[Federal Register Volume 68, Number 41 (Monday, March 3, 2003)]
[Notices]
[Pages 9991-9996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4896]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 012903A]


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Conducting Oil and Gas Exploration Activities in the Gulf 
of Mexico

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

ACTION: Notice of receipt of application for a small take 
authorization; request for comments and information.

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SUMMARY: NMFS has received a request from the U.S. Minerals Management 
Service (MMS) of the Department of the Interior, for authorization to 
harass small numbers of marine mammals, principally the sperm whale, 
incidental to conducting seismic surveys in the Gulf of Mexico (GOM). 
As a result of that request, NMFS is considering whether to propose 
regulations that would govern the incidental taking of small numbers of 
marine mammals under Letters of Authorization (LOAs) issued to members 
of the seismic industry that might have interactions with sperm whales. 
In order to promulgate regulations and issue LOAs, NMFS must determine 
that these takings will have a negligible impact on the affected 
species and stocks of marine mammals. NMFS invites comment on the 
preliminary application and suggestions on the content of the 
regulations.

DATES: Comments and information must be postmarked no later than April 
2, 2003.

[[Page 9992]]


ADDRESSES: Comments should be addressed to the Chief, Marine Mammal 
Conservation Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3226. A copy of the application and a list of references used in this 
document may be obtained by writing to this address, or by telephoning 
the contact listed here (see FOR FURTHER INFORMATION CONTACT). A copy 
of the MMS draft Programmatic Environmental Assessment (Draft PEA) is 
available by writing to: Minerals Management Service, Public 
Information Office, 1201 Elmwood Park Boulevard, New Orleans, LA 70123-
2394. Comments will not be accepted if submitted via e-mail or the 
Internet.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, 301-
713-2055, ext 128.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C. 
1361 et seq.)(MMPA) 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 regulations are issued.
    Permission may be granted for periods of 5 years or less if the 
Secretary finds that the taking will have a negligible impact on the 
species or stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses, and 
regulations are prescribed setting forth the permissible methods of 
taking and the requirements pertaining to the monitoring and reporting 
of such taking.
    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.'' The MMPA defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild (Level A harassment); or (ii) 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 
(Level B harassment).

Summary of Request

    On December 20, 2002, MMS petitioned NMFS, as a precautionary 
measure, for rulemaking under section 101(a)(5)(A) of the MMPA to 
authorize any potential take of sperm whales (Physeter macrocephalus) 
incidental to conducting seismic surveys during oil and gas exploration 
activities in the GOM (MMS, 2002a). MMS has preliminarily determined 
that the taking will involve only small numbers of sperm whales; have 
no more than a negligible impact on the species and stocks of affected 
marine mammals; and not have an unmitigable adverse impact on the 
availability of marine mammals for subsistence uses. It should be noted 
that MMS expects to update its petition for regulations to include the 
incidental take of other species of marine mammals, such as dolphins, 
beaked whales, and Bryde's whales (Balaenoptera edeni), based upon 
information currently being assessed under the National Environmental 
Policy Act (NEPA). The NEPA document will be submitted to NMFS prior to 
its determination on whether or not to proceed with this rulemaking. If 
NMFS decides to proceed with rulemaking, that document will expand the 
description of seismic airgun operations and on the analysis of impacts 
on marine mammals by seismic airgun arrays.

Description of the Specified Activity

    Marine geophysical seismic surveys are conducted to obtain 
information on surface and near-surface geology and on subsurface 
geological formations. Typical seismic surveying operations tow an 
array of airguns (the seismic sound source) and a streamer (signal 
receiver cable) behind the vessel, 5-10 m (16.4-32.8 ft) below the sea 
surface. The airgun array produces a burst of underwater sound by 
releasing compressed air into the water column that creates an acoustic 
energy pulse. The release of compressed air every several seconds 
creates a regular series of strong acoustic impulses separated by 
silent periods lasting 7-16 seconds, depending on survey type and depth 
to the target formations. Airgun arrays are designed to focus the sound 
energy downward. Acoustic (sound) signals are reflected off the 
subsurface sedimentary layers and recorded near the water surface by 
hydrophones spaced within the streamer cables. These streamer cables 
are often 3 mi (4.8 km) or greater in length. Vessel speed is typically 
4.5-6 knots (about 4-8 mph) with gear deployed.
    The 3-D (3-Dimensional) seismic surveying enables a more accurate 
assessment of potential hydrocarbon reservoirs to optimally locate 
exploration and development wells, and minimize the number of wells 
required to develop a field. State-of-the-art interactive computer 
mapping systems can handle much denser data coverage than the older 2-D 
seismic surveys. Multiple-source and multiple-streamer technologies are 
used for 3-D seismic surveys. A typical 3-D survey might employ a dual 
array of 18 guns per array. Each array might emit a 3,000 cubic-inch 
burst of compressed air at 2,000 kilojoule (kJ) of acoustic energy for 
each burst. The streamer array might consist of 6-8 parallel cables, 
each 6-8 km (3.7-5 mi) long, spaced 75 m (246 ft) apart. A series of 3-
D surveys collected over time (4-D seismic survey) is used for 
reservoir monitoring and management (the movement of oil, gas, and 
water in the reservoirs can be observed over time).
    For management purposes, MMS has divided the Northern GOM into 
three planning areas: Eastern, Central and Western. In general, Federal 
waters offshore Florida and Alabama are in the Eastern Planning Area, 
Federal waters offshore Mississippi and Louisiana are in the Central 
Planning Area, and Federal waters offshore Texas are in the Western 
Planning Area. For seismic exploration, about 1300 blocks in the 
Western and Central Planning Areas have not yet been surveyed with 3-D 
seismic techniques (R. Brinkman, MMS GOM Region, pers comm, 2002). It 
is assumed that a lower level of new seismic survey activity will occur 
in the Eastern Planning Area relative to the other two areas (i.e. the 
vast majority of survey activities are expected in the Central and 
Western Planning Areas). Industry interest in the Eastern GOM has 
historically been limited to the westernmost portions of the planning 
area and is usually defined by MMS' 5-Year Leasing Plan (MMS, 2002a).
    The different types of seismic survey activity in the northern GOM 
can occur on any day of a given year during the scope of the petition 
(5 years). Seismic surveys may span one day, weeks, or months. MMS 
(2002b) provides detailed characteristics of the different types of 
operations and equipment applicable to seismic surveys employed in the 
region. That information will be used by NMFS during this rulemaking.
    Seismic surveys may be conducted in any Federal waters of the GOM. 
Tables provided in the MMS application (MMS, 2002a) project the 
anticipated surveys for vertical seismic profiling, deep seismic, and 
high resolution

[[Page 9993]]

seismic operations in the GOM over the next 5 years.

Description of Marine Mammals Affected by the Activity

    There are 29 species of marine mammals documented as occurring in 
Federal waters of the GOM. General information on these species can be 
found in NMFS Stock Assessment Reports (Waring, 2001, 2002). These 
documents are available at: http://www.nmfs.noaa.gov/prot__res/PR2/
Stock__Assessment__Program/sars.html/ Stock Assessment Reports.
    Any of these 29 marine mammal species may be exposed to acoustic 
energies introduced into Federal waters by seismic survey operations. 
At this time, the MMS is requesting authorization of take for only GOM 
sperm whales under this petition; therefore, the remainder of this 
section addresses this species only. Additional information on sperm 
whales in the GOM is available in NMFS (2002a), which is available for 
viewing or downloading at: http://www.nmfs.noaa.gov/prot__res/overview/
publicat.html/ section.
    Sperm whales are the most abundant large cetacean in the GOM, and 
are the most important Gulf cetacean in terms of collective biomass. 
The GOM sperm whales are comprised of mostly female and juvenile 
animals, although a few large bulls have been sighted in the northern 
Gulf. Some large males have been observed in the Gulf in recent summer 
surveys, particularly in the DeSoto Canyon region. Calves are 
frequently sighted. The GOM sperm whale abundance has recently been 
estimated by NMFS at 1,213 (CV 0.35) whales with a minimum population 
estimate of 911 whales. The presence of cow/calf pairs indicates that 
the northern GOM is a biologically important nursery area for sperm 
whales. Based on seasonal aerial surveys, sperm whales are present in 
the northern GOM in all seasons, but sightings in the northern GOM are 
more common during the summer months. Based on recent survey efforts, 
areas of concentration appear to be off the Mississippi River Delta, 
off Southern Florida, and off South Texas.
    Sperm whales have been observed throughout the GOM from the upper 
continental slope near the 100-m (328.1-ft) isobath to the seaward 
extent of the U.S. Exclusive Economic Zone (EEZ) and beyond. It should 
be noted that both the apparent seasonality and the areas of 
concentration could be affected by, or the result of, geographic and 
seasonal patterns of existing surveys and, as such, should be 
considered tentative findings.

Potential Effects of Seismic Activities on Marine Mammals

    The Federal waters of the GOM are inhabited by a diverse assemblage 
of marine mammal species, including the sperm whale. Seismic surveys 
are conducted in these waters, and acoustic energies introduced into 
Gulf waters may adversely impact marine mammals in the vicinity of the 
activity. The potential adverse impacts to Gulf sperm whales are 
detailed in NMFS (2002a). Additional information describing potential 
impacts is documented in MMS (2002b). Because loud underwater noise has 
the potential to harass, injure, and possibly cause the mortality of 
marine mammals, MMS is seeking an authorization, under the MMPA, for 
the harassment, injury, and/or mortality of sperm whales in GOM that 
may occur as a result of seismic surveys as described in this document 
and in MMS (2002a and 2002b). While the serious injury or mortality of 
sperm whales or other marine mammals is believed to be unlikely, 
especially due to the implementation of effective mitigation measures 
to protect marine mammals (see Mitigation), MMS has requested 
authorization for takings by incidental mortality at least until 
additional impact assessments are completed under NEPA and any 
rulemaking. This authorization is being sought by the MMS on the behalf 
of the offshore oil and gas industry and seismic contractors operating 
within the GOM.
    As outlined in several previous NMFS documents, the effects of 
noise on marine mammals are highly variable, and can be categorized as 
follows (based on Richardson et al., 1995):
    (1) The noise may be too weak to be heard at the location of the 
animal (i.e., lower than the prevailing ambient noise level, the 
hearing threshold of the animal at relevant frequencies, or both);
    (2) The noise may be audible but not strong enough to elicit any 
overt behavioral response;
    (3) The noise may elicit reactions of variable conspicuousness and 
variable relevance to the well being of the marine mammal; these can 
range from temporary alert responses to active avoidance reactions such 
as vacating an area at least until the noise event ceases;
    (4) Upon repeated exposure, a cetacean may exhibit diminishing 
responsiveness (habituation), or disturbance effects may persist; the 
latter is most likely with sounds that are highly variable in 
characteristics, infrequent and unpredictable in occurrence (as are 
vehicle launches), and associated with situations that a marine mammal 
perceives as a threat;
    (5) Any anthropogenic noise that is strong enough to be heard has 
the potential to reduce (mask) the ability of a cetacean to hear 
natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise;
    (6) If mammals remain in an area because it is important for 
feeding, breeding or some other biologically important purpose even 
though there is chronic exposure to noise, it is possible that there 
could be noise-induced physiological stress; this might (in turn) have 
negative effects on the well-being or reproduction of the animals 
involved; and
    (7) Very strong sounds have the potential to cause temporary or 
permanent reduction in hearing sensitivity. In terrestrial mammals, and 
presumably marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any temporary threshold 
shift (TTS). For transient sounds, the sound level necessary to cause 
TTS is inversely related to the duration of the sound. Received sound 
levels must be even higher for there to be risk of permanent hearing 
impairment. In addition, intense acoustic or explosive events may cause 
trauma to tissues associated with organs vital for hearing, sound 
production, respiration and other functions. This trauma may include 
minor to severe hemorrhage.
    Sperm whales spend large amounts of time at depth and use low 
frequency sound to communicate and navigate. Therefore, they are 
considered sensitive to the marine acoustic environment and may respond 
to sound emissions in many ways. Reactions to acoustic emissions may 
include, but are not limited to, cessation of vocalizations, disruption 
of feeding and dive behaviors, and physical avoidance. Seismic 
operations can introduce noise into the sea that may cause temporary or 
permanent hearing impairment in marine mammals if the noise is strong 
enough and/or if the animal is in close proximity to the sound source 
when transmitting. Such impairment could have the potential to diminish 
the individual's chance for survival. Tolerance of noise is often 
demonstrated, but this does not prove that the animals are unaffected 
by noise; adverse levels of noise might interrupt or decrease feeding 
activity, social interactions, or parenting (e.g. nursing calves, if 
the interruption is extended). Therefore, behavioral responses causing 
adverse effect to individuals and cow/

[[Page 9994]]

calf pairs, reproduction, feeding or temporary or permanent threshold 
shifts due to seismic activity may negatively impact GOM sperm whales 
if disruptions are extended. There are no documented data on auditory-
induced physical effects of underwater seismic noise on sperm whales. 
There is observational evidence that sperm whales may be temporarily 
displaced to areas near those where seismic operations are underway. 
However, while MMS believes that sperm whales apparently are not being 
displaced from the northern Gulf due to seismic surveys, NMFS notes 
that no data have been provided to support this statement. Nonetheless, 
it is unknown whether their site fidelity reflects low sensitivity to 
seismic noise or a high motivation to remain in the area in spite of 
this noise. Details of such emissions and potential impacts to sperm 
whales are characterized in NMFS (2002a) and MMS (2002b).
    NMFS anticipates an unspecified number of sperm whales within 
Federal waters of the GOM may be adversely affected by seismic 
activities, especially in known areas of concentration (primarily off 
the Mississippi River delta) where cow/calf pairs are frequently 
sighted (NMFS, 2002a). At this time, there are insufficient data 
regarding the demography of the Gulf sperm whale stock to estimate the 
number of takes of sperm whales by age, sex, and reproductive 
condition. Most animals potentially exposed to seismic noise are 
expected to be adult females and immature animals, including young 
calves. It is understood that all animals comprising the Gulf stock 
(1,213 sperm whales) may be exposed to seismic noise during their 
lifetimes, and repeated exposure is anticipated, particularly in light 
of the facts that (a) sperm whales are wide-ranging animals, and (b) 
acoustic energy may travel great distances, depending on a suite of 
variables. At present, the means to accurately estimate the anticipated 
number of exposures for Level A or B Harassment takes of sperm whales 
as a result of seismic activity are not available.
    In the absence of species-specific data on auditory impacts for 
sperm whales, a received sound pressure level of 180 dB re 1 [mu]Pa 
(rms) or greater will be used as an indication of potential concern 
about temporary and/or permanent hearing impairment (Level A 
Harassment, as used by NMFS in previous rulemakings).
    While a spreading loss equation of 20 log R is recommended by 
Richardson et al. (1995) for calculating underwater transmission loss 
in deep water, MMS believes a spreading loss equation of 15 log R is 
more appropriate for shallow water such as the GOM. Using a spreading 
equation (15log(R)), the 180-dB re 1 [mu]Pa (rms) isopleth in surface 
and near-surface waters occurs at 295 m (968 ft) from a standard airgun 
array. Similarly, the 180 dB re 1 [mu]Pa (rms) isopleth vertically 
below the seismic source is calculated to be 6,310 m (3.92 mi). By 
means of a Gulf-wide Notice to Lessees (NTL) for all seismic activities 
(30 CFR 250.103, August 22, 2002), MMS has implemented a 500-m (1,640-
ft) impact zone to minimize possible effects to sperm whales. For 
typical 2-D and 3-D towed array seismic surveys with estimated source 
levels of 257 dB re 1 [mu]Pa (-3 dB rms conversion), a 500-m (1,640-ft) 
impact zone for a 180 dB isopleth equates to an estimated source level 
of approximately 232 dB. According to NMFS (2002a), at source levels of 
257 dB (rms), the 20 Log(R) model and associated calculation above 
produce received levels of 203 dB re 1 [mu]Pa at 500 m (1,640 ft) from 
the source in subsurface waters (a conservative estimate) and 183 dB in 
surface waters due to the array effect. Presently, the impact zone of 
500 m (1,640 ft) closely approximates the received dB levels in surface 
waters, but may not accurately reflect the 180 dB isopleth and 
associated impact zone beneath an array. These disparities between dB 
measurements for surface and sub-surface waters indicate the need for 
better data to effectively formulate models that can be used to better 
calculate an impact zone for sperm whales.
    In the absence of good sound scientific information for sperm 
whales in the GOM, a received sound pressure level of 160 dB re 1 
[mu]Pa (rms) will be used in this application as the default indicator 
of, or for, potential concern to disturb a sperm whale in the wild by 
causing disruption of behavioral patterns, including but not limited 
to, migration, breathing, nursing, breeding, feeding, or sheltering 
(Level B Harassment, as used previously by NMFS for impulse noise). 
Using a spherical spreading equation (15log(R), -20 dB for the array 
effect, and -3 dB for zero-to-peak to RMS conversion), the 160 dB re 1 
[mu]Pa (rms) isopleth in surface and near-surface waters occurs at 
6,309 m (3.92 mi) from the seismic airgun source. Similarly, the 160 dB 
re 1 [mu]Pa (rms) isopleth below the seismic source is calculated to 
extend to the sea floor.
    Given that (a) the Level B Harassment impact zone ranges between 
6,309 m (3.92 mi) and depth below the vessel (3.92 mi and greater), (b) 
the Level A Harassment (injury) or mortality impact zone ranges between 
295 m (968 ft) and 6,309 m (3.92 mi), (c) seismic survey operations may 
be conducted over broad swaths of the Gulf, (d) sperm whales are wide-
ranging and inhabit oceanic waters of the northern Gulf, (e) animals 
may or may not avoid seismic noise sources, and (f) sperm whales may 
potentially be repeatedly exposed to seismic noise introduced into the 
GOM, MMS expects that an unspecified number of sperm whales (chiefly 
adult females and immature animals) may be exposed to levels of 160 dB 
or greater if they do not avoid exposure by moving away from the noise 
source. The MMS anticipates new information in the near future from 
which it will calculate anticipated take numbers for seismic activity. 
These numbers will be included in MMS' NEPA document and provided to 
NMFS for rulemaking needs.
    NMFS has been determined (NMFS, 2002a) that ramp-up procedures and 
visual monitoring of an impact zone coupled with passive acoustic 
monitoring systems will more effectively minimize possible adverse 
effects to sperm whales than ramp-up and visual observations alone, as 
currently required by MMS' NTL No. 2002-G07 and Addendum 1. 
Conservative estimates should be used to calculate impact zones for 
sperm whales without the array effect until more appropriate models can 
be formulated from field measurements that effectively minimize the 
risk of threshold shift to sperm whales. The use of mitigation measures 
such as visual and acoustic monitoring of adjacent waters (e.g. 
delineated by the 160 or 180 dB re 1 [mu]Pa (rms) isopleths), shut-
downs, or ramping up seismic airguns are presumably effective 
techniques that may reduce the potential number of sperm whales taken 
by harassment as a result of seismic surveys. It is assumed that the 
likelihood of impacts will be reduced relative to the scope of 
mitigation measures employed by seismic operators. For example, it is 
presumed that some animals may experience Level A Harassment if only 
visual monitoring is employed, and animals do not actively avoid noise 
or are missed during visual monitoring. Similarly, fewer animals will 
experience Level A Harassment if visual and effective acoustics 
monitoring are conducted in conjunction with shut-downs and ramping up. 
An acoustic model that incorporates acoustic noise propagation, 
environmental variables, and ecological and behavioral variables known 
for marine mammals (e.g. sperm whales) would be necessary for the MMS 
to quantify the anticipated takes

[[Page 9995]]

of sperm whales attributable to seismic operations in the GOM; the MMS 
presently does not have access to such a model.
    There is a reasonable potential that seismic surveys are exposing 
sperm whales to noise levels that may cause behavioral disturbance. The 
most probable disturbance is avoidance (moving away) from an actively-
transmitting seismic vessel. The degree of displacement, length of time 
involved, and types of normal activities interrupted would influence 
the significance of this disturbance. Less likely, but possible, is 
that sperm whales will remain within acoustic exposure levels that will 
cause temporary hearing impairment or permanent hearing damage. This 
outcome would require whales to lack the ability to detect harmful 
sound intensities, ``ignore'' the signal in favor of other behavior 
such as feeding, or be in close proximity to a sudden start-up of the 
airguns. The GOM environment is deep, open waters. Short of a 
physically impaired whale or a whale being caught between two seismic 
sources, no physical constraints exist in the GOM that would ``trap'' a 
whale near a seismic sound source.
    The area of most concern is the area of apparent concentration of 
whales located on the continental slope offshore of the Mississippi 
River mouth (and extending east to the DeSoto Canyon area in the 
Eastern Planning Area), where a year-round population of sperm whales 
has been documented. Although sperm whales apparently are not being 
displaced from this area due to seismic surveys, it is unknown whether 
their site fidelity reflects low sensitivity to seismic noise or a high 
motivation to remain in the area in spite of this noise. Because there 
is some evidence of sperm whale responses to low frequency noise, 
including possibly leaving an area where seismic surveys are occurring, 
it is reasonable to presume that these animals are being exposed to 
adverse noise levels (i.e., noise levels that would cause behavior 
modification, such as avoidance or displacement) in a preferred 
habitat. Minor behavioral changes typically do not adversely affect 
either the individual or the population. To date, there is no evidence 
that behavioral changes prompted by seismic noise are of sufficient 
magnitude to have meaningful effects on this population in that no 
large-scale displacement or voids in sperm whale occurrence relative to 
seismic activities have been observed. The present state of knowledge 
indicates sperm whales may react to seismic activity, but results are 
not consistent. Studies are underway to precisely determine the 
behavioral responses of Gulf sperm whales to airguns. Current 
mitigation procedures include ramp-up, visual monitoring and shut-down 
of seismic operations if sperm whales are within the 500-m (1,640-ft) 
impact zone. These measures are expected to significantly reduce the 
potential for noise impacts to sperm whales. However, because the 
potential for acoustic impact by oil and gas seismic surveys cannot be 
completely eliminated, nor are potential impacts clearly documented or 
understood at this time, a precautionary approach taken by MMS is to 
keep any impacts at an insignificant level. Therefore, MMS has 
preliminarily determined that while impacts on sperm whales are still 
somewhat speculative, and the potential for harm to the species or 
stock is unlikely, impacts to the species or stock will not be more 
than ``negligible.''

Research

    A major field study of GOM sperm whales and other cetaceans, 
sponsored by MMS, in cooperation and with support from the GOM seismic 
industry (the Sperm Whale Seismic Study (SWSS)), has been completed. 
Major accomplishments included tagging a number of sperm whales with 
data-reporting satellite tags, and field testing a passive acoustic 
listening system for its ability to detect and locate sperm whales, 
relative to effectiveness of visual marine mammal observers. Although 
formal reports on findings have not yet been published, MMS has 
determined that the passive acoustic monitoring system was far superior 
to visual observers, as it could detect cetaceans underwater and at 
distances or in sea states where visual observations are not reliable.
    In 1999, MMS hosted a workshop to identify protected species 
concerns in the GOM. The expert panel concluded possible acoustic 
impacts from anthropogenic sources were a valid concern and that 
information for the marine environment in the GOM was extremely 
limited. Recommendations to MMS included initiation of research on 
acoustic effects on marine mammals. Seismic exploration (i.e., airgun 
arrays) was identified as the sound source of primary concern. The MMS, 
with cooperative funding from the Office of Naval Research (ONR), 
immediately modified the existing research to develop and test research 
methods to address this topic. The pilot study successfully developed a 
multi-disciplinary approach and new technology to conduct research. In 
FY 2002, MMS and ONR initiated a 3-year study, the SWSS, managed by 
Texas A&M Research Foundation, to establish habitat use and normal 
behavior of sperm whales in the GOM, evaluate physical oceanographic 
correlates to whale locations and movements, obtain DNA profiling of 
GOM whales, and investigate seasonal movements and breeding behavior. 
In addition to addressing many aspects of sperm whale biology, the 
study will look at both short-term behavioral resonses to seismc 
airguns and any longer-term displacement using two types of whale tags. 
The offshore industry contributed use of a seismic vessel and acoustic 
array in FY 2002 to support this research. In FY 2003, MMS/ONR will 
obtain additional support from the National Science Foundation and the 
oil industry to expand the efforts so far described and also to begin 
investigating effects on sperm whale prey (squid). Embedded in SWSS are 
efforts to improve underwater detection (range, bearing, depth 
estimates) for sperm whales using passive acoustics. The immediate 
intent is to study sperm whale locations near seismic vessels and for 
effective tagging efforts. A spin-off of this work will be the means to 
detect and estimate relative locations to sperm whales using acoustics. 
Applications for using this technology for mitigation monitoring are 
being explored by MMS.
    If NMFS proceeds with rulemaking, it intends to monitor the results 
of this research during the rule's effectiveness period to ensure that 
the determinations made during the rulemaking are correct. As 
appropriate, research results may lead to amendments to LOAs and/or 
rulemaking to ensure that marine mammals are protected to the greatest 
extent practicable.

Mitigation

    In response to NMFS' question regarding the availability and 
feasibility (economic and technological) of equipment, methods and 
manner of conducting oil and gas seismic surveys to effect the least 
practicable adverse impact on potentially affected marine mammals, MMS 
noted that current mitigation measures for the oil and gas seismic 
industry in the GOM include: ramp-up, visual monitoring, establishment 
of an impact zone (currently 500 m (1,640-ft) around the sound source), 
and mandatory ``shut-down'' to avoid injury to whales in or about to 
enter the impact zone. Each of these helps insure the least practicable 
adverse impact to the sperm whales. Ramp-up, or soft start, requires 
seismic operators to start firing the acoustic array with one gun and 
gradually over

[[Page 9996]]

time add more guns until the array is fully operational. This allows 
whales in the area to move away from the sound source before discomfort 
or injury might result. Visual observers monitor the area around the 
sound source for 30 minutes prior to ramp-up and throughout seismic 
operations. Any time a sperm whale enters or surfaces within 500 m 
(1,640 ft) of the sound source, seismic operations are immediately 
ceased in order to minimize as much as possible the exposure of the 
whales to potentially damaging levels of sound.
    MMS notes that an expanded seismic observer program is currently in 
development that will require trained observers on all seismic vessels. 
MMS expects to issue updated guidelines for the seismic observer 
program in early 2003 and an enhanced monitoring and reporting will 
also be put in place later in 2003. However, in the interim period 
before this rulemaking is complete, MMS will enforce the mitigation 
measures outlined in this section to ensure the protections required by 
the ESA and MMPA. As these mitigation measures would be the subject of 
any rulemaking under the MMS application, these measures may be adopted 
or amended according to this action.

Monitoring

    Currently, monitoring and reporting requirements for the offshore 
seismic industry are set forth by MMS in MMS NTL No. 2002-G07 and 2002-
G07. At this time, MMS is proposing to continue this monitoring program 
until an enhanced monitoring program can be designed.
    Visual observers must monitor waters (with the assistance of 
binoculars) for sperm whales within and adjacent to the exclusion zone 
for 30 minutes prior to initiating the airgun ramp-up procedures. 
Observers must monitor the exclusion zone and adjacent waters during 
seismic operations, unless atmospheric conditions reduce visibility to 
zero or during hours of darkness (i.e., night). When sperm whales are 
observed entering or within the exclusion zone, observers must call for 
the shut down of the airgun array; seismic operators must shut down the 
seismic array when instructed by an observer. Ramp-up (see MMS NTL No. 
2002-G07 for specified procedure) and seismic activities may be 
reinitiated only when the observer has: (a) determined that the sperm 
whale(s) has departed the exclusion zone, and (b) visually monitored 
the exclusion zone for at least 30 minutes since the last sperm whale 
sighting within the exclusion zone.

Reporting

    The MMS proposes that when sperm whales are sighted prior to or 
during a seismic survey operation, observers must document the 
information listed below. This information must be reported to MMS 
within 8 days of the sighting by email. The following observations are 
to be included in the reports: (1) The date, time, and location 
(latitude/longitude) of each observation; (2) the number of sperm 
whales sighted; (3) whether or not a sperm whale entered the exclusion 
zone warranting a shut-down; (4) how long the shut-down occurred (i.e., 
how long the sperm whale was in the exclusion zone); and (5) the name 
and contact information for the person submitting the report. These 
observations and reporting requirements will identify all observed 
taking by harassment within the exclusion zone from seismic operations 
in the GOM.

NEPA

    In February, 2002, MMS completed a draft PEA that is available upon 
written request (see ADDRESSES). That draft NEPA document has undergone 
extensive review by MMS and other Federal agencies, and by state, non-
governmental, and interested private sector parties. This draft PEA, 
along with a document reviewing the public comments, was provided to 
NMFS to support the information contained in MMS' application and has 
been determined by NMFS to be sufficient for use at this stage of 
rulemaking. Based in part on public comments, a final PEA is being 
substantially revised by MMS, and is expected to be available for 
release prior to NMFS' issuance of a proposed rule on the MMS 
application. A copy of the final PEA will be available at that time.

Endangered Species Act (ESA)

    Under section 7 of the ESA, NMFS has begun consultation on the 
proposed issuance of regulations under section 101(a)(5)(A) of the MMPA 
for this activity. Consultation will be concluded prior to promulgation 
of a final rule.

Information Solicited

    As this document is being published in conformance with NMFS 
regulations implementing the small take program (50 CFR 
216.104(b)(1)(ii)), NMFS requests interested persons to submit 
comments, information, and suggestions concerning the request and the 
structure and content of the regulations to allow the taking. As 
required by 50 CFR 216.105, NMFS will consider this information in 
developing proposed regulations to authorize the taking. If NMFS 
proposes regulations to allow this take, interested parties will be 
provided with a 45-day period within which to submit comments on the 
proposed rule.

    Dated: February 25, 2003.
Laurie K. Allen,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 03-4896 Filed 2-28-03; 8:45 am]
BILLING CODE 3510-22-S