[Federal Register Volume 69, Number 16 (Monday, January 26, 2004)]
[Notices]
[Pages 3564-3567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1569]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 011304C]


Taking of Marine Mammals Incidental to Specified Activities; On-
Ice Seismic Operations in the Beaufort Sea

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

ACTION: Notice of receipt of application and proposed incidental take 
authorization; request for comments.

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SUMMARY: NMFS has received an application from ConocoPhillips Alaska 
(CPA) for an Incidental Harassment Authorization (IHA) to take marine 
mammals, by harassment, incidental to conducting on-ice seismic 
operations from Cape Halkett to Oliktok Point in the Beaufort Sea. 
Under the Marine Mammal Protection Act (MMPA), NMFS is requesting 
comments on its proposal to issue an authorization to CPA to 
incidentally take, by harassment, small numbers of two species of 
pinnipeds for a limited period of time within the next year.

DATES: Comments and information must be received no later than February 
25, 2004.

ADDRESSES: Comments on the application should be addressed to P. 
Michael Payne, Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225, or by telephoning the contact 
listed here. A copy of the application containing a list of the 
references used in this document may be obtained by writing to this 
address or by telephoning the contact listed here and is also available 
at:http://www.nmfs.noaa. gov/prot--res/PR2/Small--Take/ smalltake--
info.htm[numsign]applications
    Comments will not be accepted if submitted via e-mail or the 
Internet.

FOR FURTHER INFORMATION CONTACT: Kimberly Skrupky, Office of Protected 
Resources, NMFS, (301) 713-2322, ext 163.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    Permission may be granted if NMFS finds that the taking will have a 
negligible impact on the species or stock(s) and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses and that the permissible methods of 
taking and requirements pertaining to the monitoring and reporting of 
such takings are set forth. NMFS has defined ``negligible impact'' in 
50 CFR 216.103 as ``...an impact resulting from the specified activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Under section 3(18)(A), 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; 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.
    The term ``Level A harassment'' means harassment described in 
subparagraph (A)(i). The term ``Level B

[[Page 3565]]

harassment'' means harassment described in subparagraph (A)(ii).
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
marine mammals. Within 45 days of the close of the comment period, NMFS 
must either issue or deny issuance of the authorization.

Summary of Request

    On November 12, 2003, NMFS received an application from CPA for the 
taking, by harassment, of two species of marine mammals incidental to 
conducting an on-ice seismic survey program. As presently scheduled, 
the seismic operations will be conducted at Cape Halkett to Oliktok 
Point to approximately 20 nautical miles offshore in the Beaufort Sea 
in Alaska.
    The purpose of the project is to gather information about the 
subsurface of the earth by measuring acoustic waves, which are 
generated on or near the surface. The acoustic waves reflect at 
boundaries in the earth that are characterized by acoustic impedance 
contrasts.

Description of the Activity

    The seismic surveys use the ``reflection'' method of data 
acquisition. Seismic exploration uses a controlled energy source to 
generate acoustic waves that travel through the earth, including sea 
ice and water, as well as sub-sea geologic formations, and then uses 
ground sensors to record the reflected energy transmitted back to the 
surface. When acoustic energy is generated, compression and shear waves 
form and travel in and on the earth. The compression and shear waves 
are affected by the geological formations of the earth as they travel 
in it and may be reflected, refracted, diffracted or transmitted when 
they reach a boundary represented by an acoustic impedance contrast. 
Vibroseis seismic operations use large trucks with vibrators that 
systematically put variable frequency energy into the earth. At least 
1.2 m (4 ft) of sea ice is required to support the various equipment 
and vehicles used to transport seismic equipment offshore for 
exploration activities. These ice conditions generally exist from 1 
January until 31 May in the Beaufort Sea. Several vehicles are normally 
associated with a typical vibroseis operation. One or two vehicles with 
survey crews move ahead of the operation and mark the energy input 
points. Crews with wheeled vehicles often require trail clearance with 
bulldozers for adequate access to and within the site. Crews with 
tracked vehicles are typically limited by heavy snow cover and may 
require trail clearance beforehand.
    With the vibroseis technique, activity on the surveyed seismic line 
begins with the placement of sensors. All sensors are connected to the 
recording vehicle by multi-pair cable sections. The vibrators move to 
the beginning of the line and begin recording data. The vibrators begin 
vibrating in synchrony via a simultaneous radio signal to all vehicles. 
In a typical survey, each vibrator will vibrate four times at each 
location. The entire formation of vibrators subsequently moves forward 
to the next energy input point (e.g. 67 m, or 220 ft, in most 
applications) and repeats the process. In a typical 16- to 18-hour day, 
a surveys will complete 6-16 km (4 to 10 linear miles) in 2-dimensional 
seismic operations and 24 to 64 km (15 to 40 linear miles) in a 3-
dimensional seismic operation.

Description of Habitat and Marine Mammals Affected by the Activity

    A detailed description of the Beaufort Sea ecosystem can be found 
in several documents (Corps of Engineers, 1999; NMFS, 1999; Minerals 
Management Service (MMS), 1992, 1996, 2001). A detailed description of 
the seismic survey activities and its associated marine mammals can be 
found in the CPA application and a number of documents referenced in 
the CPA application (see ADDRESSES), and is not repeated here. Two 
marine mammal species are known to occur within the proposed study area 
and are included in this application: the ringed seal (Phoca hispida) 
and the bearded seal (Erignathus barbatus). Ringed seals are year-round 
residents in the Beaufort Sea. The worldwide population is estimated to 
be between 6 and 7 million seals (Stirling and Calvert 1979). The 
Alaska stock of the Bering-Chukchi-Beaufort area is estimated at 1 to 
1.5 (Frost 1985) or 3.3 to 3.6 million seals (Frost et al. 1988). 
Although there are no recent population estimates in the Beaufort Sea, 
Bengston et al. (2000) estimated ringed seal abundance from Barrow 
south to Shismaref in a portion of the Chukchi Sea to be 245,048 
animals from aerial surveys flow in 1999. The NMFS 2001 Stock 
Assessment Report states that there are at least as many ringed seals 
in the Beaufort Sea. Early estimates of bearded seals in the Bering and 
Chukchi seas range from 250,000 to 300,000 (Papov 1976, Burns 1981). 
Reliable estimates of bearded seal abundance in Alaska are unavailable. 
However, since bearded seals are normally found in broken ice that is 
unstable for on-ice seismic operation, bearded seals will rarely be 
encountered during seismic operations. Additional information on these 
species is available at: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html.

Potential Effects on Marine Mammals

    Incidental take is anticipated to result from short-term 
disturbances by noise and physical activity associated with on-ice 
seismic operations. These operations have the potential to disturb and 
temporarily displace some seals. Pup mortality could occur if any of 
these animals were nursing and displacement was protracted. However, it 
is unlikely that a nursing female would abandon her pup given the 
normal levels of disturbance from the proposed activities and the 
typical movement patterns of ringed sea pups among different holes. 
Seals also use as many as four lairs spaced as far as 3437 m (11276 ft) 
apart. In addition, seals have multiple breathing holes. Pups may use 
more holes than adults, but the holes are generally closer together. 
This indicates that adult seals and pups can move away from seismic 
activities, particularly since the seismic equipment does not remain in 
any specific area for a prolonged time. Given those considerations, 
combined with the small proportion of the population potentially 
disturbed by the proposed activity, impacts are expected to be 
negligible for the ringed and bearded seal populations.
    In the winter, bearded seals are restricted to cracks, broken ice, 
and other openings in the ice. On-ice seismic operations avoid those 
areas for safety reasons. Therefore, any exposure of bearded seals to 
on-ice seismic operations would be limited to distant and transient 
exposure. Bearded seals exposed to a distant on-ice seismic operation 
might dive into the water. Consequently, no significant effects on 
individual bearded seals or their population are expected, and the 
number of individuals that might be temporarily disturbed would be very 
low.
    Please see the Federal Register notice from the 2003 CPA activities 
(68 FR 14401, March 25, 2003) for more information regarding the 
potential effects on marine mammals during on-ice seismic operations.

Potential Effects on Subsistence

    Residents of the village of Nuiqsut are the primary subsistence 
users in the activity area. The subsistence harvest

[[Page 3566]]

during winter and spring is primarily ringed seals, but during the 
open-water period both ringed and bearded seals are taken. Nuiqsut 
hunters may hunt year round; however, in more recent years most of the 
harvest has been in open water instead of the more difficult hunting of 
seals at holes and lairs (McLaren, 1958; Nelson, 1969). The most 
important area for Nuiqsut hunters is off the Colville River Delta, 
between Fish Creek and Pingok Island, which corresponds to 
approximately the eastern half to the activity area. Seal hunting 
occurs in this area by snow machine before spring break-up and by boat 
during summer. Subsistence patterns may be reflected through the 
harvest data collected in 1992, when Nuiqsut hunters harvested 22 of 24 
ringed seals and all 16 bearded seals during the open water season from 
July to October (Fuller and George, 1997). Harvest data for 1994 and 
1995 show 17 of 23 ringed seals were taken from June to August, while 
there was no record of bearded seals being harvested during these years 
(Brower and Opie, 1997). Only a small number of ringed seals was 
harvested during the winter to early spring period, which corresponds 
to the time of the proposed on-ice seismic operations.
    Based on harvest patterns and other factors, on-ice seismic 
operations in the activity area are not expected to have an unmitigable 
adverse impact on subsistence uses of ringed and bearded seals because:
    (1) Operations would end before the spring ice breakup, after which 
subsistence hunters harvest most of their seals.
    (2) Operations would temporarily displace relatively few seals, 
since most of the habitat in the activity area is marginal to poor and 
supports relatively low densities of seals during winter. Displaced 
seals would likely move a short distance and remain in the area for 
potential harvest by native hunters (Frost and Lowry, 1988; Kelly et 
al., 1988).
    (3) The area where seismic operations would be conducted is small 
compared to the large Beaufort Sea subsistence hunting area associated 
with the extremely wide distribution of ringed seals.
    (4) To the maximum extent practicable, offshore vibroseis 
activities in Harrison Bay would progress in a westward direction and 
from deeper water shoreward to minimize disturbance to any subsistence 
hunting that may occur during seismic operations. If subsistence 
hunting occurred during winter, it would primarily be in the eastern 
half of Harrison Bay.
    In order to ensure the least practicable adverse impact on the 
species and the subsistence use of ringed seals, all activities will be 
conducted as far as practicable from any observed ringed seal 
structure, and crews will be required to avoid hunters and the 
locations of any seals being hunted in the activity area, whenever 
possible. Finally, the applicant will consult with subsistence hunters 
of Nuiqsut and provide the community, the North Slope Borough, and the 
Inupiat Community of the North Slope with information about its planned 
activities (timing and extent) before initiating any on-ice seismic 
activities.

Mitigation

    The following mitigation measures are proposed for the subject 
surveys: (1) All activities will be conducted as far as practicable 
from any observed ringed or bearded seal lair and no energy source will 
be placed over a ringed or bearded seal lair; (2) only vibrator-type 
energy-source equipment shown to have similar or lesser effects will be 
used; and (3) CPA will provide training for the seismic crews so they 
can recognize potential areas of ringed seal lairs and adjust the 
seismic operations accordingly.
    CPA will also continue to work with NMFS, other Federal agencies, 
the State of Alaska, Native communities of Barrow and Nuiqsut, and the 
Inupiat Community of the Arctic Slope (ICAS) to assess measures to 
further minimize any impact from seismic activity. A Plan of 
Cooperation will be developed between CPA and Nuiqsut to ensure that 
seismic activities do not interfere with subsistence harvest of ringed 
or bearded seals.
    If seismic operations go beyond March 20, in waters deeper than 3 
meters (9.8 ft), a survey using trained dogs will be completed to 
identify active seal holes/birthing lairs or hole/lair habitats so they 
can be avoided by seismic operations to the greatest extent 
practicable. If trained dogs are not available, potential habitat will 
be identified by trained marine mammal biologists based on the 
characteristics of the ice (i.e., deformation and cracks).

Marine Mammal Monitoring

    Ringed seal pupping occurs in lairs from late March to mid-to-late 
April (Smith and Hammill, 1981). Prior to commencing on-ice seismic 
surveys after March 20\th\, a survey using experienced field personnel 
and trained dogs will be conducted to identify potential seal 
structures along the planned on-ice seismic transmission routes. The 
seal structure survey will be conducted before selection of precise 
transit routes to ensure that seals, particularly pups, are not injured 
by equipment. The locations of all seal structures will be recorded by 
a Global Positioning System (GPS), staked, and flagged with surveyor's 
tape. Surveys will be conducted 150 m (492 ft) to each side of the 
transit routes. Actual width of the route may vary depending on wind 
speed and direction, which strongly influence the efficiency and 
effectiveness of dogs locating seal structures. The survey will be 
conducted in only the portions of the activity area where water depths 
exceed 3 m (9.8 ft). Few, if any, seals inhabit ice-covered waters 
below 3 m (9.8 ft) due to water freezing to the bottom or poor prey 
availability caused by the limited amount of ice-free water.
    The impact of take, while anticipated to be negligible, will be 
assessed by conducting a second seal structure survey immediately after 
the end of the seismic surveys. A single on-ice survey will be 
conducted by biologists on snowmachines using a GPS to relocate and 
determine the status of seal structures located during the initial 
survey. The status (active vs. inactive) of each structure will be 
determined to assess the level of incidental take by seismic 
operations. The number of active seal structures abandoned between the 
initial survey and the final survey will be the basis for enumerating 
take. If dogs are not available for the initial survey, take will be 
determined by using observed densities of seal on ice reported by 
Moulton et al. (2001) for the Northstar project, which is approximately 
37 km (20 nm) from the eastern edge of the proposed activity area.
    In the event that seismic surveys can be completed in that portion 
of the activity area [gteqt] 3 m (9.8 ft) before mid-March, no field 
surveys would be conducted of seal structures. Under this scenario, 
surveys would be completed before pups are born and disturbance would 
be negligible. Therefore, take estimates would be determined for only 
that portion of the activity area exposed to seismic surveys after 
March 20, which would be in water 3 m (9.8 ft) or less deep. Take for 
this area would be estimated by using the observed density (13/100 km2) 
reported by Moulton et al. (2001) for water depths between 0 to 3 m (0 
to 9.8 ft) in the Northstar project area, which is the only source of a 
density estimate stratified by water depth for the Beaufort Sea. This 
would be an overestimation requiring a substantial downward adjustment 
to

[[Page 3567]]

reflect the actual take of seals using lairs, since few if any of the 
structures in these water depths would be used for birthing, and 
Moulton et al. (2001) estimate includes all seals. This monitoring 
program was reviewed at the fall 2002 on-ice meeting sponsored by NMFS' 
National Marine Mammal Laboratory in Seattle and found acceptable.

Reporting

    An annual report must be submitted to NMFS within 90 days of 
completing the year's activities.

Endangered Species Act (ESA)

    NMFS has determined that no species listed as threatened or 
endangered under the ESA will be affected by issuing an authorization 
under section 101(a)(5)(D) of the MMPA.

National Environmental Policy Act (NEPA)

    The information provided in Environmental Assessments (EAs) 
prepared in 1993 and 1998 for winter seismic activities led NOAA to 
conclude that implementation of either the preferred alternative or 
other alternatives identified in the EA would not have a significant 
impact on the human environment. Therefore, an Environmental Impact 
Statement was not prepared. The proposed action discussed in this 
document is not substantially different from the 1992 and 1998 actions, 
and a reference search has indicated that no significant new scientific 
information or analyses have been developed in the past several years 
significant enough to warrant new NEPA documentation. Accordingly, this 
action is categorically excluded from further review under NOAA 
Administrative Order 216-6.

Preliminary Conclusions

    The anticipated impact of winter seismic activities on the species 
or stock of ringed and bearded seals is expected to be negligible for 
the following reasons:
    (1) The activity area supports a small proportion (<1 percent) of 
the ringed and bearded seal populations in the Beaufort Sea.
    (2) Most of the winter-run seismic lines will be on ice over 
shallow water where ringed seals are absent or present in very low 
abundance. Over 60 percent of the activity area is near shore and/or in 
water less than 3 m (9.8 ft) deep, which is generally considered poor 
seal habitat. Moulton et al. (2001) reported that only 6 percent of 660 
ringed seals observed on ice in the Northstar project area were in 
water between 0 to 3 m (0 to 9.8 ft)deep.
    (3) Seismic operators will avoid moderate and large pressure 
ridges, where seal and pupping lairs are likely to be most numerous, 
for reasons of safety and because of normal operational constraints.
    (4) Many of the on-ice seismic lines and connecting ice roads will 
be laid out and explored during January and February, when many ringed 
seals are still transient, and considerably before the spring pupping 
season.
    (5) The sounds from energy produced by vibrators used during on-ice 
seismic programs typically are at frequencies well below those used by 
ringed seals to communicate (1000 Hz). Thus, ringed seal hearing is not 
likely to be very good at those frequencies and seismic sounds are not 
likely to have strong masking effects on ringed seal calls. This effect 
is further moderated by the quiet intervals between seismic energy 
transmissions.
    (6) There has been no major displacement of seals away from on-ice 
seismic operations (Frost and Lowry, 1988). Further confirmation of 
this lack of major response to industrial activity is illustrated by 
the fact that there has been no major displacement of seals near the 
Northstar Project. Studies at Northstar have shown a continued presence 
of ringed seals throughout winter and creation of new seal structures 
(Williams et al., 2001).
    (7) Although seals may abandon structures near seismic activity, 
studies have not demonstrated a cause and effect relationship between 
abandonment and seismic activity or biologically significant impact on 
ringed seals. Studies by Williams et al. (2001), Kelley et al. (1986, 
1988) and Kelly and Quakenbush (1990) have shown that abandonment of 
holes and lairs and establishment or re-occupancy of new ones is an 
ongoing natural occurrence, with or without human presence. Link et al. 
(1999) compared ringed seal densities between areas with and without 
vibroseis activity and found densities were highly variable within each 
area and inconsistent between areas (densities were lower for 5 days, 
equal for 1 day, and higher for 1 day in vibroseis area), suggesting 
other factors beyond the seismic activity likely influenced seal use 
patterns. Consequently, a wide variety of natural factors influence 
this patterns of seal use including time of day, weather, season, ice 
deformation, ice thickness, accumulation of snow, food availability and 
predators as well as ring seal behavior and populations dynamics.
    In winter, bearded seals are restricted to cracks, broken ice, and 
other openings in the ice. On-ice seismic operations avoid those areas 
for safety reasons. Therefore, any exposure of bearded seals to on-ice 
seismic operations would be limited to distant and transient exposure. 
Bearded seals exposed to a distant on-ice seismic operation might dive 
into the water. Consequently, no significant effects on individual 
bearded seals or their population are expected, and the number of 
individuals that might be temporarily disturbed would be very low.
    As a result, CPA believes the effects of on-ice seismic are 
expected to be limited to short-term and localized behavioral changes 
involving relatively small numbers of seals. NMFS has preliminarily 
determined, based on information in the application and EA, that these 
changes in behavior will have no more than a negligible impact on the 
affected species or stocks of ringed and bearded seals (NMFS, 1998). 
Also, the potential effects of the proposed on-ice seismic operations 
during 2004 are unlikely to result in more than small numbers of seals 
being affected and will not have an unmitigable adverse impact on 
subsistence uses of these two species.

Proposed Authorization

    NMFS proposes to issue an IHA to CPA for conducting seismic surveys 
at Cape Halkett to Oliktok Point in the Beaufort Sea in Alaska, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated. NMFS has preliminarily determined that 
the proposed activity would result in the harassment of small numbers 
of marine mammals; would have no more than a negligible impact on the 
affected marine mammal stocks; and would not have an unmitigable 
adverse impact on the availability of species or stocks for subsistence 
uses.

Information Solicited

    NMFS requests interested persons to submit comments and information 
concerning this request (see ADDRESSES).

    Dated: January 16, 2004.
Laurie K. Allen,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 04-1569 Filed 1-23-04; 8:45 am]
BILLING CODE 3510-22-S