[Federal Register Volume 72, Number 75 (Thursday, April 19, 2007)]
[Notices]
[Pages 19695-19699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7471]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 032207A]


Taking of Marine Mammals Incidental to Specified Activities; On-
ice Geotechnical Operations 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 marine mammals, by harassment, 
incidental to conducting an on-ice marine geotechnical operations in 
the U.S. Beaufort Sea, has been issued to ConocoPhillips Alaska, Inc 
(CPAI) for a period of one year.

DATES:  This authorization is effective from April 15, 2007, until 
April 14, 2008.

ADDRESSES:  A copy of the application, IHA, an Environmental Assessment 
(EA) for the proposed action, and a list of 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 one of the contacts 
listed here (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT:  Shane Guan, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 137 or Brad Smith, Alaska Region, 
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 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.

[[Page 19696]]

    Permission 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 for certain categories of 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 November 29, 2006, NMFS received an application from CPAI for 
the taking, by harassment, of a small number of ringed seals (Phoca 
hispida) incidental to conducting geotechnical portions of a site 
clearance survey just north of Cross Island, in the spring of 2007. The 
site clearance location will be on the outer continental shelf (OCS) 
and State of Alaska leases in the U.S. Beaufort Sea. The proposed 
operation will be active 24 hours per day and use a conventional 
geotechnical drilling rig.
    The purpose of the site clearance is to confirm that the seafloor 
has soil and surface characteristics that will support the safe set-
down of a drill rig, and long-term occupation of the site by such a 
vessel.
    The geographic region of the proposed geotechnical activity 
encompasses 2 13 km\2\ (5 mi\2\) areas in the south central Alaska 
Beaufort Sea on the fast ice. The region is about 3 miles (4.8 km) 
north of Cross Island at approximately 147[deg]57' W and 70[deg]32' N. 
There will also be a sea ice route directly from Deadhorse to the site, 
which will be about 24 km (15 miles) long and 0.01 km (35 ft) wide. The 
closest Eskimo village to the site clearance location is Nuiqsut, which 
is over 60 miles (97 km) away. Water depths in the proposed project 
area are typically less than 60 ft (18.2 m).
    The proposed geotechnical operation would use a small drill rig 
that runs either 5-ft (1.5-m) long augers for soil samples or 10-ft (3-
m) jointed pipe to recover core samples. The drill rig would use cone 
penatrometers for cone penetration tests. Sea water circulation and 
occasionally mud systems would be used on the drill rig to stabilize 
the hole. This work is part of an overall shallow hazards investigation 
of the project.
    CPAI initially planned to conduct the proposed project between 
February and April, 2007, however, it has postponed it until April, 
2007. If the proposed project cannot be completed by the end of May 
2007 due to ice conditions, CPAI will resume the project in February 
2008, and complete it in April 2008, under this IHA.
    A detailed description of these activities was published in the 
Federal Register on January 22, 2007 (72 FR 2653). No other changes 
have been made to these proposed activities except the project time 
described above.

Comments and Responses

    A notice of receipt and request for 30-day public comment on the 
application and proposed authorization was published on January 22, 
2007 (72 FR 2653). During the 30-day public comment period, NMFS 
received the following comments from one private citizen, the North 
Slope Borough (NSB), and the Marine Mammal Commission (Commission).
    Comment 1: One private citizen opposes the project out of concern 
that marine mammals would be killed by the proposed project in the 
Beaufort Sea.
    Response: As described in detail in the Federal Register notice of 
receipt of the application (72 FR 2653, January 22, 2007), no marine 
mammal will be killed or injured as a result of the proposed on-ice 
geotechnical operations by CPAI. The project would only result Level B 
behavioral harassment of a small number of ringed seals. No take by 
Level A harassment (injury) or death is anticipated or authorized from 
this project.
    Comment 2: The Commission recommends that NMFS issue the IHA to 
CPAI, provided that CPAI be required to use trained dogs for locating 
ringed seal lairs and other structures. Both the Commission and the NSB 
recommend that trained dogs be used to detect and locate ringed seal 
lairs and other structures. The NSB further states that a single native 
hunter will not be sufficient for locating lairs and that seal 
breathing holes are not confined to deformed ice or pressure ridges.
    Response: While NMFS believes that the use of trained dogs to 
locate ringed seal lairs during on-ice geotechnical operations is the 
best method to detect ringed seals in winter, NMFS also believes that 
the use of experienced subsistence hunters should be an alternative 
before ringed seal pupping season, starting on March 15, if the CPAI 
cannot complete the project by then. As for the proposed project, only 
a limited number of holes in and near a small rig footprint would be 
drilled, one single experienced hunter is sufficient for detecting seal 
lairs before March 15. CPAI requested use of an Inupiat hunter since it 
was successfully usedat McCovey for a rolligon operation. Allowing a 
proven method of using an experienced hunter prior to the ringed seal 
pupping season is a reasonable alternative to trained dogs. Even though 
experienced hunters may not be as efficient to detect breathing holes, 
NMFS does not believe this will cause any mortality or seriously injure 
ringed seals. However, for activities that occur after March 15th, CPAI 
will use trained dogs to locate seal lairs.
    Comment 3: The Commission assumes that CPAI has explored the need 
for an authorization from the U.S. Fish and Wildlife Service (FWS) to 
take polar bears (Ursus maritimus) incidental to the proposed 
activities. If not, the Commission states, NMFS may wish to advise CPAI 
to do so.
    Response: CPAI states that it has applied for an IHA for the 
incidental takes of polar bears from the FWS, and that the permit is 
pending.
    Comment 4: The Commission recommends that the authorization specify 
that the operations be suspended immediately if a dead or injured 
ringed seal is found in the vicinity of the operations and the death or 
injury could be attributable to the applicant's activities. The 
Commission further recommends that any suspension should remain in 
place until NMFS has (1) reviewed the situation and determined that 
further deaths or serious injuries are unlikely or (2) issued 
regulations authorizing such takes under section 101(a)(5)(A) of the 
MMPA.
    Response: NMFS agrees, and the IHA condition specified that 
operations be

[[Page 19697]]

suspended if a mortality or injury of a marine mammal is detected that 
may be the result of CPAI's activity.
    Comment 5: The NSB points out that CPAI did not provide noise 
information associated with cone penetration test (CPT). The NSB 
questions whether CPT is somewhat similar to pile driving, which could 
create a substantial amount of sound in the environment.
    Response: CPAI states that the CPT work is accomplished using 
hydraulics. Consistent pressure, provided by hydraulics, is necessary 
to accurately measure soil properties. Therefore, CPAI states that 
noise levels generated by CPT work is negligible compared to that of 
pile driving.
    Comment 6: The NSB questions NMFS' conclusion that the effects of 
the proposed geotechnical operations would be short-term within the 
context of disturbance of ringed seals. The NSB further questions how 
long any disturbance of seals as a result of the proposed operations 
might be expected to persist.
    Response: As described in detail in the Federal Register notice (72 
FR 2653, January 22, 2007) the proposed geotechnical operations would 
only last for two weeks during a 3-month period within two small areas 
of 13 km2 (5 mi2). The analyses of the proposed on-ice geotechnical 
operations showed the potential to disturb and temporarily displace 
some ringed seals within the proposed project areas during this short 
time period. Therefore, NMFS believes that the effects of this action 
are expected to be limited to short-term and localized behavioral 
changes involving relatively small numbers of ringed seals.
    Comment 7: The NSB points out that in CPAI's application, CPAI 
suggested it only needs an IHA if the work extends past the later part 
of March, ``prior to the birthing season for ringed seal pups.'' The 
NSB states that ringed seals are present in the CPAI's operational area 
throughout the ice-covered season and not just from late March through 
the ice-covered period. The NSB further states that it is extremely 
likely that CPAI's operations are causing Level B harassment of ringed 
seals, assuming they have already begun, and will have impacts in 
March.
    Response: Generally, NMFS recommends IHAs for activities that occur 
after the start of pupping season, and with the exception of ice road 
construction, activities conducted prior to that time do not require 
IHAs. Considering the number of other activities that take place on the 
ice without IHAs (e.g., snow mobiles), NMFS considers this appropriate. 
However, CPAI is applying for an IHA for the entire period when its on-
ice operations would be conducted. CAPI indicated that it has not 
started its on-ice geotechnical operations and that it will not do so 
prior to obtaining an IHA.
    Comment 8: The NSB does not agree that ringed seals are the only 
marine mammals that might be taken incidentally as a result of CPAI's 
on-ice operations. The NSB is concerned that bowhead whales (Balaena 
mysticetus) and belugas (Delphinapterus leucas) could be potentially 
taken as a result of the proposed action. NSB states that bowheads and 
belugas typically begin passing by Barrow in mid-April, and that in a 
typical year, bowheads and belugas could be off the project area by 
mid-April within several days of passing Barrow. The NSB further states 
that in 2007, ice is very light and there are considerable areas of 
open water between Barrow and the Bering Sea. The NSB also states that 
bearded seals (Erignathus barbatus) will also be in the Beaufort Sea in 
April.
    Response: The nature of the proposed on-ice geotechnical operations 
would require ice thickness of at least 50 in (1.3 m) to support the 
heavy equipment and personnel. This is not typical habitat for cetacean 
species, including bowhead and beluga whales, thus, no cetacean species 
is likely to be found in the vicinity of the project area. In addition, 
the proposed project will not use any impact source sources nor 
airguns, so the generated underwater noises due to the activities are 
negligible and will not impact on any cetacean species in the vicinity. 
CPAI will not operate in the area where ice condition is getting thin 
to allow open lead due to safety concerns.
    In regards to bearded seals, NMFS does not believe these species 
would be affected as a result of the proposed on-ice geotechnical 
operations due to their rare occurrence in the proposed project areas, 
and the small size of these areas.
    Comment 9: The NSB points out that CPAI primarily relied on ringed 
seal data collected at the Northstar development island (Moulton et 
al., 2002) for their estimates of numbers of takes of ringed seals. 
CPAI states that these data are helpful but given that CPAI's 
activities are in deep water and farther offshore, there is potential 
for actually a greater numbers of seals in the project area. The NSB 
suggests that site-specific data on ringed seals are needed for CPAI's 
project area.
    Response: In reviewing and making a determination on the issuance 
of an IHA to SOI for its proposed on-ice R&D project, NMFS used the 
most recent available and best scientific data regarding ringed seal 
density in the proposed project area from works conducted by Kelly and 
Quakenbush (1990), Frost an Lowry (1999), and Moulton et al., (2002), 
which was based on studies at the Northstar development. These studies 
cover a large area of the Beaufort Sea, and the ringed seal population 
estimates derived from these studies are representative of this species 
abundance in the proposed project area. NMFS believes that these data 
provide the best scientific information on ringed seal density and 
abundance in the proposed project area.

Description of the Marine Mammals Potentially Affected by the Activity

    Ringed seals are the only species of marine mammal that may be 
present in the proposed project area during the site clearance period. 
Ringed seals are not listed under the Endangered Species Act (ESA) or 
designated as depleted under the MMPA. Other marine mammal species 
under NMFS' jurisdiction that seasonally inhabit the Beaufort Sea, but 
are not anticipated to occur in the project area during site clearance 
operations, include the bowhead whales (Balaena mysticetus), beluga 
whales (Delphinapterus leucas), bearded seals (Erignathus barbatus), 
and spotted seals (Phoca largha). While some of these species begin to 
enter Beaufort Sea off Point Barrow from the Chukchi Sea during April, 
the project area is over 160 nm (296 km) east of Point Barrow, thereby 
making it highly unlikely these species would occur in the project area 
during the proposed operations. Polar bears also frequent in the 
Beaufort Sea, but they are not addressed in this application because 
they are managed by the FWS. CPAI is applying for an IHA for the 
incidental take of polar bears from the FWS.
    A detailed description of ringed seals can be found in the Angliss 
and Outlaw (2005), which is available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2005.pdf. A more detailed description 
of this species within the proposed action area is provided in the 
January 22, 2007, Federal Register (72 FR 2653). Therefore, it is not 
repeated here.

Potential Effects on Marine Mammals and Their Habitat

    The proposed on-ice geotechnical operations have the potential to 
disturb, including the temporary displacement of, some ringed seals 
within the proposed project area. Incidental take may result from 
short-term disturbances by noise and physical activities associated 
with soil borings, CPT, and rolligon supported support and logistics 
activities. Pup mortality could occur if

[[Page 19698]]

any of these animals were nursing and displacement were protracted. 
However, it is unlikely that a nursing female would abandon her pup 
given the normal levels of disturbance from the proposed activities, 
potential predators, and the typical movement patterns of ringed seal 
pups among different holes. Seals also use as many as four lairs spaced 
as far as 3,437 m (11,276 ft) apart. In addition, seals have multiple 
breathing holes. Pups may use more holes than adults, but the holes are 
generally closer together than those used by adults. This indicates 
that adult seals and pups can move away from site clearance activity. 
All anticipated takes would be Level B harassment, involving short 
term, temporary changes in behavior including displacement by ringed 
seals. The number of seals estimated to be taken is calculated based on 
the most recent density data obtained during ringed seal surveys 
conducted within the geographic area of the planned operation. Moulton 
et al. (2002) reported that ringed seal densities on landfast ice of 
Alaskan Beaufort area range from 0.39 - 0.63 seal/km\2\.
    The size of the proposed project area is 26 km\2\ plus 0.32 km\2\ 
for the travel corridor between the site and Deadhorse with water 
depths greater than 3 m (9.8 ft) below the sea ice. Areas where water 
depths are less than 3 m (9.8 ft) were excluded from the calculation 
since ringed seals typically do not occur in these shallow areas 
(Moulton et al., 2002). The length of the travel corridor associated is 
about 16 km (10 mi) and the calculation for its width was doubled (70 
ft or 200 m) to account for adjustment of the corridor during the 
program due to any changes in ice condition. Therefore, it is estimated 
that between 10 - 17 ringed seals could be taken by Level B harassment 
as a result of the proposed geotechnical operations. This estimated 
take number represents less than 0.004 - 0.007 percent of the ringed 
seal population (estimated minimum 249,000 seals) in the eastern 
Chukchi and Beaufort seas area. The actual take is likely to be lower 
as the IHA requires mitigation and monitoring measures to be 
implemented in the proposed action. No take by Level A harassment 
(injury) or death is expected or authorized.
    The proposed geotechnical operation is not expected to cause any 
permanent impact on habitat and the prey used by ringed seals. All 
surface activities will be on sea ice, which will breakup and drift 
away following spring breakup. Any spills on the ice would be small in 
size and cleaned up before completing the operations. Similarly, all 
materials from the camp and drilling activities will be removed from 
the site before completion of operations. Drilling will have a 
negligible impact on the seafloor, since the bore holes will be small 
and widely spaced, and they will naturally fill in over time due to 
sediment movement by currents. The operation should have no effect on 
ringed seal prey species since most disturbances will be on sea ice. 
Areas containing ice conditions suitable for lairs will be avoided by 
the rolligons to prevent any destruction of the habitat.

Mitigation and Monitoring

    All activities will be conducted as far as practicable from any 
observed ringed seal lairs. Upon commencement of the on-ice 
geotechnical project, CPAI will establish a route along the proposed 
travel corridor and work areas to discourage ringed seals from building 
lairs within the corridor later.
    For all activities conducted after March 15, trained dogs will be 
used to detect and locate ringed seal lairs and other seal structures 
in the travel corridor and work areas where water depth exceeds 3 m 
(9.8 ft) under the ice. For activities conducted before March 15, an 
experienced Inupiat hunter will be hired to serve as a marine mammal 
observer (MMO) to locate potential lairs and breathing holes in the 
travel corridor and work areas where water depth exceeds 3 m (9.8 ft) 
under the ice. The MMO will ride in the lead rolligon. Locations will 
be flagged, Global Positioning System (GPS) coordinates taken and then 
delineated on a map.
    On subsequent trips after seal surveys, rolligon drivers will use 
the map, pre-programmed GPS coordinates and/or flags to avoid potential 
lair habitat and breathing holes when traveling the corridor and work 
areas. The completed map will be provided to NMFS.

Potential Effects on Subsistence

    The primary subsistence village in the region is Nuiqsut, which is 
over 60 miles (97 km) away from the proposed project area. Most seal 
hunting by the village is off the Colville river Delta, between Fish 
Creek to the west and Pingok Island to the east (Fuller and George, 
1997). Seal hunting predominately occurs in the open water during 
summer, when seals are more readily accessible from small boats (Fuller 
and George, 1997). In addition, almost all subsistence seal hunts occur 
during June through August. If a subsistence hunter is encountered in 
the project area, action will be taken to divert the rolligon away from 
the hunter. In addition, CPAI will meet with Nuiqsut representatives 
before commencing geotechnical operations in 2007. The meeting(s) will 
fulfill the requirement in 50 CFR 216.104(a)(12). The proposed 
operations will be modified, where possible and practical, to reflect 
the concerns of the villages and hunters. Taking into account this and 
all mitigation and monitoring, the proposed geotechnical operations 
will not have an unmitigable adverse impact on availablity of marine 
mammals for subsistence uses.

Reporting

    A final report will be submitted to NMFS within 90 days of 
completing the geotechnical project. The report will contain detailed 
description of any marine mammal, by species, number, age class, and 
sex if possible, that is sighted in the vicinity of the proposed 
project area; location and time of the animal sighted; whether the 
animal exhibits a behavioral reaction to any on-ice activities or is 
injured or killed.

ESA

    NMFS has determined that no species listed as threatened or 
endangered under the ESA will be affected by this activity and issuing 
an incidental harassment authorization under section 101(a)(5)(D) of 
the MMPA to CPAI for this on-ice geotechnical project.

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment in March 2007 and issued 
a Finding of No Significant Impact on the proposed action.

Determinations

    For the reasons discussed in this document and in the identified 
supporting documents, NMFS has determined that the impact of the on-ice 
geotechnical operations would result, at worst, in the Level B 
harassment of small numbers of ringed seals, and that such taking will 
have a negligible impact on this species. NMFS also finds that the 
action will not have an unmitigable adverse impact on the availability 
of this species for taking for subsistence uses.
    In addition, no take by Level A harassment (injury) or death is 
anticipated or authorized, and harassment takes should be at the lowest 
level practicable due to incorporation of the mitigation measures 
described in this document.

Authorization

    NMFS has issued an IHA to CPAI for the Level B harassment of small 
number of ringed seals incidental to conducting on-ice geotechnical 
operations in the U.S. Beaufort Sea, provided the

[[Page 19699]]

previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: April 13, 2007.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E7-7471 Filed 4-18-07; 8:45 am]
BILLING CODE 3510-22-S