[Federal Register Volume 70, Number 87 (Friday, May 6, 2005)]
[Notices]
[Pages 24002-24005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9127]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 040805A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Movement of Barges through the Beaufort Sea between West Dock and Cape 
Simpson or Point Lonely, Alaska

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

ACTION: Notice of receipt of application and proposed incidental 
harassment authorization; request for comments.

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SUMMARY: NMFS has received a request from FEX L.P. (FEX), a subsidiary 
of Talisman Energy, Inc for an authorization to take small numbers of 
marine mammals by harassment incidental to conducting a barging 
operation within the U.S. Beaufort Sea. Under the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
authorize FEX to incidentally take, by harassment, small numbers of 
bowhead whales, beluga whales, ringed seals, bearded seals, and spotted 
seals in the above mentioned area between approximately July 1 and 
November 30, 2005.

DATES: Comments and information must be received no later than June 6, 
2005.

ADDRESSES: Comments on the application should be addressed to Steve 
Leathery, Chief, Permits, Conservation and Education Division, Office 
of Protected Resources, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910-3225, or by telephoning the 
contact listed here. The mailbox address for providing email comments 
is [email protected]. NMFS is not responsible for e-mail comments 
sent to addresses other than the one provided here. Comments sent via 
e-mail, including all attachments, must not exceed a 10-megabyte file 
size. A copy of the application containing a list of the references 
used in this document may be obtained by writing to this address or by 
telephoning the contact listed here and is also available at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. Documents cited in this notice may be viewed, by 
appointment, during regular business hours, at this address.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2289, ext 128, or Brad Smith, 
Alaska Region, NMFS, (907) 271-3023.

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 marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed 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 that the permissible methods of 
taking and requirements pertaining to the monitoring and reporting of 
such takings 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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Except with respect to certain activities not pertinent here, the MMPA 
defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].

[[Page 24003]]

    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
marine mammals. Within 45 days of the close of the comment period, NMFS 
must either issue or deny issuance of the authorization.

Summary of Request

    On March 29, 2005, NMFS received an application from FEX for the 
taking of several species of marine mammals incidental to the movement 
of two tugs towing barges from West Dock, Prudhoe Bay, Alaska to Cape 
Simpson or Point Lonely in the U.S. Beaufort Sea. The Kavik River (1100 
horsepower (h.p.)) and the Sag River (1100 h.p.) or comparable class 
tugs, will each tow a single barge to Cape Simpson or Pt. Lonely. 
Approximately 8 round-trips will be required for project mobilization. 
Actual barging would be completed in an approximate 20-day period 
depending on ice conditions and sea states. Two barges would make the 
initial run to Cape Simpson/Point Lonely, and one would be left at one 
of those locations to serve as a temporary dock-head. The other barge 
would then make approximately 6 round trips. At the end of the barging 
operation, the barge serving as a temporary dockhead and the second 
barge would return to West Dock. FEX will make every effort to avoid 
periods of whale migration and subsistence activities and to complete 
the barging by August 15th, but no later than September 1st. If 
necessary, a late season barging effort may be required between October 
15 and November 30, 2005.
    Marine barge transit of a drilling rig, consumables, fuel, 
essential construction equipment and supplies from West Dock to Cape 
Simpson or Pt. Lonely is proposed. Equipment will be staged and stored 
in preparation for the upcoming winter on-shore oil and gas drilling 
and testing season. All drilling activities and bottom hole locations 
will be located on Federal Northwest National Petroleum Reserve Oil and 
Gas Leases.

Description of Marine Mammals Affected by the Activity

    The Beaufort Sea supports many marine mammals under NMFS 
jurisdiction, including bowhead whales (Balaena mysticetus), beluga 
whales (Delphinapterus leucas), ringed seals (Phoca hispida), bearded 
seals (Erignathus barbatus) and spotted seals (Phoca largha). A brief 
description of the biology, distribution, and current status of these 
species can be found in the FEX application. More detailed descriptions 
can be found in NMFS Stock Assessment Reports. Please refer to those 
documents for more information on these species. The latter document 
can be downloaded electronically from: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html#Stock Assessment Reports. 
The FEX application is also available on-line (see ADDRESSES).

Potential Effects of Tug/Barge Operations and Associated Activities on 
Marine Mammals

    Potential harassment of marine mammals will result from the noise 
generated by the operation of towing vessels during barge movement. The 
physical presence of the tugs and barges could also lead to disturbance 
of marine mammals by visual or other cues. The potential for collisions 
between tug vessels and whales will be essentially zero due to the slow 
tow speed (2 knots) and visual monitoring by on-board marine mammal 
observers.
    Marine mammal species with the highest likelihood of being harassed 
during the tug and barge movements are: beluga whales, ringed seals, 
and bearded seals. Spotted seals are less likely to be harassed during 
the tug/barge movement because they normally reside closer to the 
shore. Bowhead whales are the only species listed under the Endangered 
Species Act (ESA) that could potentially be affected by these 
activities. However, they are not expected to be encountered in more 
than very small numbers during the planned period of time for the tug/
barge movement because the majority of bowhead whales will be on their 
summer feeding grounds in Canadian waters. A few transitory whales may 
be encountered during the transits. Beluga whales occur in the Beaufort 
Sea during the summer, but are expected to be found near the pack ice 
edge north of the proposed movement route. Depending on seasonal ice 
conditions, it is possible that belugas may be encountered during the 
transits.
    Based on past surveys, ringed seals should represent the vast 
majority of marine mammals encountered during the transits. Ringed 
seals are expected to be present all along the tug/barge transit 
routes. There is the possibility that bearded and spotted seals will 
also be harassed during transit. Spotted seals may be present in the 
West Dock/Prudhoe Bay, but it is likely that they may be closer to 
shore and therefore are not expected to be harassed during transit 
phase.

Numbers of Marine Mammals Expected to Be Taken

    The number of marine mammals that may be taken as a result of the 
tug/barging operation is unpredictable. Operations are scheduled to 
occur prior to the westward migration and associated subsistence 
bowhead whale hunts to purposely avoid any take of this species. Noise 
disturbance from vessels might qualify as harassment to seals, but 
previous surveys have indicated little behavioral reaction from these 
animals to slow-moving vessels.

Effects on Subsistence Needs

    Residents of the village of Barrow are the primary subsistence 
users in the activity area. The subsistence harvest during winter and 
spring is primarily ringed seals, but during the open-water period both 
ringed and bearded seals are taken. Barrow hunters may hunt year round; 
however in more recent years most of the harvest has been in the summer 
during open water instead of the more difficult hunting of seals at 
holes and lairs (McLaren 1958, Nelson 1969). The Barrow fall bowhead 
whaling grounds, in some years, includes the Cape Simpson and Point 
Lonely areas (e.g. the 1990 season, when a large aggregation of feeding 
bowheads were pursued by Barrow hunters).
    The most important area for Nuiqsut hunters is off the Colville 
River Delta in Harrison Bay, between Fish Creek and Pingok Island 
(149[deg]40' W). Seal hunting occurs in this area by snow machine 
before spring break-up and by boat during summer. Subsistence patterns 
are reflected in harvest data collected in 1992 where Nuiqsut hunters 
harvested 22 of 24 ringed seals and all 16 bearded seals during the 
open water season from July to October (Fuller and George, 1997). 
Harvest data for 1994 and 1995 show 17 of 23 ringed seals were taken 
from June to August, while there was no record of bearded seals being 
harvested during these years (Brower and Opie, 1997).
    Due to the transient and temporary nature of the barge operation, 
impacts upon these seals are not expected to have an unmitigable 
adverse impact on subsistence uses of ringed and bearded seals because: 
(1) transient operations would temporarily displace relatively few 
seals; (2) displaced seals would likely move only a short distance and 
remain in the area for potential harvest by native hunters; (3) studies 
at the Northstar development found no evidence of the development 
activities affecting the availability of seals for subsistence hunters; 
however, the Northstar vicinity is outside the areas

[[Page 24004]]

used by subsistence hunters (Williams and Moulton, 2001); (4) the area 
where barge operations would be conducted is small compared to the 
large Beaufort Sea subsistence hunting area associated with the 
extremely wide distribution of ringed seals; and (5) the barging, as 
scheduled, will be completed prior to beginning of the fall westward 
migration of bowhead whales and the associated subsistence activities 
by the local whalers.
    In order to further minimize any effect of barge operations on the 
availability of seals for subsistence, the tug boat owners/operators 
will follow U.S. Coast Guard rules and regulations near coastal water, 
therefore avoiding hunters and the locations of any seals being hunted 
in the activity area, whenever possible.
    While no impact is anticipated on the availability of marine mammal 
species and stocks for subsistence uses, FEX is currently discussing 
its proposed barging plan with the Alaska Eskimo Whaling Commission 
(AEWC). Meeting schedules are being finalized with the subsistence 
communities, the AEWC and the Whaling Captains Association. FEX plans 
an interactive dialogue in the communities and will provide project 
details and specifications during the meetings. The meetings will be 
conducted to resolve potential conflicts with either the project 
operation or the plan of cooperation. FEX will provide details of those 
meetings and will provide a copy of the draft Plan of Cooperation to 
NMFS.
    The FEX's activities will comply with an agreed-upon Conflict 
Avoidance Agreement (CAA) prior to the autumn bowhead hunt by the 
residents of Kaktovik (Barter Island), Nuiqsut (Cross Island) and 
Barrow Native villages. Ice, bad weather conditions, and other possible 
operational considerations may affect the timing of the barge activity 
and may require that some activities take place beyond the scheduled 
target dates, but not during the September 1 - October 15 period.

Mitigation

    FEX proposes to mitigate any potential negative impacts from its 
barging operation by planning the timing of operations in such a way as 
to reduce the production of noise during the fall bowhead whale 
migration. This includes not operating barges during the time bowheads 
are migrating and feeding in the western Beaufort Sea (approximately 
late-August through mid-October). In addition to these mitigation 
measures, FEX is working with the AEWC, North Slope Borough, and other 
whaling communities to complete a new CAA to eliminate impacts to 
subsistence hunting of bowheads and thereby on bowheads themselves.

Monitoring

    During all tug/barging operations, FEX will have on-board marine 
mammal monitors throughout the transit. As part of its application, FEX 
proposes to conduct a visual monitoring program for assessing impacts 
to marine mammals during the barge transits. FEX proposes to initiate a 
comprehensive training program for all potential marine mammal 
observers that includes learning the identification and behavior of all 
local species known to use the areas where FEX will be operating. This 
training would be conducted by professional marine biologists and 
experienced Native observers participating in the monitoring program. 
The observer protocol would be to scan the area around vessels with 
binoculars of sufficient power. Range finding equipment will be 
supplied to observers in order to better estimate distances. Observers 
would collect data on the presence, distribution, and behavior of 
marine mammals relative to FEX activities as well as climatic 
conditions at the time of marine mammal sightings. Observations would 
be made on a nearly 24-hour basis.

Reporting

    All monitoring data collected would be reported to NMFS on a weekly 
basis. FEX must provide a final report on 2005 activities to NMFS 
within 90 days of the completion of the activity. This report will 
provide dates and locations of all barge movements and other 
operational activities, weather conditions, dates and locations of any 
activities related to monitoring the effects on marine mammals, and the 
methods, results, and interpretation of all monitoring activities, 
including estimates of the level and type of take, numbers of each 
species observed, direction of movement of all individuals, and any 
observed changes or modifications in behavior.

ESA Consultation

    The effects of oil and gas exploration activities in the U.S. 
Beaufort Sea on listed species, which includes the proposed activity, 
were analyzed as part of a consultation on oil and gas leasing and 
exploration activities in the Beaufort Sea, Alaska, and authorization 
of small takes under the MMPA. A biological opinion on these activities 
was issued on May 25, 2001. The only species listed under the ESA that 
might be affected during these activities are bowhead whales. The 
effects of the proposed IHA on bowhead whales will be compared with the 
analysis contained in the 2001 biological opinion. If NMFS determines 
that the effects of the current activity are consistent with the 
findings of that biological opinion, and if an authorization to 
incidentally harass marine mammals listed under the ESA is issued for 
this activity under the MMPA, NMFS will issue an Incidental Take 
Statement under section 7 of the ESA.

National Environmental Policy Act (NEPA)

    On February 5, 1999 (64 FR 5789), the Environmental Protection 
Agency (EPA) noted the availability of a Final Environmental Impact 
Statement (Final EIS) prepared by the U.S. Army Corps of Engineers 
under NEPA on Beaufort Sea oil and gas development at Northstar. NMFS 
was a cooperating agency on the preparation of the Draft and Final 
EISs, and subsequently, on May 18, 2000, adopted the Corps' Final EIS 
as its own document. That Final EIS described impacts to marine mammals 
from Northstar construction activities, which included vessel traffic 
similar to the currently proposed action by FEX. NMFS is currently 
reviewing this Final EIS and will make a final NEPA determination on 
this action prior to making a determination on the issuance of the IHA 
to FEX.

Preliminary Conclusions

    NMFS has preliminarily determined that the short-term impact of 
conducting a barging operation between West Dock, Prudhoe Bay and 
either Cape Simpson or Point Lonely, in the U.S. Beaufort and 
associated activities will result, at worst, in a temporary 
modification in behavior by certain species of whales and pinnipeds. 
While behavioral modifications may be made by these species to avoid 
the resultant noise or visual cues from the barging operation, this 
behavioral change is expected to have a negligible impact on the 
survival and recruitment of marine mammal stocks.
    While the number of potential incidental harassment takes will 
depend on the year-to-year distribution and abundance of marine mammals 
in the area of operations, due to the distribution and abundance of 
marine mammals during the projected period of activity and the location 
of the proposed activity, the number of potential harassment takings is 
estimated to be small. In addition, no take by injury and/or death is 
anticipated, and there is no potential for temporary or permanent 
hearing impairment as a result of the

[[Page 24005]]

activities. No rookeries, mating grounds, areas of concentrated 
feeding, or other areas of special significance for marine mammals 
occur within or near the relocation route.
    The principal measures undertaken to ensure that the barging 
operation will not have an adverse impact on subsistence activities are 
a CAA between FEX, the AEWC and the Whaling Captains Association; a 
Plan of Cooperation; and an operation schedule that will not permit 
barging operations during the traditional bowhead whaling season.

Proposed Authorization

    NMFS proposes to issue an IHA for the harassment of marine mammals 
incidental to FEX conducting a barging operation for approximately 20 
days from West Dock, Prudhoe Bay Alaska, through the U.S. Beaufort Sea 
to either Cape Simpson or Point Lonely. This proposed IHA is contingent 
upon incorporation of the previously mentioned mitigation, monitoring, 
and reporting requirements. NMFS has preliminarily determined that the 
proposed activity would result in the harassment of small numbers of 
bowhead whales, beluga whales, ringed seals, bearded seals and spotted 
seals; would have no more than a negligible impact on these marine 
mammal stocks; and would not have an unmitigable adverse impact on the 
availability of marine mammal stocks for subsistence uses once the Plan 
of Cooperation is submitted to NMFS and the previously described CAA is 
signed.

Information Solicited

    NMFS requests interested persons to submit comments and information 
concerning this proposed IHA and the application for regulations 
request (see ADDRESSES).

    Dated: May 2, 2005.
P. Michael Payne,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 05-9127 Filed 5-5-05; 8:45 am]
BILLING CODE 3510-22-S