[Federal Register Volume 63, Number 145 (Wednesday, July 29, 1998)]
[Notices]
[Pages 40505-40512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20280]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
[I.D.061498A]


Taking and Importing of Marine Mammals; Offshore Seismic 
Activities 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 small numbers of bowhead whales 
and other marine mammals by harassment incidental to conducting seismic 
surveys in the Western Beaufort Sea in state and federal waters has 
been issued to Western Geophysical/Western Atlas International of 
Houston, Texas (Western Geophysical).

DATES: Effective from July 23, 1998, until November 1, 1998, unless 
extended.

ADDRESSES: The application, authorization, monitoring plan, 
environmental assessment (EA), and a list of references used in this 
document are available by writing to the Chief, Marine Mammal Division, 
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910-3225, or by telephoning one of the contacts listed 
here.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2055, Brad Smith, Western Alaska 
Field Office, NMFS, (907) 271-5006.

SUPPLEMENTARY INFORMATION:

Background

     Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
directs the Secretary of Commerce (Secretary) 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.
    Permission may be granted if NMFS finds that the taking will have a 
negligible impact on the species or stock(s) and 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 monitoring and reporting of 
such taking are set forth.
    On April 10, 1996 (61 FR 15884), NMFS published an interim rule 
establishing, among other things, procedures for issuing incidental 
harassment authorizations under section 101(a)(5)(D) of the MMPA in 
Arctic waters. For additional information on the procedures to be 
followed for this authorization, please refer to that document.

Summary of Request

    On April 15, 1998, NMFS received an application from Western 
Geophysical requesting an authorization for the harassment of small 
numbers of several species of marine mammals incidental to conducting 
seismic surveys during the open water season in the Beaufort Sea 
between <SUP></SUP>Harrison Bay and Flaxman Island, AK. Weather 
permitting, the survey is expected to take place from middle- to late-
July and to extend until approximately October 20, 1998.
    Disturbance by seismic noise is the principal means of taking by 
this activity. Support vessels and aircraft will provide a secondary 
source of noise. The physical presence of vessels and aircraft could 
also lead to non-acoustic effects involving visual or other cues.
    Seismic surveys are used to obtain data about formations several 
thousands of feet deep. The proposed seismic operation is an ocean 
bottom cable (OBC) survey. OBC surveys involve dropping cables from a 
ship to the ocean bottom, forming a patch consisting of four parallel 
cables 10 kilometers (km) (6.2 mi) long, separated 750 m (2,500 ft) 
from each other. Sensors (hydrophones and geophones) are attached to 
the cables. These hydrophones are used to detect seismic energy 
reflected back from underground rock strata. The original source of 
this energy is a submerged acoustic source, called a seismic airgun 
array, that releases compressed air into the water, creating an 
acoustical energy pulse that is directed downward toward the seabed. 
The source level planned for this project - a maximum of 249 dB re 1 
<greek-m>Pa-m (27.2

[[Page 40506]]

bar-meters; zero to peak) or 255 dB re 1 <greek-m>Pa-m (53 bar-meters; 
peak-to-peak (p-p)) from a 1,500 in<SUP>3</SUP> array of airguns is in 
the lower to middle portion of the range of source levels commonly used 
for seismic operations with airgun arrays (Richardson et al., 1995). 
Normally, 36 seismic lines are run for each patch, covering an area 6.0 
km by 17.5 km (3.7 mi by 10.87 mi), centered over the patch. The source 
lines for one patch will normally overlap with those for adjacent 
patches.
    After sufficient data have been recorded to allow accurate mapping 
of the rock strata, the cable is lifted onto the deck of a cable-
retrieval vessel, moved to a new location (ranging from several hundred 
to a few thousand feet away), and placed onto the seabed again. A 
detailed description of the work proposed for 1998 is contained in the 
application (Western Geophysical, 1998) and is available upon request 
(see ADDRESSES).

Comments and Responses

    A notice of receipt of the application and proposed authorization 
was published on May 20, 1998 (63 FR 27709), and a 30-day public 
comment period was provided on the application and proposed 
authorization. During the comment period, comments regarding this 
application (and/or on a related application from BP Exploration 
(Alaska) (BPXA)), were received from the Marine Mammal Commission 
(MMC), the Alaska Eskimo Whaling Commission (AEWC), LGL Ltd. 
environmental research associates on behalf of the applicant, and 
Greenpeace Alaska (Greenpeace). Information on the activity and 
authorization request that are not subject to reviewer comments can be 
found in the proposed authorization notice and is not repeated here.

General Concerns

    Comment 1: LGL Ltd provided information updating and correcting the 
Federal Register notice that (1) Western Geophysical's cables include 
both hydrophones and geophones, not just hydrophones, and (2) Western 
Geophysical's airguns discharge once every 16 to 24 seconds, not 1 
second in duration every 5 to 12 seconds. These pulses are much less 
than 1 second in duration near the source, increasing to as much as 1 
second in duration as received in the water at long horizontal 
distances.
    Response: Thank you for providing this information.
    Comment 2: On July 1, 1998, Western Geophysical submitted a letter 
to NMFS outlining modifications to its May 20, 1998, application. That 
letter noted that Western Geophysical's activity would be amended by 
the addition of shallow water cable equipment and the inclusion of a 
shallow water acoustic source. The shallow water equipment would be 
used in locations and times when the OBC system was not usable. The two 
sources would not be used simultaneously.
    Response: NMFS has reviewed this letter and determined that, 
because the shallow water source is smaller (560 in<SUP>3 </SUP>) than 
either the 750 in<SUP>3</SUP> or the 1500 in<SUP>3</SUP> seismic 
array<SUP></SUP>, and would not be used simultaneously with the larger 
sources, there will not be a cumulative effect. This modification is 
not considered significant. The IHA will ensure that the two sources 
are not used simultaneously and will require sound transmission 
measurements be made of both sources to ensure that the designated 
safety zones are conservative.

Marine Mammal Impact Concerns

    Comment 3: Greenpeace contends that NMFS, Western Geophysical and, 
BPXA, the second applicant, rely on outdated, incomplete, and 
inaccurate information concerning the zone of influence for seismic 
operations on bowhead whales. Greenpeace believes that NMFS fails to 
respect or incorporate either the traditional knowledge (TK) of local 
whalers presented at various hearings or the results of the 1997 aerial 
surveys, both of which indicate a seismic zone of influence greater 
than the 7.5 km (4.5 mi) used by NMFS. The AEWC believes the data 
clearly shows that bowheads are displaced and deflected at least 20 km 
(12 miles) by the noise of the seismic vessel when operating.
    Response: Western Geophysical's application and the notice of 
proposed authorization note that, in addition to the known responses 
out to a distance of several kilometers, less conspicuous and/or less 
frequent effects may extend to greater distances. Since the application 
was submitted, a draft final report describing BPXA's combined 1996 and 
1997 monitoring results (Richardson [ed.], 1998) has been completed. 
That report shows that (1) BPXA's 1996 and 1997 seismic programs did 
not greatly influence the position of the overall migration corridor; 
(2) although the aerial surveys showed at least partial avoidance of 
the area within 20 km (12 mi) of seismic operations, the 20 km (12 mi) 
figure is a very imprecise estimate of potential avoidance radius; and 
(3) the pattern of bowhead call detection rates at various locations 
north and east of the 1996 area of seismic operations has suggested 
that migrating bowheads either called less often when near active 
seismic vessel, or tended to divert away from that area, or both. For 
additional information on the estimated zones that seismic airguns have 
on bowhead whales, please refer to the proposed authorization notice 
mentioned in this document.
    It is recognized that it is difficult (for scientists at least) to 
determine the maximum distance at which reactions occur (Moore and 
Clark, 1992) that may have an adverse impact on subsistence needs. 
Inuit whalers, on the other hand, believe that whales exhibit avoidance 
reactions as far as 48 km (30 miles) away (MMS, 1997). As a result, 
Western Geophysical developed a Conflict and Avoidance Agreement (C&AA) 
with the whalers to reduce any potential interference with the hunt. 
That agreement was concluded by both parties on July 8, 1998.
    Also, it is believed that the monitoring plan proposed by Western 
Geophysical (LGL Ltd. and Greeneridge, 1998b), revised on the basis of 
comments received during this public review period and at the Peer-
Review Workshop, will provide information that will help resolve 
uncertainties about the effects of seismic exploration on the 
accessibility of bowheads to hunters.
    Comment 4: Greenpeace notes that Western Geophysical fails to 
address the impact of an airgun on bowhead hearing at any number of 
distances within and beyond the zone of influence and fails to account 
for the impact from an airgun array operating 70 m (210 ft) from a 
bowhead. LGL Ltd. comments that the application notice states that 
temporary threshold shift (TTS) is a theoretical possibility for 
animals within a few hundred meters and that mitigation measures are 
designed to avoid exposing mammals to sound pulses that have any 
possibility of causing hearing damage. LGL Ltd notes that TTS is a 
natural protective mechanism built into the mammalian ear. Modest 
levels of TTS do not constitute hearing damage.
    Response: The impact of airguns on bowhead hearing has been 
addressed in several documents, including Western Geophysical's 
application, the supporting EA, and in LGL and Greeneridge (1998). 
Without an ability to collect empirical information on physical impacts 
from airguns on large marine mammals, scientists must rely on either 
surrogate species and make conservative assumptions based upon findings 
for those species.
    Comment 5: Greenpeace notes in its letter that marine mammals use 
sound to communicate and, it is clear, that many species are extremely 
sensitive to

[[Page 40507]]

both sound and physical disturbance. Greenpeace also notes that 
industrial noise and other activities interfere with bowhead cow-calf 
bonding and cause displacement from feeding areas and migratory routes. 
The energetic costs of noise-related changes in behavior and 
distribution patterns are potentially significant and will inevitably 
constitute harassment and ``take.''
    Response: Thank you for providing this comment. Because there are 
potential effects on bowhead whales by seismic activities, an IHA is 
warranted. Under the IHA, NMFS will require Western Geophysical to 
incorporate mitigation and monitoring measures to reduce potential 
impacts to the lowest level practicable.
     Comment 6: Greenpeace states that the fall bowhead migration 
begins in August, and a significant proportion of the population may be 
in the vicinity of Western Geophysical's seismic operations during the 
latter half of August. Citing Moore and Clarke (1991), Greenpeace 
states that, during mid- to late-August, as many as 1,200-3,000 bowhead 
whales may be present in the Beaufort Sea region from the Canadian 
border to the offshore area demarcated by the western boundary of the 
Arctic National Wildlife Refuge.
     Response:  NMFS notes that the region cited by the commenters is 
east of the proposed seismic survey area for Western Geophysical and 
that bowhead whale numbers referenced by Greenpeace are overstated 
because they include bowheads located in the Canadian Beaufort Sea. 
Moore and Clark (1991) estimated that in 1982 through 1984, up to 500 
(range 0-500) bowheads may be in the region annually between the Barter 
and Flaxman islands; however, no whales were sighted west of that 
region prior to September 1 during those years. This is verified by 
Ljungblad et al. (1987). Most sighted bowheads were still in Canadian 
waters.
    NMFS notes that, in general, bowhead whales migrate westward 
through the Alaskan Beaufort Sea from late August to late October, but 
only a portion of the population has been estimated during this time 
period. Other bowheads are either undetectable to observers (i.e., 
under the ice), migrate prior to surveys commencing, or do not migrate 
to the Canadian Beaufort Sea.
     Comment 7: LGL Ltd. provided information that airgun sounds may be 
audible to beluga whales at long distances not only because of the high 
source levels, but also because some energy at frequencies of a few 
hundred hertz propagates horizontally from the seismic vessel. Beluga 
hearing is more sensitive to these frequencies than to the lower 
frequencies that dominate the seismic output (Richardson and Wursig, 
1997; see also Goold, 1998).
     Response: Thank you for providing this information.
    Comment 8: LGL Ltd. provided information from a paper by Kastak and 
Schusterman (1998) updating information provided in Western 
Geophysical's application and in the notice of proposed authorization 
which indicates that, for one harbor seal tested, the hearing threshold 
was 102 dB re 1 uPa at 75 Hz, 96 dB at 100 Hz, and 84 dB at 200 and 400 
Hz. These results are consistent with previously reported preliminary 
data at 100 Hz.
    Response: Thank you for providing this information.
    Comment 9: LGL Ltd. corrected a statement in the notice that ``no 
studies to date have focused on pinniped reaction to underwater noise 
from pulsed, seismic arrays,'' noting that while this was true up to 
early 1996, the monitoring results from the 1996 and 1997 BPXA program 
have provided considerable information about reactions of seals. These 
have been described in detail in the 90-day and final reports on the 
1996 and 1997 BPXA monitoring programs, as described in Richardson 
[ed.] (1998).
    Response: Thank you for the comment. NMFS notes, however, that, 
while opportunistic observations have been made of seismic noise 
impacts on pinnipeds over the last few years, NMFS is aware of only one 
researcher who has physiologically monitored individual animals 
reaction to seismic noise. Preliminary information provided by this 
individual earlier this year at the annual meeting of the Marine Mammal 
Society in Monaco supports the results reported here.

Subsistence Concerns

    Comment 10: The AEWC objects to the issuance of IHA permits to BPXA 
and Western Geophysical because of their opposition to seismic 
activities which interfere with the availability of bowhead whales 
within their subsistence hunting area. Greenpeace believes that seismic 
activities will result in a significant and unmitigable impact to 
subsistence communities.
    Response: As mentioned previously, BPXA withdrew its application 
for an incidental harassment authorization on July 6, 1998. As a 
result, only Western Geophysical will conduct open water seismic 
operations this summer in the U.S. Beaufort Sea. In part, section 
101(a)(5) of the MMPA requires NMFS to ensure that any taking will not 
have an unmitigable adverse impact on the availability of the species 
or stock(s) for subsistence uses. Two elements must be present for NMFS 
to determine that there will not be an unmitigable adverse impact on 
subsistence uses: First, the impact resulting from the specified 
activity must be likely to reduce the availability of the species to a 
level insufficient for a harvest to meet subsistence needs by (1) 
causing the marine mammals to abandon or avoid hunting areas, (2) 
directly displacing subsistence users, or (3) placing physical barriers 
between the marine mammals and subsistence hunters. Second, it must be 
an impact that cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to allow subsistence needs 
to be met (50 CFR 216.103). This standard of determining impact does 
not require the elimination of adverse impacts, but it does require 
mitigation sufficient to meet subsistence requirements. However, the 
MMPA also requires that, where applicable, the measures will ensure the 
least practicable impact on the availability of marine mammals for 
taking for subsistence uses. In 1996 and 1997, these conditions were 
met through the C&AA (also known as a Plan of Cooperation) by requiring 
seismic operations to move west of Cross Island no later than September 
1 or when whalers commenced the bowhead hunting season, whichever was 
earlier. A similar agreement for 1998 was concluded on July 8, 1998, 
between the AEWC/North Slope Borough (NSB) and Western Geophysical. As 
a result of this signed C&AA, NMFS concludes that there will not be an 
unmitigable adverse impact on the subsistence needs of the NSB whalers 
this year due to seismic activities.
    Comment 11 : In order to mitigate impacts on the availability of 
bowhead whales for subsistence needs, the AEWC believes the IHAs, if 
issued to both BPXA and Western Geophysical, must require that (1) all 
seismic operations east of Cross Island cease on August 15 or when a 
bowhead whale is sighted at Kaktovik (whichever is earlier); (2) all 
seismic operations east of 150 degrees West cease on August 15 or when 
active whaling begins in Nuiqsut or Kaktovik (whichever is earlier); 
and (3) all seismic operations cease on September 1 until Kaktovik, 
Nuiqsut, and Barrow have completed their hunts.
    Response: A signed C&AA requiring, among other things, for Western 
Geophysical to cease all seismic activities east of Cross Island after 
August 31 and to move to the westernmost portion of their seismic 
activity area if impacts to bowhead whales continue after moving west 
of

[[Page 40508]]

Cross Island is the result of negotiations between the AEWC and Western 
Geophysical. This signed C&AA supercedes the recommendations made on 
June 2, 1998, by the AEWC.

Mitigation Concerns

    Comment 12: LGL Ltd. noted several errors in the shutdown distances 
for airgun restrictions as published in the notice of proposed 
authorization.
    Response: For clarity, NMFS is republishing the shutdown distance 
criteria in this document (see Mitigation).
     Comment 13: The AEWC recommends that, after August 15, the two 
seismic operations must be arranged so that (1) neither is directly 
offshore of the other, and (2) they are separated by at least a 25-mile 
east-west distance (so that the 12 miles (20 km) exclusion zone, seen 
in the 1997 monitoring, do not overlap.
     Response: Since there are no longer two planned seismic operations 
to be conducted in the Beaufort Sea this summer, response to this 
comment is no longer applicable.

Monitoring Concerns

    Comment 14: Greenpeace contends that the monitoring program 
proposed by Western Geophysical is not sufficiently rigorous nor 
independent to adequately provide reliable research to support findings 
about the impacts of seismic operations on marine mammals. Greenpeace 
recommends an additional 5 bottom-mounted acoustic recorders be 
installed in the offshore Beaufort Sea to detect marine mammal 
(principally bowhead whale) vocalizations. Greenpeace also recommends 
noise measurements be conducted at distances of 10 km (6 mi), 20 km (12 
mi), 30 km (18 mi), 40 km (24 mi), and 50 km (30 mi).
    Response: Thank you for your recommendations. Section 
101(a)(5)(D)(ii)(II) of the MMPA requires authorizations issued under 
this section to prescribe, where applicable, requirements pertaining to 
the monitoring and reporting of such taking by harassment, including 
requirements for independent peer review of proposed monitoring plans 
or other research proposals where the proposed activity may affect the 
availability of a species or stock for taking for subsistence purposes.
    Western Geophysical's proposed monitoring plan for 1998 and the 
results from LGL Ltd.'s 1996 and 1997 Beaufort Sea research were the 
subject of a scientific peer-review workshop held in Seattle, WA, on 
May 17 through 19, 1998. As a result of that workshop and the comments 
submitted on their application, Western Geophysical amended its 
monitoring plan and submitted that plan to NMFS for approval. 
Modifications to the original plan include (1) reference to boat-based 
marine mammal observers onboard the second source vessel; (2) a 32-km 
westward extension of aerial surveys to address the question how far 
west of the seismic area do bowhead whales remain farther offshore than 
usual if bowheads are displaced offshore by seismic; (3) an additional 
autonomous seafloor acoustic recorder (ASAR) farther offshore from the 
area of seismic operations as well as the three previously proposed 
ones along the 25-m contour; and (4) an attempt to retrive the two 
ASARs left on the bottom of the Beaufort Sea last fall.
    This amended plan is being independently peer-reviewed for NMFS. 
Greenpeace's monitoring recommendations will be provided to these 
reviewers for consideration. It should be noted that workshop 
participant's recommended that, in addition to the three bottom-mounted 
recorders planned for deployment by each seismic acitivity, an 
additional 2-3 bottom-mounted recorders be installed offshore of the 
area of seismic operations. However, the withdrawal of BPXA from an 
active seismic program in 1998, made unnecessary the use of a 
significant increase in the number of offshore recorders.
    Comment 15: Greenpeace states that the monitoring program is 
inadequate because it fails to account for the cumulative impact of two 
open-water seismic programs operating concurrently. Greenpeace also 
states that the monitoring program fails to account for the additional 
impacts of ongoing, concurrent and future oil and gas activities. The 
monitoring program must be sufficiently rigorous in design and scope to 
determine this cumulative impact.
    Response: Western Geophysical's and BPXA's proposed monitoring 
plans were the subject of a peer-review workshop held in Seattle, WA, 
between May 17 and 19, 1998. These monitoring plans were being amended 
based upon that workshop when BPXA withdrew from participating in 
seismic exploration during the 1998 open water season. Part of their 
monitoring programs would have addressed the effects of cumulative 
impact of their seismic programs on bowheads. As a result of BPXA's 
withdrawal, there will not be a cumulative impact from seismic 
activities this year (Western Geophysical's two seismic vessels will 
not operate at the same time). A copy of Western's final monitoring 
program is available upon request (see ADDRESSES).
    NMFS is unaware of any oil and gas activities currently underway in 
the offshore Beaufort Sea that might result in impacts to marine 
mammals. Distant water and nearshore activities are presumed by NMFS to 
result in an increase in the ambient noise in the marine environment. 
Increasing ambient noise in this environment is of concern to NMFS. 
Ambient noise measurements have been made by LGL Ltd. in 1996 and 1997; 
opportunistic measurements will continue in 1998 during a one-week 
acoustical measurement program and by use of sonobuoys and bottom 
recorders.
    Comment 16: The MMC recommends NMFS review the data to determine 
whether a single observer is able to locate and determine when any 
marine mammal is in, or is likely to enter, the designated safety zone 
around the towed array and, if not, require that additional observers 
be required.
     Response: NMFS has reviewed the information provided in the 1996 
and 1997 monitoring program report and determined that a single 
biological observer is unable to ensure that no marine mammals (e.g., 
seals) enter the designated safety zone and that a single observer 
cannot adequately view both the safety zone and that portion of the 
zone of influence visible from the ship's bridge. However, because 
bowheads appear to avoid the area visible to the observer and because 
seals appear at times to be attracted to seismic vessels, NMFS has 
determined that two observers on watch at all times is unncessary 
except whenever the seismic source is powered (ramped) up. In addition, 
observers will be required to ensure that no marine mammals enter the 
bow aspect of the safety zone; a lesser effort should be spent on seals 
entering from the sides or rear portions of the safety zone. This 
year's reporting requirement will include a requirement for a 
comprehensive assessment on the effectiveness of single observer 
coverage. NMFS will review the data obtained during 1998 season to 
determine whether future authorizations will need additional observers 
during all daytime seismic operations.
    Comment 17: Greenpeace believes that the monitoring program is 
inadequate because observers will be unable to visually identify whales 
or seals at night or at other times of poor visibility. Where the 
impacts will occur after mid-July, because of the increasing hours of 
darkness, the probability of impacts at night and the inadequacies of 
the monitoring program to detect them are a virtual certainty. Similar 
impairment can be expected in times of fog and in other periods of poor 
visibility.

[[Page 40509]]

    Response: Observers monitor the safety zones and zones of potential 
harassment around the seismic source whenever visibility permits, and 
the source is either on or within 30 minutes of powering up. Observers 
are aided by night-vision equipment for monitoring the safety zone. 
Assessments of takes by harassment will be made based upon the 
percentage of time spent observing in relation to the total time for 
seismic operations. Because: (1) relatively few marine mammals are 
expected in the area during the time of the survey, (2) the vessels are 
underway at low speeds while laying or pulling OBC cable or conducting 
seismic surveys, theoretically allowing animals sufficient time to move 
away from any annoyances, and (3) documented observations indicate that 
bowhead whales avoid active seismic survey areas few, if any, bowheads 
are expected to approach the vessel and therefore, terminating surveys 
at night and during inclement weather is not warranted.
    Comment 18: The AEWC has recommended that a monitoring program be 
in place for each seismic operation and, after September 1, must be at 
least as detailed as that used during monitoring the 1997 seismic 
operation. In addition, the IHA should require the (aerial survey) 
monitoring to be expanded to the west to the extent needed to determine 
when whales, displaced by seismic noise, return to their normal 
migration route.
    Response: Thank you for the comment. This monitoring recommendation 
was also provided by the AEWC at the 1998 Seattle workshop. As a 
result, the monitoring plan has been revised to follow this 
recommendation.
    Comment 19: The MMC recommends NMFS (1) take such steps as 
necessary to verify that the operation of, and the sounds produced by, 
the cable, seismic source, and related support vessels are unlikely to 
have any effect on marine mammals in or near the proposed survey area; 
and (2) require the Monitoring Plan be augmented to measure the levels 
and characteristics of sounds produced by the various vessels and 
confirm those sounds have no effect on marine mammals.
     Response: While NMFS does not believe that noise from vessels will 
have no impact on marine mammals, it is recognized as being a secondary 
source for potential harassment of marine mammals. These sources are 
authorized under the IHA, should an incidental harassment occur. The 
1998 monitoring program will continue the program of previous years to 
measure vessel sounds, with an emphasis on vessels not recorded in 1996 
or 1997. The results of these measurements are reported annually.

National Environmental Policy Act (NEPA) Concerns

    Comment 20: Greenpeace believes that, for several reasons, NMFS has 
failed to meet NEPA standards. First, the 1996 EA was written by BPXA, 
not by NMFS, and is deficient. Second, the 1998 activity is for a 
broader area and timeframe than described in the 1996 EA. Third, the 
1996 EA fails to take account of the cumulative impact of two 
activities (BPXA and Western Geophysical applications). Finally, 
significant new information has become available since the 1996 EA was 
issued.
    Response: In conjunction with the 1996 notice of proposed 
authorization for BPXA's application (61 FR 26501, May 28, 1996), NMFS 
released an EA that addressed the impacts on the human environment from 
the proposed issuance of an IHA to BPXA to conduct a 3-D seismic survey 
in the Western Beaufort Sea and the alternatives to that proposed 
action. That document was written for NMFS by LGL Ltd under funding 
provided by BPXA. This procedure is considered proper for building a 
Record of Decision. No comments were received on the EA, and, on July 
18, 1996, NMFS adopted the contractor-drafted EA and concluded that 
neither implementation of the proposed authorization to BPXA for the 
harassment of small numbers of several species of marine mammals 
incidental to conducting an ocean-bottom cable seismic survey during 
the open water season (July through October) in the Northstar Unit and 
nearby waters in the U.S. Beaufort Sea nor the alternatives to that 
action would significantly affect the quality of the human environment. 
That determination was based on an evaluation of a single airgun array 
with 8-12 guns totaling 1,200-1,500 in<SUP>3,</SUP> (2,000 psi, 250 dB 
re 1 <greek-m>Pa-m, p-p), a possible second array (see page 64 of the 
EA), and the use of a second single airgun source (40 in<SUP>3</SUP>; 
232 db re p-p) for calibration, for up to 100 days of operations. It 
should be noted that, although the planned focus of efforts for the 
1996 seismic survey was the Northstar Island area, figure 1 of the EA 
indicates the area of possible seismic activity extended from Spy 
Island in the west to Flaxman Island in the east. In addition, the EA 
notes that BPXA may relocate to another site and continue the survey 
until freeze-up (approximately October 20th).
    Western Geophysical's planned seismic area for 1998 is roughly 
between Harrison Bay in the west to Camden Bay/Flaxman Island in the 
east; negligibly different from that described in the EA. In addition, 
both the 1996 application (and EA) and the 1998 applications indicate 
that surveys would be conducted between July and October.
    In 1998, weather permitting, activity in the U.S. Beaufort Sea was 
proposed to increase, with primary airgun arrays being used by Western 
Geophysical (up to 16 guns in an array totaling to 1,500 in<SUP>3</SUP> 
@ 2,000 psi). Western Geophysical plans to utilize a third source of 
560 in<SUP>3</SUP> (which it does not plan to use at the same time as 
the primary source).
    While neither applicant's activity alone exceeds the activity 
description found in the 1996 EA, both applicants' activities together 
had the potential to result in cumulative impacts not addressed in the 
1996 EA, and a new analysis was warranted. However, BPXA's withdrawal 
from open-water seismic activities on the North Slope in 1998 made the 
preparation of a new environmental analysis unnecessary. Should more 
than one seismic survey take place on the North Slope in 1999, NMFS 
will release a revised EA that addresses the impacts from more than one 
survey being conducted concurrently.
    Comment 21: Greenpeace believes that the described action fits the 
standard neither for a FONSI nor for a ``Categorical Exclusion.'' 
Greenpeace believes that because of impacts on native subsistence as 
well as on the Arctic marine ecosystem, particularly the bowhead whale 
and other marine species, NMFS must prepare a full, comprehensive EIS.
    Response: NMFS disagrees. As discussed in this document, neither 
commenters, recent monitoring and research, nor TK have provided 
information that the impact (with mitigation and C&AA in place) would 
be more than negligible (i.e., significant; see the definition in 40 
CFR 1508.24) on the bowhead or beluga whales or on several species of 
seals and would not have an unmitigable adverse impact on the 
availability of these marine mammal species for subsistence uses. Since 
NMFS must analyze a request for IHAs to determine whether the proposed 
activity has no more than a negligible impact on a species or stock of 
marine mammals and does not have an unmitigable adverse impact on 
subsistence users, it believes that the issuance of a small take 
authorization requires only the preparation of an EA and not of an EIS. 
In this case, the agency found through preparing an EA in 1996, that 
the proposed action(s) will

[[Page 40510]]

not significantly affect the quality of the human environment, thus 
making a finding of no significant impact. If the EA results in this 
finding, no additional documents are required by NEPA (NOAA Directives 
Manual 02-10).
    Information on the impacts on the marine environment from Beaufort 
Sea oil and gas leasing activities, including seismic, in the area 
under discussion has been addressed in several EISs prepared by 
Minerals Management Service (MMS). Final EISs for Lease Sale 124 and 
144 were completed in 1990 and 1996. 

Cumulative Impact Concerns

    Comment 22: Greenpeace believes NMFS is ignoring cumulative impacts 
from oil exploration and development on subsistence communities, 
bowhead whales, and other marine mammals in the Arctic environment. 
Greenpeace believes that impacts from seismic operations cannot be 
assessed separately from offshore exploratory drilling, development, 
and transportation activities that may follow or are already occurring.
    Response: The commenter is correct, however, NMFS would like to 
clarify that NMFS' responsibility in this action is limited to the 
issuance or denial of an authorization for the short-term, incidental 
harassment of a small number of marine mammals by Western while 
conducting a seismic survey within an authorized lease sale area. NMFS 
does not authorize the exploration and development of oil and gas 
itself (e.g., conducting seismic surveys) as such authorization is 
provided by the MMS of the U.S. Department of the Interior and is not 
within the jurisdiction of the Secretary of Commerce.
    NMFS also notes that the responsibility for reviewing an activity's 
cumulative impact belongs primarily to the responsible permitting 
agency, and, if that activity is Federal, federally funded or federally 
permitted cumulative impacts are usually reviewed under NEPA. MMS has 
responsibility for leasing and subsequent exploration and development 
activities under the Outer Continental Shelf Lands Act. As a result, 
MMS published draft and final EISs under NEPA regarding leasing of 
offshore oil and gas exploration for Lease Sale Area 144. Cumulative 
impacts from oil and gas exploration operations are described in those 
NEPA documents.
    In addition, a multi-agency NEPA document is currently under public 
review and comment. This document will analyze the proposal for oil and 
gas development at Northstar and the alternatives to that proposal. A 
notice of NEPA scoping was published for public comment in November 
1995; a draft EIS was released by the Corps of Engineers on June 1, 
1998. An analysis of concerns regarding potential future oil and gas 
industry and other environmental issues will be found in this document.
    Comment 23: The MMC recommended NMFS consult with appropriate 
agencies and organizations to determine the long-term monitoring that 
would be required to confirm that the proposed seismic surveys and 
possible future exploration and development activities do not cause 
changes in the seasonal distribution patterns, abundance, or 
productivity of marine mammal populations in the area.
    Response: NMFS agrees but notes that this recommendation extends 
beyond the requirements of the 1998 monitoring program for Western 
Geophysical's seismic survey. However, to the extent practicable, NMFS 
intends to use the peer-review process required by the MMPA for small 
take authorizations in Arctic waters to address these cumulative impact 
monitoring concerns in the future.

ESA

    Comment 24: Greenpeace states that the issuance of an IHA to 
Western Geophysical (or BPXA) would violate the ESA as it is 
inconsistent with the requirements and underlying purposes of the ESA 
and with the requirements that each agency use the best scientific and 
commercial data available.
    Response: NMFS disagrees, noting that the issuance of an IHA to 
Western Geophysical triggers section 7 of the ESA, as the issuance of 
the IHA is a Federal action. However, the major federal agency for 
offshore oil and gas lease activities is the Minerals Management 
Service (MMS). Consultation under section 7 for lease sale 144 was 
concluded on November 16, 1995, with a finding that the action was not 
likely to jeopardize the continued existence of listed species.
    Reinitiation of formal consultation under section 7 is warranted 
only when there is new scientific information that has the potential to 
call into question the scientific and commercial data used in the 
previous biological opinion. At this time, NMFS does not consider the 
recent findings on impacts to listed marine species from the 
disturbance from seismic surveys sufficient to reinitiate consultation.

Mitigation

    Western Geophysical will use biological observers to monitor marine 
mammal presence in the vicinity of the seismic array. To avoid serious 
injury to marine mammals, Western Geophysical will power down the 
seismic source if pinnipeds are sighted within the area delineated by 
the 190 dB isopleth or:
    (1) Within 170 m (558 ft) of an array <750 in<SUP>3</SUP> 
<SUP></SUP>operating at <2.5 m (8.3 ft) depth;
    (2) Within 280 m (919 ft) of an array<SUP></SUP> <750 
in<SUP>3</SUP> <SUP></SUP>operating at >2.5 m (8.3 ft) depth;
    (3) Within 200 m (656 ft) of an array<SUP></SUP> 1500 
in<SUP>3</SUP> operating at <2.5 m (8.3 ft) depth;
    (4) Within 350 m (1,148 ft) of an array<SUP></SUP> 1500 
in<SUP>3</SUP> <SUP></SUP>operating at >2.5 m (8.3 ft) depth.
    <SUP></SUP> Western Geophysical will power down the seismic source 
if bowhead, gray, or belukha whales are sighted within the area 
delineated by the 180 dB isopleth or:
    (1) Within 660 m (2,165 ft) of an array <750 in<SUP>3</SUP> 
operating <SUP></SUP>at <2.5 m (8.3 ft) depth;
    (2) Within 900 m (2,953 ft) of an array<SUP></SUP> <750 
in<SUP>3</SUP> operating at >2.5 m (8.3 ft) depth;
    (3) Within 750 m (2,461 ft) of an array<SUP></SUP> 1500 
in<SUP>3</SUP> operating at <2.5 m (8.3 ft) depth;
    (4) Within 1,000 m (3,281 ft) of an array<SUP></SUP> 1500 
in<SUP>3</SUP> <SUP></SUP>operating at >2.5 m (8.3 ft) depth.
    In addition, Western Geophysical proposes to ramp-up the seismic 
source to operating levels at a rate no greater than 6 dB/min, 
commencing with an 80 in<SUP>3</SUP> <SUP></SUP>airgun. Additional guns 
will be added at intervals appropriate to limit the rate of increase in 
source level to a maximum of 6 dB/min.

Monitoring and Reporting Monitoring

    As part of its application, Western Geophysical provided a 
monitoring plan for assessing impacts to marine mammals from seismic 
surveys in the Beaufort Sea. This monitoring plan is described in 
Western Geophysical (1998) and in LGL Ltd. and Greeneridge Sciences 
Inc. (1998). As mentioned previously, this monitoring plan was amended 
based on review and comment and was submitted to NMFS on July 15, 1998. 
As required by the MMPA, this monitoring plan will be subject to a 
peer-review panel of technical experts prior to formal acceptance by 
NMFS.
    Preliminarily, Western Geophysical plans to conduct the following:

Vessel-Based Visual Monitoring

    A minimum of two biologist-observers aboard the seismic vessel will 
search for and observe marine mammals whenever seismic operations are 
in progress and for at least 30 minutes prior to planned

[[Page 40511]]

start of shooting. These observers will scan the area immediately 
around the vessels with reticulated binoculars during the daytime and 
with night-vision equipment during the night (prior to mid-August, 
there are no hours of darkness). Individual watches will normally be 
limited to no more than four consecutive hours during daylight hours.
    When mammals are detected within a safety zone designated to 
prevent injury to the animals (see Mitigation), the geophysical crew 
leader will be notified so that shutdown procedures can be implemented 
immediately.

Aerial Surveys

    From September 1, 1998, until 3 days after the seismic program 
ends, aerial surveys will be conducted daily, weather permitting. The 
primary objective will be to document the occurrence, distribution, and 
movements of bowhead and belukha whales in and near the area where they 
might be affected by the seismic pulses. These observations will be 
used to estimate the level of harassment takes and to assess the 
possibility that seismic operations affect the accessibility of bowhead 
whales for subsistence hunting. Pinnipeds will be recorded when seen. 
Aerial surveys will be at an altitude of 300 m (1,000 ft) above sea 
level. Western Geophysical proposes to avoid overflights of the Cross 
Island area where whalers from Nuiqsut are based during their fall 
whale hunt.
    Consistent with 1996 and 1997 aerial surveys in the U.S. Beaufort 
Sea, the daily aerial surveys are proposed to cover two grids: (1) A 
grid of 16 north-south lines spaced 8 km (5 mi) apart and extending 
from about 50 km (30 mi) west of the western side of the then-current 
seismic exploration area to 50 km (30 mi) east of its eastern edge, and 
from the barrier islands north to approximately the 100 m (328 ft) 
depth contour; and (2) a grid of 4 survey lines within the above 
region, also spaced 8 km (5 mi) apart and mid-way between the longer 
lines, to provide more intensive coverage of the area of the seismic 
operations and immediate surrounding waters.
    When the seismic program is relocated east or west along the coast 
during the 1998 season, both survey grids will be relocated a 
corresponding distance along the coast. Information on the survey 
program can be found in Western Geophysical (1998) and in LGL Ltd. and 
Greeneridge Sciences Inc. (1998).

Acoustical Measurements

    The acoustic measurement program proposed for 1998 is designed to 
continue the research conducted in 1996 and 1997 (see BPXA, 1996a, 
1997, and 1998; LGL Ltd. and Greeneridge Sciences Inc., 1996, 1997, and 
1998). The acoustic measurement program is planned to include (1) boat-
based acoustic measurements, (2) OBC-based acoustic measurements, (3) 
use of air-dropped sonobuoys, and (4) bottom-mounted acoustical 
recorders.
    The boat-based acoustical measurement program is proposed for a 7-
day period in August 1998. The objectives of this survey will be as 
follows: (1) To measure the levels and other characteristics of the 
horizontally propagating seismic survey sounds from the type(s) of 
airgun array(s) to be used in 1998 as a function of distance and aspect 
relative to the seismic source vessel(s) and to water depth.
    (2) To measure the levels and frequency composition of the vessel 
sounds emitted by vessels used regularly during the 1998 program.
    (3) To obtain additional site-specific ambient noise data, which 
determine signal-to-noise ratios for seismic and other acoustic signals 
at various ranges from their sources.
    Western Geophysical and its proposed consultant (Greeneridge 
Sciences) are investigating the use of the OBC-system to help document 
horizontal propagation of the seismic surveys. In addition, during late 
August and September, four autonomous seafloor acoustic recorders will 
be placed on the sea bottom to record low-frequency sounds nearly 
continuously for up to 3 weeks at a time. Information includes 
characteristics of the seismic pulses, ambient noise, and bowhead 
calls. Additional data on these noise sources will be obtained from 
sonobuoys dropped from aircraft after September 1.
    For a more detailed description of planned monitoring activities, 
please refer to the application and supporting document (Western 
Geophysical, 1998; LGL Ltd. and Greeneridge Sciences Inc., 1998b).

Estimates of Marine Mammal Take

    Estimates of takes by harassment will be made through vessel and 
aerial surveys. Preliminarily, Western Geophysical will estimate the 
number of (a) marine mammals observed within the area ensonified 
strongly by the seismic vessel; (b) marine mammals observed showing 
apparent reactions to seismic pulses (e.g., heading away from the 
seismic vessel in an atypical direction); (c) marine mammals subject to 
take by type (a) or (b) above when no monitoring observations were 
possible; and (d) bowheads displaced seaward from the main migration 
corridor.

Reporting

    Western Geophysical will provide an initial report on 1998 
activities to NMFS within 90 days of the completion of the seismic 
program. This report will provide dates and locations of seismic 
operations, details of marine mammal sightings, estimates of the amount 
and nature of all takes by harassment, and any apparent effects on 
accessibility of marine mammals to subsistence users.
    A final technical report will be provided by Western Geophysical 
within 20 working days of receipt of the document from the contractor, 
but no later than April 30, 1999. The final technical report will 
contain a description of the methods, results, and interpretation of 
all monitoring tasks.

Consultation

    Under section 7 of the ESA, NMFS has completed consultations on the 
issuance of this authorization.

Conclusions

    NMFS has determined that the short-term impact of conducting 
seismic surveys in the Western Beaufort Sea will result, at worst, in a 
temporary modification in behavior by certain species of cetaceans. 
While behavioral modifications may be made by these species of 
cetaceans and seals to avoid the resultant noise, this behavioral 
change is expected to have a negligible impact on the animals.
    The number of potential incidental harassment takes will depend on 
the distribution and abundance of marine mammals (which vary annually 
due to variable ice conditions and other factors) in the area of 
seismic operations. Due to the distribution and abundance of marine 
mammals during the projected period of activity and to the location of 
the proposed seismic activity in waters generally too shallow and 
distant from the edge of the pack ice for most marine mammals of 
concern, the number of potential harassment takings is estimated to be 
small (see 63 FR 27709, May 20, 1998, for potential levels of take). In 
addition, no take by injury and/or by death is anticipated, and the 
potential for temporary or permanent hearing impairment will be avoided 
through incorporation of the mitigation measures described in the 
authorization.
    Because bowhead whales are east of the seismic area in the Canadian 
Beaufort Sea until late August/early September, seismic activities are 
not

[[Page 40512]]

expected to impact subsistence hunting of bowhead whales prior to that 
date. After August 31, 1998, Western Geophysical will initiate aerial 
survey flights for bowhead whale assessments, and take other actions to 
avoid having an unmitigable adverse impact on subsistence uses. 
Appropriate mitigation measures to avoid an unmitigable adverse impact 
on the availability of bowhead whales for subsistence needs is the 
subject of consultation between Western Geophysical and subsistence 
users. As a result of discussions between the two parties, a C&AA has 
been completed. This Agreement consists of three main components: (1) 
Communications, (2) conflict avoidance, and (3) dispute resolution.
    Summer seismic exploration in the U.S. Beaufort Sea has a small 
potential to influence seal hunting activities by residents of Nuiqsut. 
However, NMFS believes that, because (1) the peak sealing season is 
during the winter months, (2) the main summer sealing is off the 
Colville delta, and (3) the zone of influence by seismic sources on 
beluga and seals is fairly small, the 1998 Western Geophysical seismic 
survey will not have an unmitigable adverse impact on the availability 
of these stocks for subsistence uses.
    Since NMFS is assured that the taking would not result in more than 
the incidental harassment (as defined by the MMPA Amendments of 1994) 
of small numbers of certain species of marine mammals, would have only 
a negligible impact on these stocks, would not have an unmitigable 
adverse impact on the availability of these stocks for subsistence 
uses, and would result in the least practicable impact on the stocks, 
NMFS has determined that the requirements of section 101(a)(5)(D) of 
the MMPA have been met and the authorization can be issued.

Authorization

    Accordingly, NMFS has issued an IHA to Western Geophysical for the 
above described seismic survey during the 1998 open water season 
provided the mitigation, monitoring, and reporting requirements 
described in the authorization are undertaken.

    Dated: July 23, 1998.
Patricia A. Montanio,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 98-20280 Filed 7-28-98; 8:45 am]
BILLING CODE 3510-22-F