[Federal Register Volume 62, Number 207 (Monday, October 27, 1997)]
[Proposed Rules]
[Pages 55564-55567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28276]


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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

[[Page 55565]]

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/nmi<SUP>2</SUP>. The reported inter-annual variability in overall 
average density during 1970-87 was 0.96 to 3.57 seals/nmi<SUP>2</SUP>. 
Based on an estimated

[[Page 55566]]

displacement due to seismic activity of 0.6 ringed seals/
nm<SUP>2</SUP>, 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

[[Page 55567]]

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]
BILLING CODE 3510-22-F