[Federal Register Volume 70, Number 156 (Monday, August 15, 2005)]
[Notices]
[Pages 47809-47813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16060]


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

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, Alaska

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 a barging operation within the 
U.S. Beaufort Sea has been issued to FEX L.P. (FEX), a subsidiary of 
Talisman Energy, Inc., for a period of 1 year.

DATES: Effective from August 8, 2005 through August 7, 2006.

ADDRESSES: The authorization and application containing a list of the 
references used in this document may be obtained by writing 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 application 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,

[[Page 47810]]

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.
    An authorization 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].
    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 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. Approximately eight 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, and one would be left at one of those locations to serve 
as a temporary dock-head. The other barge would then make approximately 
six 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 by completing barging by August 15\th\, 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 will be conducted. 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.

Comments and Responses

    A notice of receipt and request for 30-day public comment on the 
application and proposed authorization was published on February 8, 
2005 (70 FR 6626). During the 30-day public comment period, NMFS 
received comments from the Marine Mammal Commission (Commission), the 
Alaska Eskimo Whaling Commission (AEWC) and ASRC Energy Services/Lynx 
Enterprises (Lynx), on behalf of FEX.
    Comment 1: Lynx notes that since the submission of the original IHA 
application on March 25, 2005, full details of FEX's planned barging 
operations have become clearer. These clarifications do not 
significantly change either the scope or timing of barging operations.
    Response: NMFS has incorporated these minor modifications (e.g., 
clarification that the terminus of the barging operation will be at 
Cape Simpson and not Point Lonely), into this document and the IHA.
    Comment 2: The Commission believes that NMFS' preliminary 
determinations are reasonable provided that (1) all reasonable measures 
will be taken to ensure the least practicable impact on the subject 
species; and (2) the required mitigation and monitoring activities be 
carried out as described in NMFS' May 6, 2005 Federal Register notice 
and subject application.
    Response: The mitigation and monitoring measures described in the 
earlier Federal Register notice and this document will be carried out 
as described. NMFS has determined that the FEX barging operations will 
result in only small numbers of marine mammals being affected, 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.
    Comment 3: The AEWC notes that it has agreed to prepare a Conflict 
Avoidance Agreement (CAA) to cover the tug/barge operation. It is the 
AEWC's intention to have a CAA ready for signature prior to departure 
for the International Whaling Commission meetings.
    Response: Signing the CAA supports NMFS' determination that the 
proposed barging operation between West Dock and Cape Simpson will not 
have an unmitigable adverse impact on subsistence uses of marine 
mammals. NMFS anticipates that this agreement will be signed shortly.
    Comment 4: The AEWC notes that ceasing barging operations in this 
area of the U.S. Beaufort Sea by August 15\th\ and resuming barging 
operations later in the fall, as proposed by FEX, is an appropriate 
mitigation measure. Tug/barge operations during the open water season 
tend to take longer than expected, usually because of unpredictable 
weather, ice conditions, or logistical problems. As a result, these 
types of operations regularly continue past their planned completion 
dates, creating the risk that they will interfere with the fall bowhead 
whale migration and subsistence hunt. The FEX planned tug/barge 
operation this year between Deadhorse (Prudhoe Bay) and Cape Simpson is 
especially risky because it is within the area used by Barrow hunters 
for the fall bowhead hunt. A similar tug/barge operation by a different 
company in 2003 is thought to have been a factor leading to a 
substantial deflection of bowheads offshore of Barrow that year. As a 
result, halting barge traffic from August 15, 2005 until the villages 
of Barrow, Nuiqsut, and Kaktovik have completed their fall bowhead 
subsistence hunt is a principal mitigation measure contained in the CAA 
between the AEWC and FEX this year.
    Response: NMFS has incorporated this recommended mitigation measure 
into the IHA for FEX.
    Comment 5: Lynx notes that since the submission of the original IHA

[[Page 47811]]

application on March 25, 2005, full details of FEX's planned marine 
mammal monitoring has become clearer. For example, while the marine 
mammal monitoring program remains the same as originally proposed, the 
marine mammal observers will only be allowed aboard the UIC/Bowhead 
Transportation self-propelled barge (i.e., Bowhead Transportation is a 
barging company). The Crowley Marine tug/barge unit cannot accommodate 
observers due to U.S. Coast Guard (USCG) crew berthing restrictions. 
The Bowhead Transportation barge will precede all vessels during 
transit, thus providing the observers opportunity to survey the route 
from a lead position. The Crowley unit will follow a short distance 
astern the Bowhead Transportation barge.
    Response: NMFS appreciates the update on the monitoring plan and 
has amended the mitigation/monitoring section in this document.

Description of Marine Mammals Affected by the Activity

    The Beaufort Sea supports many marine mammals under NMFS 
jurisdiction, including bowhead whales, beluga whales, ringed seals, 
bearded seals and spotted seals. 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 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

[[Page 47812]]

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 will 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 has signed a CAA with the AEWC, North Slope Borough, and other 
whaling communities in order to eliminate impacts to subsistence 
hunting of bowheads and, thereby, on bowheads themselves.

Monitoring

    During all tug/barging operations, FEX will have on-board at least 
one professional marine biologist and one experienced Alaska Native 
marine mammal observer throughout each transit. FEX will conduct a 
visual monitoring program for assessing impacts to marine mammals 
during the barge transits. As mentioned, because the Crowley Marine 
tug/barge unit cannot accommodate observers due to USCG crew berthing 
restrictions, the marine mammal observers will conduct monitoring from 
the Bowhead Transportation self-propelled barge. Bowhead flexi-float 
vessels will be dedicated to the FEX mobilization project until its 
completion. In route to and from Cape Simpson, the Bowhead barges will 
travel independent or in tandem with either another Bowhead barge or a 
Crowley tug, or all three. Because the Crowley tug/barge cannot support 
observers, all Crowley tug/barge trips under contract to FEX must be 
conducted in tandem with a Bowhead vessel having two observers onboard.
    Observers will conduct visual observations from the barge tugs 
between West Dock and Cape Simpson. The monitoring program will 
commence with barges towed from West Dock to Cape Simpson and will 
continue on nearly 24-hour basis until the rig and support equipment 
are placed in storage at Cape Simpson and the barges return to West 
Dock.
    When traveling in tandem, a Bowhead vessel will always be in the 
lead and remain in direct communication with the Crowley tug/barge 
vessel. The Bowhead and Crowley vessels may travel at a [frac1s2] mile 
distance from each other depending upon the weather, but will follow 
the same general route inside the barrier islands and remain as close 
to the shore as possible.
    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 has been compared with 
the analysis contained in the 2001 biological opinion. NMFS has 
determined that the effects of the current activity are consistent with 
the findings of that biological opinion, and, accordingly, NMFS has 
issued 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. Because the barging 
activity discussed in the Final EIS is not substantially different from 
the proposed action by FEX, and because no significant new scientific 
information or analyses have been developed in the past several years 
significant enough to warrant new NEPA documentation, this action is 
categorically excluded from further review under NOAA Administrative 
Order 216-6.

Conclusions

    NMFS has determined that the short-term impact of conducting a 
barging operation between West Dock, Prudhoe Bay and Cape Simpson, 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

[[Page 47813]]

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 
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 is 
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.

Determinations

    NMFS has issued 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 Cape Simpson. This IHA is contingent upon incorporation of the 
previously mentioned mitigation, monitoring, and reporting 
requirements. NMFS has determined that this 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 since the previously described CAA has been 
signed.

Authorization

    NMFS has issued an IHA to FEX L.P. to take a small number of marine 
mammals incidental to conducting a barging operation within the U.S. 
Beaufort Sea, provided the previously mentioned mitigation, monitoring, 
and reporting requirements are incorporated.

    Dated: August 8, 2005.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 05-16060 Filed 8-12-05; 8:45 am]
BILLING CODE 3510-22-S