[Federal Register Volume 63, Number 9 (Wednesday, January 14, 1998)]
[Notices]
[Pages 2213-2216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-806]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
[I.D. 080697A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Seismic Hazards Investigations in Puget Sound

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 marine mammals 
by harassment incidental to collecting deep-crustal marine seismic data 
in the Puget Sound/Straits of Juan de Fuca region of Washington State 
has been issued to the U.S. Geological Survey (USGS).

DATES: This authorization is effective from January 1, 1998, through 
March 31, 1998.

ADDRESSES: The application and monitoring plan, authorization, and 
environmental assessment (EA) 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 (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2055, or Brent Norberg, Northwest 
Regional Office, NMFS, (206) 526-6733.

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 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, 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. NMFS has defined ``negligible impact'' in 50 
CFR 216.103 as ``...an impact resulting from the specified activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.''
    Section 101(a)(5)(D) of the Marine Mammal Protection Act 
established an expedited process by which citizens of the United States 
can apply for an authorization to incidentally take small numbers of 
marine mammals by harassment. The MMPA now defines ``harassment'' as: 
``...any act of pursuit, torment, or annoyance which (a) has the 
potential to injure a marine mammal or marine mammal stock in the wild; 
or (b) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering.''
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.

Summary of Request

    On July 2, 1997, NMFS received an application from the USGS, on 
behalf of the Seismic Hazards Investigations in Puget Sound (SHIPS) 
project, requesting an authorization for the possible harassment of 
small numbers of several species of marine mammals incidental to 
conducting marine seismic surveys in Puget Sound, WA. The survey is to 
collect data on the earthquake hazards of the Puget Sound area. 
Geological features around the Puget Sound that might produce 
earthquakes lie obscured beneath water, city, forest, and thick glacial 
deposits. As a result, investigators must use sound waves that are 
produced by an array of airguns to indirectly view these features. 
Because seismic noise from the proposed survey's airguns could 
potentially affect marine mammals due to disturbance by sound (i.e., 
acoustic harassment), an incidental harassment authorization under the 
MMPA is warranted.
    The main goals of the SHIPS project concern understanding 
earthquake processes and mitigating a potential disaster, not 
earthquake prediction. Geologists have clear evidence for past 
earthquakes, but basic geological information about earthquake 
processes is lacking. To close this critical information gap, the SHIPS 
consortium will collect seismic reflection and seismic refraction data 
in and near Puget Sound. Seismic reflection data will help locate 
potential earthquake faults, and seismic refraction data will show the 
speed of sound waves in deep rocks. These data together will reveal the 
structure and physical properties of rocks where earthquakes are likely 
to occur. Information from onshore seismometers will reveal where deep 
rocks could focus earthquake waves at the surface and where surface 
sediment is weak.
    In places where these conditions of focusing and sediment weakness 
overlap, buildings and other infrastructure are at elevated risk of 
damage or destruction during a major earthquake. SHIPS will provide 
information needed to make maps, for city planners, to show areas of 
potentially strong ground motion so that scarce funds for seismic 
retrofitting can be allocated on a rational basis. Prime candidates for 
retrofitting are schools and hospitals. Additionally, freeway 
interchanges and major bridges, as well as structures housing police 
and firefighters, must withstand earthquakes so that survivors receive 
prompt assistance.
    Dependent upon ship scheduling, the seismic survey is expected to 
take approximately 2 weeks sometime during late February and March 
1998. A detailed description of the work planned is contained in the 
application

[[Page 2214]]

(USGS 1997) and the EA. These documents are available upon request (see 
ADDRESSES).

Comments and Responses

    A notice of receipt of the application and proposed authorization 
was published on September 17, 1997 (62 FR 48817), and a 30-day public 
comment period was provided on the application and proposed 
authorization. Comments were received from three organizations. 
Information on the activity, the authorization request and expected 
impact on marine mammal species, not subject to reviewer comments can 
be found in the proposed authorization notice and is not repeated here.

MMPA Concerns

    Comment 1: One commenter believes that, because the USGS estimates 
that more than 10,000 harbor seals, 2,000 California sea lions, 1,000 
harbor porpoises, and 1,000 Dall's porpoises could be taken incidental 
to the proposed activities, that NMFS should address the issue of 
whether only ``small numbers'' of marine mammals will be harassed in 
the course of conducting surveys.
    Response: In 1982 (47 FR 21248, May 18, 1982), NMFS defined ``small 
numbers'' to mean a portion of a marine mammal species or stock whose 
taking would have a negligible impact on that species or stock. NMFS 
believes that this is an appropriate definition because Congress, 
recognizing that the concept (i.e., small) was not capable of being 
expressed in absolute numerical numbers, was unable to offer a more 
precise formulation when section 101(a)(5)(A) of the MMPA was 
implemented that year (H. Rept. 97-228, p 19). NMFS did not then, and 
does not now, believe that the term can be expressed as an absolute 
number or percentage or be defined in any absolute terms. While 
Congress noted that year that there were two separate safeguards in 
place under the small take exemption (i.e., ``small'' and ``negligible 
impact''), NMFS believes that the 1986 MMPA amendments, wherein the 
definition of ``negligible impact'' was amended and taking 
authorizations were extended to include depleted, threatened, and 
endangered species, that taking authorizations should be based on a 
population's size and status and the stock's reproductive potential, 
rather than on a simple numerical level. Therefore, while the number of 
takings may not be viewed by some to be small numerically, they can be 
considered small in relation to the impact on marine mammal species and 
stocks. When takings are limited to short-term harassments, such as the 
Puget Sound seismic survey, this determination can be more easily made 
than in situations where the numbers represent mortalities.

Monitoring Concerns

    Comment 2: Three commenters were concerned that the proposed 
monitoring program was currently unfunded. Two of these commenters 
recommended that the IHA be conditioned to require sufficiently funded 
monitoring to examine the effects on the resident marine mammals.
    Response: While the Federal Register notice stated that ``the 
monitoring program is unfunded,'' this was not entirely correct. The 
USGS has responded to this concern by noting that there is sufficient 
funding to conduct the monitoring required under section 101(a)(5)(D) 
of the MMPA. This required monitoring, discussed in more detail below 
(see Monitoring), is necessary to ensure that the take is small and not 
having more than a negligible impact on Puget Sound marine mammal 
stocks. However, funding is still unavailable to meet certain planned 
research objectives. At this time, the USGS is seeking this funding 
from Federal and private sources. It should be noted that this activity 
would provide a platform of opportunity for interested marine mammal 
researchers.
    Comment 3: One commenter recommended that the monitoring program be 
expanded to include (a) some allocation for aerial surveys of marine 
mammal reactions; (b) the use of a third boat that can survey for 
marine mammals ahead of the seismic vessel; (c) the use of marine 
mammal observers at night who are equipped with night vision devices, 
and (d) some attempt to avoid close approaches to critical habitat 
areas, such as San Juan County's Bottom Fish Recovery site at Point 
Lawrence, Orcas Island in Rosario Strait. Another commenter recommended 
that either a nighttime mitigation measure be developed or nighttime 
operations be disallowed.
    Response: (a) Aerial surveys and detailed behavioral observations 
will be conducted by the USGS. However, expanded acoustic experiments, 
involving the measurement of sound levels that marine mammals actually 
receive, are part of the unfunded research activities mentioned above. 
While this research has long had strong support from within the USGS 
(because of the need for better data on the potential impact of seismic 
operations on the marine environment), the USGS does not have the funds 
to pay for acoustic research, but is working closely with marine mammal 
experts to obtain funding from other Federal agencies.
    (b) Part of the operational plan for the Canadian ship Tully is for 
it to take part in observing marine mammals at various distances from 
the airgun array. In addition, when conditions are safe, small boats 
will be deployed from the two ships to observe marine mammals; however, 
March is not a good time of the year for boats to be out on open water. 
The tight USGS budget cannot cover the leasing and staffing of a third 
boat large enough to operate safely everywhere the airguns will be 
fired. The operational area includes the Straits of Juan de Fuca, which 
can become dangerous with high wind and seas.
    (c) During nighttime, observers will be required to monitor the 
appropriate safety zones whenever the seismic array is powered up, to 
protect marine mammals from potential injury (Level A harassment). At 
other times during the night, observations are optional at the 
discretion of the applicant. Depending upon meteorological and 
oceanographic conditions, observations can be made by biologists; 
alternatively, crew members on watch can alert scientists to marine 
mammal presence. As discussed in the proposed authorization and EA 
(Alternative C), suspension of nighttime operations is impractical and 
costly to the USGS, and it may not result in reduced impacts to marine 
mammals by extending surveys either into a period of greater marine 
mammal abundance or into a future year when funding and ship time 
become available, or both. NMFS believes that through proper ramp-up, 
no marine mammals will be acoustically injured by the seismic array. 
However, because a mitigation requirement of the IHA is for the safety 
zone to be monitored for 30 minutes prior to the time the array is 
scheduled to exceed 160 dB re 1 Pa-m, and during ramp-up, if 
the source is powered up at night, the entire 200-m (500-m when in 
areas of known mysticete whale habitation-see EA) safety zone needs to 
be visible, either visually or acoustically or both, to the biological 
observers. Otherwise, the source must remain below 160 dB re 1 
Pa-m, until daylight provides sufficient light to observe the 
safety zone. Alternatives include lighting the safety zone with high 
intensity lights and night vision equipment, both of which have proven 
less than optimal. Partially as a result of this short-coming, to aid 
in monitoring safety zones at night, the USGS has arranged with the 
U.S. Navy to borrow infra-red scopes, which operate differently than 
most light-enhancement devices. Infra-red scopes were tested by 
biologists in 1997 and found to be

[[Page 2215]]

useful in detecting marine mammals at night.
    (d) Airguns were specifically designed to eliminate the fish kills 
that were caused during the 1950s by underwater explosions used during 
geophysical exploration. Explosives caused a rapid rise to peak 
pressure, measured in microseconds, whereas the airgun rise time is 
measured in milliseconds. The difference is that the rapid rise time 
involves very high pressures at high frequencies, which kills fish at 
substantial range. The main sonic injury to fish involves a damaging 
resonance of their air-gilled swim bladders by high frequency pressure 
waves. In contrast, large fish need to be within about 3 m (9 ft) of an 
airgun array to be injured or killed, and at distances between 3 m and 
100 m (9 ft and 328 ft), large fish exhibit only a change in behavior. 
The low frequency sound of the SHIPS airgun array should have little 
effect on fish. For example, the wavelength of 100 Hz sound in water is 
15 m (49 ft), which is far too long to cause the swim bladders of fish 
to resonate. The airgun array will stay at least 1,000 m (3,281 ft) 
from most shorelines. At this distance, there will be little or no 
effect on fish at the recovery site.

Mitigation Concerns

    Comment 4: One commenter recommended that, if dead or injured 
marine animals are found, the USGS should suspend the activities and 
consult NMFS before proceeding. This same commenter recommended that 
NMFS advise the USGS that, if there is any indication that mortalities 
of marine mammals may be occurring, survey activities must be suspended 
while NMFS considers whether an authorization under section 
101(a)(5)(A) of the MMPA is needed.
    Response: There is no scientific evidence that seismic arrays will 
result in an immediate death or serious injury to a marine mammal, 
although there is a remote potential that mortality could eventually 
result from permanent injury to an animal's auditory organs. Therefore, 
it is not necessary for the USGS to immediately suspend activities 
whenever a seriously injured or dead marine mammal is found in the 
vicinity of the survey's trackline.
    Of more concern to NMFS, because of the topography of Puget Sound 
and the Straits of Juan de Fuca, are marine mammals that strand or 
beach themselves coincident with the seismic survey's passage. If this 
occurs, the USGS is required to immediately suspend the survey and 
contact NMFS. Also, if NMFS is notified by a local stranding network 
representative that a beaching/ stranding has occurred at a time when 
the seismic array is operating in the vicinity of the stranding(s), 
NMFS will immediately investigate the stranding to determine whether a 
reasonable chance exists that the array caused the animal's death. If 
NMFS determines, based upon a review and possible necropsy of the 
animal(s), that the death was likely due to the seismic source, the 
survey must cease until procedures are altered to eliminate the 
potential for additional mortalities. However, it must be recognized 
that there must be a close spatial or temporal connection that suggests 
acoustic disturbance as the proximal cause of injury or death before 
the survey's incidental harassment authorization can be suspended.
    Comment 5: This same commenter also recommended that the USGS 
monitor all pinniped approaches and suspend activities if there is any 
indication that the active array is adversely affecting pinnipeds.
    Response: The IHA requires the USGS to monitor all pinniped (and 
cetacean) approaches, and record behavioral reactions. If pinnipeds are 
within 100 m (328 ft) of the outer edge of the seismic array, any 
instances of repetitive aberrant behavior (e.g., rapid swimming away 
while conspecifics remain in the vicinity of the array, lack of diving 
behavior), as recorded by the trained biological observer, requires an 
immediate implementation of a 100-m (328-ft) safety zone and 
notification of NMFS within 24 hours. NMFS will review the information 
in a timely manner and will notify the USGS by letter that a safety 
zone for pinnipeds is necessary for the duration of the survey or that, 
upon review by NMFS scientists, a safety zone is unnecessary for the 
protection of pinnipeds from serious injury or mortality.
    Comment 6: One commenter cautioned that El Nino may affect the 
involved species either directly or through the food chain and that 
these effects could exacerbate or mask possible effects of the seismic 
survey.
    Response: The scientific body of knowledge on marine mammal 
distribution and abundance and the species relationship to changes in 
spatial distribution of food sources is in general insufficient to make 
more than general assumptions on the effects of El Nino on marine 
mammals in the North Pacific Ocean. Where long-term monitoring programs 
for marine mammals have been established (e.g., San Miguel Island, 
Northern Channel Islands, CA), the effects from El Nino are being 
monitored and impacts estimated. However, with a short-term event, such 
as the SHIPS seismic survey, NMFS believes that El Nino would have 
little noticeable effect for the short-term (2 weeks) seismic survey, 
although some mortality and distributional effects caused by 
temperature or food source shifts may be noticeable during survey 
monitoring studies.

Marine Mammals

    The species of marine mammals that are likely to be present in 
Puget Sound and Straits of Juan de Fuca, and may potentially be 
harassed incidental to the USGS seismic survey, include the harbor 
porpoise (Phocoena phocoena), killer whale (Orcinus orca), Dall's 
porpoise (Phocoenoides dalli), and harbor seal (Phoca vitulina). 
Additional species that are rare or only occasionally seen in the area 
at the time of the survey include: Minke whale (Balaenoptera 
acutorostrata), elephant seal (Mirounga angustirostris) Pacific white-
sided dolphin (Lagenorhynchus obliquidens), northern sea lion 
(Eumetopias jubatus), California sea lion (Zalophus californianus), 
humpback whale (Megaptera novaengliae), and gray whale (Eschrichtius 
robustus). General information on these latter species can be found in 
Barlow et al. (1995). Information relevant to the distribution, 
abundance, and behavior of those species most likely to be impacted by 
the experiment in Puget Sound and the Straits of Juan de Fuca is 
provided in the application and EA. Please refer to those documents for 
information on the biology, distribution, and abundance of these 
species and the potential impact by the activity on these species.

Mitigation

    Several mitigation measures to reduce the potential for marine 
mammal harassment will be implemented by USGS as part of their proposed 
activity. These include--
    (1) Scheduling the survey for the period of February/March, when 
marine mammal abundance in Puget Sound/Straits of Juan de Fuca is low;
    (2) Establishing and monitoring safety zones continuously to avoid 
potential Level A harassment of, or injury to, marine mammals. Whenever 
the seismic vessel approaches a marine mammal closer than the distance 
mentioned below and described in more detail in both the application 
and the EA, the USGS would shut off airguns.
    (3) Ceasing airgun operations when gray, minke, and humpback 
whales, the marine mammal species that are considered to be most 
sensitive to the frequency and intensity of sound that will be emitted 
by the airgun array,

[[Page 2216]]

approach within 500 m (1,640 ft) of the seismic vessel.
    (4) Ceasing airgun operations when odontocetes, with their lower 
sensitivity to low-frequency sound, approach a safety zone of 200 m 
(656 ft), twice the calculated radius for preventing any temporary 
threshold shift injury.
    (5) Maintaining a safety radius of 100 m (328 ft) when pinnipeds 
(seals and sea lions) are approached by the SHIPS seismic vessel. 
However, if a pinniped approaches the towed airgun array, the USGS will 
not be required to shutdown the airguns. Experience indicates that 
pinnipeds will come from great distances to scrutinize seismic 
operations. Seals have been observed swimming within airgun bubbles, 10 
m (33 ft) away from active arrays and, more recently, Canadian 
scientists, who were using a high-frequency seismic system that 
produced sound closer to pinniped hearing than will the USGS airgun 
array, describe how seals frequently approached close to the seismic 
source, presumably out of curiosity. Therefore, because the seismic 
survey could be severely hampered by delays, because turning across 
marine traffic lanes to resume work after a shutdown will be risky and 
costly, and because pinnipeds indicate no reaction to seismic noise, 
the above-mentioned mitigation plan has been proposed. Instead, the 
USGS will gather information on how often pinnipeds approach the airgun 
array on their own volition, and what effect the airguns appear to have 
on them.
    (6) Turning on the airguns sequentially at a rate no greater than 6 
dB/minute, so that peak power is achieved gradually to give marine 
mammals a chance to move away from the source, in order to ensure no 
marine mammals are inadvertently harmed when data collection first 
begins, or resumes, after operations have ceased.
    (7) Maintaining the ship's speed at 4 to 5 knots during seismic 
survey operations, so that nearby marine mammals will have gradual 
warning of the ship's approach and can move away.
    (8) Having marine biologists aboard the seismic vessel who will 
have the authority to stop airgun operations when a mammal enters the 
safety zone. These observers will monitor the safety zone to ensure no 
marine mammals enter the zone, and record observations on marine mammal 
abundance and behavior.
    (9) Performing emergency shut-downs. If observations are made that 
one or more marine mammals of any species are attempting to beach 
themselves when the seismic source is operating in the vicinity of the 
beaching, the airgun array will be immediately shut off and NMFS 
contacted.
    (10) Investigate strandings of marine mammals upon notification by 
a local stranding network that a marine mammal has been found dead 
within the waters of Puget Sound, the San Juan Archipelago, or the 
Straits of Juan de Fuca when the array is operating within that body of 
water, to determine whether a reasonable chance exists that the SHIPS 
project caused the animal's death. If NMFS determines, based upon a 
necropsy of the animal(s), that the death was likely due to the seismic 
source, the survey must cease until procedures are altered to eliminate 
the potential for future deaths.

Monitoring

    The objectives of the monitoring program will be: To mitigate 
potential harassment of marine mammals, to document the number of 
animals of each species present in the vicinity of the sound 
transmissions, and to evaluate the reactions of marine mammals to these 
transmissions. Focused surveys will be conducted in geographic areas of 
particular concern, especially for gray whales that migrate past the 
western entrance to the Straits of Juan de Fuca and other members of 
this species that spend the summer in the survey area (near south 
Whidbey Island and the Straits of Juan de Fuca), humpback whales near 
Swiftsure Bank and the waters west of the Straits, harbor porpoise that 
tend to congregate along western Whidbey Island and elsewhere, and 
minke whales that frequent shallow banks in the Strait of Juan de Fuca. 
All species of large whales (humpback, gray, minke, or killer whales) 
will be photographed to identify the individual using the area. For a 
more detailed description of the monitoring program, please refer to 
the EA. In addition, if funding becomes available, hydrophones will be 
used to measure sound levels, to correlate mammal behavior with actual, 
received sound levels.

Consultation

    Under section 7 of the Endangered Species Act, NMFS has completed 
consultation on the issuance of this authorization.

National Environmental Policy Act

    In conjunction with the notice of proposed authorization, NMFS 
released a draft EA that addressed the impacts on the human environment 
from issuance of the authorization and the alternatives to the proposed 
action. No comments received on the draft EA during the comment period. 
Therefore, as a result of the findings made in the EA, NMFS has 
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, an Environmental 
Impact Statement will not be prepared. A copy of the EA is available 
upon request (see ADDRESSES).

Conclusions

    NMFS has determined that the short-term impact of conducting deep 
crustal marine seismic surveys will result, at worst, in a temporary 
modification in behavior by certain species of pinnipeds and possibly, 
some individual cetaceans. While behavioral modifications may be made 
by certain species of marine mammals to avoid the resultant noise from 
airgun array, this behavioral change is expected to have a negligible 
impact on the animals.
    In addition, no take by injury and/or death is anticipated, and 
takes will be at the lowest level practicable due to incorporation of 
mitigation measures. No known rookeries, mating grounds, areas of 
concentrated feeding, or other areas of special significance for marine 
mammals occur within or near the planned area of operations during the 
season of operations.
    Since NMFS is assured that the taking would not result in more than 
the incidental harassment (as defined by the MMPA) of small numbers of 
certain species of marine mammals, would have only a negligible impact 
on these stocks, 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 the USGS for the possible 
harassment of small numbers of several species of marine mammals 
incidental to collecting deep-crustal marine seismic data in the Puget 
Sound/Straits of Juan de Fuca region of Washington State, provided the 
mitigation, monitoring and reporting requirements described in the 
authorization are undertaken.

    Dated: December 30, 1997.
Hilda Diaz-Soltero,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 98-806 Filed 1-13-98; 8:45 am]
BILLING CODE 3510-22-F