[Federal Register Volume 69, Number 222 (Thursday, November 18, 2004)]
[Notices]
[Pages 67535-67539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25643]


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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 Intent to prepare an Environmental Impact Statement; 
notice of public meetings; and request for scoping comments.

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SUMMARY: NMFS has received a request from the U.S. Minerals Management 
Service (MMS), U.S. Department of the Interior, for regulations to 
authorize the take, by harassment, of small numbers of marine mammals 
incidental to seismic surveys during oil and gas exploration activities 
by the U.S. oil and

[[Page 67536]]

gas industry in the Gulf of Mexico (GOM). By this document, NMFS 
announces: (1) its intention to prepare an Environmental Impact 
Statement (EIS); (2) commencement of its scoping process under the 
National Environmental Policy Act (NEPA); (3) a request for public 
comment on the scope of the EIS; and (4) times, dates, and locations 
for public scoping meetings.

DATES: Written comments and information must be received no later than 
December 22, 2004. Two public scoping meetings are scheduled as 
follows:
    1. December 3, 2004, 9 a.m. - approximately 12 noon, New Orleans, 
LA.
    2. December 16, 2004, 9 a.m. - approximately 12 noon, Silver 
Spring, MD.

ADDRESSES: The public scoping meetings will be held at the following 
locations:
    1. New Orleans: Location to be determined. This meeting will be 
held on the day following the Marine Mammal Commission's (MMC) Fourth 
Plenary Meeting of the Advisory Committee on Acoustic Impacts on Marine 
Mammals. The scoping meeting location will be provided during the MMC 
meeting.
    2. Silver Spring: Silver Spring Metro Center, NOAA Science Center, 
1301 East-West Highway, Silver Spring, MD 20910.
    Submit written comments to Steve Leathery, Chief, Permits, 
Conservation and Education Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-3226. The mailbox address for providing e-mail 
comments is [email protected]. E-mail comments sent to other 
addresses may not be timely received for consideration. Comments sent 
via e-mail, including all attachments, must not exceed a 10-megabyte 
file size.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, 301-
713-2289, 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, other means of effecting the least practicable adverse impact 
on the species or stocks, and requirements pertaining to the monitoring 
and reporting of such taking.
    On December 20, 2002, MMS petitioned NMFS for rulemaking under 
section 101(a)(5)(A) of the MMPA to authorize any potential ``take,'' 
by ``harassment,'' of sperm whales (Physeter macrocephalus) incidental 
to conducting seismic surveys during oil and gas exploration activities 
in the GOM. ``Take'' means to harass, hunt, capture, or kill, or 
attempt to harass, hunt, capture, or kill. Except for certain 
activities not pertinent here, ``harassment'' means
    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].
    NMFS published a notice of receipt of the MMS application on March 
3, 2003 (68 FR 9991). MMS submitted a revised petition to include the 
incidental take of other species of marine mammals, such as the Bryde's 
whale, several species of dolphins and beaked whales on September 26, 
2004. On July 30, 2004, MMS completed its Final Programmatic 
Environmental Assessment (Final PEA) on this action and made that 
document available to the public at http://www.gomr.mms.gov/homepg/regulate/environ/nepa/2004-054.pdf

Notice of Intent

    The comment period on the NMFS' notice of receipt of the MMS 
application was extended until April 16, 2003 (see 68 FR 16262, April 
3, 2003). During the public comment period, NMFS received comments 
recommending preparation of a Draft EIS under NEPA on this action. NMFS 
has considered this request and determined that it will prepare an EIS 
for its proposed rulemaking governing authorizations to take marine 
mammals incidental to oil and gas seismic surveys in the GOM. This 
decision is based on a combination of factors: (1) public concern over 
impacts of oil and gas exploration activities on the marine 
environment, which includes marine mammals; (2) proposed use of 
computer modeling as one of two methods for calculating incidental take 
levels for marine mammals and sea turtles for a geographic area where 
multiple seismic sources may be operating simultaneously; (3) 
incorporation of a scientifically-based risk assessment for marine 
mammals; (4) possible use of energy criteria rather than the current 
pressure criteria to calculate marine mammal take levels, especially to 
calculate potential multiple exposures; and (5) incorporation of new 
acoustic guidelines for assessing impacts of sound on marine mammals.

Description of the Specified Activity

    Marine geophysical seismic surveys are conducted to obtain 
information on surface and near-surface geology (high-resolution 
surveys) and on subsurface structures and formations (seismic surveys 
and vertical seismic profile (VSP) surveys).
    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 
signals are reflected off the subsurface sedimentary layers and 
recorded near the water surface by hydrophones spaced within the 
streamer cables. Some surveys employ ocean-bottom seismometers as the 
receiving instrument. Vessel speed is typically 4.5-6 knots (about 4-8 
mph) with gear deployed.
    Three-Dimensional (3-D) 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 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 hydrophone

[[Page 67537]]

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). Seismic surveys may span one day, weeks, or 
months. MMS has requested an authorization under the MMPA for the 
incidental harassment (Level A and Level B) of marine mammals during 2-
D and 3-D seismic surveys, high-resolution surveys, and VSP surveys.
    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, 2004). 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, 2002).
    The Federal waters of the GOM are inhabited by a diverse assemblage 
of marine mammal species. When seismic surveys are conducted acoustic 
energy is introduced into Gulf waters that may adversely impact marine 
mammals in the vicinity of the activity. The potential adverse impacts 
to marine mammals are detailed in MMS' 2004 Final PEA. In general, loud 
underwater noise has the potential to harass, injure, and possibly 
cause the mortality of marine mammals. While the serious injury or 
mortality of marine mammals is believed to be unlikely, especially due 
to the implementation of mitigation measures to protect marine mammals 
(see Mitigation), NMFS' Draft EIS will investigate and discuss the 
potential for injury and mortality.
    MMS is seeking regulations under the MMPA governing the possible 
harassment and non-serious injury of several species of marine mammals 
in the GOM as a result of seismic surveys as described in MMS (2004). 
The MMPA regulations are requested by MMS on the behalf of the offshore 
oil and gas industry and seismic contractors operating within the GOM. 
NMFS expects that seismic vessel owners will obtain Letters of 
Authorization, in accordance with 50 CFR 216.106, to incidentally take 
marine mammals under the requested regulations.

Potential Effects of Seismic Activities on Marine Mammals

    The effects of sounds from airgun arrays might include one or more 
of the following: tolerance, masking of natural sounds, behavioral 
disturbance and perhaps temporary or permanent hearing impairment 
(Richardson et al. 1995). In addition, intense acoustic events may 
cause trauma to tissues associated with organs vital for hearing, sound 
production, respiration and other functions.
    Using sperm whales as an example, this species spends large amounts 
of time at depth and uses low frequency sound to communicate and 
navigate. Therefore, sperm whales are considered to be 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, physical avoidance of noisy areas and temporary or permanent 
hearing impairment if the noise is strong enough and/or if the animal 
is in close proximity to the sound source. Such impairment could have 
the potential to diminish the individual's chance for survival or 
potential for reproduction. Tolerance of noise is often demonstrated, 
but this does not necessarily mean that the animals are unaffected by 
noise. Also, adverse levels of noise might interrupt or decrease 
feeding activity, social interactions, or parenting. Responses to 
seismic activity causing adverse effects to individuals and cow/calf 
pairs, reproduction, feeding, or causing temporary or permanent 
threshold shifts in hearing may negatively impact GOM marine mammal 
stocks if the disruptions are extended. There are no documented data on 
auditory-induced physical effects of underwater seismic noise on sperm 
whales or other marine mammals. There is observational evidence that 
sperm whales may be temporarily displaced away from areas where seismic 
operations are underway. MMS believes that sperm whales are not being 
significantly displaced from the northern GOM due to seismic surveys. 
NMFS notes, however, that no data have been provided to support this 
statement. At this time it is unknown whether sperm whale site fidelity 
in the GOM reflects low sensitivity to seismic noise or a high 
motivation to remain in the area in spite of this noise. Details of 
seismic noise and its potential impact on marine mammals have been 
described in MMS (2004) and will be addressed in the NMFS Draft EIS.
    In the absence of species-specific data on auditory impacts for 
marine mammals, a received sound pressure level of 180 dB re 1 microPa 
(rms) or greater has been used by NMFS as a threshold for concern about 
temporary and/or permanent hearing impairment (Level A Harassment). 
This criterion, which will be included in the Draft EIS analysis, was 
developed as a result of public workshops held in 1998 (HESS, 1999) and 
1999 (NMFS, 1999). However, this criterion does not consider the 
frequency component, nature of the sound source, the hearing 
sensitivities of different cetacean species and other relevant factors. 
NMFS expects that the Draft EIS will employ the latest scientific 
information to estimate Level A Harassment impacts on marine mammals in 
the GOM.
    A spreading loss equation of 20 log R is recommended by Richardson 
et al. (1995) for calculating underwater transmission loss in deep 
water. NMFS believes a spreading loss equation of 15 log R or less may 
be more appropriate for shallow water areas of the GOM where the 
horizontal propagation range reaches approximately 1.0 times the water 
depth. Using a spreading equation of 15 log(R), the 180-dB re 1 microPa 
(rms) isopleth in surface and near-surface waters occurs at 
approximately 295 m (968 ft) from a standard airgun array (4550 in\3\, 
240 dB re 1 microPa 0-pk; 230 dB re 1 microPa rms). Similarly, the 180 
dB re 1 microPa (rms) isopleth vertically below the seismic source is 
calculated to be 6.3 km (3.4 nm). By means of a Gulf-wide Notice to 
Lessees (NTL) for all seismic activities (30 CFR 250.103), MMS has 
implemented a horizontal 500-m (1640-ft) radius impact (seismic shut-
down) zone to minimize possible effects to sperm whales. The NTL was 
updated in 2004 (NTL No. 2004-G01) to include all whales (but not 
dolphins) under this 500-m (1640-ft) impact (seismic shut-down) zone. 
This NTL can be viewed at the following location: http://www.gomr.mms.gov/homepg/regulate/regs/ntls/ntl04-g01.html
    For larger 2-D and 3-D towed arrays with estimated source levels of 
257 dB re 1 microPa rms, a 500-m (1640-ft) impact zone equates to an 
estimated received 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

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microPa at 500 m (1640 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 (1640 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. Recently, Tolstoy et al. (2004) measured the 
propagation for a 3705 in3 airgun array (twelve 2000-psi Bolt airguns 
of 80-850 in\3\ with 0-pk = 31 bar-m (250 dB re 1 microPa.m)). The 180 
dB isopleth in shallow surface waters was at approximately 2000 m (6562 
ft).
    In the absence of scientific, species-specific information for 
marine mammals in the GOM, a received sound pressure level of 160 dB re 
1 microPa (rms) has been used by NMFS as the threshold indicator of 
potential concern about disturbance of marine mammals in the wild 
through disruption of behavioral patterns, including but not limited 
to, migration, breathing, nursing, breeding, feeding, or sheltering 
(Level B Harassment). Using spherical spreading (15 log(R)), 
subtracting 20 dB for the array effect, and 10 dB for zero-to-peak to 
RMS conversion, the 160 dB re 1 microPa (rms) isopleth in surface and 
near-surface waters occurs at about 6.3 km (3.4 nm) from the seismic 
airgun source. Similarly, the 160 dB re 1 microPa (rms) isopleth below 
the seismic source is calculated to extend to the sea floor. MMS (2004) 
calculates the 160-dB isopleth level at 3000 m (1.6 nm) based on the 20 
log R model for a 4550 in\3\ array (230 dB re 1 microPa (rms) source 
level) and Tolstoy et al. (2004) measured the propagation for a 3705 
in\3\ airgun array to the 160 dB rms isopleth in GOM surface waters at 
9 km (4.8 nm) in shallow water and 2.5 km (1.3 nm) in deep water.
    These discrepancies between dB calculations and measurements for 
deep and shallow water and for surface and sub-surface waters indicate 
a need for better data to effectively formulate models that can be used 
to calculate impact zones for marine mammals. Therefore, NMFS plans to 
include in its Draft EIS empirical information on airgun array sizes 
used in the GOM and actual propagation measurements made in the GOM. 
NMFS believes this information is vital in order to estimate impacts on 
marine mammals and sea turtles and for appropriate impact assessment 
modeling.

Scoping

    The environmental review of the MMS MMPA application will be 
conducted in accordance with the requirements of NEPA, NEPA regulations 
(40 CFR 1500-1508) and other appropriate Federal laws and regulations, 
and the NMFS policies and procedures for compliance with those 
regulations (NOAA Administrative Order 216-6 -Environmental Review 
Procedures for Implementing the National Environmental Policy Act, May 
20, 1999).
    A preliminary list of the primary issues that NMFS will discuss in 
the EIS is provided here. Additional issues may be identified at the 
public scoping meetings and in written comments.
     marine mammals-effects of seismic noise on all species;
     other biological resources- effects of seismic noise on 
sea turtles, fish, coastal and marine birds, benthic communities, 
plankton;
     commercial and recreational fisheries;
     cumulative effects on marine mammals from military 
activities and commercial shipping in the GOM.

EIS Alternatives

    NMFS will explore and evaluate a full range of reasonable 
alternatives in the EIS, including the proposed action and the no-
action alternative. The proposed action will be to authorize, through 
rulemaking and subsequent Letters of Authorization, the incidental 
taking of marine mammals by oil and gas seismic vessels conducting 
seismic surveys in state and Federal waters of the GOM. The proposed 
action will also include mitigation measures such as biological 
observers on all seismic vessels in all operating areas, gradual ramp-
up of the airgun arrays, monitoring established safety zones, and 
power-down/shut-down procedures to protect marine mammals that are in 
or approaching the established safety zone.
    Alternatives in the EIS will address a suite of other mitigation 
and monitoring measures, including: (1) requiring biological observers 
only on seismic vessels operating in waters deeper than 200 m (656 ft); 
(2) requiring a vessel-based passive acoustic monitoring (PAM) system 
with trained biological technicians or biologists; (3) use of PAM only 
in water depths greater than 200 m (656 ft), principally on the 
continental slope offshore of the Mississippi River mouth and extending 
east to the DeSoto Canyon area in the Eastern Planning Area; (4) use of 
vessel-based passive and active acoustic monitoring; (5) use of PAM and 
active acoustic monitoring only in water depths greater than 200 m (656 
ft) principally in continental slope offshore of the Mississippi River 
mouth and extending east to the DeSoto Canyon area in the Eastern 
Planning Area; (6) time/area closures to protect marine mammals; and 
(7) use of aircraft or support vessels for marine mammal monitoring.

Identified EIS Mitigation Measures

    In response to NMFS questions 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 
responded 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 marine mammals in or 
about to enter the impact zone. Ramp-up, or soft start, requires 
seismic operators to start firing the acoustic array with one gun and 
gradually over time add more guns until the array is fully operational. 
Theoretically, this allows whales in the area that can hear the low-
frequency sounds from the array 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 marine mammal enters or 
surfaces within 500 m (1,640 ft) of the sound source, seismic 
operations immediately cease in order to minimize the exposure of the 
whales or dolphins to potentially damaging sound levels. In addition to 
these mitigation measures, the Draft EIS will discuss the use of PAM 
and active acoustic monitoring, certain time/area closures to protect 
marine mammals, and the use of aircraft or support vessels for marine 
mammal monitoring.

Identified EIS Monitoring Measures

    Currently, monitoring and reporting requirements for the offshore 
seismic industry are set forth by MMS in MMS NTL No. 2004-G01. This 
will be one of the alternatives in the Draft EIS. MMS intends to 
continue this monitoring program until a revised monitoring program is 
developed during the NEPA, MMPA and Endangered Species Act reviews.
    Visual observers must monitor waters (with the assistance of 
binoculars) for marine mammals 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.,

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night). When marine mammals 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 and seismic activities may be 
reinitiated only when the observer has: (a) determined that the marine 
mammal(s) has departed the exclusion zone, and (b) visually monitored 
the exclusion zone for at least 20 minutes since the mammal sighting 
within the exclusion zone.

Comments

    NMFS requests public comments on the range of alternatives and the 
scope of issues that should be considered in the EIS. NMFS recommends 
participants review the MMS PEA prior to submitting comments.
    At the public scoping meeting a brief presentation may precede a 
request for public information and comments. Those who intend to submit 
verbal comments will be asked to submit a speaker card (available at 
the meeting). Depending on how many cards NMFS receives, speakers may 
be required to limit their verbal comments to a specified period of 
time so that all persons wishing to comment may have an equal 
opportunity to do so. NMFS encourages members of the public who provide 
verbal comments to also submit them in writing, along with any 
associated graphics, so as to ensure accuracy. All comments, written or 
verbal, will become part of the public record on this matter.
    The public scoping meetings will be accessible to persons with 
disabilities. Requests for sign language interpretation or other 
auxiliary aids should be directed to Ken Hollingshead (see FOR FURTHER 
INFORMATION CONTACT). Photo identification will be required to attend 
these meetings.
    Information and questions regarding the proposed action and/or 
scoping may be obtained by writing to the person listed herein (see 
ADDRESSES), or by telephoning the person listed (see FOR FURTHER 
INFORMATION CONTACT).
    Additional opportunities for public review and comment will be 
provided when the draft EIS is completed. A notice of availability will 
be published in the Federal Register. After release of the draft EIS, 
NMFS intends to hold public meetings in various cities in Florida, 
Texas, and Louisiana.

    Dated: November 12, 2004.
Laurie K. Allen,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 04-25643 Filed 11-17-04; 8:45 am]
BILLING CODE 3510-22-S