[Federal Register Volume 71, Number 148 (Wednesday, August 2, 2006)]
[Notices]
[Pages 43715-43718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12476]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 071906A]


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 issuance of an incidental harassment authorization.

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SUMMARY:  In accordance with regulations implementing 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

[[Page 43716]]

L.P. (FEX), a subsidiary of Talisman Energy, Inc., for a period of 1 
year.

DATES:  Effective from August 8, 2006 through August 7, 2007.

ADDRESSES:  The authorization and application containing a list of the 
references used in this document may be obtained by writing to P. 
Michael Payne, 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/pr/permits/incidental.htm. Documents cited in this 
notice may be viewed, by appointment, during regular business hours, at 
this address.

FOR FURTHER INFORMATION CONTACT:  Shane Guan, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 137, 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 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, a notice of a proposed authorization is 
provided to the public for review.
    An authorization shall 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 mitigation, 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 April 5, 2006, NMFS received an application from ASRC Energy 
Services, Lynx Enterprises, Inc. (AES Lynx) on behalf of FEX for the 
taking of several species of marine mammals incidental to the movement 
of two tugs towing barges in the U.S. Beaufort Sea. Marine barges would 
be transporting drilling rig(s), consumables, fuel, essential 
construction equipment and supplies from the West Dock Causeway to Cape 
Simpson or Point Lonely. Equipment would be staged and stored in 
preparation for the upcoming winter on-shore oil and gas drilling and 
testing season. Barges proposed for the marine lift from the West Dock 
Causeway include but are not limited to: Crowley Marine Kavik River and 
the Sag River (1,100 horsepower each) tugs, and Bowhead Stryker or 
Garrett (two engines x 220 horsepower each) barges or comparable class 
vessels. Additional barges and support vessels may be utilized as 
available and needed. Barges would be moving at a speed at about 5 - 6 
knots. From West Dock Causeway, it would take approximately 17.5 hours 
one way for a barge to reach Point Lonely and 22 hours to Cape Simpson. 
FEX plans to start barging activities in the summer of 2006, would make 
every effort to avoid periods of bowhead whale fall westward migration 
and subsistence activities, and would complete the barging by September 
1, 2006. Ice, weather conditions, and other possible operational 
considerations may affect the timing of the barge activity, resulting 
in some activities taking place beyond the scheduled target dates. If 
necessary, a late season barging effort may be required after September 
1, 2006. FEX has entered a Conflict Avoidance Agreement (CAA) with the 
Alaska Eskimo Whaling Commission (AEWC) to obtain approvals from AEWC 
if barging activities occur during the September 1 - October 15 
subsistence whaling period. Operations to support winter on-shore 
drilling operations may include a winter trail on landfast sea ice. FEX 
has determined that this operation will not result in incidental takes 
of marine mammals.

Comments and Responses

    A notice of receipt and request for 30-day public comment on the 
application and proposed authorization was published on June 13, 2006 
(71 FR 34064). During the 30-day public comment period, NMFS received 
comments from the Marine Mammal Commission (the Commission). The 
Commission recommends issuance of the IHA provided that
    (1) All reasonable measures be taken to ensure the least 
practicable impact on the subject species, and
    (2) The required mitigation and monitoring activities (i.e., the 
use of native advisors, the comprehensive training of all marine mammal 
observers, and on-board monitoring throughout the transit operations) 
are carried out as described in NMFS' June 13, 2006, Federal Register 
notice (71 FR 34064) and the application.
    NMFS agrees with the Commission's recommendation and has 
incorporated these mitigation and monitoring measures in the IHA.
    In its comments, the Commission noted that, although similar 
activities occur regularly in the areas occupied by marine mammals, not 
all organizations involved in those activities make an effort to obtain 
proper authorization. The Commission commends FEX and Talisman Energy, 
Inc., for seeking an authorization. In addition, the Commission 
commends the companies for discussing the proposed activities with 
Alaska native groups whose subsistence use of marine mammals could be 
affected.

Description of Marine Mammals Affected by the Activity

    The Beaufort Sea supports many marine mammals under NMFS 
jurisdiction, including Western Arctic bowhead whales (Balaena 
mysticetus), Beaufort Sea stock of beluga whales (Delphinapterus 
leucas), ringed seals (Phoca hispida), bearded seals (Erignathus 
barbatus) and spotted seals (Phoca largha). Only the bowhead whale is 
listed as endangered under the Endangered Species Act (ESA) and 
designated as ``depleted'' under the MMPA. The Western Arctic stock of 
bowhead whales has the largest population size among all 5 stocks of 
this species (Angliss and Lodge, 2004). A brief description of the 
distribution,

[[Page 43717]]

movement patterns, and current status of these species can be found in 
the FEX application. More detailed descriptions can be found in NMFS 
Stock Assessment Reports (SARs). Please refer to those documents for 
more information on these species. The SARs can be downloaded 
electronically from: http://www.nmfs.noaa.gov/pr/sars/species.htm. The 
FEX application is also available on-line (see ADDRESSES).

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

    Level B harassment of marine mammals may 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 vessels and whales will be essentially zero due to the slow tow 
speed (5 - 6 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.
    Bowhead whales 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 most of them will be on their summer feeding 
grounds in the eastern Beaufort Sea and Amundsen Gulf of the Canadian 
waters (Fraker and Bockstoce, 1980; Shelden and Rugh, 1995). 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 would 
also be taken by Level B harassment during transit. Spotted seals may 
be present in the West Dock/Prudhoe Bay area, 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. However, due to the small size 
of the area that the barging activities will cover, it is expected that 
only small numbers of marine mammals would be affected. 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 
marine mammals, 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, 
the harassment of these seals is not expected to have an unmitigable 
adverse impact on the availability of ringed and bearded seals for 
subsistence uses 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 has entered a CAA with the 
AEWC for any of the barging activities that may occur during the 
subsistence whaling period from September 1 - October 15. The FEX's 
activities will comply with the 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.

Mitigation and Monitoring

    FEX will mitigate any potential negative impacts from its barging 
operation by conforming with the CAA with native whalers and operations 
as per the Plan of Operations. Other mitigation measures include use of 
native subsistence advisor/marine mammal observers trained by qualified 
marine biologists and communications with subsistence whaling 
activities so as to avoid deflection or other disturbances to migrating 
mammals and subsistence hunting activities.
    During all tug/barging operations, FEX will have on-board marine 
mammal monitors throughout the transit. As proposed in its application, 
FEX will conduct a visual monitoring program for assessing impacts to 
marine mammals during the barge transits. FEX will 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.

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The observer protocol will 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 will be reported to NMFS on a weekly 
basis. FEX must provide a final report on 2006 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 numbers of each species observed, location (distance) of 
animals relative to the barges, direction of movement of all 
individuals, and description of 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 incidental 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 this 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, no additional 
NEPA analysis is required.

Conclusions

    NMFS has determined that the impact of conducting a short-term 
barging operation between West Dock, Prudhoe Bay and 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 annual rate of 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 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 unmitigable 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 from West Dock, 
Prudhoe Bay Alaska, through the U.S. Beaufort Sea to Cape Simpson or 
Point Lonely. 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 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.

Authorization

    NMFS has issued an IHA to FEX L.P. to take small numbers 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: July 28, 2006.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E6-12476 Filed 8-1-06; 8:45 am]
BILLING CODE 3510-22-S