[Federal Register Volume 63, Number 21 (Monday, February 2, 1998)]
[Rules and Regulations]
[Pages 5277-5284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2248]



[[Page 5277]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 970725179-8017-03; I.D. 071497A]
RIN 0648-AK33


Taking and Importing Marine Mammals; Taking of Ringed Seals 
Incidental to On-Ice Seismic Activities

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS, upon application from BP Exploration (Alaska) (BPXA) on 
behalf of itself and several other oil exploration companies, issues 
regulations to govern the unintentional take of a small number of seals 
incidental to winter seismic operations in the Beaufort Sea, AK. 
Issuance of regulations governing unintentional incidental takes in 
connection with particular activities is required by the Marine Mammal 
Protection Act (MMPA) when the Secretary of Commerce (Secretary), after 
notice and opportunity for comment, finds, as here, that such takes 
will have a negligible impact on the species and stocks of marine 
mammals and will not have an unmitigable adverse impact on the 
availability of them for subsistence uses. These regulations do not 
authorize the industry's proposed activity, such authorization is under 
the jurisdiction of the U.S. Department of the Interior and is not 
within the jurisdiction of the Secretary. Rather, these regulations 
authorize the unintentional incidental take of marine mammals in 
connection with such activities and prescribe methods of taking and 
other means of effecting the least practicable adverse impact on the 
species and its habitat, and on the availability of the species for 
subsistence uses.
DATES: Effective February 2, 1998 until December 31, 2002.

ADDRESSES: A copy of the application and Environmental Assessment (EA) 
may be obtained by writing to Michael Payne, Chief, Marine Mammal 
Division, Office of Protected Resources, NMFS, 1315 East-West Highway, 
Silver Spring, MD 20910-3226, 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, DC 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 and will not have an unmitigable adverse 
impact on the availability of these species for subsistence uses and 
that 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), expired 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), to govern the taking of ringed seals (Phoca hispida) 
and bearded seals (Erignathus barbatus) 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 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 in 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 and 
bearded seals 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 during 
January 1 through May 31 of any calendar year through December 31, 
2002. 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 mainly ringed seals are expected to be 
taken 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) will 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 October 27, 1997 (62 FR 55564), NMFS published a 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.

[[Page 5278]]

During the 30-day comment period, NMFS received letters from the Marine 
Mammal Commission (MMC), Greenpeace (on behalf of itself, the Alaska 
Wilderness League and the Northern Alaska Environmental Center), the 
Sierra Club (Georgia Chapter) and 1 individual commenting on the 
proposed rule. Comments contained in these letters are addressed below. 
Comments regarding issues other than the issuance of regulations and 
authorizations for the incidental harassment of ringed and bearded 
seals by on-ice seismic work are beyond the scope of discussion here 
and are not addressed further. Information on the activity, the 
environmental impacts, and the authorization request that are not 
subject to reviewer comments can be found in the proposed rule notice 
and is not repeated here.

MMPA Concerns

    Comment 1: Greenpeace believes that the applicants failed to 
address a Plan of Cooperation (POC).
    Response: NMFS has stated previously that a formal POC may not be 
necessary for all activities that might result in the incidental 
harassment of marine mammal species that are also sought for 
subsistence purposes. In order for NMFS to determine that there will 
not be an unmitigable adverse impact on the availability of marine 
mammals for taking for subsistence purposes, the information items 
specified in 50 CFR 216.104(a)(12) will need to be provided. If neither 
a POC has been submitted, nor meetings with subsistence communities 
have been scheduled and if during the comment period evidence is 
provided indicating that an adverse impact to subsistence needs will 
result from the activity, an authorization may be delayed to resolve 
this disagreement. NMFS notes that the applicant responded to this 
information request in its application. Neither Greenpeace nor other 
commenters have provided information that an unmitigable adverse impact 
on subsistence harvests will occur. Greenpeace misinterprets the 
statute in stating that no proof exists that the activity will not have 
an impact on subsistence needs; the statute requires only that the 
activity will not have an unmitigable impact on subsistence needs. 
Copies of the application and notice of proposed authorization were 
forwarded to appropriate North Slope (AK) government agencies. These 
agencies have not indicated that there would be an unmitigable adverse 
impact on subsistence seal harvests. Finally, NMFS notes that POCs are 
not mandated by statute, but are required by regulations when necessary 
to facilitate the Agency's determination that an activity not have an 
unmitigable adverse impact on subsistence needs.
    Comment 2: Greenpeace requests that the regulations not be issued 
until Traditional Knowledge for the 1992-1997 period be gathered, 
analyzed, and shown to support the claim that there will be no effect 
to subsistence hunting in the 5-year period beginning in 1998.
    Response: NMFS would like to clarify that the statutory requirement 
is that the activity not have an unmitigable adverse impact on the 
availability of those species or stocks of marine mammals intended for 
subsistence uses. ``Unmitigable adverse impact,'' as defined in 50 CFR 
216.103, means an impact resulting from the specified activity: (1) 
That is likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by: (i) causing 
the marine mammals to abandon or avoid hunting areas; (ii) directly 
displacing subsistence users; or (iii) placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) that 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.
    As the applicant noted, ringed seals are today hunted principally 
on water with rifles, not at breathing holes in winter, and the numbers 
in recent years have been small (Barrow-394 ringed seals, 174 bearded 
seals; Kaktovik-70 ringed seals, 30 bearded seals; Nuiqsut-0 seals). 
Therefore, since no information was provided by commenters to the 
contrary (tables provided by the commenter were undated and 
unquantified), there is no need to delay the authorization process to 
collect this information. However, NMFS has added as a condition to 
obtaining a Letter of Authorization (LOA) a requirement for 
participants or their representatives to communicate each year with the 
native communities, prior to conducting on-ice activities, to ensure 
the availability of marine mammals for subsistence uses. NMFS will 
ensure that this communication has taken place and that any 
recommendations made by the villages of Barrow, Kaktovik or Nuiqsut 
have been addressed by a potential LOA holder, prior to issuance of an 
LOA.

Marine Mammal Concerns

    Comment 3: Greenpeace believes that greater numbers of bearded 
seals will be taken than estimated because bearded seals inhabit the 
shore-fast ice.
    Response: NMFS notes Greenpeace's statements from the quoted source 
(Lentfer (ed) 1988). However, using this same reference, NMFS notes 
that, as stated in the application, bearded seals avoid regions of 
continuous, thick, shorefast ice * * *and are not common in regions of 
unbroken, heavy, drifting ice (Burns 1981). Burns (1981) suggests that 
a requirement for leads, polynas, and other openings was an important 
determinant of distribution. Kelly (1988) notes that the proportion of 
bearded seals in shorefast ice though unknown, is probably small, and 
that most bearded seals apparently leave the Beaufort/Chukchi Seas in 
winter. As a result, NMFS believes that relatively few bearded seals 
are expected to be harassed by on-ice seismic activities. Because there 
is a potential for small numbers of bearded seals to be harassed 
incidental to on-ice seismic activities, a small take authorization is 
appropriate.
    Comment 4: Because no reliable population size estimates are 
available, it is impossible for NMFS to determine that the take of 
bearded seals would pose a negligible impact.
    Response: NMFS disagrees. A negligible impact is 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 (50 CFR 216.103). Based on the information provided in Comment 
3 above, and because there is no information to indicate that the take 
would be more than by incidental harassment, a negligible impact 
determination can be made. Since the short-term displacement of a 
relatively few animals will not affect the recruitment or survival of a 
stock numbering approximately 300,000, a negligible impact 
determination appears warranted.
    Comment 5: One commenter questioned NMFS' statement that ``no 
significant overall difference was found in the rate of breathing hole 
abandonment along seismic and control lines.'' He noted that the study 
referenced in the earlier notice omitted that the supposed control 
lines were polluted by the construction of an artificial drill island 
(Seal Island) at the same location during the study (Burns and Kelly 
1982). Thus, the intended control lines were also subjected to 
significant industrial activity. As noted, however, displacement was 
indicated by the higher incidence of abandonment within 150 m (492 ft) 
of seismic survey lines.
    Response: While NMFS is puzzled why the researchers chose to 
establish the experiment in close proximity to an artificial island 
under construction in 1982, one must presume that any displacement due 
to construction had

[[Page 5279]]

taken place prior to the seismic experiment. However Kelly et al. 
(1988) noted this construction resulted in a radius of disturbance 
smaller than that caused by seismic noise.
    While the data in Burns and Kelly (1982), Kelly et al. (1986) and 
Kelly et al. (1988) found no statistically significant difference 
between abandoned and altered structures within 150 m (492 ft) of 
seismic lines as compared with structures outside 150 m (492 ft), NMFS 
notes that, because of the small sample size, such distances should be 
used with caution when analyzing disturbance zones. For example, Kelly 
et al. (1986) noted that seals departed lairs in response to vibroseis 
and associated equipment at a distance up to 644 m (2,113 ft).
    Comment 6: One commenter questioned how the applicant and NMFS 
determined that ringed seal displacement was 0.6 seals/nm2, 
and how the estimated 4,500 linear miles of shot line was converted 
into 3,913 nm2. Greenpeace questioned the accuracy of the 
estimate that 2,350 seals might be temporarily displaced and if so, 
whether that displacement included displacement of seals under water, 
or only on-ice.
    Response: The statement on ringed seal displacement due to seismic 
work is from Burns et al. (1981). Based upon aerial surveys conducted 
in June 1975 through June 1977, comparisons were made of ringed seal 
densities between areas of seismic exploration and areas where no human 
on-ice activities occurred. Burns et al. (1981) found densities in the 
years 1975-1977 to be 1.21 seals/nm2 in control area and 
0.61 seals/nm2 in seismic areas, yielding a displacement of 
0.59 seals/nm2 or, rounding, of 0.60 seals/nm2. 
Because no new estimates of displacement have been made on data 
collected since that time, NMFS believes that estimate to continue to 
be the best scientific information available.
    However, the applicant made an estimate for displacement 
independent of Burns et al. (1981). Using the highest recorded density 
of ringed seals between 1975 and 1987 (3.57 seals/nmi2) and 
an assumed displacement of all ringed seals within 300 m (0.16 nmi) in 
a 1.0 nmi track, the applicant and NMFS believe that a worst case 
estimate of 0.57 seals/linear nmi of survey track can be made. If the 
observations in Kelly et al.'s (1986) that ringed seals leave lairs in 
response to vibroseis and associated equipment at a distance up to 644 
m (2,113 ft) is valid, then one can expect approximately 2.5 seals/
linear nmi of survey track could be displaced.
    NMFS notes that 4,500 linear miles of shot line converts to 3,910.4 
linear nmi, not 3,913 nmi2. Multiplying 0.57 seals/linear 
nmi by 3,910 linear nmi equals 2,228, or close to the estimate of 2,346 
seals made using 0.6 seals/nmi2 from Burns et al. (1981). If 
seals are displaced up to 644 m (2,113 ft) from the seismic track, then 
9,775 seals may be displaced annually (2.5 seals/ linear nmi by 3,910 
linear nmi/year).
    NMFS presumes that this displacement includes all ringed seals, 
whether in lairs or in the water. To the extent that presence in lairs 
reduces the tendency to flee, due to higher attenuation of noise in 
lairs (Bliz and Lentfer 1992), the number of seals harassed would be 
lower. However, since ringed seals spend a significant portion of their 
time in the water, NMFS presumes the number not fleeing would be 
minimal.
    Comment 7: One commenter noted that surveys indicated that seal 
distribution, as noted by breathing holes and lairs, indicated a highly 
clumped distribution, rather than random distribution as stated in the 
notice.
    Response: Although NMFS made the assumption of random distribution 
of ringed seals in order to make an assessment of takes by incidental 
harassment, NMFS used the highest observed density of ringed seals 
(3.57 seals/nmi2) in order to compensate for clumped 
distribution. NMFS notes that overall average density during 1975 and 
1987 has varied between 0.97 and 3.57 seals/nmi2.
    Comment 8: This same commenter noted that the distribution of 
seismic lines tends to be highly clumped, and the potential exists that 
an intensive grid of seismic lines would overlap with important pupping 
areas.
    Response: While there may be some potential for seismic surveys to 
overlap with important pupping areas, surveys to date have not 
indicated an overlap. The majority of seismic exploration tends to be 
in shallow regions, inshore of the barrier islands, areas where 
birthing lairs are uncommon. Burns and Kelly (1982), for example, found 
birthing lairs represented only 7-9 percent of those ringed seal lairs 
located by trained dogs. Scientists hypothesize that ringed seal 
territoriality apparently plays a role in the location of birthing 
lairs. Therefore, NMFS believes that, to the extent that pre-survey 
monitoring could locate these regions, fewer pups would be displaced by 
on-ice seismic surveys.
    Comment 9: Greenpeace interpreted the information provided in the 
application and cited from Burns and Kelly (1982) as noting that there 
was a higher rate of lair abandonment when there were human activities 
in combination with seismic activities near the lairs (32.7 percent), 
than when only seismic activities occurred (13.5 percent).
    Response: While NMFS would agree with the statement's conclusion, 
NMFS notes that the increased lair abandonment from 13.5 percent due to 
seismic and a nearby oil exploration project to 32.7 percent occurred 
when activities were followed up by a monitoring program using dogs to 
relocate seals and lairs to determine rates of abandonment (see Kelly 
et al. 1988). Based upon this research, the rate of abandonment 
increased from 4.0 percent on shore-fast ice with no anthropogenic 
disturbance to 13.5 percent due to seismic and a nearby oil exploration 
project.
    Comment 10: One commenter noted that, when seismic activities cause 
a ringed seal to abandon its lair, the abandonment is permanent, not 
temporary.
    Response: NMFS has reviewed the scientific information and has 
determined that the abandonment can be either permanent or temporary. 
Kelly et al. (1988), based upon a study of radio-tagged ringed seals, 
noted that ``in all instances in which seals departed lairs in response 
to disturbance, they subsequently reoccupied the lair.'' However, as 
mentioned in the comment above, when researchers investigated breathing 
or access holes after seismic surveys, 13.5 percent of the holes were 
frozen, indicating permanent abandonment, an increase of 9.5 percent 
from normal abandonment (those with no significant anthropogenic 
disturbances).
    Comment 11: Greenpeace expressed concern that the fate of ringed 
seal lairs and of the mothers and pups within them, when they are run 
over by seismic vehicles, has not been assessed by a scientifically 
credible monitoring/research program since these incidental take 
regulations were first issued.
    Response: Greenpeace is correct; this type of survey has not been 
undertaken. However, NMFS has concerns over the value of such an 
undertaking when compared to other research. First, as discussed above, 
seals inside lairs are expected to vacate the lair prior to the 
vehicles reaching them. Burns and Kelly (1982) suggest that heavy 
equipment and human activity are the major source of disturbance, not 
the vibroseis noise itself. Therefore, impact of vibroseis equipment 
may, in effect, be no different than that of bulldozers or other heavy 
equipment constructing ice roads. As seals departed lairs in response 
to vibroseis and associated equipment at a distance up to 644 m (2,113 
ft)(Kelly et

[[Page 5280]]

al. 1986), seals are not expected to remain in lairs that are within 
the direct track of vehicles.
    In rare cases when seal lairs are damaged, seals unable to occupy 
them after the seismic vehicles have left, may leave. Based upon an 
estimated 3,910 linear nmi of shot line/year, an estimated road width 
of 10 ft (3 m), an estimated 2 lairs/seal and seal densities of 3.57 
seals/nmi2, an estimated 46 seal lairs might be damaged 
annually.
    Comment 12: One commenter noted that (1), if a female abandons a 
pupping lair during the 6-8 week nursing period, it likely results in 
death of the pup and (2) displacing a yearling seal from its primary 
breathing hole means the seal will have to use holes maintained by 
older seals at which it will be especially vulnerable to attack. By 
increasing the time yearlings must spend defending themselves (as a 
consequence of displacement), the animal's chances of survival will 
likely further decrease.
    Response: There are two identified means wherein disturbance could 
cause a loss of pups: (1) Abandonment of a lair by a female, leaving a 
dependent (unweaned) pup and not returning and (2) pup debilitation due 
to entering the water.
    The best scientific information available at this time does not 
indicate that females will abandon a living pup. Instinct apparently 
affords some protection to young. For example, females have been 
observed moving newborn pups from one lair to another (Smith 1987), and 
it is reported that Inuit and polar bears utilize this maternal 
instinct in order to kill females returning to protect a pup (Smith 
1986, Smith et al. 1991). Therefore, there is no scientific evidence to 
indicate that females will abandon pups, especially due to intermittent 
noise from seismic.
    However, dependence on lairs is especially great for pups. Kelly et 
al. (1986) state that, if a pup in lanugo is forced to flee into the 
water, it may not survive the resultant heat loss. It should be noted 
that flight can be caused by anthropogenic disturbance, or by either 
polar bears or Arctic foxes (Smith et al. 1991). Pups that do survive 
swimming through the water to an alternate lair will have to expend 
significant amounts of energy reserves in order to maintain core 
temperature while drying (Taugbol 1982, Smith et al. 1991), especially 
if the pup has not formed a blubber layer. Taugbol (1982) found the 
birth lair to be a necessity for pup survival when, on occasion, pups 
must enter the water because of Arctic foxes and polar bears. In 
addition, wet pups may be easier prey for polar bears and Arctic foxes 
and less able to withstand other stresses (Smith et al. 1991). This 
could, therefore, result in an increase in pup mortality over natural 
mortality. On the other hand, Lydersen and Hammill's (1993) study in 
Svalbard of the movement and growth of dependent (unweaned) ringed seal 
pups that were 25 to 57 days old found that pups of those ages spent an 
average of 50.3 percent of their time in the water and 49.7 percent of 
their time hauled out on the ice. These pups used a mean of 8.7 
different holes that were spaced a maximum of 900 m (2,953 ft) apart. 
This indicates that young ringed seals are quite mobile and readily 
able to move substantial distances.
    While yearling seals may incur increased interactions with other 
seals if their primary breathing holes are lost, it is not apparent 
that this is a normal occurrence. Ringed seals show fairly discrete 
age-class segregation (Smith 1987); and yearling seals are known to 
share breathing holes; and subadults may share lairs (Smith 1987). 
Since the birth lair area is also the breeding area (Smith, 1987), 
yearling and subadult seals are actively excluded by adult breeding 
males from the fast-ice area (Smith 1987). As a result, few yearling 
seals are expected to be found in the breeding fast-ice region. It is 
more likely that adolescent males, those approaching maturity, not 
yearlings, would be subject to agonistic encounters with adult males. 
As a result, NMFS believes that few, if any, yearlings are expected to 
be indirectly killed as a result of seismic noise increasing agonistic 
encounters with adult male seals.

Monitoring Concerns-Population Assessments

    Comment 13: Greenpeace notes (as does the applicant) that there are 
no recent reliable estimate of the number of ringed seals in Alaska or 
in the ice-covered areas of the Beaufort Sea where seismic activities 
will be conducted. Without baseline information (including annual 
recruitment rates), Greenpeace believes that it will be impossible for 
NMFS to make a negligible impact determination.
    Response: NMFS notes that aerial surveys for ringed seals in the 
Beaufort Sea have been conducted in 1970, 1975-1977, 1981-1982, 1985-
1987 and 1996-1997. Except for estimates from the latest surveys, 
density estimates have been made as illustrated in Figure 2 of the 
application. Extrapolating the results of the 1985-1987 surveys 
indicated a Beaufort/Chukchi Sea population estimate of 44,360 +9,310 
(95 percent CI); however this number represents only a portion of the 
geographic range of the stock as many seals occur in the pack ice and 
along the Russian coast (Small and DeMaster 1995). Frost et al. (1997), 
for example, found only 15 percent of observed seals on the fast ice, 
whereas 69 percent were on the pack ice (another 15 percent was 
unclassified).
    Based on the information provided in the above responses and 
because there is no information to indicate that the take would be more 
than by incidental harassment and that the short-term displacement of a 
relatively few animals will not affect the recruitment or survival of a 
stock numbering around 1 to 1.5 million animals in the Bering/Beaufort/
Chukchi Seas (Small and DeMaster 1995), a negligible impact 
determination appears warranted. Therefore, while NMFS believes that it 
can make a negligible impact determination based upon present 
information, it believes that long-term monitoring will be necessary to 
validate its determination.
    Comment 14: Greenpeace also notes that NMFS did not acknowledge 
concerns raised by the MMC in 1992 that there was no means to verify 
that the activities, by themselves and in combination with other 
activities, do not have adverse effects.
    Response: NMFS acknowledged the MMC comment in the final rule (58 
FR 4091, January 13, 1993). At that time, NMFS noted that the low level 
of on-ice seismic activity that had occurred in the past and was 
predicted for the next 5 years (400 miles/yr; 644 km/yr) did not 
warrant a more extensive monitoring program than was being required. 
NMFS noted, however, that, at the 1993 Peer-Review Workshop, NMFS would 
consult with appropriate groups to determine whether a different or 
more extensive monitoring plan, as recommended, was appropriate. That 
workshop did not result in recommended modifications to the monitoring 
plan.
    NMFS notes that, in the above referenced letter, the MMC stated 
that it would be difficult, time-consuming, and prohibitively expensive 
to test the various hypotheses that could be made on how ringed seals 
could be disadvantaged by oil and gas exploration seismic activities. 
As an alternative, they suggested the design and carrying out of a 
long-term population monitoring program to ensure that any adverse 
changes in population size or distribution could be detected and 
stopped before the population could be disadvantaged.
    Comment 15: NMFS must develop a plan to carry out future population 
monitoring in order that a basis will be

[[Page 5281]]

established for determining whether takes associated with winter 
seismic activities will have a negligible impact regionally and for the 
Beaufort Sea population.
    Response: NMFS agrees, noting however that, under Federal and State 
funding, researchers are presently monitoring the distribution and 
abundance of ringed seals in northern Alaska. This research includes 
(1) estimating the relative abundance and density of molting ringed 
seals on fast ice in the Beaufort Sea during 1996-1998 and comparing 
this data with data collected during 1985-1987; (2) correlating ringed 
seal densities on fast ice with environmental parameters; (3) 
determining the abundance and density of molting ringed seals at and 
near industrial operations and comparing this data with otherwise 
comparable non-industrial area; and (4) reviewing the adequacy of 
ringed seal data collected by past industry site-specific monitoring 
programs and making recommendations for protocols to be used in future 
industry studies. While a final report is not due until March 1999, 
preliminary research results should be available earlier.
    NMFS intends to discuss research and monitoring needs for 
determining impacts from on-ice seismic activities as part of its 
annually planned Arctic Peer-Review Workshop in 1998. If monitoring 
measures are recommended by the Workshop participants, these measures 
will be incorporated into LOAs for the winter of 1998/99.

Monitoring Concerns-Methodology

    Comment 16: Commenters noted that the monitoring program during the 
past 5 years and the one proposed for the next 5 years will not provide 
information on the impacts on ringed seals by seismic activities.
    Response: While NMFS notes that little monitoring for this activity 
has been carried out in the past, the level of monitoring prescribed 
for 1993-1997 was commensurate with the expected impact on ringed seals 
(480 harassments/yr). The basic purpose for monitoring small take 
authorizations in the Arctic is to verify the predicted effects, to 
detect any unforeseen effects of oil and gas exploration activities 
(Swartz and Hofman 1991), and to verify that the assumption made 
regarding negligible impact is supportable. The purpose therefore for a 
site-specific monitoring program is to (1) determine when, where, how, 
and how many marine mammals, by species, age/size, and sex are taken, 
and (2) document for retrospective analysis, the nature, location, 
duration, and scale of pre- and post-leasing oil and gas exploration 
activities that might affect marine mammals (Swartz and Hofman 1991). 
While there is no information that takings are having a more than 
negligible impact on ringed seals, monitoring during vibroseis surveys 
is warranted provided monitoring is practical, cost effective and does 
not result in increasing substantially marine mammal takes. If a 
monitoring program cannot be designed to meet these criteria, a 
research program might be warranted as a practical alternative to 
support a negligible impact finding.
    Comment 17: Noting the lack of an effective monitoring program, the 
commenter noted that there are three possible means for monitoring 
ringed seal effects by on-ice seismic operations: (1) aerial surveys, 
(2) remote sensing, and (3) surveys using trained dogs.
    Response: As discussed above, aerial surveys have been and are 
presently being conducted in May and June, when ringed seals are 
spending more of their time on the surface of the ice basking. 
Unfortunately, these surveys do not necessarily indicate the magnitude 
of impacts (displacement) from seismic activities conducted earlier in 
the year. To provide estimates of impact, research initiatives were 
begun in 1981 and 1982, including on-ice surveys using trained 
retrievers and radio telemetry (see Kelly et al. 1988).
    As the commenter noted in his letter, the use of remote sensing is 
still limited in its utility for locating breathing holes. NMFS notes, 
however, that infra-red remote censusing is currently being used for 
locating polar bear dens and may provide useful information in locating 
ringed seal lairs.
    The use of trained dogs and/or telemetry to locate ringed seal 
lairs is currently the only practical method identified to directly 
assess impacts on ringed seals from on-ice seismic activities. The 
feasibility of using this technology, or other methodology such as 
measurements of ringed seal vocalizations in response to seismic noise, 
will be assessed at the Arctic Peer-Review Workshop, and a 
determination made at that time regarding feasibility, practicality, 
and its applicability to respond to monitoring needs noted in comment 
16 above. Those showing promise of success will either be implemented 
as a monitoring requirement for future year LOAs or be recommended for 
additional research.
    Comment 18: The MMC notes that NMFS has requirements for having 
survey groups designate a qualified individual to observe and record 
the presence of ringed seals along seismic lines and around camps. They 
note however that the training (or monitoring requirements-see above) 
may not be enough to locate ringed seal lairs.
    Response: NMFS notes that having seismic crews knowledgeable about 
ringed seal lair locations and keeping an observation for them is 
insufficient by itself to mitigate, to the greatest extent practicable, 
the take of ringed seals. As a result, NMFS has modified the 
regulations to authorize NMFS to require, when necessary, under a LOA, 
either a marine mammal biologist trained in ice-seal behavior, or an 
Inuit native from the Arctic who is familiar with ice seal behavior.

Monitoring Concerns--Peer Review

    Comment 19: Greenpeace notes that the proposed rules lack a 
requirement for a peer-review overall monitoring program that could 
measure both site-specific take and effects on the rates of recruitment 
or survival of the Beaufort Sea population.
    Response: NMFS notes that peer-review is not a statutory 
requirement for small take authorizations issued under section 
101(a)(5)(A) of the MMPA. As a result, paragraph 216.105 (b)(3) of this 
part does not mandate peer review of monitoring plans; it only notes 
that, under activity-specific regulations, a peer-review process may be 
established if warranted (see 61 FR 15884, April 6, 1996). The need for 
peer-review is determined through notice and comment on the proposed 
rule for the applicant's activity. At the 1998 Arctic Peer-Review 
Workshop, reviews will be conducted by NMFS scientists and others, and 
the results will be available prior to issuance of the following year's 
authorizations.

Mitigation Concerns

    Comment 20: The MMC recommends that NMFS promulgate regulations 
subject to the following mitigation requirements: (1) Surveys 
sufficient to detect the locations of ringed seals and ringed seal 
lairs that could be affected by the seismic operations be conducted 
prior to finalizing the tracklines and initiating such operations; (2) 
the tracklines for the seismic operations that reflect the results of 
those surveys so as to avoid active ringed seal lairs to the maximum 
extent practicable, and thereby minimizing the possible effects on 
ringed seals; and (3) a monitoring program sufficient to provide 
accurate estimates of the number of seals and lairs affected and the 
biological significance of the effects.
    Response: Present technology requires the use of trained dogs to 
locate ringed seal lairs. While these dogs can locate ringed seal lairs 
up to 150 m (492 ft)

[[Page 5282]]

away when tracking perpendicular to the wind (Burns and Kelly 1986), 
because vibroseis equipment has a displacement effect to 150 m (492 
ft), at least two tracks would be needed prior to initiating seismic 
surveys. However, such surveys are not without impact themselves, as 
dogs have been documented to cause ringed seal lair abandonment at 6 m 
(18 ft) and snowmobiles (used by the dog's handlers and scientists) at 
2.8 km (1.7 mi). Therefore, a research design would be needed to 
minimize displacement takes by researchers/monitors prior to making 
this a requirement of the LOA. As noted in previous authorization 
(January 13, 1993, 58 FR 4091), as a result of a comment from the MMC, 
NMFS raised the relevancy of using dogs to locate ringed seals and 
ringed seal lairs at the 1993 Peer Review Workshop in Seattle. The 
consensus of those in attendance that the use of dogs to locate ringed 
seal lairs and breathing holes resulted in an increased harassment of 
ringed seals and in a potential increase in interactions between humans 
and polar bears (which apparently are attracted by the dogs). Finally, 
NMFS notes that trained Labrador retrievers are more effective than 
native dogs in locating seal lairs, but they are expensive to rear and 
train.

Research Concerns

    Comment 21: Commenters noted the lack of research initiatives to 
assess impacts for on-ice seismic activities.
    Response: NMFS disagrees. NMFS notes that several studies were 
conducted in the past, most around the time of the first application 
for a small take authorization in 1982 (see 47 FR 21248, May 18, 1982). 
The results from this research, which was summarized in the application 
and proposed rule, indicated to NMFS that on-ice seismic activities 
would not have more than a negligible impact on ringed seals. Most of 
the documented disturbances resulted in displacement of the animal.
    As mentioned in the application, the Alaska Department of Fish and 
Game in cooperation with Minerals Management Service (MMS) will make 
estimates of the relative abundance and density of molting ringed seals 
on fast ice in the Beaufort Sea during 1996-1998 and compare these 
results with data collected during 1985-1987. They will also correlate 
ringed seal densities on fast ice with environmental parameters and 
determine the abundance and density of molting ringed seals at and near 
industrial operations, and compare that data with data from an 
otherwise comparable non-industrial area.

National Environmental Policy Act (NEPA) Concerns

    Comment 22: Greenpeace believes that the impacts from winter 
seismic activities cannot be assessed separately from cumulative 
impacts from expanding offshore exploratory drilling, development and 
transportation activities that may follow or are already occurring.
    Response: NMFS agrees, noting, however, that cumulative impacts 
from offshore exploratory drilling activities (which include both open 
water and on-ice seismic activities) were addressed in the respective 
environmental impact statements (EISs) for the Arctic leases. These 
documents were prepared by MMS. Additionally, MMS prepares NEPA 
documentation that, in part, discusses the cumulative impacts of all 
lease sales contemplated over individual 5-year periods. Because NMFS 
does not authorize the lease sales and does not permit the activity 
(seismic exploration), only the taking of marine mammals incidental to 
that activity, it is not required to consider cumulative impacts from 
all oil and gas activities. However, NMFS is responsible for making a 
determination that the total taking by the activity (on-ice seismic) is 
having no more than a negligible impact on marine mammal stocks and 
that the taking is not having an unmitigable adverse impact on 
subsistence needs. Comment 23: Greenpeace believes that, because 
bearded seals have not been discussed in previous small take 
authorizations, NEPA documentation is warranted.
    Response: While NMFS disagrees that the potential for the 
incidental harassment of a very small number of bearded seals (see 
above discussion) requires NEPA analysis, NMFS has prepared a new EA to 
better define and analyze the impacts on marine mammals from the 
proposed action and identified alternatives.

Other Concerns

    Comment 24: Greenpeace believes that NMFS and the U.S. Fish and 
Wildlife Service are each evaluating the impacts of oil and gas 
exploration small take authorizations on their respective species and 
not considering the impacts each authorization has on the other's 
species.
    Response: As a result of this comment, NMFS has incorporated by 
reference into the EA a discussion on polar bears and the potential 
impact of harassing ringed seals on those polar bears that feed upon 
them. The finding of that analysis was that the short-distance 
displacement of ringed seals in the vicinity of on-ice seismic 
operations would have a significant impact on neither ringed seals nor 
the polar bears that prey on them. Because seismic operations are 
limited to the shorefast ice and because polar bears prefer pack ice, 
seismic effects are considered minimal on polar bear prey.
    Comment 25: The MMC believes NMFS should expand the discussion of 
impacts on ringed seals from on-ice seismic by discussing the impacts 
to ringed seal prey, particularly Arctic cod.
    Response: Airguns, waterguns and vibroseis devices 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 seismic device 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-filled swim bladders by high frequency pressure waves. In 
contrast, for example, 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 vibroseis and airguns 
therefore, should have little effect on those species of fish that are 
the prey of ringed seals.
    Comment 26: Greenpeace believes that NMFS has ignored the potential 
harm that could occur from chronic fuel spills and major oil spills. 
Winter oil or hazardous material spills under the ice may 
preferentially flow to the under-ice breathing holes, refrozen cracks 
or birthing lair entrances of ringed seals.
    Response: A survey crew carries fuel oil intended for motor 
vehicles and for heating living quarters on sleighs, as described in 
the application. Should one of these fuel cells leak or break due to an 
accident, a spill contingency plan would be put into operation 
immediately. Such spills would be expected to be small and localized. 
No hazardous materials are used in vibroseis or watergun seismic 
surveys.

Changes From the Proposed Rule

    1. The effective dates of the regulations have been corrected to 
show that the expiration date is December 31, 2002.
    2. The final rule has been amended to allow NMFS to require 
additional monitoring and research under a LOA based upon a peer review 
process.

[[Page 5283]]

    3. The final rule has been amended to add requirements for 
obtaining an LOA and ensuring coordination with Alaskan Native 
communities.

NEPA

    In conjunction with a notice of proposed rulemaking on this issue 
on September 15, 1992 (57 FR 42538), NMFS released an 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 July 30, 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. As NMFS explained 
in the proposed rule (62 FR 55564, October 27, 1997), 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 or analyses have been 
developed in the past 5 years significant enough to warrant new NEPA 
documentation, NMFS did not intend to prepare a new EA. However, based 
on comments received, NMFS has updated the 1992 EA with information 
provided in BPXA's application and a review of recent science. This new 
EA indicates that, as in the 1992 EA, 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 NMFS has signed a Finding of No Significant Impact (FONSI) 
statement and thereby determined that an EIS was not warranted. 
Therefore, none has been prepared. A copy of the 1997 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.
    Section 553(d) of Title 5 of the U.S.C. requires that the 
publication of a substantive rule shall be made not less than 30 days 
before its effective date unless the rule grants or recognizes an 
exemption or relieves a restriction. Until these regulations are 
effective, seismic operators can not be issued LOAs authorizing takings 
incidental to their operations. This places the seismic operators in a 
position of potentially violat-ing the MMPA should their activities 
result in a take of a marine mammal. Therefore, the Assistant 
Administrator for Fisheries, NOAA finds that the waiver of the 30-day 
delayed effectiveness date relieves a restriction pursuant to 5 U.S.C. 
553(d)(1).
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Small Business Administration 
at the proposed rule stage that, if this rule is adopted, it 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 are major energy 
exploration companies and their contractors, neither of which by 
definition is a small business. 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. 
Please send any comments to NMFS and OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 216

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: January 23, 1998
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set forth in the preamble, 50 CFR part 216 is 
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 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 Mitigation.
216.115 Requirements for monitoring and reporting.
216.116 Applications for Letters of Authorization.
216.117 Renewal of Letters of Authorization.
216.118 Modifications to Letters of Authorization.
216.119 [Reserved].

Subpart J--Taking of Ringed 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 February 2, 1998 
through December 31, 2002.



Sec. 216.113  Permissible methods.

    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, issued under Sec. 216.106, is permitted during the 
course of the following activities:
    (a) On-ice geophysical seismic activities involving vibrator-type, 
airgun, or other energy source equipment shown to have similar or 
lesser effects.
    (b) Operation of transportation and camp facilities associated with 
seismic activities.


[[Page 5284]]

Sec. 216.114  Mitigation.

    (a) All activities identified in Sec. 216.113 must be conducted in 
a manner that minimizes to the greatest extent practicable adverse 
effects on ringed and bearded seals and their habitat.
    (b) All activities identified in Sec. 216.113 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. 216.115  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 qualified 
on-site individuals, as specified in the Letter of Authorization, 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 paragraph (d) of this section.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) 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.



Sec. 216.116  Applications for Letters of Authorization.

    (a) To incidentally take ringed and bearded seals pursuant to these 
regulations, each company conducting seismic operations between January 
1 and May 31 in the geographical area described in Sec. 216.111, must 
apply for and obtain a Letter of Authorization in accordance with 
Sec. 216.106.
    (b) The application must be submitted to the National Marine 
Fisheries Service at least 90 days before the activity is scheduled to 
begin.
    (c) Applications for Letters of Authorization and for renewals of 
Letters of Authorization must include the following:
    (1) Name of company requesting the authorization;
    (2) A description of the activity including method to be used 
(vibroseis, airgun, watergun), the dates and duration of the activity, 
the specific location of the activity and the estimated area that will 
actually be affected by the exploratory activity;
    (3) Any plans to monitor the behavior and effects of the activity 
on marine mammals;
    (4) A description of what measures the applicant has taken and/or 
will take to ensure that proposed activities will not interfere with 
subsistence sealing; and
    (5) What plans the applicant has to continue to meet with the 
affected communities, both prior to and while conducting the activity, 
to resolve conflicts and to notify the communities of any changes in 
the operation.
    (d) A copy of the Letter of Authorization must be in the possession 
of the persons conducting activities that may involve incidental 
takings of ringed and bearded seals.



Sec. 216.117  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 for the 
activity identified in Sec. 216.111 will be renewed annually upon:
    (1) Timely receipt of the reports required under Sec. 216.115(d), 
which have been reviewed by the Assistant Administrator and determined 
to be acceptable; and
    (2) A determination that the mitigation measures required under 
Sec. 216.114(b) and the Letter of Authorization have been undertaken.
    (b) A notice of issuance of a Letter of Authorization or of a 
renewal of a Letter of Authorization will be published in the Federal 
Register within 30 days of issuance.



Sec. 216.118  Modifications to Letters of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (b) of this section, no substantive 
modification, including withdrawal or suspension, to a Letter of 
Authorization issued pursuant to Sec. 216.106 and subject to the 
provisions of this subpart shall be made until after notice and an 
opportunity for public comment. For purposes of this paragraph, renewal 
of a Letter of Authorization under Sec. 216.117, without modification, 
is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec. 216.111, the Letter of 
Authorization issued pursuant to Sec. 216.106, or renewed pursuant to 
this section may be substantively modified without prior notice and an 
opportunity for public comment. A notice will be published in the 
Federal Register subsequent to the action.


Sec. 216.119   [Reserved]

[FR Doc. 98-2248 Filed 1-30-98; 8:45 am]
BILLING CODE 3510-22-F