[Federal Register Volume 72, Number 109 (Thursday, June 7, 2007)]
[Notices]
[Pages 31550-31553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10921]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 050307A]


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 to authorize FEX L.P. (FEX) 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, gray whales, beluga whales, ringed seals, 
bearded seals, and spotted seals in the above mentioned area between 
approximately July 1 and November 30, 2007.

DATES: Comments and information must be received no later than July 9, 
2007.

ADDRESSES: Comments on the application should be addressed 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 mailbox address for providing email comments 
is [email protected]. 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/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 the authorization.

Summary of Request

    On April 26, 2007, NMFS received an application from FEX to take 
several species of marine mammals incidental to the movement of two 
tugs towing barges in the U.S. Beaufort Sea. Marine barges would be 
used to either resupply or demobilize from their ongoing drilling 
activities on the Northwest National Petroleum Reserve-Alaska Oil and 
Gas Leases. For a resupply operation, consumables, fuel, and essential 
pad construction equipment would be marine lifted from West Dock 
(Prudhoe Bay) to the Cape Simpson operational staging area, where it 
would be stored in preparation of the 2007 - 2008 winter exploration 
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 knots.
    Barge traffic between West Dock and Cape Simpson or Pt. Lonely is 
scheduled to occur during the 2007 open-water season. The distance 
between West Dock and Cape Simpson is approximately 240 km (149 mi). 
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. 
Typically the open-water season begins mid- to late July. Every effort 
will be made to complete the barging activities prior to August 15, but 
no later than September 1, 2007. A late season barge effort after

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the annual bowhead whale hunt (late September/early October) and before 
freeze-up (late October/early November) may occur if necessary and 
would be addressed in the Conflict Avoidance Agreement (CAA). The 2007 
open-water marine component will be complete after the supplies are 
stored at Cape Simpson in the case of a resupply, or moved back to West 
Dock or Pt. Lonely in the case of demobilization.

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), Eastern North Pacific gray whale (Eschrichius robustus), 
Beaufort Sea and Eastern Chuchi Sea stocks 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 Outlaw, 2007). A brief description 
of the distribution, 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/pdfs/sars/ak2006.pdf. 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 (approximately 5 knots) and visual monitoring by on-board marine 
mammal observers (MMOs).
    Marine mammal species with the highest likelihood of being harassed 
during the tug and barge movements are: beluga whales, ringed seals, 
spotted 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. 
Most summering gray whales congregate in the northern Bering Sea, 
particularly off St. Lawrence Island and in the Chirikov Basin (Moore 
et al., 2000), and in the southern Chukchi Sea. In August 2001, 
Williams and Coltrane (2002) reported a single sighting of a gray whale 
near the Northstar production facility, indicating that small numbers 
do travel through the waters offshore from the Prudhoe Bay region 
during some summers, however, given their rare occurrence in the 
eastern portion of the Beaufort Sea in summer, no more than a few are 
expected during the summer and early fall.
    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.

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 since there is a lack of 
abundance estimate data for these species within the transit route. 
However, based on prior barging activities in 2005 and 2006, it is 
expected that a small number of marine mammals could be exposed to 
barging noise levels at 120 dB re 1 microPa and above.
    Harassment of cetaceans is possible by the 2007 planned barging 
operations based on the fact that bowhead whales, gray whales, and 
beluga whales were all observed during the 2005 operations (although no 
cetaceans were observed during 2006). Gray whales in 2005 were observed 
near Pt. Barrow, outside the West Dock/Cape Simpson operating lane, 
during periods the vessels traveled to Elson Lagoon to avoid foul 
weather. No gray whales have been observed between West Dock and Cape 
Simpson, and are not expected to be encountered unless weather 
conditions once again dictate the safety need of the vessels anchoring 
at Elson Lagoon.
    Beluga distribution is difficult to predict. Sightings are always 
possible, especially if the pack ice is nearby.
    The barging travel route between West Dock and Cape Simpson 
approximately follows the 7.5 m (25-ft) isobath. This nearshore depth 
zone represents the southern edge of the bowhead fall migration route. 
Aerial surveys conducted by Treacy (2002) between 1982 and 2001 found 
bowheads migrating in water this shallow in only 5 (25 percent) of the 
20 years of survey. Thus, given the shallow water barging travel route, 
and the inter-annual differences in whale use of these waters, the 
number of whale sightings expected to be encountered might vary from 0 
(as in 2006) to 9 (in 2005).
    Some of the whales observed in 2005 may have briefly occurred in 
the 120-dB sonification zone (l km or 0.62 mi radius), therefore, Level 
B harassment of bowhead whales is possible. However, given the shallow 
water travel route, the low whale use of this shallow water area, the 
presence of marine mammal observers onboard the barges to detect whales 
early and help direct the barge away from the whales, the relatively 
short distances to the 120-dB isopleths, especially for the half the 
time the vessel are traveling unloaded, and based on cetacean 
encountering rates during the 2005 barding activity, NMFS expects that 
at maximum 9 bowhead whales, 8 beluga whales, and 4 gray whales could 
be exposed to sound levels greater than 120 dB during the 2007 barging 
season. These take numbers would represent approximately 0.09 percent 
of the Western Arctic bowhead whales (population estimated at 10,545), 
0.02 percent of the Beaufort Sea beluga whales (population estimated at 
39,258) or 0.21 percent of the Eastern Chukchi Sea beluga (population 
estimated at 3,710), and 0.02 percent of the Eastern North Pacific gray 
whales (population estimated at 18,178).
    During the 2005 and 2006 barging season, 2,419 seals representing 
three species (ringed, spotted, and bearded seals) were recorded. 
Approximately 90 percent of these animals were ringed seals.
    In 2006, reactions were recorded for 1,020 of the ringed seal 
sightings. Of these, 48 percent (490) had no reaction, 37 percent (381) 
reacted mildly, and 15 percent (148) more strongly and showed startling 
behavior. The percentage of ringed seals that reacted strongly is very

[[Page 31552]]

similar to the 17 percent recorded in 2005.
    Of the 23 spotted seal sighting for which reactions were recorded 
in the 2006 barging season, 30 percent (9) showed behavioral changes.
    Eighteen (24 percent) of the 75 unidentified phocids and 2 (7 
percent) of 28 bearded seals sighted showed behavioral reactions as a 
result of the 2006 barging activity.
    Based on the 2005 and 2006 barging activities, NMFS estimates that 
approximately 530 ringed seals, 10 spotted seals, 2 bearded seals, and 
9 unidentified phocids could be taken by Level B harassment as a result 
of the proposed 2007 barging activity. These numbers represent less 
than 0.02, 0.02, and 0.0008 percent of ringed, spotted, and bearded 
seals in the proposed barging route, respectively. The population 
estimates for these animals are approximately 249,000, 59,214, and 
250,000 - 300,000 for ringed, spotted, and bearded seals, respectively.

Effects on Subsistence Needs

    Barrow residents 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, takes in the Cape Simpson and Point Lonely areas.
    The most important area for Nuiqsut hunters is off the Colville 
River Delta in Harrison Bay, between Fish Creek and Pingok Island. 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); and (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.
    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.
    The barging, as scheduled, would be completed before the westward 
migration of bowhead whales in the fall and the associated subsistence 
activities by the local whalers. Finally,
    the travel route occurs west of Cross Island (Nuiqsut fall bowhead 
camp) and east of Barrow, therefore it does not pass by any of the 
whaling base camps.

Mitigation, Monitoring, and Reporting

    As in 2005 and 2006, FEX propose to conduct a marine mammal 
monitoring program as part of the 2007 program. This program would 
involve the placement of an MMO onboard each vessel to conduct 
continuous monitoring for marine mammals. The MMOs will be trained by a 
qualified marine mammal biologist and be approved by NMFS.
    The observers will scan the area around tug/barge with 7 x 50 
reticule binoculars during the daylight hours, and document the 
presence, distribution, behavior, and reaction of marine mammals 
sighted from project-associated vessels. The primary purpose of the 
marine mammal monitoring program is to monitor the reaction of marine 
mammals to the presence of the vessels, and to detect early any whales 
occurring in the barge path thereby allowing the vessel captain time to 
avoid a close approach to the animals.
    FEX is also working with the Alaska Eskimo Whaling Commission 
(AEWC) to develop a CAA. FEX met with the AEWC on May 24 and agreed 
upon the contents of the CAA. The CAA is expected to be signed in early 
June. FEX will continue to maintain interactive dialogue to resolve 
conflicts and to notify communities of any changes in the operations.
    Reports for each roundtrip will be prepared and provided to NMFS 
and AEWC at the end of each trip. If a coordination center is opened by 
other North Slope operators and operated during FEX's monitoring 
operations, marine mammals trip sighting reports will be provided to 
that location.
    A report documenting and analyzing any harassment or other 
``takes'' of marine mammals that occur as part of this monitoring 
program will be provided to NMFS within 90 days of completion of the 
monitoring activities. Copies will be provided to other qualified 
interested parties. 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 barging transportation 
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 proposed IHA on bowhead whales will 
be compared with the analysis contained in the 2001 biological opinion. 
NMFS will determine whether the effects of the proposed activity are 
consistent with the findings of that biological opinion, and, 
accordingly, NMFS will decide whether an Incidental Take Statement 
under section 7 of the ESA will be issued prior to making a final 
determination of issuing the IHA.

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 (FEIS) 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 FEISs, and 
subsequently, on May 18, 2000, adopted the Corps' FEIS as its own 
document. The FEIS described impacts to marine

[[Page 31553]]

mammals from Northstar construction activities, which included vessel 
traffic similar to the currently proposed action by FEX. NMFS is 
currently evaluating the FEIS to determine whether the proposed 
activity and its likely effects have been analyzed in the FEIS adopted 
in 2000. NMFS will make a determination as to the need for additional 
NEPA analysis prior to issuing the IHA.

Preliminary Conclusions

    NMFS has determined preliminarily that the short-term impact of 
conducting a barging operation between West Dock and either Cape 
Simpson or Point Lonely, in the U.S. Beaufort and associated activities 
will result, at worst, in a Level B harassment of temporary 
modification in behavior by a small number of certain species of whales 
and pinnipeds.
    In addition, no take by injury and/or death is anticipated or 
authorized, 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 barge transit 
route.
    The principal measures undertaken to ensure that the barging 
operation will not have an unmitigable 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 
avoids barging operations during the traditional bowhead whaling season 
as much as possible.

Proposed Authorization

    NMFS proposes to issue an IHA for the harassment of marine mammals 
incidental to FEX conducting a barging operation from West Dock 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.

    Dated: June 1, 2007.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E7-10921 Filed 6-6-07; 8:45 am]
BILLING CODE 3510-22-S