authorization document (65 FR 60407, October 11, 2000), does 
not accurately reflect the statutory definition of that term. Currently 
there is nothing in the definition of Level B harassment that requires 
a determination of behavioral significance for any disruption of 
behavioral patterns that may occur to constitute a taking. In fact, it 
was precisely the lack of a significance threshold that led the 
Administration to propose amending the definition (of harassment in the 
MMPA) earlier this year. While the MMC agrees that the element of 
significance (e.g., effects on reproductive success) is appropriate to 
consider in making a negligible impact determination, the MMC does not 
believe that using it as the threshold for determining whether there is 
the potential for taking by harassment comports with the statutory 
definition. The MMC recommends that NMFS correct this misinterpretation 
of the statute in future documents.
    Response: Although the statutory definition of Level B harassment 
does not contain an explicit significance threshold, NMFS believes that 
there is a minimum significance level inherent in the definition, which 
only prohibits actions with the potential to ``caus[e] disruption of 
marine mammal behavioral patterns, including, but not limited to 
migration, breathing, nursing, breeding, feeding, or sheltering.'' In 
other words, a simple change in a marine mammal's actions does not 
always rise to the level of disruption of its behavioral patterns. If 
an activity that is not directed at a marine mammal has the potential 
to incidentally cause a disruption in one of these patterns, the 
participants should either modify the activity so that it doesn't 
disrupt that behavioral pattern, or apply for a small take exemption. 
If the only reaction to the activity on the part of the marine mammal 
is within the normal repertoire of actions that are required to carry 
out that behavioral pattern, NMFS considers the activity not to have 
caused a disruption of the behavioral pattern, provided the animal's 
reaction is not otherwise significant enough to be considered 
disruptive due to length or severity. Therefore, for example, a short-
term change in breathing rates or a somewhat shortened or lengthened 
dive sequence that are within the animal's normal range and that do not 
have any biological significance (i.e., do not disrupt the animal's 
overall behavioral pattern of breathing under the circumstances), do 
not rise to a level requiring a small take authorization. Under the 
current action, NMFS noted that neither simply hearing a noise from ice 
road construction (and not having a reaction) nor having a minor 
startle reaction such as looking toward the sound source (but no other 
behavioral response) to the noise from ice road construction or 
operation rise to a level to be considered a disruption of a behavioral 
pattern and therefore constitute harassment.
    The National Research Council (NRC, 2000) states that NMFS should 
promulgate uniform regulations based on their potential for a 
biologically significant impact on marine mammals. NMFS concurs and 
that is precisely the reason NMFS and other Federal agencies, including 
the MMC, proposed amending the definition of harassment currently found 
in the MMPA.
    Comment 4: The AEWC states that the McCovey Prospect is in an area 
known for heavy ice conditions, near the ``shear zone'' of the arctic 
ice pack. While Phillips' drilling operations are proposed for the 
winter and early spring months, unprecedented arctic weather and ice 
conditions in recent years have reduced the reliability of any 
projections regarding the behavior of arctic sea ice during this time. 
Fast-moving ice, driven by a combination of ocean currents and winds, 
is a powerful and common force in the Beaufort Sea. Any of the elements 
individually has the capacity to start the ``ice override conditions'' 
that frequently occur offshore in the Arctic. Such events can occur at 
any time when ice is present, subjecting all human activities in the 
vicinity to great danger.
    Response: The Minerals Management Service (MMS) has statutory 
authority over the McCovey Ice Island to ensure the safety of personnel 
and protection of the environment. The applicant is required to design, 
install and maintain the ice island to insure island structural 
integrity, against environmental conditions at the island location, for 
the duration of the exploration activities.
    Phillips submitted the McCovey Ice Island design to the MMS and the 
MMS Certified Verification Agent (CVA) for review and comment. The CVA 
is an independent third-party expert that reviews the applicant's 
design, provides quality assurance and verification during island 
construction and monitoring during drilling. Of particular concern is 
the island's ability to withstand the forces from sea ice pushing 
against the island and sea ice overriding the island working surface. 
All critical equipment, fuel storage, structures, etc. will be setback 
at least 50 feet (15 m) from the edge of working surface of the island. 
The MMS, CVA and Phillips must all agree on the island design, 
construction and monitoring before the MMS will approve the island. It 
is NMFS' understanding that the McCovey Ice Island design has been 
approved by MMS.
    Phillips explains that ice override occurs when a thick sea ice 
sheet moves landward across the shore zone, such as Cross Island, as an 
unbroken sheet. Ice override is not a condition seen when ice moves 
against ice; instead this results in pressure ridges and rubble fields. 
Once the McCovey Ice Island is constructed and grounded, it will be a 
large solid mass of ice weighing about 370 million lbs (135,080,000 
kg). Therefore, if sea ice should move, it will not move across the 
island, instead, because the outer perimeter is constructed of ice, the 
sea ice will produce ``rubbling.'' The more rubbling that occurs, the 
better protected the island will be against future movements.
    Comment 5: The AEWC believes that, because the McCovey Prospect is 
an exploration well, the risk of an uncontrolled release of oil is even 
greater than the risk created by a production site like Northstar. The 
AEWC is especially concerned that an oil spill at the McCovey Prospect, 
even during the winter and early spring, could threaten the 
availability of bowhead whales and other marine resources for 
subsistence use.
    Response: When making a determination that an activity will have no 
more than a negligible impact on a species or stock of marine mammal 
and that the taking will not have an unmitigable adverse impact on the 
availability of such species or stock for subsistence uses, NMFS may 
find that these determinations are appropriate, if the probability of a 
take occurring is low even though the potential effects may be 
significant should that event occur. In these cases, NMFS must balance 
the probability of occurrence of impacts with the potential severity of 
harm both to the species or stock of marine mammal affected, and to the 
Inupiat communities that depend upon the bowhead whale to meet its 
subsistence needs (see 54 FR 40338, September 29, 1989). Such 
determinations must be made based on the best scientific information 
available.
    NMFS recognizes that, while there is considerable disagreement as 
to the effects of an oil spill on bowhead

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whales and other marine mammals in the Alaskan Beaufort Sea, to date no 
blowouts have occurred during drilling exploratory wells in Alaskan 
waters. The MMS uses an Oil Spill Risk Analysis to estimate the 
probability of an oil spill on bowhead whales and other marine mammals 
and concluded that, for the base-case the probability for an oil spill 
of 1,000 barrels or more to occur and contacting bowhead whale habitat 
when bowhead whales were present, from all activities associated with 
Lease Sale 124 (both exploration and potential development) was low. 
Because this probability is based on a significant amount of activity, 
the potential for an individual activity must be considered even less. 
However, some data on the anatomy and migratory behavior of bowhead 
whales suggest that impacts from a large oil spill could pose a threat 
to this species, especially if substantial amounts of oil got into the 
lead system during the spring migration (Albert 1981, Shotts et al. 
1990). However, using the information provided in MMS' Final 
Environmental Impact Statement for Lease Sale 124 (MMS, 1990), which 
fully describes this scenario, NMFS does not find evidence that there 
would be more than a minimum potential for an oil spill to occur as a 
result of a single exploratory well and even less potential for that 
spill to reach the bowhead whale spring or fall migrations. This 
supports NMFS' conclusion that the activity will not have more than a 
negligible impact on marine mammals, including the bowhead whale, 
inhabiting the Beaufort Sea.
    Comment 6: The AEWC strongly opposes the issuance of a small take 
authorization to Phillips for exploratory drilling at the McCovey 
Prospect at this time, since there are no measures in place to mitigate 
the impacts to Native Alaskan subsistence hunting if an oil spill were 
to occur as a result of the proposed activities. The AEWC also believes 
that, because only a small number of exploratory wells (possibly only 
two) have ever been drilled from ice islands in the Beaufort Sea, the 
AEWC's confidence is further reduced that Phillips and its contractors 
have the experience or the capability to address the potential risks 
that would be created by the proposed activity. Finally, the AEWC 
believes that Phillips does not have a plan to expeditiously complete a 
relief well to control a blowout at the McCovey site.
    Response: Bugno et al. (1990) indicate that, as of 1988, 34 
exploratory wells have been drilled in the Beaufort Sea using floating 
ice platforms and two using grounded ice platforms. Apparently, few 
have been drilled since that time. However, Phillips has provided an 
Oil Discharge Prevention and Contingency Plan (ODPCP) to the MMS. The 
ODPCP is an extensive document that addresses oil spill response, 
logistics, several spill scenarios, cleanup activities, and numerous 
other aspects of oil spill prevention and response. It is NMFS' 
understanding that the ODPCP has been approved by MMS and that the 
ODPCP contains a plan to expeditiously complete a relief well.
    In addition, as noted in Phillips application, the North Slope 
operators and several other firms have jointly formed an oil spill 
response cooperative (ACS), which is based in Deadhorse, AK. ACS is 
contractually obligated to provide response services for the McCovey 
operations. ACS maintains one of the world's largest inventories of 
spill contaminant and cleanup equipment there for use by all members. 
ACS also has a full time staff trained in operation and maintenance of 
the cooperative's spill equipment. Additionally, Phillips has its own 
inventory of spill response equipment on the North Slope in each 
current or soon-to-be producing sites, such as Kuparuk and Alpine, as 
part of its development field operations. Other oilfield operators also 
have spill response equipment located at their field and are available 
to provide support pursuant to a Mutual Aid Agreement between all North 
Slope operators. This equipment can be mobilized for spill response as 
needed. Finally, the Deadhorse, AK service contractors maintain a crew 
of personnel trained in oil spill response activities that can be 
utilized as needed.
    While NMFS recognizes the difficulties in responding to an oil 
spill under the ice or in broken ice, as demonstrated recently at the 
Northstar test, because, as mentioned in response to comment 5, the 
potential is low for (1) an oil spill to occur from a single 
exploratory well, (2) any of that spilled oil to either reach the 
offshore spring leads, or (3) spilled oil to remain in the area to 
intercept the westward migrating bowheads several months later, NMFS is 
unable to concur with the AEWC that the drilling one or more 
exploratory wells during the winter, 2000/2001 will have an unmitigable 
adverse impact (as defined in 50 CFR 216.103) on the availability of 
the marine mammals species or stock for subsistence uses. This, NMFS 
believes, is further supported by: (1) the issuance of a land use 
permit to Phillips by the North Slope Borough (NSB) to conduct this 
activity and (2) the lack of concern expressed by NSB that Phillips and 
the NSB had not concluded a Conflict Avoidance Agreement (CAA). NMFS 
notes that the NSB has, in the past, either denied permits, or amended 
the scope of work through a CAA, when it determined that the activity 
had a potential to affect the subsistence harvest.
    Comment 7: The AEWC notes that since the OCS tract containing the 
McCovey prospect was leased, the MMS and the State of Alaska have 
recognized the unacceptable level of risk created by proposed 
development in the area of Cross Island. As a result, both agencies 
have created lease sale stipulations that prohibit the siting of 
production facilities within a 10-mile (16-km) radius of Cross Island, 
unless the lessee demonstrates to the satisfaction of the MMS Regional 
Director, in consultation with the NSB and the AEWC, that the 
development will not preclude reasonable subsistence access to bowhead 
whales.
    Response: NMFS understands that the MMS did not find there was an 
unacceptable risk from development in the Cross Island area. For Lease 
Sale 170, MMS considered both a lease stipulation to minimize effects 
to whales from noise and space use conflicts (subsistence activities) 
and a deferral area (remove the area from any leasing). The MMS opted 
to adopt the lease stipulation, as noted in the AEWC comment, which 
prohibits permanent production facilities within a 10-mile (16-km) 
radius of Cross island, unless the lessee can demonstrate to the 
satisfaction of the MMS Regional Director, in consultation with the NSB 
and the AEWC, that the development would not preclude reasonable 
subsistence access to the whales. If McCovey is a commercial discovery, 
MMS would do a full environmental review (likely an environmental 
impact statement) and would further evaluate these issues based on a 
project specific development plan. The stipulation, however, is 
directed only at permanent production facilities, not temporary 
exploratory activities, such as McCovey. According to the MMS, the 
driving issue was noise and space use conflicts, not oil spills.
    Comment 8: The AEWC recommends that NMFS not issue the IHA to 
Phillips while meetings are ongoing to develop mitigation measures to 
help address adverse impacts to coastal subsistence communities in the 
event of an offshore oil spill or an event with similar effects on 
subsistence lifestyle.
    Response: The meetings between the oil industry and the AEWC/NSB 
concern long-term mitigation

[[Page 9295]]

agreements for offshore oil development activities, not, in particular, 
the offshore oil exploration industry. Considering that the last 
meeting of the group was held in Anchorage, AK in July, 2000, and that 
no meetings are currently planned, NMFS cannot accept this 
recommendation. NMFS believes that the principal mitigation measures 
proposed for this activity, which are: (1) the activity will be 
conducted in winter time to avoid impacts to the fall bowhead whale 
hunt, (2) an approved ODPCP to address oil spill response and cleanup 
activities and will be in place, and (3) the ACS has been established 
to respond to an oil spill, is sufficient for NMFS to determine that 
the oil exploration activity at McCovey will not have an unmitigable 
adverse impact on subsistence needs for bowhead whales or other marine 
mammal species.
    Comment 9: The MMC believes not only that the use of trained dogs 
to locate ringed seal lairs and other structures is the preferred 
method, it is the only reliable method for doing so. The MMC, 
therefore, supports NMFS' proposal to condition the requested IHA to 
require the use of dogs for monitoring.
    Response: Thank you for the comment.
    Comment 10: Phillips notes that its proposed monitoring plan 
includes the use of trained dogs to locate seal structures due to 
discussions at the 1999 on-ice workshop and the subsequent LOAs that 
were issued that year. However, the proposal to use dogs does not 
reflect Phillips' support for this monitoring method. Phillips notes 
that the use of dogs to locate seal structures may cause harm to ringed 
seals. Phillips states that a study was recently published which 
indicates that dogs may transmit disease to ringed seals, and that at 
least one Alaskan island has banished dogs for this very reason. Also, 
it is likely that a ringed seal would consider a dog to be a predator, 
and a predator's approach to a ringed seal's lair could result in a 
behavioral response that may have biological significance on the part 
of the animal. While Phillips is committed to reducing any impact of 
its operations on ringed seals, for these reasons it would prefer not 
to use trained dogs in the future.
    Response: NMFS recognizes Phillips' reluctance to using dogs on the 
ice and in that context, strongly recommends the oil industry promote 
research on alternate, effective, means to locate ringed seal 
structures. However, as noted in the previous comment, the use of 
trained dogs to locate seal structures is the only reliable method 
known at this time to accurately locate seal structures in the Beaufort 
Sea. While domestic dogs carry some diseases (e.g., canine distemper) 
which have been found in seals, and there have been some who have 
hypothesized that dogs transmit these diseases to seals, other 
carnivores also carry these diseases, so it is not clear whether dogs 
were actually the vector. In addition, the trained Labrador retrievers 
used in this monitoring program are routinely vaccinated for the types 
of diseases which are of the greatest concern. While dogs have been 
prohibited on the Pribilof Islands for many years, this prohibition is 
to prevent the harassment, injury and mortality of the northern fur 
seals on the Islands. Since the Arctic fox, which is indigenous to 
these Islands, is also a vector for transmission of disease to marine 
mammals, prohibiting dogs for this reason would not have any beneficial 
value.
    Comment 11: Phillips is concerned because NMFS notes that it 
intends to continue to require applicants to use dogs ``until such time 
as NMFS has clear evidence that ice roads and other activities taking 
place during the winter are not having a cumulative impact on ringed 
seals... .'' Phillips states that NMFS recently stated that it does not 
have statutory or regulatory authority to require applicants to monitor 
for cumulative impacts. Thus, Phillips believes that it is 
inappropriate to require it to use dogs to determine whether cumulative 
impacts are occurring.
    Response: Trained dogs will be required as part of the IHA issued 
to Phillips for work at McCovey. Since an IHA is valid for no more than 
a single year, NMFS cannot require monitoring for a period of time 
after expiration of the IHA. However, NMFS can require monitoring be 
designed and implemented to detect cumulative impacts if a project is 
either proposed to take place over several years (such as the Northstar 
oil production facility) or when an individual activity is receiving an 
annual IHA for conducting essentially the same activity every year, 
such as seismic work in the Beaufort Sea. At this time, it is the 
opinion of the scientists attending the November 6-9, 2000, Beaufort 
Sea Marine Mammal Monitoring Workshop in Seattle, WA that site specific 
monitoring efforts are critical components of any cumulative impacts 
monitoring program.
    Comment 12: Phillips notes that monitoring requirements on the 
industry have only increased over the years, despite a lack of a more-
than-negligible effect on ringed seals and other marine mammals. Under 
these circumstances, Phillips believes that it is more reasonable to 
decrease the monitoring burdens imposed on it than to continually 
increase them.
    Response: NMFS disagrees that monitoring has increased 
significantly for the oil and gas exploration industry conducting 
winter operations. Since neither Phillips nor its predecessor have 
applied for IHAs for constructing ice roads and an ice island 
previously, NMFS questions its concern that monitoring requirements on 
it be reduced. Prior to 1999, ice-road construction authorizations 
simply required the use of biologically trained, on-site individual(s), 
approved in advance by NMFS, to conduct on-ice searches for ringed seal 
lairs. Marine mammal scientists determined that such monitoring was 
ineffective in locating seal structures. That type of monitoring has 
been replaced by the use of trained dogs to locate seal structures. 
Although all indications to date are that on-ice activities are not 
having more than a negligible impact on ringed seal populations, 
monitoring and research to conclusively verify or refute this 
assumption has not been designed or implemented. Requiring the use of 
trained dogs to monitor impacts on ringed seal structures, is a first 
step to obtaining that information.
    Comment 13: The MMC recommends that NMFS should not accept human 
monitoring (i.e., without the use of trained dogs) until it has been 
demonstrated that such monitoring is as effective as that carried out 
using dogs.
    Response: NMFS notes that there are only a limited number of dogs 
trained to locate seal structures currently available in Alaska. These 
dogs are mostly used in conducting scientific research. In addition, 
some industry components are proposing to use dogs trained in Canada, 
but even those are limited in number and periods of availability. With 
increasing levels of activity in the Beaufort Sea, for which NMFS is 
requiring trained dogs to monitor for ringed seal structures, NMFS 
needs to reserve the right to waive this form of monitoring, if dogs 
are not available. NMFS prefers to return to requiring human searches 
using avalanche probes prior to either not requiring any monitoring, or 
worse, allowing the use of untrained dogs (which would have the 
potential to increase the level of ringed seal disturbance).

Description of Habitat and Marine Mammals Affected by the Activity

    A detailed description of the Beaufort Sea ecosystem and its 
associated marine mammals can be found in several

[[Page 9296]]

documents (Corps of Engineers, 1999; Minerals Management Service (MMS), 
1990, 1992, 1996; NMFS, 1997).

Marine Mammals

    The Beaufort/Chukchi Seas support a diverse assemblage of marine 
mammals, including bowhead whales (Balaena mysticetus), gray whales 
(Eschrichtius robustus), beluga (Delphinapterus leucas), ringed seals 
(Phoca hispida), spotted seals (Phoca largha) and bearded seals 
(Erignathus barbatus). Descriptions of the biology and distribution of 
these species, as well as others, can be found in several other 
documents (Hill et al., 1999; Hill and DeMaster, 1999, 1998; NMFS, 
1997). Please refer to those documents for information on the biology, 
distribution and abundance of these species. However, because the 
proposed oil exploration activity will take place only during the 
winter, only ringed seals and, possibly, a few bearded seals have any 
potential to be impacted by the project. A description of the biology 
and abundance of these two seal species are addressed in NMFS' 
Environmental Assessment (EA) on Winter Seismic Activities (NMFS, 
1998). The documents mentioned here and in other parts of this document 
are considered part of this decision-making process.
    In addition to the species mentioned in the preceding paragraph, 
polar bears (Ursus maritimus) also have the potential to be taken 
incidental to the proposed activity. This species is under the 
jurisdiction of the USFWS. As a result, Phillips has applied for a LOA 
from the USFWS for the taking of this species incidental to the McCovey 
drilling project.

Potential Impacts on Marine Mammals

    Disturbance by noise is the principal means for potential takings 
by harassment by this activity. The marine mammal most likely to be 
impacted by construction of the ice road and ice island is the ringed 
seal. A slight possibility exists to impact bearded seals. While the 
applicant noted that there is a chance that a ringed seal could be 
killed during ice road construction (and ice island construction), NMFS 
believes that noise from road and island construction activity, the 
timing of the construction in December, and the monitoring described 
later in this document will make the injury or mortality of ringed 
seals very unlikely. However, the ice island location cannot be moved 
due to the engineering required for ice island design and construction. 
As a result, breathing holes or structures located within the footprint 
of the island will be covered by ice and the seals would need to 
relocate. However, constructing the island in December will mitigate 
the potential for damage to birthing lairs since most ringed seal birth 
lairs are not built until later in the winter, pups are not born until 
mid-March in this area, and several structures would be available for 
each seal by that time for use as birthing and pupping lairs.
    Site specific ringed seal survey work was conducted by Western 
Geophysical at the McCovey location during April 2000 (Coltrane and 
Williams, 2000). A total of 22 seal structures were found in the core 
survey area and the surrounding 1 km (0.62 mi) monitoring zone. An 
additional 21 structures were found in the transit survey route. 
Seventeen of the structures were breathing holes, 20 were lairs, and 6 
were unidentified; none of the identified lairs were birthing lairs. 
Coltrane and Williams (2000) reported that 28 structures were revisited 
later. The remaining 15 structures were not rechecked as these 
structures were either of unknown status or frozen at the time of the 
initial search. Four breathing holes were found to be abandoned since 
the initial search (one was abandoned due to research, not industrial 
activity). The total abandonment rate of active seal structures after 
shallow hazards survey operations was 11 percent (3 of 28). In 
addition, the initial survey revealed that 19 percent (8 of 43) of the 
structures located had already been abandoned prior to any industrial 
searches. Coltrane and Williams (2000) believe that this natural 
abandonment rate was comparably higher than the abandonment rate after 
industrial activities in the area (19 percent compared to 11 percent). 
As noted at the 2000 Seattle On-Ice Workshop however, others believe 
that these rates cannot be compared because the periods during which 
the holes could have become abandoned are drastically different. 
Therefore, it may be unknown whether abandonment rate due to shallow 
hazard survey is the same as the natural abandonment rate (Angliss, 
pers. comm., 2001).
    Aerial surveys of seal density and abundance, conducted in 1997 in 
support of the Northstar project (which is approximately 9 miles (14.5 
km) to the west from the proposed McCovey Prospect), indicated an 
average density over the area (including the McCovey Prospect area) of 
0.43 ringed seals/km\2\. The overall observed density on landfast ice, 
over water depths of 5-20 m (16.4-65.6 ft), was 0.42 ringed seals/km\2\ 
(Miller et al., 1998). Surveys conducted in 1999 by Richardson and 
Williams (2000) indicated an overall observed density of 0.56 seals/
km2. Excluding waters less than 3 m (9.8 ft) deep where ringed seals 
were rarely seen, the overall observed density was 0.63 seals/km\2\. 
The overall observed density in areas greater than 3 m (9.8 ft) deep 
was higher in 1999 than in either 1997 or 1998 (0.39 seals/km\2\).
    Based on the methodology for assessing ringed seal takes by 
industrial activities at Northstar (see BP Exploration (Alaska), 1998), 
Phillips estimates that less than 31 ringed seals may be within an area 
where harassment takings might potentially occur. This estimate is 
based on the assumptions that any ringed seals within 0.4 mi (0.644 km) 
of the ice road and within 2.3 mi (3.7 km) of the ice island may be 
able to hear the noise associated with the McCovey Prospect. This 
estimate is based on the density recorded during the 1997 aerial survey 
of 0.42 seals/km\2\ (Miller et al. 1998). Phillips believes that this 
estimate of take is very conservative since the noise associated with 
ice island construction should be less than the noise associated with 
construction of the gravel island at Northstar. The 2.3 mi (3.7 km) was 
based on noise measurements made by Greene (1983) for construction of 
Seal Island in 1982. Also, the estimated ``take'' is based on the 
entire ice road length of 12.5 miles (20.12 km) with no deduction for 
areas where the ice road may cross grounded ice (with no ringed seal 
presence).
    Bearded seals are not expected to be in the area except in very 
small numbers and, therefore, should not be affected by the activity. 
Bearded seal preference for open water further limits the potential for 
their being in this area at this time of the year.
    Therefore, based on the preceding discussion, NMFS concludes that 
the taking by noise harassment incidental to construction of the ice 
road and ice island will result in no more than a few dozen harassment 
takings by this activity.

Potential Effects on Subsistence Needs

    NMFS has not identified any unmitigable adverse impacts by this 
activity that are likely to occur and thereby affect the availability 
of marine mammals for subsistence needs. While there is a potential for 
a significant impact on the availability of bowhead whales for 
subsistence needs should a large oil spill occur and not be cleaned up 
prior to either reaching the spring leads or remaining in the area all 
summer to intercept the westward migrating bowheads, the potential for 
that occurring from a single activity is considered remote.

[[Page 9297]]

Potential Effect on Habitat

    The ice island will be a temporary structure on the winter ice. The 
temporary loss of this area is negligible when compared with the size 
of the nearshore Beaufort Sea. When drilling and well-testing 
operations are completed, the well will be plugged and abandoned in 
accordance with MMS and Alaska Oil and Gas Conservation Commission 
regulations. This abandonment will leave the project area in 
essentially an unmodified condition since no wellhead or other 
structures will remain above the ocean floor.
    In the unlikely event that there is an oil spill, Phillips has 
prepared an oil discharge prevention and contingency plan (ODPCP) 
specifically for this activity. The ODPCP is an extensive document that 
addresses spill response, several spill scenarios, cleanup activities, 
and numerous other aspects of oil spill prevention and response. Oil 
spill response teams are located in Deadhorse, AK. Phillips and other 
operators have oil spill response equipment available in each current 
or soon-to-be oil-producing area on the North Slope.

Mitigation

    Several mitigation measures to reduce the potential for marine 
mammal harassment will be implemented by Phillips as part of its 
proposed activity. These include:
    (1) Conducting a winter drilling program using a land-based rig 
instead of using the Concrete Island Drilling System platform, a 
floating platform, or a semisubmersible platform. The latter two 
platforms would require the need for icebreaker vessels;
    (2) Conducting drilling operations during winter months instead of 
during the open water season, and
    (3) Constructing the ice road and ice island in December before 
seal structures are made into fully developed lairs and especially 
before ringed seals birthings begin in mid-March.

Marine Mammal Monitoring

    Phillips will utilize trained dogs and visual observations to 
assess the level of take of, and impact to, ringed seals during project 
activities. Prior to commencing ice road or ice island construction, 
trained dogs will be used to locate seal breathing holes and lairs 
along the proposed footprint of the ice road route and ice island pad. 
An adjacent 150-m (492-ft) buffer along the ice road route and a 1-km 
(0.62-mi) buffer around the ice island will also be surveyed by dogs. 
Although Phillips has arranged for trained dogs to be available for 
this activity, in the event that these dogs are not available for the 
survey (incapacitated, ill, etc), after review and approval by NMFS, 
Phillips would be allowed to employ a visual survey prior to onset of 
construction activities. The visual survey would involve searching the 
designated area for breathing holes and examining pressure ridges, ice 
hummocks, and deep ice cracks for lairs. Attempts will be made to 
confirm the presence of lairs by using an aluminum rod to locate the 
breathing hole or lair access hole where practical. Success in visually 
locating lairs will be limited by the relatively low density of ringed 
seals combined with the difficulty of finding breathing holes or lairs 
on snow-covered ice during winter conditions. A professional marine 
mammal biologist and an Inupiat hunter would be conducting the visual 
survey.
    In order to obtain an indication of ringed seal response to 
Phillips' operations, a second seal structure survey will be conducted 
near the end of the McCovey project activities. The second survey will 
be conducted by biologists on snow machines using Differential Global 
Positioning System units to relocate and determine the presence or 
absence of seals in lairs identified during the first survey. Any new 
holes would also be noted.
    Once drilling begins, a designated polar bear watch (typically an 
Inupiat hunter) will also look for and record seal activities. Because 
of the low expectation of interactions during the winter with marine 
mammals that are under the jurisdiction of NMFS, dedicated observers 
are not considered necessary on the ice island. As a result, NMFS is 
requiring, as part of the IHA, that Phillips instruct the polar bear 
watchperson to maintain a sightings-and-behavior log for seals that is 
separate from the Polar Bear Sightings Log. This latter reporting 
requirement is mandated by 50 CFR 18.27. Failure to use dogs when 
available may be in violation of the IHA and may result in suspension 
or termination of that IHA.

Reporting

    The IHA requires Phillips to submit one report under this proposed 
authorization. This report will be required 90 days after completion of 
activities authorized for marine mammal takings. That report will be 
reviewed by NMFS prior to formal acceptance and modifications may be 
required to that report as a result of its review.

National Environmental Policy Act

    The activity proposed by Phillips was the subject of a Final 
Environmental Impact Statement prepared by MMS in conjunction with 
Lease Sale 124 (MMS, 1990).

Endangered Species Act (ESA)

    No species listed as either threatened or endangered under section 
4 of the ESA are likely to be taken as a result of either the activity 
described in this document or the issuance of an IHA under section 
101(a)(5)(D) of the MMPA.

Conclusions

    Based upon the information contained in the application, in this 
document, and in supplemental documentation, NMFS has determined that 
the short-term impact of exploration drilling and related activities in 
the U.S. Beaufort Sea will result, at worst, in a temporary 
modification in behavior by certain species of pinnipeds. While 
behavioral modifications may be made by these species of marine mammals 
to avoid the resultant noise from ice road and ice island construction, 
or from the transportation of the oil rig and supplies on the ice road, 
or from 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 or death is anticipated, 
and takes will be at the lowest level practicable due to incorporation 
of the mitigation measures mentioned previously. No known 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.
    Since NMFS is assured that the taking would not result in more than 
the incidental harassment (as defined by the MMPA Amendments of 1994) 
of small numbers of certain species of marine mammals, would have only 
a negligible impact on these stocks, would 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) of 
the MMPA have been met and the authorization can be issued.

Authorization

    Accordingly, NMFS issued an IHA on the date of this document to 
Phillips for

[[Page 9298]]

the possible harassment of small numbers of ringed seals and bearded 
seals incidental to constructing an ice road and ice island and 
drilling an oil exploration well at the McCovey Prospect during the 
winter 2000/01, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are carried out.

    Dated: February 1, 2001.
Wanda Cain,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 01-3182 Filed 2-6-01; 8:45 am]
BILLING CODE 3510-22-S