Taking and Importing Marine Mammals; Taking Ringed Seals

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 970725179-7237-02; I.D. 071497A]

RIN 0648-AK33

Taking and Importing Marine Mammals; Taking Ringed Seals

Incidental to On-Ice Seismic Activities

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comment and information.

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SUMMARY: NMFS has received an application for renewal of a small take

exemption and implementing regulations from BP Exploration (Alaska)

(BPXA), on behalf of itself and several other oil exploration

companies, for a small take of marine mammals incidental to winter

seismic operations in the Beaufort Sea, AK. As a result of that

application, NMFS is proposing regulations that would renew an

authorization for the incidental taking of a small number of marine

mammals. In order to grant the exemption and issue the regulations,

NMFS must determine that these takings will have a negligible impact on

the affected species and stocks of marine mammals. NMFS invites comment

on the application and the proposed regulations.

DATES: Comments and information must be postmarked no later than

November 26, 1997.

ADDRESSES: Comments should be addressed to Chief, Marine Mammal

Division, Office of Protected Resources, NMFS, 1315 East-West Highway,

Silver Spring, MD 20910-3226. A copy of the application and

Environmental Assessment (EA) may be obtained by writing to the above

address, or by telephoning one of the persons below (see FOR FURTHER

INFORMATION CONTACT).

Comments regarding the burden-hour estimate or any other aspect of

the collection of information requirement contained in this rule should

be sent to the above individual and to the Office of Information and

Regulatory Affairs, Office of Management and Budget (OMB), Attention:

NOAA Desk Officer, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead (301) 713-2055

or Brad Smith, Western Alaska Field Office, NMFS, (907) 271-5006.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs

NMFS 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 regulations are issued.

Permission may be granted for periods of 5 years or less if NMFS

finds that the taking will have a negligible impact on the species or

stock(s) of marine mammals, will not have an unmitigable adverse impact

on the availability of these species for subsistence uses, and

regulations are prescribed setting forth the permissible methods of

taking and the requirements pertaining to the monitoring and reporting

of such taking. Specific regulations governing the taking of ringed

seals incidental to on-ice seismic activity, which were published on

January 13, 1993 (58 FR 4091), expire on December 31, 1997.

Summary of Request

On July 11, 1997, NMFS received an application for an incidental,

small take exemption under section 101(a)(5)(A) of the MMPA from BPXA,

on behalf of itself, ARCO Alaska, Inc., Northern Geophysical of

America, Inc. and Western Geophysical Co. to renew the incidental take

regulations found in 50 CFR part 216, subpart J (previously 50 CFR part

228, subpart B), that govern the taking of ringed seals (Phoca hispida)

incidental to seismic activities on the ice, offshore Alaska, for a

period of 5 years. The applicants state that these activities are not

likely to result in physical injuries to, and/or death of, any

individual seals. Because seals are

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expected to avoid the immediate area around seismic operations, they

are not expected to be subject to potential hearing damage from

exposure to underwater or in-air sounds from the operations. Any

takings of ringed seals are anticipated to result from short-term

disturbance by noise and physical activity associated with the seismic

operations.

The scope of the petition is limited to pre-lease and post-lease

seismic exploration activities in state waters and the Outer

Continental Shelf in the Beaufort Sea, offshore Alaska, during the ice-

covered seasons. Because a minimum of 3 to 4 ft (.9-1.2 m) of ice is

required to safely support the weight of equipment, on-ice seismic

operations are usually confined to the 5-month period between January

through May. These seismic surveys will be conducted using two types of

energy sources: (1) Vibroseis, which uses large trucks with vibrators

mounted on them, that systematically put variable frequency energy into

the earth and (2) waterguns or airguns carried by a sleigh or other

vehicle. The vibroseis method is much more common. Over the next 5-year

period, the applicants expect that on-ice seismic activity will cover

approximately 22,500 line miles (mi)(3,610 kilometers (km)) or 4,500

line mi/yr (7,242 km/yr). This compares to 13,247 line mi (21,319 km)

in the aggregate or 1,305 to 4,903 line mi/yr (2,100 to 7,891 km/yr),

during the past 5-year period.

These regulations apply only to the incidental taking of ringed

seals and bearded seals (Erignathus barbatus) by U.S. citizens engaged

in seismic activities on the ice and associated activities in the

Beaufort Sea from the shore outward to 45 mi (72 km) and from Point

Barrow east to Demarcation Point and only from January 1 through May 31

of any calendar year. However, because bearded seals are normally found

in broken ice that is unsuitable for on-ice seismic operations, few, if

any, bearded seals will be impacted, and only ringed seals are expected

to be harassed incidental to the seismic surveys.

The incidental, but not intentional, taking of ringed and bearded

seals by U.S. citizens holding a Letter of Authorization (LOA) is

proposed to be permitted during the following: (1) On-ice geophysical

seismic activities using two types of energy sources (i.e., vibroseis

or waterguns or airguns), and (2) Operation of transportation and camp

facilities associated with seismic activities. Oil drilling activities

will not be covered under this regulation; such activities will need a

separate authorization under either section 101(a)(5)(A) or

101(a)(5)(D) of the MMPA.

Comments and Responses

On August 8, 1997 (62 FR 42737), NMFS published an advance notice

of proposed rulemaking on the application and invited interested

persons to submit comments, information, and suggestions concerning the

application and the structure and content of regulations, if the

application is accepted. Subsequent to the 30-day comment period on

this notice, no comments were received.

Description of Seismic Activities

``Hardwater'' marine geophysical surveys are conducted before and

after oil and gas leases are issued to gather information about

subsurface geology and are divided into two classes of surveys: deep

seismic and shallow hazard. Deep seismic surveys generally map strata

deep beneath the earth's surface (1,000 to 20,000 ft) (364-7,290 m) in

search of typical gas and oil-bearing geologic formations. Shallow

hazard surveys, also known as ``site clearance'' or ``high resolution''

surveys, are conducted to gather information on potential near-surface

hazards (0 to 1,000 ft)(0-364 m) which could be encountered in

exploratory drilling.

After leases are issued and drilling begins, seismic operations

shift from broad reconnaissance surveys to a combination of shallow

hazard surveys and more detailed exploratory work. Post-lease surveys

are limited to specific geographic areas or tracts that are of

interest. Because each tract is surveyed in greater detail, the line

density could increase although the geographic boundaries of the

surveyed area would be smaller. As each survey is limited to a

particular tract or prospect, future survey activity is anticipated to

be widely scattered.

Deep seismic and shallow hazard surveys use the ``reflection''

method of acquiring data. Information abut the earth's subsurface is

gathered by measuring acoustic (sound or seismic) waves that are

generated on or near the surface. The process involves using a

controlled energy source to generate acoustic waves that travel through

the earth (in this case, sea ice and water as well as geologic

formations beneath the sea) and ground sensors to record the reflected

energy transmitted back to the surface.

Several vehicles are normally involved in the vibroseis method of

collecting data. One or two vehicles with survey crews move ahead of

the operation to mark the energy input points. Bulldozers may move

ahead of the crew to prepare pathways for the vehicles. Typically, an

on-ice data-recording operation includes 4 to 5 vibrators, 4 to 5 cable

and sensor carriers, one recording vehicle and one vibrator tender. A

winter-run seismic exploration crew may include 40 to 60 people or up

to 110 people if a 3-dimensional survey is involved.

Acquiring seismic data by using airguns or waterguns is similar to

the vibroseis technique, but the sound source is compressed air or

water rather than vibrations. A detailed description of the methodology

for seismic data collection can be found in the BPXA application and is

not repeated here.

Marine Mammals

The Beaufort/Chukchi Seas support a diverse assemblage of marine

mammals including bowhead whales (Balaena glacialis), gray whales

(Eschrichtius robustus), belukha (Delphinapterus leucas), ringed seals,

spotted seals (Phoca largha), bearded seals, walrus (Odobenus rosmarus)

and polar bears (Ursus maritimus). Descriptions on the biology and

distribution of these species, and others, can be found in several

documents (BPXA 1996, Lentfer 1988, MMS 1992, NMFS 1990 and 1996, Small

and DeMaster 1995). The only marine mammal species under the

jurisdiction of NMFS that are anticipated being potentially taken by

harassment by this action are ringed seals and possibly a few bearded

seals. A description on the biology, distribution, and abundance of

ringed seals and bearded seals in Alaska can be found in BPXA's

application. Information on ringed seals can also be found in NMFS'

1992 EA on this action. Please refer to these documents for information

on this species. For information on polar bears, a species under the

jurisdiction of the U.S. Fish and Wildlife Service, please refer to

rulemaking actions by that agency (see for example, 58 FR 60402,

November 16, 1993, and 60 FR 42805, August 17, 1995).

Potential Impact of On-Ice Seismic Activities on Ringed Seals

Aerial survey data collected from 1970 through 1987 indicate that

ringed seal densities in the fast ice of the Beaufort Sea are highly

variable among years and among different sections from Point Barrow to

Barter Island. The highest observed overall average density of ringed

seals in the fast ice of the Beaufort Sea in any year has been 3.6

seals/nmi2. The reported inter-annual variability in overall

average density during 1970-87 was 0.96 to 3.57 seals/nmi2.

Based on an estimated

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displacement due to seismic activity of 0.6 ringed seals/

nm2, the maximum number of ringed seals that might be

temporarily displaced annually in connection with 4,500 linear mi

(3,913 linear nautical mi (nmi)) of seismic surveys, assuming a random

distribution of seals, is 2,350 seals.

The impact of seismic activities would likely be confined to the

immediate vicinity of operations. Scientists conducted a ground

examination of ringed seals structures to determine their fate along

seismic and control lines and found no significant overall difference.

However, they reported a significant difference in the fates of

structures in relation to distance from seismic lines (within 150 m

(492 ft) of the shot line in comparison to greater distances). These

investigators concluded that displacement in close proximity (within

150 m (492 ft)) to seismic lines does occur, but based on data from

aerial surveys however, there has been no major displacement of seals

away from on-ice seismic operations as currently conducted in the

Beaufort Sea.

Additional factors reduce the probability of incidental take.

Portions of many of the seismic lines are likely to be on ice over

shallow water where ringed seals are either absent or present in low

numbers. Other parts of lines are likely to be within 2 mi (3.2 km) of

shore within favorable seal habitat, but where density of seals is

lowest. Within optimum seal habitat farther from shore, the seismic

operators avoid moderate and large pressure ridges because of concerns

for safety and normal operational constraints. Also, a significant

portion of the on-ice seismic lines and connecting ice roads is

expected to be laid out and explored during January and February when

many ringed seals are still transient.

These studies as well as subsequent observations, indicate that

some individual ringed seals in the immediate area of operations could

be temporarily displaced by on-ice seismic activities. However, given

the wide distribution of ringed seals and the relatively low density of

breeding seals in the Beaufort Sea, only small numbers of animals are

expected to be encountered. Therefore, while impacts might be

significant for individual animals (an abandoned pup, for example),

impacts are expected to be negligible for the overall ringed seal

population.

Potential Impact of On-Ice Seismic Activities on Habitat

Ringed seal habitat may be potentially affected by construction of

ice roads and camps, and removal of ice and snow along survey lines,

camps and roadways. Because the potential area affected represents only

a small part of the Beaufort Sea, and because ringed seal habitat is

restored annually, any impact would be localized and temporary. Habitat

restoration is often immediate, occurring during the first episode of

snow and wind that follows passage of the equipment. Periodic storms

are common in the Beaufort Sea region. Also, seismic crews do not place

energy sources over observed ringed seal lairs, and they do not

typically operate along pressure ridges where lairs are often located.

Because bearded seals are restricted to areas with cracks or other

openings in the ice, and, because on-ice seismic operations must avoid

these areas for safety reasons, few, if any, bearded seals will be

impacted by seismic operations. Any exposure would be limited to short

term and localized disturbance caused by noise with the possibility

that an animal might dive into the water as a result of that

disturbance.

Potential Impact of On-Ice Seismic Activities on Subsistence

On-ice seismic operations in the Beaufort Sea are not expected to

have an impact on subsistence uses of ringed seals. Reasons include:

(1) Subsistence harvests have declined over the past two decades as

Eskimo lifestyles have changed and the MMPA prohibition on hunting

marine mammals for purposes other than subsistence; (2) subsistence

hunting for ringed seals is principally in regions north of Kuskokwim

Bay in the Bering and Chukchi Seas, not the Beaufort Sea area; (3)

seals are now hunted principally with rifles in leads or open water,

not at breathing holes and lairs on the ice; and (4) areas where

seismic operations are conducted are small in comparison to the

Beaufort Sea subsistence hunting areas and displacement due to seismic

activity is limited.

Additionally, because the applicants coordinate activities with the

North Slope Borough and provide communities with information about the

planned activities before initiating any on-ice seismic activities,

impacts on subsistence needs are expected to be negligible.

Mitigation

All activities will be required to be conducted in a manner that

minimizes adverse effects on ringed and bearded seals and their

habitat. Activities must be conducted as far as practicable from any

observed ringed seals or ringed seal lair. For example, no energy

source may be placed over an observed ringed seal lair. Seismic crews

will receive training so that they can recognize potential ringed seal

liars and adjust their seismic operations accordingly.

Monitoring

The requirements for monitoring and reporting include designating a

qualified individual under each operating LOA to observe and record the

presence of ringed seals, bearded seals, and ringed seal lairs along

shot lines and around camps.

Because there is no impact on subsistence hunting, independent peer

review of the monitoring plan is not required.

Reporting

An annual report must be submitted to NMFS within 90 days of

completing the year's activities.

National Environmental Policy Act (NEPA)

In conjunction with a notice of proposed rulemaking on this issue

on September 15, 1992 (57 FR 42538), NMFS released a draft EA that

addressed the impacts on the human environment from regulations and the

issuance of LOAs and the alternatives to that proposed action. As a

result of the information provided in the EA, NOAA concluded that

implementation of either the preferred alternative or other identified

alternatives would not have a significant impact on the human

environment. As a result of that finding, on August 12, 1992, NMFS

signed a Finding of No Significant Impact (FONSI) statement and thereby

determined that an EIS was not warranted and therefore, none was

prepared. Because the proposed action discussed in this document is not

substantially different from the 1992 action, and because a reference

search has indicated that no new scientific information has been

developed in the past 5 years significant enough to warrant new NEPA

documentation, NMFS does not intend to prepare a new EA. A copy of the

1992 EA and FONSI is available upon request (see ADDRESSES).

Classification

This action has been determined to be not significant for purposes

of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Small Business Administration

that this proposed rule, if adopted, would not have a significant

economic impact on a substantial number of small entities as described

in the Regulatory Flexibility Act, because members of the industry

requesting the authorizations

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are major energy exploration companies and their contractors, neither

of which by definition are small businesses. Therefore, a regulatory

flexibility analysis is not required.

This proposed rule contains collection-of-information requirements

subject to the provisions of the Paperwork Reduction Act (PRA). This

collection, which has an OMB control number of 0648-0151, has been

submitted to OMB for review under section 3504(b) of the PRA.

Notwithstanding any other provision of law, no person is required to

respond to nor shall a person be subject to a penalty for failure to

comply with a collection of information subject to the requirements of

the PRA unless that collection of information displays a currently

valid OMB control number.

The reporting burden for this collection is estimated to be

approximately 3 hours per response for requesting an authorization (as

described in 50 CFR 216.104) and 30 hours per response for submitting

reports, including the time for gathering and maintaining the data

needed, and completing and reviewing the collection of information.

Comments are invited on: (a) whether the proposed collection of

information is necessary for the proper performance of the functions of

the agency, including whether the information shall have practical

utility; (b) the accuracy of the agency's estimate of the burden of the

proposed collection of information; (c) ways to enhance the quality,

utility, and clarity of the information to be collected; and (d) ways

to minimize the burden of the collection of information on respondents,

including, through the use of automated collection techniques or other

forms of information technology. Please send any comments to NMFS and

OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 216

Marine mammals, Reporting and recordkeeping requirements.

Dated: October 21, 1997.

Gary C. Matlock,

Acting Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set forth in the preamble, 50 CFR part 216 is

proposed to be amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE

MAMMALS

1. The authority citation for part 216 continues to read as

follows:

Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

2. Subpart J is revised to read as follows:

Subpart J--Taking of Ringed and Bearded Seals Incidental to On-Ice

Seismic Activities

Sec.

216.111 Specified activity and specified geographical region.

216.112 Effective dates.

216.113 Permissible methods.

216.114 Requirements for monitoring and reporting.

Subpart J--Taking of Ringed and Bearded Seals Incidental to On-Ice

Seismic Activities

Sec. 216.111 Specified activity and specified geographical region.

Regulations in this subpart apply only to the incidental taking of

ringed seals (Phoca hispida) and bearded seals (Erignathus barbatus) by

U.S. citizens engaged in on-ice seismic exploratory and associated

activities over the Outer Continental Shelf of the Beaufort Sea of

Alaska, from the shore outward to 45 mi (72 km) and from Point Barrow

east to Demarcation Point, from January 1 through May 31 of any

calendar year.

Sec. 216.112 Effective dates.

Regulations in this subpart are effective from January 1, 1998,

through December 31, 2003.

Sec. 216.113 Permissible methods.

(a) The incidental, but not intentional, taking of ringed and

bearded seals from January 1 through May 31 by U.S. citizens holding a

Letter of Authorization is permitted during the course of the following

activities:

(1) On-ice geophysical seismic activities involving vibrator-type,

airgun, or other energy source equipment shown to have similar or

lesser effects.

(2) Operation of transportation and camp facilities associated with

seismic activities.

(b) All activities identified in Sec. 216.113(a) must be conducted

in a manner that minimizes to the greatest extent practicable adverse

effects on ringed and bearded seals and their habitat.

(c) All activities identified in Sec. 216.113(a) must be conducted

as far as practicable from any observed ringed or bearded seal or

ringed seal lair. No energy source must be placed over an observed

ringed seal lair, whether or not any seal is present.

Sec. 216.114 Requirements for monitoring and reporting.

(a) Holders of Letters of Authorization are required to cooperate

with the National Marine Fisheries Service and any other Federal,

state, or local agency monitoring the impacts on ringed or bearded

seals.

(b) Holders of Letters of Authorization must designate a qualified

individual or individuals to observe and record the presence of ringed

or bearded seals and ringed seal lairs along shot lines and around

camps, and the information required in

Sec. 216.114(c).

(c) An annual report must be submitted to the Assistant

Administrator for Fisheries within 90 days after completing each year's

activities and must include the following information:

(1) Location(s) of survey activities.

(2) Level of effort (e.g., duration, area surveyed, number of

surveys), methods used, and a description of habitat (e.g., ice

thickness, surface topography) for each location.

(3) Numbers of ringed seals, bearded seals, or other marine mammals

observed, proximity to seismic or associated activities, and any seal

reactions observed for each location.

(4) Numbers of ringed seal lairs observed and proximity to seismic

or associated activities for each location.

(5) Other information as required in a Letter of Authorization.

[FR Doc. 97-28276 Filed 10-22-97; 4:15 pm]

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