[Federal Register Volume 72, Number 68 (Tuesday, April 10, 2007)]
[Notices]
[Pages 17842-17849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6653]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 030907B]


Taking of Marine Mammals Incidental to Specified Activities; An 
On-ice Marine Geophysical Research and Development Program in the 
Beaufort Sea

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

ACTION:  Notice of issuance of an incidental harassment authorization.

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SUMMARY:  In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) to take marine mammals, by harassment, 
incidental to conducting an on-ice marine geophysical research and 
development (R&D) program in the U.S. Beaufort Sea, has been issued to 
Shell Offshore, Inc. (SOI) for a period between March and May 2007.

DATES:  This authorization is effective from March 30 until May 31, 
2007.

ADDRESSES:  A copy of the application, IHA, an Environmental Assessment 
(EA) on the Proposed OCS Lease Sale 202 Beaufort Sea Planning Area by 
the Mineral Management Service (MMS), and/or a list of references used 
in this document may be obtained by writing to P. Michael Payne, Chief, 
Permits, Conservation and Education Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910-3225, or by telephoning one of the contacts 
listed here (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT:  Shane Guan, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 137 or Brad Smith, Alaska Region, 
NMFS, (907) 271-5006.

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

[[Page 17843]]

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 shall be granted if NMFS 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 that the permissible methods of 
taking and requirements pertaining to the mitigation, 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. 
Except for certain categories of activities not pertinent here, 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].
    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 January 17, 2007, NMFS received an application from SOI for the 
taking, by harassment, of three species of marine mammals incidental to 
conducting an on-ice marine geophysical R&D program.
    The proposed R&D program would occur on the U.S. Minerals 
Management Service (MMS) Outer Continental Shelf (OCS) lease blocks 
located offshore from Oliktok Point, Milne Point, West Dock, or 
Endeavor Islands, in the Alaskan Beaufort Sea. This on-ice R&D will 
consist of 35 linear miles (56 km) of surveying with in a 16 km\2\ (6.2 
mi\2\) area. The prospective locations have been selected on the basis 
of suitability for the scientific testing and proximity to facilities 
to help minimize impact on the region. The water depth at each location 
is less than 20 m (66 ft); deep enough that the ice is not grounded. 
Ice conditions within the proposed survey area will determine the area 
selected, and SOI will consult with MMS and NMFS before the selection 
is made. The proposed program is expected to begin in March and last 
until May, 2007.
    Sources and receivers would be placed above and below the ice in 
attempts to find pairings that provide the best mitigation of seismic 
noise in a shallow marine environment where conventional seismic 
vessels cannot operate. A variety of instruments will be used to create 
a complete catalogue of data for development of noise mitigation 
techniques. Sources include standard and lightweight vibrators, 
accelerated weight drop (impact) sources on the ice, and small volume 
airgun arrays deployed through holes augered in the ice. Receivers will 
be deployed both on the ice surface, as well as below the ice suspended 
in the water column and on the ocean floor. The program will also 
require a temporary camp facility geared to accommodate up to 100 
people. A detailed description of these activities was published in the 
Federal Register on February 6, 2007 (72 FR 5421). No changes have been 
made to these proposed R&D activities.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on February 6, 
2007 (72 FR 5421). During the 30-day public comment period, NMFS 
received the following comments from one private citizen, the North 
Slope Borough (NSB), the Inupiat Community of the Arctic Slope (ICAS), 
and the Marine Mammal Commission (Commission). Overall, the NSB 
supports the efforts to collect geological data from the ice instead of 
during the open water period when bowhead whales (Balaena mysticetus) 
and other marine mammals might be present and significant subsistence 
activity takes place. The Commission recommends that NMFS issue the IHA 
provided that the proposed monitoring and mitigation measures are 
carried out as described in the application and the previous Federal 
Register notice (72 FR 5421, February 6, 2007), with the exception of 
the proposed adjustment of the initial exclusion zone around active 
seal structures (see Commission comments below).
    Comment 1: One private citizen opposes the project out of concern 
that marine mammals would be killed by the proposed project in Beaufort 
Sea.
    NMFS Response: As described in detail in the Federal Register 
notice of receipt of the application (72 FR 5421, February 6, 2007), no 
marine mammals will be killed or injured as a result of the proposed 
on-ice seismic R&D program by SOI. The project would only result in 
Level B behavioral harassment of a small number of ringed seals and 
bearded and spotted seals. No take by Level A harassment (injury) or 
death is anticipated or authorized from this project.
    Comment 2: The NSB questions the statement SOI stated in its 
application that it wants to ``... create a complete catalogue of data 
for development of noise mitigation techniques.'' NSB mentions that it 
is not clear what this statement means given that SOI would be using an 
airgun and vibrators, which would create noise, not mitigate it.
    SOI Response: The proposed on-ice work is being conducted in an 
effort to develop mitigative alternatives to open water seismic 
acquisition. Several technologies are being evaluated both for their 
efficacy for acquiring subsurface data and for reducing environmental 
impacts of seismic operations. By evaluating multiple technologies 
during an on-ice experiment, it is hoped that a mitigative alternative 
to open water seismic surveys can be identified or developed.
    Comment 3: The NSB points out that in the SOI's application, it 
stated that the geophysical program would occur in a 16 km\2\ (6.2 
mi\2\) area. However, the accompanying map shows a much larger area of 
approximately 15 by 60 miles (24 x 97 km) in size. The NSB questions in 
which portion of this larger area the proposed on-ice R&D program would 
be conducted.
    SOI Response: The included map depicts general regions being 
considered for project placement. Final location will depend on a 
combination of suitable ice conditions, operational efficiency, and 
locations away from permit restrictions (e.g., seal lairs, etc.). SOI 
will consult with NMFS and MMS regarding the selection of the final 
location. Nonetheless, the project footprint is 16 km\2\ (6.2 mi\2\).
    Comment 4: The NSB states that in discussion with SOI, it appears 
that the company has already conducted considerable work for the 
establishment of a camp on the ice and perhaps has even already set up 
the camp or begun geophysical work. This is peculiar given

[[Page 17844]]

that an IHA has not yet been issued and that comments are due on the 
application on March 8, 2007. If SOI is already conducting operations, 
especially seismic, it is likely they are already taking ringed seals. 
The NSB suggests that NMFS investigate SOI's operations for the taking 
of marine mammals if those operations have already begun.
    SOI Response: SOI's contractor, Veritas DGC has been performing ice 
profiling reconnaissance visits to measure ice thickness. These visits 
were necessary to assess at which location ice is thick enough to 
safely execute the project. Veritas DGC conducted these flights under 
the coverage of a USFWS Letter of Authorization for the incidental take 
of polar bears. Arnold Brower, Sr. accompanied Veritas DGC on these 
flights to provide wildlife observations and traditional knowledge on 
ice thicknesses based on his observations of surface ice conditions. No 
marine mammals were observed during these ice thickness assessments 
during which ice was bored and thicknesses measured. No marine mammals 
were taken.
    NMFS Response: NMFS Office of Protected Resources has contacted the 
Office for Law Enforcement (OLE) in the Alaska Division regarding NSB's 
comment. The OLE has initiated an investigation on this issue.
    Comment 5: The NSB states that it agrees with NMFS and SOI's 
assessment on the potential take of ringed, bearded, and spotted seas, 
and further states that it's extremely unlikely that any spotted seal 
will be in the project vicinity. However, the NSB is concerned that 
bowhead whales and belugas (Delphinapterus leucas) could be potentially 
taken as a result of the proposed action. NSB states that bowheads and 
belugas typically begin passing by Barrow in mid-April, and that in a 
typical year, bowheads and belugas could be off the project area by 
mid-April within several days of passing Barrow. The NSB further states 
that in 2007, ice is very light and there are considerable areas of 
open water between Barrow and the Beaufort Sea.
    NMFS Response: The nature of the proposed on-ice seismic R&D 
program would require ice thickness of at least 50 in (1.3 m) to 
support the heavy equipment and personnel, and the nearest lead would 
be at least 10 mi (16 km) away. This is not typical habitat for 
cetacean species, including bowhead and beluga whales, thus, no 
cetacean species is likely to be found in the vicinity of the project 
area. Therefore, NMFS does not believe the proposed project would 
affect bowhead or beluga whales. Due to safety concerns, SOI will not 
operate in an area where the ice condition is thin enough to allow an 
open lead to develop. As stated in the previous Federal Register notice 
(72 FR 5421, February 6, 2007), SOI will consult with NMFS and MMS 
before camp mobilization within the project area based on ice 
conditions and safety of access to ice.
    Comment 6: The NSB states that the propagation data from the open 
water period is not sufficient for establishing safety or disturbance 
zones. The NSB states that while the sea ice is likely to dampen some 
frequencies of sound, there is also the likelihood that the ice may 
channel sounds, especially just below the ice.
    NMFS Response: It is well supported by scientific research that a 
major source of low-frequency loss in the Arctic is conversion of 
acoustic waves into flexural waves of the ice sheet, thus attenuating 
acoustic propagation under ice (Richardson 3, 1995). Thus, NMFS does 
not believe there are sound channeling effects caused by ice in the 
proposed project area. In particular, the NSB did not provide any 
scientific support for its comment regarding ``ice channeling sounds.''
    In the Arctic region, the axis of the deep sound channel may exist 
at or near the surface, which is due to cold temperature at the surface 
that causes the sound ray to refract upward, but it is not induced by 
ice-cover and it only occurs in area where the ocean is sufficiently 
deep (Urick, 1983). The proposed project area is only 20 m (66 ft), 
therefore, it is highly unlikely an arctic surface channel will form in 
the proposed project area.
    Although Richardson et al. (1995) noted that smooth annual ice may 
enhance propagation of high-frequency sounds under-ice at compared with 
open water conditions, those sounds are not a major component from the 
proposed seismic program. In addition, the safety zone for seismic 
surveys by airgun will be empirically verified to match the 190 dB re: 
1 microPa rms for pinnipeds to prevent any impacts on marine mammals 
from sound pressure levels higher than that.
    Comment 7: The NSB states that ambient sounds are often lower 
during periods of ice cover compared to the open water period. Thus, 
the NSB is concerned that if channeling occurs and ambient levels under 
ice are lower than open water, marine mammals may be subjected to 
louder SPLs at farther distances than suggested by data collected 
during the open water period.
    NMFS Response: Contrary to what the NSB claims in the comment, sea 
ice noise contributes a large part of the ambient sound level at high 
latitudes. Sea ice noise often results from (1) thermal stress, in 
which temperature changes induce cracking; and (2) mechanical stress, 
in which ice deformation under pressure from wind and currents; and 
causes significant noise at low frequencies (Richardson et al., 1995). 
It was noted that a pressure ridge active over a 3-day period produced 
tones at frequencies of 4 - 200 Hz. Although ambient noise levels have 
been found lower under certain types of stable sea ice, it is actually 
a result from the dampening effects by ice, where there is 100 percent 
ice cover and no waves or surf are present (Richardson et al., 1995). 
As mentioned in Response to Comment 6, this dampening effect would 
reduce noise levels from the proposed project as well.
    Regarding the ``ice channeling effects,'' please refer to NMFS 
Response to Comment 6.
    Comment 8: The NSB is further concerned that if channeling occurs 
and leads in the Beaufort Sea are relatively near shore, bowheads and 
belugas could also be taken.
    NMFS Response: Regarding the ``ice channeling affects,'' please 
refer to NMFS Response to Comment 6.
    Also, as mentioned in Response to Comment 6 that although smooth 
annual ice may enhance propagation of high-frequency sounds under-ice 
at compared with open water conditions, with increased cracking, 
ridging, and other forms of roughness, transmission losses generally 
become higher than when the water is open (Richardson et al., 1995). In 
addition, as mentioned in Response to Comment 5, no seismic program 
will be conducted within 10 mi (16 km) of open lead for safety 
concerns. As a result, NMFS believes that, because channeling in 
shallow waters of the nearshore Beaufort Sea is unlikely, no cetaceans 
are likely to be taken by this activity.
    Comment 9: The NSB points out that the most recent information 
about spotted seal abundance in the Beaufort Sea was not included in 
the SOI's application and NMFS Federal Register notice (72 FR 5421, 
February 6, 2007). Citing R. Suydam's personal communication, the NSB 
states that there is a haul out area for spotted seals in Dease Inlet, 
in addition to the spotted seal haul out area in the Colville Delta 
discussed in the notice. The NSB suggests that NMFS consider this 
information about spotted seal numbers in the Beaufort Sea in future 
assessments of industrial impacts.
    NMFS Response: NMFS has determined, and the NSB concurred (see

[[Page 17845]]

Comment 5), that few, if any, spotted seals would be taken by Level B 
behavioral harassment as a result of the SOI's on-ice geophysical R&D 
program.
    Nonetheless, the information NMFS uses for making a determination 
whether the issuance of an IHA is consistent with the requirements of 
section 101(a)(5)(D) of the MMPA is based on the best scientific 
information available. This best scientific information is usually in 
the form of peer-reviewed material and scientific publications resulted 
from empirical research. Personal communications are sometimes 
considered when there is a lack of other information for making a 
determination. In such case, NMFS would contact the information source 
and assess whether the information acquired based on personal 
communications is scientifically supported before such information is 
used in decision making. NMFS encourages the NSB to provide information 
regarding spotted seal population abundance in the Dease Inlet region.
    Comment 10: The NSB is concerned that not all the seal breathing 
holes or lairs will be located prior to SOI's on-ice program. The NSB 
points out that the description of how lairs and breathing holes will 
be located is not adequate to assess whether all lairs will be located. 
Citing a personal communication with Tom Smith, the NSB also points out 
that the contractor that SOI is planning to use to locate lairs would 
only locate 80 percent of the lairs unless repeated surveys are 
conducted.
    NMFS Response: A detailed seal breathing holes and lairs survey 
protocol by 3 trained dogs by transects that are spaced 250 m (820 ft) 
apart was described in the Federal Register notice (72 FR 5421, 
February 6, 2007), and is not repeated here. A more detailed report 
using seal lair-detecting dogs by Smith (2006) is available upon 
request. This reported states that at distances of more than 0.25 miles 
(400 m, or 1,320 ft) the dogs can detect 80 percent or more of the seal 
structures in an area.Since the seal structure transects are more 
closely spaced for the SOI's on-ice program (250 m, or 820 ft), the 
detection rate will be over 90 percent (T. Smith. Eco Marine. Pers. 
Comm. March, 2007). In addition, this project will use 3 dogs, which 
would further increase the detection rate. It is also important to 
understand that even though 100 percent ringed seals would not be 
detected within the 16 km\2\ (6.2 mi\2\) R&D project area, the site 
where the equipment will be placed and the route where vehicles travel 
will be adequately surveyed and marked so that Level A harassment will 
be prevented.
    Comment 11: The NSB states that ringed seals could also sustain 
hearing damage without understanding how sound may be channeled under 
the ice. NSB is concerned that female ringed seals will likely remain 
near their pups even with considerable amounts of human activities, 
therefore could be within the 190 dB zone of seismic activities if not 
all lairs are found or sound propagates farther than during the open 
water period.
    NMFS Response: Please refer to NMFS Response to Comment 6 regarding 
``ice channeling effects.'' As stated in the Federal Register notice 
(72 FR 5421, February 6, 2007), during active seismic and impact source 
testing, an on-ice 500-m (1,640-ft) exclusion zone will be established. 
This 500-m (1,640-ft) exclusion zone is much large than the 180 dB re: 
1 microPa isopleth (modeled at 330 m, or 1,083 ft). The modeled 190 dB 
re: 1 microPa coincides to a safety zone of 120 m (394 ft) in radius, 
which is easily surveyed for the presence of seals, and will be 
monitored throughout the seismic operations by qualified NMFS-approved 
marine mammal observers (MMOs). The presence of any marine mammals will 
be detected first by dog surveys, and then by continued monitoring 
during the operations. Therefore, NMFS does not believe any marine 
mammals will be exposed to SPLs higher than 190 dB re: 1 microPa.
    Comment 12: The NSB points out that the data SOI used for ringed 
seal density estimates (Stirling et al., 1982; Kingsley, 1986) are 
quite old. The NSB suggests that more recent data from BP's Northstar 
development island and from recent work conducted by either Tom Smith 
or Brendon Kelly be used (references not provided).
    NMFS Response: In reviewing and making determination on the 
issuance of an IHA to SOI for its proposed on-ice R&D project, NMFS 
used the most recent available scientific data regarding ringed seal 
density in the proposed project area from works conducted by Kelly and 
Quakenbush (1990), Frost and Lowry (1999), and Moulton et al., (2002), 
which was based from studies at the Northstar development. Earlier 
ringed seal density estimates reported by Stirling et al. (1982) and 
Kingsley (1986) were not included in NMFS' analysis. Please refer to 
Federal Register notice (72 FR 5421, February 6, 2007) for a detailed 
description.
    Comment 13: The NSB points out that SOI's statement that ``[t]here 
has been no major displacement of seals away from on-ice seismic 
operations'' is a misinterpretation of Frost et al.'s (1988) paper. 
Citing personal communication with K. Frost, the NSB states that 
surveys for seals in the mid-1980s occurred too far after on-ice 
seismic had occurred to make any conclusions about impacts from on-ice 
seismic on ringed seal distribution. The NSB suggests that NMFS 
requires SOI to conduct adequate studies to further the knowledge of 
impacts of seismic activities on ringed seals.
    NMFS Response: NMFS concurs with the NSB's comment that SOI's 
assessment regarding impacts of on-ice seismic operations on ringed 
seals based on research conducted in mid-1980s is inadequate. 
Nonetheless, the most recent studies by Moulton et al. (2005) and 
Williams et al. (2006) did show that effects of oil and gas development 
on local distribution of seals and seal lairs are no more than slight, 
and are small relative to the effects of natural environmental factors. 
A detailed description is provided in the February 6, 2007, Federal 
Register notice (72 FR 5421).
    Although Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce to institute requirements to 
grantees of incidental take authorizations pertaining to mitigation, 
monitoring, and reporting, NMFS has no clear legislative authority to 
require SOI to conduct studies to further the knowledge of impacts of 
seismic activities on ringed seals.
    Comment 14: The NSB points out that SOI relied on outdated ringed 
seal density data for calculating the number of seals for harassment. 
The NSB states that site-specific data area needed on seal density, and 
that if data are not available for assessing and mitigating impacts to 
seals, then SOI should be required to collect data during this season 
so that a reasonable assessment of takes of ringed seals and other 
marine mammals is possible and adequate mitigation measures are 
available for reducing impacts in the future.
    NMFS Response: NMFS concurs with the NSB that outdated ringed seal 
density data were used by SOI in calculating take estimates for the 
proposed on-ice R&D project. Nonetheless, these data were not used by 
NMFS in the analysis of the IHA issuance and the estimate of take 
numbers. NMFS used the most recent data regarding ringed seal abundance 
in the proposed project area from works conducted by Kelly and 
Quakenbush (1990), Frost and Lowry (1999), and Moulton et al., (2002) 
to calculate the estimated take number. Please refer to Federal 
Register notice (72 FR 5421,

[[Page 17846]]

February 6, 2007) for detailed description and calculation of estimated 
take levels.
    Comment 15: The Commission recommends that the safety zone for 
pinnipeds be enlarged to the 180 dB re: 1 microPa rms isopleth. The 
Commission believes that a more conservative approach should be taken 
and that less drastic changes to the exclusion zone should be 
contemplated. The Commission states that this is because the 
susceptibility of seals to sounds when in lairs may be higher and their 
options for avoiding sound sources more limited.
    NMFS Response: The 190 dB re: 1 microPa rms is used in estimating 
the onset of temporary threshold shift (TTS) for pinniped hearing 
underwater when exposed to pulse sounds from airguns during seismic 
surveys. Based on the best available scientific information, this 
criteria is conservative in terms of preventing TTS occurrence in 
pinnipeds. Although it is tempting to set a larger safety zone to 
achieve a lower SPL for noise exposure, doing so often compromises the 
effectiveness of monitoring since a much larger area would have to be 
observed. Therefore, a larger safety zone based on 180 dB re: 1 microPa 
rms will not necessarily provide extra protection for seals.
    Regarding the possibility of seals in the lairs being exposed to 
higher SPLs, NMFS does not believe that will occur under the proposed 
on-ice seismic R&D program. First, the work site will be surveyed by up 
to 3 trained dogs looking for seal structure prior to seismic 
operations. As a result, any work location will be at least 500 m 
(1,640 ft) away from the nearest seal structure, which corresponds to a 
zone with sound pressure levels below 180 dB re: 1 microPa on its outer 
boundary. Second, even if there were seals in lairs within the safety 
zone, most acoustic energies from the airgun are emitted under the 
water and may not even be audible by seals in lairs. Third, if audible 
and annoying, ringed seals have a number of lairs and breathing holes 
available in their area. As noted in previous Federal Register notices, 
ringed seals, and even new born pups, move frequently from lair to lair 
for various biological reasons. If sounds from an acoustic source are 
annoying to the ringed seal, with or without a pup, these animals can 
easily move to a new location, a Level B harassment. Therefore, NMFS 
does not believe it is beneficial to enlarge the safety zone to 180 dB 
re: 1 microPa rms isopleth.
    Comment 16: The ICAS points out that the proposed project area is 
known to get a lot of ice pressure ridges and a few open leads during 
the project period, and that the ice may only be 3.5 ft (1 m) in 
thickness from the short time the ocean is frozen. The ICAS states that 
the early break-up of ice in recent years indicates that the proposed 
project may be jeopardized from unforeseen ice surges and movements. 
The ICAS is concerned that SOI may not be able to retrieve its heavy 
equipment if there is an early spring break-up, and that the sinking of 
any equipment into the ocean would affect bowhead migration later on.
    NMFS Response: As discussed in Response to Comment 5, the proposed 
on-ice seismic R&D program would require ice thickness of at least 50 
in (1.3 m) to support the heavy equipment and personnel, and the 
nearest lead would be at least 10 mi (16 km) away. Due to safety 
concerns, SOI will not operate in an area where ice is thin enough to 
allow an open lead. As stated in the previous Federal Register notice 
(72 FR 5421, February 6, 2007), SOI will consult with NMFS and MMS 
before camp mobilization within the project area based on ice 
conditions and safety of access to ice.
    Comment 17: The ICAS recommends to SOI additional stipulations:
    (1) that SOI employ 4 subsistence representatives for safety of the 
group from possible sudden ice surges and look out for opening of new 
lead to warm SOI personnel by contract or internal hire from SOI of 
this project;
    (2) that the camp's solid waste be transported daily, to prevent 
the added attraction from polar bears and foxes;
    (3) additional two night watchmen to look for open leads during 
down time of project;
    (4) two snow machines for the open lead watchman for quick travel; 
and
    (5) no fuel storage out on the ice road or ice pads.
    NMFS Response: SOI has informed NMFS of the following:
    (1) SOI, through its geophysical contractor, Veritas DGC, will 
employ 4 Inupiat subsistence representatives, 2 per 12-hour shift, to 
scout ice conditions and observe wildlife while the activities of the 
on-ice seismic project are conducted.
    (2) All solid waste will be incinerated on site.
    (3) Other than adverse weather days, there will be no down time on 
the project. Two Inupiat subsistence representatives will be on each 
shift scouting for open leads, in addition to observations of wildlife.
    (4) Veritas DGC will transport subsistence advisors via a Tucker or 
Haaglund from the project camp site to and from the watchmen's on-ice 
shift duties.
    (5) Veritas DGC has permitted for fuel storage facilities at camp, 
as per NSB Permit 07-176 and Alaska Department of Natural Resources, 
Division of Oil and Gas Permit MLUP/NS 06-14.

Description of Marine Mammals Affected by the Activity

    Four marine mammal species are known to occur within the proposed 
survey area: ringed seal (Phoca hispida), bearded seal (Erignathus 
barbatus), spotted seal (Phoca larghs), and polar bear (Ursus 
maritimus). Although polar bears are now proposed to be listed as 
threatened, none of these species are listed under the Endangered 
Species Act (ESA) as endangered or threatened species. Other marina 
mammal species that seasonally inhabit the Beaufort Sea, but are not 
anticipated to occur in the project area during the proposed R&D 
program, include bowhead whales and beluga whales (Delphinapterus 
leucas). SOI will seek a take Authorization from the U.S. Fish and 
Wildlife Service (USFWS) for the incidental taking of polar bears 
because USFWS has management authority for this species. A detailed 
description of these species can be found in Angliss and Outlaw (2005), 
which is available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2005.pdf. A more detailed description of these species and 
stocks within the proposed action area provided in the February 6, 
2007, Federal Register (72 FR 5421). Therefore, it is not repeated 
here.

Potential Effects on Marine Mammals and Their Habitat

    Seismic surveys using acoustic energy, such as airguns and weigh 
drop impact sources, may have the potential to adversely impact marine 
mammals in the vicinity of the activities (Gordon et al., 2004). The 
sound source level of the GL airgun to be used in the proposed project 
is 228 dB re: 1 microPa at 1 m, which is strong enough to cause hearing 
threshold shift (TS) in pinnipeds when exposed for an extended duration 
(Kastak et al., 1999).
    However, it is extremely unlikely that any animals would be exposed 
to a sound pressure level (SPL) of this magnitude since acoustic energy 
is attenuated as it propagates through the water column. Preliminary 
results of the acoustic modeling, which did not take the ice effects 
into consideration, shows that the received sound pressure levels 
(SPLs) dropped down to 190, 180, and 160 dB re: 1 microPa root mean 
square (RMS) at distances of 120 m (394 ft), 330

[[Page 17847]]

m (1,083 ft), and 2.22 km (1.38 mi), respectively. However, with the 
sea ice dampening effects, actual received SPLs at these distances are 
expected to be lower (Richardson et al., 1995). In addition, most 
acoustic energy from an airgun is directed downward, and the short 
duration of each pulse limits the total energy (Richardson et al., 
1995).
    Intense acoustic signals from seismic surveys are also known to 
cause behavioral alteration in marine mammals such as reduced 
vocalization rates (Goold, 1996), avoidance (Malme et al., 1986, 1988; 
Richardson et al., 1995; Harris et al., 2001), and changes in blow 
rates (Richardson et al., 1995) in several marine mammal species. One 
controlled exposure experiment using small airguns (source level: 215 
224 dB re: 1 microPa peak-to-peak (p-p)) was conducted on harbor seals 
(Phoca vitulina) and gray seals (Halichoerus grypus) that had been 
fitted with telemetry devices showed fright responses in two harbor 
seals when playback started (Thompson et al., 1998). Their heart rate 
dropped dramatically from 35 45 beats/min to 5 10 beats/min. However, 
these responses were short-lived and following a typical surfacing 
tachycardia; there were no further dramatic drops in heart rate. Harbor 
seals showed strong avoidance behavior, swimming rapidly away from the 
source. Stomach temperature tags revealed that they ceased feeding 
during this time. Only one seal showed no detectable response to the 
airguns and approached to within 300 m (984 ft) of the sound source. 
The behavior of harbor seals seemed to return to normal soon after the 
end of each trial. Similar avoidance responses were also documented in 
gray seals. By contrast, sighting rates of ringed seals from a seismic 
vessel in shallow Arctic waters showed no difference between periods 
with the full array, partial array, or no airguns firing (Harris et 
al., 2001).
    Incidental harassment to marine mammals could also result from 
physical activities associated with on-ice seismic operations, which 
have the potential to disturb and temporarily displace some seals. Pup 
mortality could occur if any of these animals were nursing and 
displacement were protracted. However, it is unlikely that a nursing 
female would abandon her pup given the normal levels of disturbance 
from the proposed activities, potential predators, and the typical 
movement patterns of ringed seal pups among different holes. Seals also 
use as many as four lairs spaced as far as 3,437 m (11,276 ft) apart. 
In addition, seals have multiple breathing holes. Pups may use more 
holes than adults, but the holes are generally closer together than 
those used by adults. 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, bearded, and spotted seal populations.
    The seismic surveys would only introduce acoustic energy into the 
water column and no objects would be released into the environment. In 
addition, the total footprint of the proposed seismic survey area 
covers approximately 16 km2 (6.2 mi2), which represents only a small 
fraction of the Beaufort Sea pinniped habitat. Sea-ice surface 
rehabilitation is often immediate, occurring during the first episode 
of snow and wind that follows passage of the equipment over the ice.
    There is a relative lack of knowledge about the potential impacts 
of seismic energy on marine fish and invertebrates. Available data 
suggest that there may be physical impacts on eggs and on larval, 
juvenile, and adult stages of fish at very close range (within meters) 
to seismic energy source. Considering typical source levels associated 
with seismic arrays, close proximity to the source would result in 
exposure to very high energy levels. Where eggs and larval stages are 
not able to escape such exposures, juvenile and adult fish most likely 
would avoid them. In the cases of eggs and larvae, it is likely that 
the numbers adversely affected by such exposure would be very small in 
relation to natural mortality. Studies on fish confined in cages that 
were exposed under intense sound for extended period showed physical or 
physiological impacts (Scholik and Yan, 2001; 2002; McCauley et al., 
2003; Smith et al., 2004). While limited data on seismic surveys 
regarding physiological effects on fish indicate that impacts are 
short-term and are most apparent after exposure at very close range 
(McCauley et al., 2000a; 2000b; Dalen et al., 1996), other studies have 
demonstrated that seismic guns had little effect on the day-to-day 
behavior of marine fish and invertebrates (Knudsen et al., 1992; Wardle 
et al., 2001). It is more likely that fish will swim away upon hearing 
the seismic impulses (Engas et al., 1996).
    Limited studies on physiological effects on marine invertebrates 
showed that no significant adverse effects from seismic energy were 
detected for Squid and cuttlefish (McCauley et al., 2000) or in snow 
crabs (Christian et al., 2003).
    Based on the foregoing discussion, NMFS finds preliminarily that 
the proposed seismic surveys would not cause any permanent impact on 
the physical habitats and marine mammal prey species in the proposed 
project area.

Number of Marine Mammals Expected to Be Taken

    NMFS estimates that up to 30 ringed seals and much fewer bearded 
and spotted seals could be taken by Level B harassment as a result of 
the proposed on-ice geophysical R&D program. The estimate take number 
is based on consideration of the number of ringed seals that might be 
disturbed within the 16 km\2\ proposed project area plus up to 13 km (8 
mi) travel route from camp site to work site (travel route is estimated 
to be 0.1 km wide), calculated from the adjusted ringed seal density of 
1.73 seal per km\2\ (Kelly and Quakenbush, 1990). This number 
represents approximately 0.17 percent of the total ringed seal 
population (estimated at 18,000) for the Beaufort Sea (Angliss and 
Outlaw, 2005).
    Due to the unavailability of reliable bearded and spotted seals 
densities within the proposed project area, NMFS is unable to estimate 
take numbers for these two species. However, it is expected much fewer 
bearded and spotted seals would subject to takes by Level B harassment 
since their occurrence is much lower within the proposed project area, 
especially during spring (Moulton and Lawson, 2002; Treacy, 2002a; 
2002b; Bengtson et al., 2005). Consequently, the levels of take of 
these 2 pinniped species by Level B harassment within the proposed 
project area would represent only small fractions of the total 
population sizes of these species in Beaufort Sea.
    In addition, NMFS expected that the actual take of Level B 
harassment by the proposed geophysical program would be much lower with 
the implementation of the proposed mitigation and monitoring measures 
discussed below. Therefore, NMFS believes that any potential impacts to 
ringed, bearded, and spotted seals to the proposed on-ice geophysical 
seismic program would be insignificant, and would be limited to distant 
and transient exposure.

Potential Effects on Subsistence

    Residents of the village of Nuiqsut are the primary subsistence 
users in the activity area. The subsistence harvest during winter and 
spring is primarily ringed seals, but during the open-water period both 
ringed and bearded seals are

[[Page 17848]]

taken. Nuiqsut hunters may hunt year round; however, 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). 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) 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.
    In order to ensure the least practicable adverse impact on the 
species and the subsistence use of ringed seals, SOI has notified and 
provided the affected subsistence community with a draft plan of 
cooperation. SOI held community meeting with the affected Beaufort Sea 
communities in mid-October 2006 and held meetings again in early 2007 
to discuss proposed activities and to resolve potential conflicts 
regarding any aspects of either the operation or the plan of 
cooperation.

Mitigation and Monitoring

    The following mitigation and monitoring measures are required for 
the subject on-ice seismic surveys. All activities shall be conducted 
as far as practicable from any observed ringed seal lair and no energy 
source will be placed over a seal lair.
    To further reduce potential impact to pinniped habitat, no ice road 
will be built between the mobile camp and work site. Travel between 
mobile camp and work site will be done by vehicles driving through snow 
road, which is about 4 - 8 mi (6 - 13 km) depending on camp location.
    SOI will employ trained seal lair sniffing dogs to locate seal 
structures under snow (subnivean) in the proposed work area and camp 
site before the seismic program begins. The recommended prospective 
area for the proposed project will be surveys for the subnivean seal 
structures using 3 trained dogs running together. Transects will be 
spaced 250 m (820 ft) apart and oriented 90o to the prevailing wind 
direction. The search tracks of the dogs will be recorded by GPS units 
on the dogs and the tracks will be downloaded daily. Subnivean 
structures located will be probed by steel rod to check if each is open 
(active), or frozen (abandoned). Structures will be categorized by 
size, structure and odor to ascertain whether the structure is a birth 
lair, resting lair, resting lair of rutting male seals, or a breathing 
hole. Locations of seal structures will be marked and monitored and 
adjustment to the seismic operation will be made to avoid the lairs.
    SOI will also use trained dogs to survey the snow road and 
establish a route where no seal structure presents. The surveyed road 
will be entered into GPS and flagged for vehicles to follow.
    Vehicles must avoid any pressure ridges, ice ridges, and ice 
deformation areas where seal structures are likely to be present.
    Seismic sources for the program will be recorded into 5 sensor 
groups: analog surface receivers, digital surface receivers, 
hydrophones in the water column, and 3 different types of 4-component 
ocean bottom sensors on the seafloor. Each source will be recorded into 
the 5 receiver groups. Water column monitoring of SPLs will be most 
directly accomplished by monitoring SPLs from the hydrophones. Density 
of receivers is very high, with spacing of 5 m (16.4 ft), so a detailed 
characterization of the SPLs can be accomplished. A range of receiver 
offsets will be available up to the maximum program offset of 4,000 m 
(13,123 ft). Additionally, the surface and ocean bottom censors can be 
used as supplemental information in the determination of source levels 
and propagation distances for the experiment.
    A 500-m (1,640-ft) exclusion zone will be established around all 
located active subnivean seal structures, within which no seismic or 
impact surveys will be conducted. During active seismic and impact 
source testing an on-ice 500-m (1,640-ft) safety zone will be 
established. The size of the safety zone shall then be adjusted to 
match the 190 dB re: 1 microPa rms isopleth based on seismic source 
monitoring. On ice monitoring must be conducted by a trained, NMFS-
approved marine mammal observer (MMO) for entry by any marine mammal. 
No seismic or impact surveys will be conducted if a marine mammal is 
observed entering the monitored safety zone.
    To further reduce the potential impacts to marine mammals, SOI must 
implement soft-start (ramp-up) procedure when starting operations of 
the airgun or impact sources. Airgun and impact sources will be 
initiated at 50 percent of its full level and slowly (not more than 6 
dB per 5 minutes) increase their power to full capacity.

Reporting

    A final report must be submitted to NMFS within 90 days of 
completing the project.The report must contain detailed description of 
any marine mammal, by species, number, age class, and sex if possible, 
that is sighted in the vicinity of the proposed project area; location 
and time of the animal sighted; whether the animal exhibits a 
behavioral reaction to any on-ice activities or is injured or killed; 
and the context of the behavior change.
    Endangered Species Act (ESA)
    NMFS has determined that no species listed as threatened or 
endangered under the ESA will be affected by issuing an incidental 
harassment authorization under section 101(a)(5)(D) of the MMPA to SOI 
for the proposed on-ice seismic survey.

National Environmental Policy Act (NEPA)

    The information provided in the EA on the Proposed OCS Lease Sale 
202 Beaufort Sea Planning Area by the MMS in August 2006 led NMFS 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 2006 actions, and a 
reference search has indicated that no significant new scientific 
information or analyses have been developed that would warrant new NEPA 
documentation. NMFS has prepared a Finding of No Significant Impact 
statement.

Determinations

    For the reasons discussed in this document and in the identified 
supporting documents, NMFS has determined that the impact of the on-ice 
seismic R&D program would result, at worst, in the Level B harassment 
of small numbers of ringed seals, and that such taking will have no 
more than a

[[Page 17849]]

negligible impact on this species. In addition, NMFS has determined 
that bearded and spotted seals, if present within the vicinity of the 
project area could also be taken incidentally, by no more than Level B 
harassment and that such taking would have a negligible impact on such 
species or stocks. Although there is not a specfic number assessed for 
the taking of bearded and spotted seals due to their rare occurrence in 
the project area, NMFS believes that any take would be significantly 
lower than those of ringed seals. NMFS also finds that the action will 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence uses.
    In addition, no take by Level A harassment (injury) or death is 
anticipated or authorized, and harassment takes should be at the lowest 
level practicable due to incorporation of the mitigation measures 
described in this document.

Authorization

    NMFS has issued an IHA to SOI for the potential Level B harassment 
of small number of ringed seals, and potential Level B harassment of 
bearded and spotted seals incidental to conducting on-ice seismic R&D 
program in the U.S. Beaufort Sea, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: March 30, 2007.
Angela Somma,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E7-6653 Filed 4-9-07; 8:45 am]
BILLING CODE 3510-22-S