Contact Us Search: All EPA This Area

• You are here: EPA Home
• Federal Register
• FR Years
• FR Months
• FR Days
• FR Documents
• Small Takes of Marine Mammals Incidental to Specified Activities; Seismic Survey in the Beaufort Sea, Alaska, Summer and Early Fall 2008

Small Takes of Marine Mammals Incidental to Specified Activities; Seismic Survey in the Beaufort Sea, Alaska, Summer and Early Fall 2008

PDF Version (26 pp, 176K, About PDF)


[Federal Register: August 7, 2008 (Volume 73, Number 153)]
[Notices]
[Page 45969-45994]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07au08-43]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XJ56


Small Takes of Marine Mammals Incidental to Specified Activities;
Seismic Survey in the Beaufort Sea, Alaska, Summer and Early Fall 2008

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

ACTION:  Notice; issuance of an incidental take authorization.

-----------------------------------------------------------------------

SUMMARY:  In accordance with the Marine Mammal Protection Act (MMPA)
regulations, notification is hereby given that NMFS has issued an
Incidental Harassment Authorization (IHA) to PGS Onshore, Inc. (PGS) to
take, by harassment, small numbers of six species of marine mammals
incidental to an exploratory three-dimensional (3D) marine seismic
survey in the Beaufort Sea, Alaska, utilizing an ocean bottom cable/
transition zone (OBC/TZ) technique in summer and early fall 2008.

DATES: Effective July 30, 2008, through July 29, 2009.

ADDRESSES: The application containing a list of references used in this
document, an addendum to the application, and the IHA are available 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 the contact listed below (FOR FURTHER INFORMATION CONTACT)
or online at: http://www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications. Documents cited in this notice may be
viewed, by appointment, during regular business hours, at the
aforementioned address.
    A copy of the 2006 Minerals Management Service's (MMS) Final
Programmatic Environmental Assessment (PEA) and/or the NMFS/MMS Draft
Programmatic Environmental Impact Statement (DPEIS) are available on
the internet at: http://www.mms.gov/alaska/. NMFS' 2008 Supplemental
Environmental Assessment (SEA) is available at: http://
www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected
Resources, NMFS, (301) 713-2289 or Brad Smith, NMFS, Alaska Region,
(907) 271-3023.

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 small numbers 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.
    Authorization for incidental takings 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 (where
relevant), and if 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 with respect to certain 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 the authorization.

Summary of Request

    On May 9, 2008, NMFS received an application from PGS for the
taking, by Level B harassment only, of small

[[Page 45970]]

numbers of several species of marine mammals incidental to conducting
an exploratory 3D marine seismic survey in the Alaskan Beaufort Sea,
utilizing an OBC/TZ technique. PGS has been contracted by ENI Petroleum
(ENI) to conduct the seismic survey. The proposed survey is scheduled
to occur for a period of approximately 75 days from mid-July to late-
September, 2008, barring weather delays. The proposed survey location
is in the Nikaitchuq Lease Block (see Figure 1 of PGS' application),
north of Oliktok Point and covering Thetis, Spy, and Leavitt Islands,
and would extend to the 5-km (3-mi) state/Federal water boundary line
and would not go into Federal waters. The water depth in this area
ranges from 0-15 m (0-49 ft), and a third of the project waters are
shallower than 3 m (10 ft). The total area covered by source or
receiver lines is 304.6 km\2\ (117.6 mi\2\); since the islands comprise
approximately 1.7 km\2\ (0.7 mi\2\) of this, the total marine area is
303 km\2\ (117 mi\2\).
    The work would be divided into two parts. Data acquisition (use of
airguns) outside the barrier islands (Thetis, Spy, and Leavitt Islands)
would be performed first and would be completed by August 25. This
portion of the work would begin in the east and move toward the west.
Data acquisition inside the barrier islands would then be conducted and
would be completed by late-September. This portion of the work would
also move from east to west. If additional data acquisition is required
outside of the barrier islands after August 25, it would not recommence
until the close of the fall bowhead hunt by the Nuiqsut community.

Description of Activity

    The OBC/TZ survey involves deploying cables from small boats,
called DIB boats, to the ocean bottom, forming a pattern consisting of
three parallel receiver line cables, each a maximum of 17.3 km (10.7
mi) long and spaced approximately 200 m (656 ft) apart. Hydrophones and
geophones attached to the cables are used to detect seismic energy
reflected back from rock strata below the ocean bottom. The energy is
generated from a submerged acoustic source, called a seismic airgun
array, that releases compressed air into the water, creating an
acoustic energy pulse directed downward toward the seabed. A detailed
overview of the activities of this survey were provided in the Notice
of Proposed IHA (73 FR 34254, June 17, 2008). No changes have been made
to these proposed activities. Additional information is contained in
PGS' application and application addendum, which are available for
review (see ADDRESSES).

Comments and Responses

    A notice of receipt of PGS' MMPA application and NMFS' proposal to
issue an IHA to PGS was published in the Federal Register on June 17,
2008 (73 FR 34254). That notice described, in detail, PGS' proposed
activity, the marine mammal species that may be affected by the
activity, and the anticipated effects on marine mammals. During the 30-
day public comment period on PGS' application, comments were received
from the Marine Mammal Commission (Commission), the Center for
Biological Diversity (CBD) and Pacific Environment (collectively
``CBD''), the Alaska Eskimo Whaling Commission (AEWC), the North Slope
Borough (NSB) Office of the Mayor and the NSB Department of Wildlife
Management (DWM), and Resisting Environmental Destruction on Indigenous
Lands (REDOIL) and the Native Village of Point Hope (NVPH; collectively
``REDOIL''). CBD attached the comments submitted by the Natural
Resources Defense Council (NRDC) on the 2006 MMS PEA as an appendix to
its comments on the IHA. With the exception of some comments relevant
to this specific action which are addressed here, comments on the Draft
PEA have been addressed in Appendix D of the Final PEA and are not
repeated here. Copies of those comment letters and the responses to
comments can be found at: http://www.mms.gov/alaska/. CBD also attached
the comments submitted by EarthJustice on the 2007 DPEIS. Those
comments are not substantially different from the comments submitted on
the PEA and do not contain comments specific to the PGS project.
Therefore, they are not addressed separately in this document. REDOIL
attached the declaration of Rosemary Ahtuangaruak, a Native Alaskan
resident in Nuiqsut, submitted on behalf of the plaintiffs in Native
Village of Point Hope et al. v. Minerals Management Service et al..
Several of her statements are referenced in their comment letter and
addressed in this section of the document. The majority of her
statement relates to issues raised by other commenters regarding
subsistence concerns.

General Concerns

    Comment 1: CBD urges NMFS not to issue a take authorization to PGS
for the proposed activities unless and until the agency can ensure that
mitigation measures are in place that truly avoid adverse impacts to
all species and their habitats and only after full and adequate public
participation has occurred and environmental review of the cumulative
impacts of such activities on these species and their habitats has been
undertaken. CBD, AEWC, and NSB feel that the proposed IHA does not meet
these standards and therefore violates the MMPA, the Endangered Species
Act (ESA), the National Environmental Policy Act (NEPA), and other
governing statutes and regulations.
    Response: In its proposed IHA Federal Register notice (73 FR 34254,
June 17, 2008), NMFS outlined in detail the proposed mitigation and
monitoring requirements. The implementation of these measures will
reduce the impacts of the proposed survey on marine mammals and their
surrounding environment to the lowest level practicable. The public was
given 30 days to review and comment on these measures, in accordance
with section 101(a)(5)(D) of the MMPA. NMFS has prepared a SEA to the
2006 MMS PEA. The PEA was available for comment in 2006. NMFS has
fulfilled its obligations under NEPA by completing a SEA, which is not
required to be available for public comment prior to its finalization.
These documents fully analyze the cumulative impacts of seismic
activity in the Arctic region. Additionally, NMFS completed a
Biological Opinion in July, 2008, as required by section 7 of the ESA,
which concluded that this action is not likely to jeopardize the
continued existence of listed species or result in the destruction or
adverse modification of critical habitat. The 2008 seismic survey off
Oliktok Point in the Beaufort Sea has been analyzed pursuant to the
ESA.
    Comment 2: CBD assumes that PGS is seeking authorization from the
U.S. Fish and Wildlife Service (USFWS) for the take of polar bears and
Pacific walrus that will occur from their proposed activities. While
these species are outside of NMFS' jurisdiction for purposes of take
authorization, they are clearly part of the ``affected environment''
adversely impacted by NMFS' action and therefore cannot lawfully be
simply discounted, as NMFS has done in the proposed IHA.
    Response: Since the IHA issued by NMFS can only regulate take of
species under NMFS' jurisdiction, the Notice of Proposed IHA does not
go into detail regarding species under the jurisdiction of other
Federal agencies. However, NMFS does analyze the impacts to these
species in its NEPA analysis as part of the ``affected environment.''
The USFWS has issued a Letter of Authorization (LOA) to PGS to take
species under its jurisdiction (i.e., polar bears and walruses).

[[Page 45971]]

    Comment 3: The NSB and AEWC point out that several sections of PGS'
application were poorly researched and drafted, especially the sections
on impacts to bowhead and beluga whales. REDOIL states that the
modeling used by PGS was inadequate.
    Response: NMFS reviewed the application and considered it complete
after PGS submitted an addendum on May 29, 2008. While information is
lacking, NMFS conducted relevant research and made its own calculations
so that accurate and complete information could be provided in the
Federal Register notice for the proposed IHA (73 FR 34254, June 17,
2008). In addition, detailed and updated information on bowhead whales
and other Arctic Ocean marine mammal species is provided in the MMS
2006 PEA, the MMS/NMFS 2007 DPEIS, the NMFS 2008 SEA, and the Stock
Assessment Reports (SARs), as referenced in the proposed IHA notice.
    The addendum to PGS' application provided NMFS with additional
information regarding the airgun array and the modeling used. NMFS used
this information to calculate the various isopleths, which will be
verified through sound source verification tests prior to beginning the
survey. NMFS then used these recalculated radii to estimate take.
    Comment 4: The NSB states that PGS' application indicates it will
take 90 days to complete the survey while the proposed IHA notice
states it will take 75 days. Thus, the amount of activity that will
occur is unclear. In addition, since the IHA will not be issued before
mid-July at the earliest, the surveys are not likely to be completed by
mid-September. Therefore, additional monitoring would be required, and
PGS would need to consult with AEWC and sign a Conflict Avoidance
Agreement (CAA). Without additional monitoring plans for September and
October, the NSB opposes an IHA that permits seismic activity during
that time period.
    Response: PGS will begin work upon receipt of the IHA and will work
until approximately September 15. PGS, through ENI, has an agreement to
complete operations by September 15 to allow another seismic program to
begin. Although the project may extend beyond September 15 if the start
date of other projects are pushed back, it is not anticipated to
continue much beyond that date.
    PGS has agreed to conduct additional monitoring after August 25.
Acoustic monitoring and aerial surveys will begin in late August (see
``Monitoring and Reporting Plan'' section later in this document). This
additional monitoring would continue until the PGS seismic survey is
completed. Moreover, PGS signed a CAA with the AEWC on June 23, 2008.
    Comment 5: The AEWC indicates that PGS signed the CAA on June 23,
2008 and that language about conducting activities near Nuiqsut was
added specifically to address the village's concerns regarding both the
bowhead whale migration and the potential effects of PGS' operations in
nearshore areas used by Arctic Cisco, a fish commonly harvested by the
community. The AEWC is satisfied with the negotiations and appreciates
PGS' and ENI's willingness to work with them and their whaling
captains.
    Response: NMFS has reviewed the CAA and agrees that the time
limitations placed on activities inside and outside the barrier islands
mitigates the potential impacts to subsistence activities in the area.
This language has been added to the IHA as well.
    Comment 6: The AEWC and REDOIL are concerned about the lack of
traditional knowledge in the application and NMFS' apparent failure to
include this knowledge in reaching its conclusions.
    Response: While traditional knowledge is not often included in
applications for IHAs in the Arctic, and while NMFS encourages
applicants to include this information, NMFS uses a wide variety of
information when making the determinations required under section
101(a)(5)(D) of the MMPA and does not rely solely on the application.
Traditional knowledge, for example, is discussed in several documents
issued by MMS under NEPA, which were used by NMFS in making its MMPA
determinations. In the case of the 2008 PGS IHA application, the MMS
2006 PEA and MMS' Final EIS for the Alaska Outer Continental Shelf
Beaufort Sea Planning Area Oil and Gas Lease Sales 186, 195, and 202
(MMS 2003-001) and subsequent supporting NEPA documents, and NMFS' 2008
Arctic Regional Biological Opinion (ARBO) provide NMFS with information
on traditional knowledge that can be used, as here, when making
determinations under NEPA and the MMPA.
    Comment 7: REDOIL incorporated CBD's comments by reference in their
entirety, and the AEWC incorporated the NSB's comments by reference.
    Response: Comments submitted by CBD and the NSB are addressed in
this section of the document.

MMPA Concerns

    Comment 8: CBD and the NSB state that because the proposed seismic
activity carries the real potential to cause injury or death to marine
mammals, neither an IHA nor a LOA (because NMFS has not promulgated
regulations for mortality by seismic activities) can be issued for PGS'
proposed activities.
    Response: Section 101(a)(5)(D) of the MMPA authorizes Level A
(injury) harassment and Level B (behavioral) harassment takes. While
NMFS' regulations indicate that a LOA must be issued if there is a
potential for serious injury or mortality, NMFS does not believe that
PGS' seismic surveys require issuance of a LOA. As explained throughout
this Federal Register Notice, it is highly unlikely that marine mammals
would be exposed to sound pressure levels (SPLs) that could result in
serious injury or mortality. The best scientific information indicates
that an auditory injury is unlikely to occur as apparently sounds need
to be significantly greater than 180 dB for injury to occur (Southall
et al., 2007). NMFS has determined that exposure to several seismic
pulses at received levels near 200-205 dB (rms) might result in slight
temporary threshold shift (TTS) in hearing in a small odontocete,
assuming the TTS threshold is a function of the total received pulse
energy. Seismic pulses with received levels of 200-205 dB or more are
usually restricted to a radius of no more than 200 m (656 ft) around a
seismic vessel operating a large array of airguns. PGS' airgun array is
considered to be of moderate size. For baleen whales, while there are
no data, direct or indirect, on levels or properties of sound that are
required to induce TTS, there is a strong likelihood that baleen whales
(bowhead and gray whales) would avoid the approaching airguns (or
vessel) before being exposed to levels high enough for there to be any
possibility of onset of TTS. For pinnipeds, information indicates that
for single seismic impulses, sounds would need to be higher than 190 dB
rms for TTS to occur while exposure to several seismic pulses indicates
that some pinnipeds may incur TTS at somewhat lower received levels
than do small odontocetes exposed for similar durations. Consequently,
NMFS has determined that it would be lawful to issue an IHA to PGS for
the 2008 seismic survey program.
    Comment 9: CBD and the NSB state that while PGS' application does
generally describe the location and duration of the seismic activities
themselves, there is minimal description and no analysis of the impacts
on marine mammals of the transport and deployment of the 13 vessels
that will be involved in the

[[Page 45972]]

survey. By failing to adequately specify the activities and impacts of
these vessels, PGS has failed to comply with 16 U.S.C. 1371(a)(5)(D)(i)
and 50 CFR 216.104(a)(2).
    Response: The specified activity that has been proposed and for
which an IHA has been requested is the use of seismic airguns to
conduct oil and gas exploration. While the support vessels play a role
in facilitating seismic operations, NMFS does not expect these
operations to result in the incidental take of marine mammals. The
majority of the vessels to be used in the seismic survey will be
transported to the North Slope via trucks. Moreover, any vessels to be
used in the seismic survey are typically slow-moving, and therefore,
any risk of vessel collisions with marine mammals is expected to be
minimal. Additionally, since marine mammal observers (MMOs) will be
scanning the area for marine mammals during seismic operations, this
further reduces the risk of a collision with cetaceans or pinnipeds.
PGS has also agreed to hire Inupiat speakers to work on the seismic
vessels. As part of their duties, the Inupiat speakers will be required
to watch for marine mammals. Finally, normal shipping and transit
operations do not rise to a level requiring an authorization under the
MMPA. To require IHAs and LOAs for standard shipping would reduce the
ability of NMFS to review activities that have a potential to cause
harm to marine mammal populations.
    Comment 10: The NSB and CBD are concerned that NMFS has not made
separate findings for both small numbers and negligible impact (16
U.S.C. 1371(a)(5)(D)(i)(I); 50 CFR 206.107). CBD states that the
closest thing to a separate ``small numbers'' finding is a single
sentence in the Preliminary Conclusions section of the proposed IHA. In
recent proposed IHAs, NMFS has directly cited its invalid ``small
numbers'' definition. In the current IHA, NMFS does not directly cite
to the regulatory definition of ``small numbers'', but nevertheless
conducts its analysis according to this invalid standard. Yet neither
the Federal Register document nor PGS' application provide any support
whatsoever for this ``conclusion.'' The CBD continues that for PGS'
proposed seismic surveys in the Beaufort Sea, the number of marine
mammals likely to be exposed to sounds of 160 dB re 1 microPa (rms) or
greater, and therefore ``harassed'' according to NMFS' operative
thresholds, is almost 1,600. In absolute terms this number cannot be
considered ``small.'' The proposed seismic surveys simply are not
designed to avoid impacting more than small numbers of marine mammals,
and, therefore, the IHA must be denied.
    Response: NMFS believes that the small numbers requirement has been
satisfied. The species most likely to be harassed during seismic
surveys off Oliktok Point in the Beaufort Sea is the ringed seal, with
an ``average estimate'' of 3,551 exposures to SPLs of 160 dB or
greater. (The estimate contained in the proposed IHA notice (73 FR
34254, June 17, 2008) was 1,467 ringed seals. However, this estimate
was based on exposures to SPLs of 170 dB or greater.) This does not
mean that this is the number of ringed seals that will actually exhibit
a disruption of behavioral patterns in response to the sound source;
rather, it is simply the best estimate of the number of animals that
potentially could have a behavioral modification due to the noise. For
example, Moulton and Lawson (2002) indicate that most pinnipeds exposed
to seismic sounds lower than 170 dB do not visibly react to that sound,
and, therefore, pinnipeds are not likely to react to seismic sounds
unless they are greater than 170 dB re 1 microPa (rms). In addition,
these estimates are calculated based upon line miles of survey effort,
animal density, and the calculated zone of influence (ZOI). While this
methodology is valid for seismic surveys that transect long distances,
for those surveys that ``mow the lawn'' (that is, remain within a
relatively small area, transiting back and forth while shooting
seismic), the take estimate numbers tend to be highly inflated because
animals that might have been affected (taken) are likely to have moved
out of the area to avoid additional annoyance from the seismic sounds
(assuming they were taken in the first place).
    The Level B harassment take estimate of 3,551 ringed seals is a
small number, at least in relative terms, in that it represents only
1.4 percent of the regional stock size of that species (249,000), if
each ``exposure'' at 160 dB represents an individual ringed seal. The
percentage would be even lower if a higher SPL is required for a
behavioral reaction (as is expected) or, if as expected, animals move
out of the seismic area. As a result, NMFS believes that these
``exposure'' estimates are conservative, and seismic surveys will
actually affect less than 1.4 percent of the Beaufort Sea ringed seal
population.
    The ``average estimates'' of exposures for the remaining species
that could potentially occur in the project area (i.e., beluga,
bowhead, and gray whales and bearded and spotted seals) are only
between 25 and 178 animals, which constitute at most 0.3 percent of any
of these five species populations in the Arctic. Additionally, the
presence of beluga, bowhead, and gray whales in the shallow water
environment within the barrier islands is possible but expected to be
very limited.
    Further, NMFS believes that it is incorrect to add the number of
exposures together to support an argument that the numbers are not
``small.'' The MMPA is quite clear ''...taking by harassment of small
numbers of marine mammals of a species or population stock...'' does
not refer to an additive calculation (small numbers, not small number).
    Separate detailed analyses on the levels of take by noise exposure
and cumulative impacts to these marine mammal species and stocks from a
wide spectrum in the past, current, and foreseeable future were also
conducted and described in the Federal Register notice of the proposed
IHA (73 FR 34254, June 17, 2008), the MMS 2006 PEA, and the NMFS 2008
SEA. These analyses led NMFS to conclude that while behavioral
modifications, including temporarily vacating the area during the
project period may be made by these species to avoid the resultant
acoustic disturbance, NMFS nonetheless found that this action would
result in no more than a negligible impact on the affected marine
mammal species and/or stocks.
    In sum, NMFS concludes that PGS' 3D OBC/TZ seismic survey will only
result in the taking, by incidental harassment, of small numbers of
marine mammals of a species or stock and would result in a negligible
impact on such species or stock(s).
    Comment 11: CBD states that in 2006, NMFS required surveys of a
120-dB safety zone for bowhead cow/calf pairs and ``large groups''
(greater than 12 individuals). If 12 bowheads constitute a ``large
group,'' we do not see how the numerous bowheads that will be harassed
by PGS are a ``small number.'' This displacement and the disruption of
pod integrity clearly constitute harassment under the MMPA. PGS'
activities can be expected to have similar effects. NMFS' determination
that PGS' activities will have a ``negligible impact'' does not
withstand scrutiny. First, as explained above and in our NEPA comments,
the calculation of numbers of marine mammals harassed by PGS is likely
an underestimate as it relies on a received sound threshold (160/170
dB) that is too high. Any negligible impacts determination based on
such flawed data is itself unsupportable. Moreover, NMFS has previously
recognized a harassment threshold of 120 dB for

[[Page 45973]]

continuous sounds. Given that PGS is using 13 vessels, the engine and
operating noise from these vessels should be treated as ``continuous''
for purposes of estimating harassment thresholds. The MMPA is
precautionary. In making its determinations, NMFS must give the benefit
of the doubt to the species. As the D.C Circuit has repeatedly stated,
``it is clear that ``the Act was to be administered for the benefit of
the protected species rather than for the benefit of commercial
exploitation'' (Kokechik Fishermen's Association v. Secretary of
Commerce, 839 F.2d 795, 800 (D.C. Cir. 1988) citing Committee for
Humane Legislation, Inc. v. Richardson, 540 F.2d 1141, 1148 (D.C. Cir.
1976)). NMFS seems to be ignoring this mandate in analyzing the impacts
of PGS' activities.
    Response: On CBD's first point, there is no relationship between
the term ``large group'' and ``small numbers.'' The first term refers
to a number of 12 or more in order to implement additional mitigation
measures, the second to a concept found in the MMPA, which has been
addressed previously in this notice. NMFS agrees that while the
``displacement and the disruption of pod integrity constitute
harassment under the MMPA,'' NMFS is unaware of any information that
seismic survey operations will result in bowhead whale pod integrity
disruption. On the contrary, traditional knowledge indicates that when
migrating bowhead whales encounter anthropogenic noises, as a group
they all divert away from the noise and continue to do so even if the
noise ceases.
    Secondly, NMFS does not agree that the sources used in PGS'
activity should be considered ``continuous.'' The airgun arrays are the
primary noise source that could potentially impact marine mammals. As
stated previously in this document, NMFS does not issue IHAs for simple
vessel traffic.
    The decision in Kokechik Fishermen's Association v. Secretary of
Commerce, 839 F.2d 795 (D.C. Circ. 1988), does not apply to this case
because it is factually and legally distinguishable. The incidental
take permit challenged in Kokechik was for commercial fishing
operations, governed by section 101(a)(2) of the MMPA, whereas the
incidental authorization that is the subject of this IHA is for an
activity other than commercial fishing and is appropriately authorized
pursuant to section 101(a)(5)(D). Consequently, as discussed throughout
this document, it is not unlawful for NMFS to apply section
101(a)(5)(D) when issuing an IHA to PGS for the take of marine mammals
incidental to seismic surveys.
    Comment 12: Additionally, CBD and NSB state that NMFS has no idea
of the actual population status of several of the species subject to
the proposed IHA. For example, in the most recent SARs prepared
pursuant to the MMPA, NMFS acknowledges it has no accurate information
on the status of ribbon, spotted, bearded, and ringed seals. CBD and
NSB both indicate that without this data, NMFS cannot make a rational
``negligible impact'' finding. This is particularly so given there is
real reason to be concerned about the status of these populations. Such
concerns were raised in a recent letter to NMFS from the Commission
following the Commission's 2005 annual meeting in Anchorage, Alaska
(Commission, January 25, 2006 Letter). With regard to these species,
the MMC cautioned against assuming a stable population.
    On December 20, 2007, CBD petitioned NMFS to list the ribbon seal
under the ESA due to the loss of its sea-ice habitat from global
warming and the adverse impacts of oil industry activities on the
species. On May 27, 2008, CBD submitted a similar petition seeking
listing of the spotted, bearded, and ringed seals. We request that NMFS
consider the information contained in these petitions, as well as other
information in its files on the status of these species, when analyzing
the impacts of the proposed IHA on these increasingly imperiled
species. Because the status of the ribbon, spotted, ringed, and bearded
seals and other stocks is unknown, NMFS cannot conclude that surveys
which will harass untold numbers of individuals of each species will
have no more than a ``negligible effect'' on the stocks.
    Response: As required by the MMPA implementing regulations at 50
CFR 216.102(a), NMFS has used the best scientific information available
in making its determinations required under the MMPA. The Alaska SAR
provides population estimates based on past survey work conducted in
the region. PGS' survey is not expected to have adverse impacts on ice
seals. The activity will last for approximately 75 days in the open-
water environment of the Beaufort Sea. On March 28, 2008, NMFS
published a notice of a 90-day petition finding, request for
information, and initiation of status reviews of ribbon, bearded,
ringed, and spotted seals (73 FR 16617). The comment period for this
action closed on May 27, 2008. NMFS is currently reviewing all relevant
information and within 1 year of receipt of the petition, NMFS shall
conclude the review with a finding as to whether or not the petitioned
action is warranted. The ribbon seal petition submitted in December,
2007, is not relevant for this survey, as ribbon seals are not found in
the project area. Information contained in the May, 2008, petition does
not provide sufficient evidence that NMFS' preliminary determination
that only small numbers of ringed, bearded, and spotted seals would be
affected as a result of PGS' seismic activity is invalid.
    Comment 13: CBD states that the analyses in the proposed IHA are
largely confined to looking at the immediate effects of PGS' airgun
surveys in the Beaufort Sea on several marine mammal species. However,
there is no analysis of the impacts of the 13 vessels and any related
aircraft participating in the surveys on marine mammals. The impacts of
these activities must be analyzed and mitigated before any ``negligible
impact'' finding can be made. CBD and NSB believe that NMFS must
consider these effects together with other oil and gas activities that
affect these species, stocks and local populations, other anthropogenic
risk factors such as climate change, and the cumulative effect of these
activities over time. The effects should be analyzed with respect to
their potential population consequences at the species level, stock
level, and at the local population level.
    Response: Under section 101(a)(5)(D) of the MMPA, NMFS is required
to determine whether the taking by the applicant's specified activity
will have a negligible impact on the affected marine mammal species or
population stocks. Cumulative impact assessments are NMFS'
responsibility under NEPA, not the MMPA. In that regard, the MMS Final
PEA and NMFS 2008 SEA address cumulative impacts. The Final PEA's
cumulative activities scenario and cumulative impact analysis focused
on oil and gas-related and non-oil and gas-related noise-generating
events/activities in both Federal and State of Alaska waters that were
likely and foreseeable. Other appropriate factors, such as Arctic
warming, military activities, and noise contributions from community
and commercial activities were also considered. Appendix D of the Final
PEA addresses similar comments on cumulative impacts, including global
warming. That information was incorporated into and updated in the NMFS
2008 SEA and into this document by citation. NMFS adopted the MMS Final
PEA, and it is part of NMFS' Administrative Record.
    NMFS does not require authorizations under section 101(a)(5) of the
MMPA for normal shipping or transit. A further

[[Page 45974]]

explanation was addressed in the response to Comment 9.
    Comment 14: NSB and CBD are both concerned about cumulative impacts
from multiple operations. PGS' proposal is only one of numerous oil
industry activities recently occurring, planned, or ongoing in the U.S.
portions of the Chukchi and Beaufort Seas. No analysis of seismic
surveys in the Russian or Canadian portions of the Chukchi and Beaufort
seas is mentioned either. Similarly, significant increases in onshore
oil and gas development with attendant direct impacts and indirect
impacts on marine mammals such as through increased ship traffic are
also occurring and projected to occur at greater rates than in the past
(e.g., NMFS' IHA for barge traffic to NPR-A; IHA for barge operations
in the Beaufort Sea; and a notice regarding new oil and gas development
in the NPR-A). CBD states that further cumulative effects impacting the
marine mammals of the Beaufort and Chukchi Seas are outlined in their
NEPA comments on the MMS PEA and the DPEIS.
    The NSB points out that in addition to the proposed offshore
industrial operations listed above, there will be supply and fuel
barging to villages, barging for support of onshore development and
exploration, scientific cruises, climate change studies, USCG
operations, tourist vessel traffic, and other activities as well. The
cumulative impacts of all these activities must be factored into any
negligible impact determination. Further, without an analysis of the
effects of all of the planned operations, it is impossible to determine
whether the monitoring plans are sufficient.
    Response: See the response to the previous comment. The issue of
cumulative impacts has been addressed in the 2006 MMS Final PEA and the
2008 NMFS SEA.
    Comment 15: According to CBD, another factor causing NMFS'
``negligible impact'' findings to be suspect is the fact that the
Beaufort Sea area is undergoing rapid change as a result of global
warming. For species under NMFS' jurisdiction, and therefore subject to
the proposed IHA, seals are likely to face the most severe
consequences. The Arctic Climate Impact Assessment (ACIA) concluded
that ringed, spotted, and bearded seals would all be severely
negatively impacted by global warming this century. The ACIA stated
that ringed seals are particularly vulnerable (ACIA, 2004). In 2003,
the NRC noted that oil and gas activities combined with global warming
presented a serious cumulative impact to the species. NMFS' failure to
address global warming as a cumulative effect renders its negligible
impact findings invalid.
    Response: Under section 101(a)(5)(D) of the MMPA, ``the Secretary
shall authorize... taking by harassment of small numbers of marine
mammals of a species or population stock by such citizens while
engaging in that activity within that region if the Secretary finds
that such harassment during each period concerned (I) will have a
negligible impact on such species or stock, and (II) will not have an
unmitigable adverse impact on the availability of such species or stock
for taking for subsistence uses.'' Section 101(a)(5)(D) of the MMPA
does not require NMFS to base its negligible impact determination on
the possibility of cumulative effects of other actions.
    As stated in previous responses, cumulative impact assessments are
NMFS' responsibility under NEPA, not the MMPA. In that regard, the MMS
2006 Final PEA and NMFS' 2008 SEA address cumulative impacts. The PEA's
cumulative activities scenario and cumulative impact analysis focused
on oil and gas-related and non-oil and gas-related noise-generating
events/activities in both Federal and State of Alaska waters that were
likely and foreseeable. Other appropriate factors, such as Arctic
warming, military activities, and noise contributions from community
and commercial activities were also considered. Appendix D of the PEA
addresses similar comments on cumulative impacts, including global
warming. That information was incorporated into and updated in the NMFS
2008 SEA and into this document by citation. NMFS adopted the MMS Final
PEA, and it is part of NMFS' Administrative Record.

Marine Mammal Impact Concerns

    Comment 16: CBD states that they referenced the scientific
literature linking seismic surveys with marine mammal stranding events
in its comments to MMS on the 2006 Draft PEA and in comments to NMFS
and MMS on the 2007 DPEIS. NMFS' failure to address these studies and
the threat of serious injury or mortality to marine mammals from
seismic surveys renders NMFS' conclusory determination that serious
injury or morality will not occur from PGS' activities arbitrary and
capricious.
    Response: MMS briefly addressed the humpback whale stranding in
Brazil on page PEA-127 in the Final PEA. Marine mammal strandings are
also discussed in the NMFS/MMS DPEIS. A more detailed response to the
cited strandings has been provided in several previous IHA issuance
notices for seismic surveys (e.g., 71 FR 50027, August 24, 2006; 73 FR
40512, July 15, 2008). Additional information has not been provided by
CBD or others regarding these strandings. As NMFS has stated, the
evidence linking marine mammal strandings and seismic surveys remains
tenuous at best. Two papers, Taylor et al. (2004) and Engel et al.
(2004), reference seismic signals as a possible cause for a marine
mammal stranding. Taylor et al. (2004) noted two beaked whale stranding
incidents related to seismic surveys. The statement in Taylor et al.
(2004) was that the seismic vessel was firing its airguns at 1300 hrs
on September 24, 2004, and that between 1400 and 1600 hrs, local
fishermen found live-stranded beaked whales some 22 km (12 nm) from the
ship's location. A review of the vessel's trackline indicated that the
closest approach of the seismic vessel and the beaked whales' stranding
location was 33 km (18 nm) at 1430 hrs. At 1300 hrs, the seismic vessel
was located 46 km (25 nm) from the stranding location. What is unknown
is the location of the beaked whales prior to the stranding in relation
to the seismic vessel, but the close timing of events indicates that
the distance was not less than 33 km (18 nm). No physical evidence for
a link between the seismic survey and the stranding was obtained. In
addition, Taylor et al. (2004) indicate that the same seismic vessel
was operating 500 km (270 nm) from the site of the Galapagos Island
stranding in 2000. Whether the 2004 seismic survey caused two beaked
whales to strand is a matter of considerable debate (see Cox et al.,
2004). NMFS believes that scientifically, these events do not
constitute evidence that seismic surveys have an effect similar to that
of mid-frequency tactical sonar. However, these incidents do point to
the need to look for such effects during future seismic surveys. To
date, follow-up observations on several scientific seismic survey
cruises have not indicated any beaked whale stranding incidents.
    Engel et al. (2004), in a paper presented to the International
Whaling Commission (IWC) in 2004 (SC/56/E28), mentioned a possible link
between oil and gas seismic activities and the stranding of eight
humpback whales (seven off the Bahia or Espirito Santo States and one
off Rio de Janeiro, Brazil). Concerns about the relationship between
this stranding event and seismic activity were raised by the
International Association of Geophysical Contractors (IAGC). The IAGC
(2004) argues that not enough

[[Page 45975]]

evidence is presented in Engel et al. (2004) to assess whether or not
the relatively high proportion of adult strandings in 2002 is
anomalous. The IAGC contends that the data do not establish a clear
record of what might be a ``natural'' adult stranding rate, nor is any
attempt made to characterize other natural factors that may influence
strandings. As stated previously, NMFS remains concerned that the Engel
et al. (2004) article appears to compare stranding rates made by
opportunistic sightings in the past with organized aerial surveys
beginning in 2001. If so, then the data are suspect.
    Second, strandings have not been recorded for those marine mammal
species expected to be harassed by seismic in the Arctic Ocean. Beaked
whales and humpback whales, the two species linked in the literature
with stranding events with a seismic component are not located in the
area of the Beaufort Sea where seismic activities would occur (although
humpback whales have been spotted in the Chukchi Sea and much farther
west in the Beaufort Sea). Moreover, NMFS notes that in the Beaufort
Sea, aerial surveys have been conducted by MMS and industry during
periods of industrial activity (and by MMS during times with no
activity). No strandings or marine mammals in distress have been
observed during these surveys; nor reported by NSB inhabitants.
Finally, if bowhead and gray whales react to sounds at very low levels
by making minor course corrections to avoid seismic noise and
mitigation measures require PGS to ramp-up the seismic array to avoid a
startle effect, strandings are highly unlikely to occur in the Arctic
Ocean. Ramping-up of the array will allow marine mammals the
opportunity to vacate the area of ensonification and thus avoid any
potential injury or impairment of their hearing capabilities. In
conclusion, NMFS does not expect any marine mammals will incur serious
injury or mortality as a result of seismic surveys in the Beaufort Sea
in 2008.
    Comment 17: CBD states that seismic surveys pose the risk of
permanent hearing loss by marine mammals, which itself is a ``serious
injury'' likely to lead to the death of these animals. Seismic pulses
of sufficient volume, such as those proposed to be used by PGS, have
the potential to cause temporary and permanent hearing loss in marine
mammals.
    Response: NMFS does not expect that animals will be injured, or for
that matter seriously injured or killed, if they are within the 180 dB
(cetaceans) and 190 dB (pinnipeds) isopleths. These criteria were set
to approximate where Level A harassment (defined as ``any act of
pursuit, torment or annoyance which has the potential to injure a
marine mammal or marine mammal stock in the wild'') from acoustic
sources begins. NMFS has determined that a TTS, which is the mildest
form of hearing impairment that can occur during exposures to a strong
sound may occur at these levels. For sound exposures at or somewhat
above TTS, hearing sensitivity recovers rapidly after exposure to the
noise ends. Few data on sound levels and durations necessary to elicit
mild TTS have been obtained for marine mammals, and none of the
published data concern TTS elicited by exposure to multiple pulses of
sound. TTS is not an injury, as there is no injury to individual cells.
    As NMFS has published several times in Federal Register notices
regarding issuance of IHAs for seismic survey work or in supporting
documentation for such authorizations, for whales exposed to single
short pulses, the TTS threshold appears to be a function of the energy
content of the pulse. Given the data available at the time of the IHA
issuance, the received level of a single seismic pulse might need to be
approximately 210 dB re 1 Pa rms in order to produce brief, mild TTS.
Exposure to several seismic pulses at received levels near 200-205 dB
(rms) might result in slight TTS in a small odontocete, assuming the
TTS threshold is a function of the total received pulse energy. Seismic
pulses with received levels of 200-205 dB or more are usually
restricted to a radius of no more than 200 m (656 ft) around a seismic
vessel operating a large array of airguns. Since PGS is operating a
moderate-sized array, this radius would be even smaller. For baleen
whales, there are no data, direct or indirect, on levels or properties
of sound that are required to induce TTS. However, there is a strong
likelihood that baleen whales (bowhead and gray whales) would avoid the
approaching airguns (or vessel) before being exposed to levels high
enough for there to be any possibility of onset of TTS.
    A marine mammal within a radius of 100 m (328 ft) or less around a
typical large array of operating airguns may be exposed to a few
seismic pulses with levels greater than or equal to 205 dB and possibly
more pulses if the marine mammal moves with the seismic vessel. When
permanent threshold shift (PTS) occurs, there is physical damage to the
sound receptors in the ear. In some cases, there can be total or
partial deafness, whereas in other cases, the animal has an impaired
ability to hear sounds in specific frequency ranges. However, there is
no specific evidence that exposure to pulses of airgun sound can cause
PTS in any marine mammal, even with airgun arrays larger than that
proposed to be used in PGS' survey. Given the possibility that mammals
close to an airgun array might incur TTS, there has been further
speculation about the possibility that some individuals occurring very
close to airguns might incur PTS. Single or occasional occurrences of
mild TTS are not indicative of permanent auditory damage in terrestrial
mammals. Relationships between TTS and PTS thresholds have not been
studied in marine mammals but are assumed to be similar to those in
humans and other terrestrial mammals.
    The information provided here regarding PTS is for large airgun
arrays. PGS is proposing to use an 880 in3 array, which is considered
mid-size. Therefore, animals would have to be very close to the vessel
to incur serious injuries. Because of the monitoring and mitigation
measures required in the IHA (i.e., MMOs, ramp-up, power-down,
shutdown, etc.), it is expected that appropriate corrective measures
can be taken to avoid any injury, including serious injury.
    Comment 18: The NSB DWM states that humpback and fin whales were
seen in the Beaufort and Chukchi Seas in 2007. Therefore, it is
reasonable to expect that both of these species could occur in the
vicinity of Harrison Bay in 2008. Given that both species are
endangered, NMFS should include an evaluation of potential impacts to
humpback and fin whales from PGS' proposed seismic activities and other
oil and gas activities planned for 2008. Narwhals have also been seen
in the vicinity of PGS' operations. Several years ago, hunters observed
several narwhals in the vicinity of Thetis Island (E. Nukapigak, pers.
comm.), which is in the area proposed for seismic surveys. Potential
impacts to narwhals should also be evaluated.
    Response: As an initial matter, NMFS prepared a Biological Opinion
in July, 2008, to assess the effects of oil and gas exploration in the
Arctic Ocean, particularly in light of new sightings data for fin and
humpback whales. Until 2007, historic and recent information did not
indicate humpback whales inhabit northern portions of the Chukchi Sea
or enter the Beaufort Sea. No sightings of humpback whales were
reported during aerial surveys of endangered whales in summer (July)
and autumn (August-October) of 1979-1987 in the Northern Bering Sea
(from north of St. Lawrence Island), the

[[Page 45976]]

Chukchi Sea north of lat. 66[deg] N. and east of the International Date
Line, and the Alaskan Beaufort Sea from long. 157[deg] 01' W. east to
long. 140[deg] W. and offshore to lat. 72[deg] N. (Ljungblad et al.,
1988). Humpbacks have not been observed during annual aerial surveys of
the Beaufort Sea conducted in September and October from 1982-2007
(e.g., Monnett and Treacy, 2005; Moore et al., 2000; Treacy, 2002;
Monnett, 2008, pers. comm.). During a 2003 research cruise in which all
marine mammals observed were recorded from July 5 to August 18 in the
Chukchi and Beaufort Seas, no humpback whales were observed (Bengtson
and Cameron, 2003). One observation of a single humpback whale was
recorded in 2006 by MMOs aboard a vessel in the southern Chukchi Sea
outside of the Chukchi Sea Planning Area (Patterson et al., 2007; MMS,
2006, unpublished data). During summer 2007 between August 1 and
October 16, humpback whales were observed during seven observation
sequence events in the western Alaska Beaufort Sea (1 animal) and
eastern and southeastern Chukchi Sea (6 animals; MMS, 2007, unpublished
data) and one other observation in the southern Chukchi Sea in 2007
(Sekiguchi, In prep.). The one humpback sighting in the Beaufort Sea in
2007 was in Smith Bay, which is more than 150 km (100 mi) west of the
PGS project area. Therefore, humpback whales are not expected to occur
in the location of PGS' survey.
    Additionally, there is no indication that fin whales typically
occur within the project area. There have been only rare observations
of fin whales into the eastern half of the Chukchi Sea. Fin whales have
not been observed during annual aerial surveys of the Beaufort Sea
conducted in September and October from 1982-2007 (e.g., Monnett and
Treacy, 2005; Moore et al., 2000; Treacy, 2002; Monnett, 2008, pers.
comm.). During a research cruise in the Chukchi and Beaufort seas (from
July 5-August 18, 2003), in which all marine mammals observed were
recorded, no fin whales were observed (Bengtson and Cameron, 2003).
Therefore, fin whales are not expected to occur in the location of PGS'
survey.
    Discussions at this year's Open-water Meeting in Anchorage, Alaska,
in April, in which the NSB participated, indicated that narwhals are
extremely unlikely to occur in the U.S. Beaufort Sea and mainly inhabit
the Canadian Beaufort Sea. At present, NMFS does not have a SAR
available for narwhal, making it difficult to assess distribution and
abundance of the narwhal in the Alaskan Beaufort Sea. Therefore, it is
highly unlikely that narwhals would be affected by the survey.
    Comment 19: The NSB DWM states that contrary to the information
contained in PGS' application, some bowhead whales spend the summer in
the Beaufort Sea. Thus, evaluation of the potential for impact from
seismic surveys on summering whales is needed.
    Response: NMFS conducted this analysis in its NEPA documents.
Although it is possible that bowhead whales could occur inside the
barrier islands, the extremely shallow water in which PGS will operate
(less than 15 m, 49 ft) is not suitable bowhead habitat. Mitigation and
monitoring measures required in the IHA will also help to reduce
impacts to bowheads throughout the entire time period of the survey.
    Comment 20: CBD and the NSB state that NMFS' estimate of the number
of marine mammals that may be harassed under the proposed authorization
is based on the assumption that sounds below 160 dB re 1 microPa (rms)
do not constitute harassment. This assumption is incorrect, and
therefore PGS' and NMFS' estimated take numbers represent an
underestimate of the possible true impact. In our NEPA comments on the
2006 PEA, we pointed out the numerous studies showing significant
behavioral impacts from received sounds well below 160 dB. Even the
2006 PEA itself acknowledges that impacts to bowheads occur at levels
of 120 dB and below. This clearly meets the statutory definition of
harassment and demonstrates that the numbers of bowhead estimated in
the proposed IHA to be taken by PGS' activities likely constitute a
significant underestimate. NMFS' ``small numbers'' conclusion is
therefore arbitrary and capricious for this reason as well.
    The NSB DWM questions why PGS does not acknowledge that bowheads
avoided an area around active seismic to much lower sound levels, down
to 120 dB or lower (Richardson et al., 1999). Bowheads' sensitivity to
very low level of industrial sounds must be considered in assessing
impacts from one industrial operation, as well as impacts from
cumulative impacts from multiple operations.
    Response: On the first point, NMFS uses the best science available
when making its determinations under section 101(a)(5)(D) of the MMPA.
On the second point, CBD misunderstands the purpose of ``potential to
harass'' in the MMPA. This was not meant to mean that highly
speculative numbers of marine mammals could ``potentially be harassed''
but that Congress intended for U.S. citizens to apply for an MMPA
authorization prior to its activity taking marine mammals, not waiting
until after the taking occurred and someone needed to ``prove'' that
the taking happened.
    As stated previously, the ``take'' numbers provided in the proposed
IHA notice (73 FR 34254, June 17, 2008) and subsequently amended herein
are considered the numbers of animals that could potentially be
``exposed'' to the sounds based on species density, the area
potentially affected, and the length of time the noise would be
expected to last. This does not necessarily indicate that all animals
will have a significant behavioral reaction to that sound at the level
of 160 dB. In addition, CBD took the maximum number of marine mammals
(based on animal density), instead of the expected density (as
explained in PGS' application). Using maximum density estimates is
problematic as it tends to inflate harassment take estimates to an
unreasonably high number and is not based on empirical science. As a
result, NMFS believes that far fewer marine mammals would receive SPLs
sufficient to cause a significant biological reaction by the species.
In regard to bowhead whales, while this species reacts to sounds at
levels lower than 160 dB, during its fall westward migration (but not
while in a non-migratory behavior), those reactions are not detectable
by MMOs and that information is obtained only later during computer
analysis of collected data.
    Richardson et al. (1999) monitored the reactions of migrating
bowhead whales and found that most avoided the area of seismic activity
within 20 km (12.4 mi) of the source at levels as low as 120-130 dB
(rms). Also, the Northstar recordings are conducted during the fall
migration westward across the Beaufort. Since some of the work to be
conducted by PGS will overlap with the bowhead migration period,
beginning on August 25, PGS will be required to monitor out to the 120-
dB isopleth. This will be done via vessel and aerial surveys. PGS will
be required to shutdown operations if 4 or more cow/calf pairs are seen
within this radius. PGS will conduct sound source verification tests at
the beginning of the survey to determine the exact distances to the
190-, 180-, 160-, and 120-dB isopleths both inside and outside the
barrier islands.
    Lastly, the requirement to assess cumulative impacts is required
under NEPA, not the MMPA. Cumulative impacts were assessed and analyzed
in both the 2006 PEA and the 2008 SEA.
    Comment 21: The NSB DWM, CBD, and REDOIL state that a 160-dB
threshold for belugas is similarly

[[Page 45977]]

flawed. As NMFS is aware, belugas are among the most sensitive of
marine mammals to anthropogenic sound. In previous IHA notices, NMFS
has acknowledged the impacts of sounds on belugas even at significant
distances from a sound source. For example, in a recent proposed take
authorization related to seismic surveys by NSF, NMFS noted that
belugas can be displaced at distances of up to 20 km (12.4 mi) from a
sound source. Aerial surveys during seismic operations in the
southeastern Beaufort Sea recorded much lower sighting rates of beluga
whales within 10-20 km (6.2-12.4 mi) of an active seismic vessel. These
results were consistent with the low number of beluga sightings
reported by observers aboard the seismic vessel. Such displacement
clearly meets the statutory definition of harassment and demonstrates
that the number of belugas estimated to be taken by PGS' activities
constitutes a significant underestimate. Belugas are also extremely
sensitive to ships. A study of Canadian belugas showed flight responses
from ice-breakers at received sound levels as low as 94 dB. Presumed
alarm vocalizations of belugas indicated that they were aware of an
approaching ship over 80 km (50 mi) away and they showed strong
avoidance reactions to ships approaching at distances of 35-50 km (22-
31 mi) when received noise levels ranged from 94 to 105 dB re 1 Pa in
the 20-1000 Hz band. The ``flee'' response of the beluga involved large
herds undertaking long dives close to or beneath the ice edge; pod
integrity broke down and diving appeared asynchronous. Belugas were
displaced along ice edges by as much as 80 km (50 mi; Finley et al.,
1990). The NSB DWM states that the 120-dB zone should be used for
estimating numbers of beluga whales that may be taken during seismic
operations in the Beaufort Sea.
    The NSB DWM notes that while most beluga whales are found near the
shelf break, they are also regularly seen in shallower nearshore waters
of the Beaufort Sea.
    Response: Much of the Beaufort Sea seasonal population of belugas
enters the Mackenzie River estuary (in Canada) for a short period from
July through August to molt their epidermis, but they spend most of the
summer in offshore waters of the eastern Beaufort Sea, Amundsen Gulf,
and more northerly areas (Davis and Evans, 1982; Harwood et al., 1996;
Richard et al., 2001). Belugas are rarely seen in the central Alaskan
Beaufort Sea during the early summer. During late summer and autumn,
most belugas migrate westward far offshore near the pack ice (Frost et
al., 1988; Hazard, 1988; Clarke et al., 1993; Miller et al., 1999),
with the main fall migration corridor approximately 160 km (100 mi) or
more north of the coast. Therefore, most belugas migrate well offshore
away from the proposed project area, although there is a small
possibility that they could occur near the project area in small
numbers. MMOs will be monitoring the exclusion zones for all marine
mammals. Therefore, in the event that belugas are sighted in the
project area, the appropriate mitigation measures (described later in
this document) will be implemented. Additionally, as PGS does not
intend to use ice-breakers during its seismic survey, statements
regarding beluga reactions to ice-breaker noise are not relevant to
this activity.
    Comment 22: The NSB DWM points out that while ringed seals may be
the most common marine mammal species in the area, since the seismic
shoot is near a spotted seal haulout in the Colville River Delta, PGS
should expect to encounter and expose spotted seals to seismic sounds.
Additional information is needed about impacts from seismic activities
on spotted seals, including impacts to seals at haulouts.
    Response: Both the application and proposed IHA notice analyze the
distribution, density, and potential impacts to spotted seals. NMFS
estimates that 178 spotted seals may be exposed to sound levels of 160
dB (rms) or greater and thereby possibly taken as a result of PGS'
seismic survey. Impacts to spotted seals are not expected to be all
that different than those to the other ice seals in the area. While
there may be some behavioral disturbance, for reasons stated earlier in
this document, TTS and PTS are not expected for spotted seals or any
other marine mammal species. Additionally, if the animals are hauled
out during seismic shooting, then they would not be exposed to
underwater noise.
    Comment 23: The NSB is concerned about the potential impacts of
PGS' seismic survey to the food sources of marine mammals. Part of the
survey occurs in productive nearshore waters. Additional information is
needed about impacts from seismic surveys to marine mammal prey and the
resulting impacts to the marine mammals themselves.
    Response: PGS has modified the project timeline to address concerns
from local subsistence users regarding impacts to fish. PGS has agreed
not to begin work inside the barrier islands prior to August 5.
Additionally, NMFS does not expect the proposed action to have a
substantial impact on biodiversity or ecosystem function within the
affected area. The potential for the PGS activity to affect ecosystem
features and biodiversity components, including fish and invertebrates,
is fully analyzed in the 2006 PEA and incorporated by reference into
the 2008 SEA. NMFS' evaluation indicates that any direct, indirect, or
cumulative effects of the action would not result in a substantial
impact on biodiversity or ecosystem function. In particular, the
potential for effects to these resources are considered here with
regard to the potential effects on diversity or functions that may
serve as essential components of marine mammal habitat. Most effects
are considered to be short-term and unlikely to affect normal ecosystem
function or predator/prey relationships; therefore, NMFS believes that
there will not be a substantial impact on marine life biodiversity or
on the normal function of the nearshore or offshore Beaufort Sea
ecosystems.
    During the seismic survey, only a small fraction of the available
habitat would be ensonified at any given time. Disturbance to fish
species would be short-term, and fish would return to their pre-
disturbance behavior once the seismic activity in a specific area
ceases. Thus, the proposed survey would have little, if any, impact on
the ability of marine mammals to feed in the area where seismic work is
conducted.
    Some mysticetes, including bowhead whales, feed on concentrations
of zooplankton. Some feeding bowhead whales may occur in the Alaskan
Beaufort Sea in July and August, and others feed intermittently during
their westward migration in September and October (Richardson and
Thomson [eds.], 2002; Lowry et al., 2004). A reaction by zooplankton to
a seismic impulse would only be relevant to whales if it caused
concentrations of zooplankton to scatter. Pressure changes of
sufficient magnitude to cause that type of reaction would probably
occur only very close to the source, if any would occur at all. Impacts
on zooplankton behavior are predicted to be negligible, and that would
translate into negligible impacts on availability of mysticete prey.
More importantly, bowhead whales, while possible, are not expected to
feed in the shallow area covered by this seismic survey; therefore, no
impacts to mysticete feeding are anticipated.
    Little or no mortality to fish and/or invertebrates is anticipated.
The proposed Beaufort Sea seismic survey is predicted to have
negligible to low physical effects on the various life stages of fish
and invertebrates. Though these effects do not require authorization
under an IHA, the effects on these features were considered by

[[Page 45978]]

NMFS with respect to consideration of effects to marine mammals and
their habitats, and NMFS finds that these effects from the survey
itself on fish and invertebrates are not anticipated to have a
substantial effect on biodiversity and/or ecosystem function within the
survey area.
    Comment 24: REDOIL states that NMFS appears to lay great stock in
the mitigating effect of PGS conducting its post August 5 seismic
surveying inside the barrier islands so as not to disturb the fall
bowhead migration. NMFS does not sufficiently analyze this conclusion,
nor does it address the fact that whales are sometimes sighted within
the barrier islands.
    Response: Although whales are sometimes sighted inside the barrier
islands, the shallow depths are not considered primary habitat for the
animals, so NMFS does not believe that whales will occur in any
significant numbers inside the barrier islands. Sound propagation in
shallow waters is less than in deeper waters. Additionally, the islands
will serve as a barrier and should absorb the majority of the sound
produced by the airguns, thereby minimizing the distance that the sound
will travel and reducing the impacts to animals outside the islands.
Sound source verification tests will determine the distance to the
exclusion and monitoring zones and may reveal that the distances
provided in this document are overestimates. The increased monitoring
that will be required during the fall bowhead migration and the
required mitigation measures should help to reduce impacts to migrating
whales.

Estimated Take Calculation Concerns

    The Federal Register Notice for the proposed PGS IHA (73 FR 34254,
June 17, 2008) estimated Level B harassment takes for pinnipeds using
the 170-dB (rms) radius. To be consistent with NMFS' Level B
(behavioral) harassment criteria for pinnipeds, NMFS will continue to
use 160 dB re 1 microPa (rms) as the threshold of onset for Level B
(behavioral) harassment, as noted later in this document. The estimated
numbers of pinnipeds that could be exposed within the 160 dB re 1
microPa ensonified zone are provided throughout this document,
particularly in the responses to public comments and in the ``Estimated
Take of Marine Mammals by Incidental Harassment'' section.
Nevertheless, it is important to note that even with the 160-dB
criteria, NMFS expects that only small numbers of pinnipeds would be
exposed to seismic noises that could cause Level B (behavioral)
harassment. In addition, research by Moulton and Lawson (2002)
indicated that most pinnipeds exposed to seismic sounds lower than 170
dB do not visibly react to that sound, and, therefore, pinnipeds are
not likely to react to seismic sounds unless they are greater than 170
dB re 1 microPa (rms). While the number of potential exposures of
pinnipeds at 170 dB rms is smaller than that at 160 dB rms, the overall
environmental effect of received sound levels at 170 dB rms versus 160
dB rms is expected to be similar based on the best available science.
    Comment 25: The NSB DWM states that both the summer and fall
density estimates should be used for estimating takes given the
timeframe of PGS' survey. Bowhead and beluga whales will be migrating
past the area where PGS' activities will occur. Thus, estimates of take
must be based on different animals being exposed to PGS' seismic sounds
each day.
    Response: The density estimates provided in Table 6.2-1 of PGS'
application are similar to autumn density estimates provided in other
applications to NMFS. As described previously in this document, the
take estimates are calculated based upon line miles of survey effort,
animal density, and the calculated ZOI. This methodology most likely
provides an overestimation of the take numbers because animals that
might have been affected (taken) are likely to have moved out of the
area to avoid additional annoyance from the seismic sounds (assuming
they were taken in the first place).
    Comment 26: The NSB DWM believes that take estimates for bowhead
whales may be too low. Increasing the sound isopleth to encompass an
area that is exposed to sounds down to 120 dB will increase the
estimate of how many bowheads are deflected from the seismic surveys.
Accurately estimating how many whales will be disturbed is essential
when evaluating the potential takes of each industrial activity and all
activities combined.
    Response: Under the MMPA, NMFS makes its determinations for small
numbers and negligible impact for the individual IHA, not in
combination with other offshore activities. The cumulative impact
analysis is made under NEPA which can be found in MMS' 2006 Final PEA
as updated by NMFS' 2008 SEA. This analysis however, is required to be
made in the industry's Comprehensive Report for 2008 offshore
activities.
    In regard to using a 120-dB (rms) isopleth to calculate estimated
Level B harassment takes, it is not appropriate in this case because
previous bowhead whale observations indicate that a 120-dB isopleth is
appropriate only for migrating bowhead whales, not for bowhead whales
residing over the summer in the central Beaufort Sea, nor for bowhead
whales ceasing migration and feeding along the migratory route. In the
case of PGS' survey, all seismic data acquisition work will move inside
the barrier islands beginning on August 25 where few bowhead whales are
expected to be found. As with all seismic surveys, a sound source
verification test will be performed for PGS' seismic airgun array to
determine the 190-, 180-, 160-, and 120-dB isopleths and that
information used later to assess potential impacts on bowhead whales
while seismic data acquisition is being conducted inside (and outside)
the barrier islands.
    Comment 27: The NSB DWM points out that the study referenced for
the number of spotted seals hauled out in the Colville River Delta is
10 years old and that it was likely not timed for spotted seals. Even
though the tides in the central Beaufort Sea are not large, spotted
seals likely time their haul outs with low tides. The reference states
that fewer than 20 seals were seen at any one time. The sighting of 20
seals probably represents many more animals. Lowry et al. (1994) showed
that satellite-tagged spotted seals only used haulouts for
approximately 10 percent of the time. If a similar pattern occurs in
the Beaufort Sea, a count of 20 seals would likely represent about 200.
It is likely that PGS will expose every spotted seal that uses the
haulout to seismic sounds as the seals swim to and from the haulout.
There is a very good chance that more than 73 spotted seals will be
disturbed by PGS' seismic surveys. NMFS should require PGS to survey
the Colville River Delta as a means to better understand whether
seismic surveys are keeping spotted seals from reaching and using the
haulout.
    Response: NMFS uses the best information available in making its
determinations under the MMPA. While recent information (either
scientific or traditional) is lacking on the Colville River Delta
spotted seal haulouts, PGS also used survey information by Green et al.
(2005, 2006, 2007) to develop its estimated take levels. Green et al.
(2005, 2006, 2007) monitored marine mammals from FEX barging activity
between Prudhoe Bay and Cape Simpson. The number of spotted seals
annually recorded along the shallow trackline segments coincident with
the PGS seismic survey area ranged from 1 to 10 animals. Overall, Green
et al. (2005, 2006, 2007) annually recorded between 23 and 54 spotted
seals. In addition,

[[Page 45979]]

Richardson (2000) notes that in total, there probably are only a few
dozen spotted seals along the coast of the central Beaufort Sea during
summer and early fall. As stated above, NMFS has revised the estimate
of spotted seals that may be taken to 178 and believes this estimate is
accurate. NMFS would welcome information from subsistence hunters
regarding spotted seal distribution and abundance in areas near
offshore seismic activity and whether these species have been affected
in previous years (for example, during the seismic surveys prior to
construction of the Northstar facility in the late 1990s).

Subsistence Use Concerns

    Comment 28: CBD and REDOIL state that the MMPA requires that any
incidental take authorized will not have ``an unmitigable adverse
impact on the availability of such species or stock for taking for
subsistence uses'' by Alaska Natives. REDOIL further states that in
making this determination, NMFS must factor in ongoing authorized
activities that may also affect the availability of subsistence
resources and measure the effects of PGS' activities against the
baseline of the effects of other activities on subsistence activities.
CBD notes they are aware that the NVPH, a federally recognized tribal
government, has opposed seismic surveys due to impacts on subsistence,
and along with many community members has commented on myriad other
related agency documents that have direct bearing on these take
authorization such as the Chukchi Sea Sale 193, MMS Five-Year Plan, and
the DPEIS. Similarly, the NSB, the AEWC, and REDOIL have all filed
challenges in federal court challenging offshore activities due to
impacts on the subsistence hunt of bowheads and other species. In light
of the positions of these communities and organizations, we do not see
how NMFS can lawfully make the findings required under the MMPA for
approving PGS' proposed IHA.
    Response: NMFS believes that the concerns expressed by subsistence
hunters and their representatives have been addressed by NMFS through
the comments that they submitted on this action, which are responded to
in this section of the document. Additionally, while cumulative impact
assessments are not required under section 101(a)(5)(D) of the MMPA,
NMFS considered all of the seismic surveys planned for the Arctic in
2008, as well as other activities in the Arctic Ocean, when it prepared
its NEPA documents.
    Comment 29: The Commission states that issuance of the IHA be
contingent on a requirement that the applicant implement all
practicable monitoring and mitigation measures that will ensure the
proposed activities do not adversely affect the availability of bowhead
whales and other marine mammals to subsistence hunters. Such measures
should reflect the provisions of any CAA between Alaska Native hunters
and the applicant and be sufficient to meet the requirements of the
MMPA.
    Response: NMFS believes that it has implemented mitigation measures
for conducting seismic surveys to avoid, to the greatest extent
practicable, impacts on coastal marine mammals and thereby, the needs
of the subsistence communities that depend upon these mammals for
sustenance and cultural cohesiveness. For the 2008 season, these
mitigation measures are similar to those contained in the CAA signed by
PGS on June 23, 2008, and include black-out areas during the
subsistence hunt for bowhead whales and coastal community communication
stations and emergency assistance.
    Comment 30: REDOIL and the NSB state that the MMPA requires NMFS to
find that the specified activities covered by an IHA ``will not have an
unmitigable adverse impact on the availability of [marine mammal
populations] for taking for subsistence uses'' (16 U.S.C.
1371(a)(5)(D)(i)(II)). NMFS fails to provide the substantive analysis
required to support any meaningful finding regarding the possible
effect of PGS' activities on the availability of bearded, spotted, and
ringed seals and bowhead whales for subsistence uses by the coastal
communities of Nuiqsut, Barrow, and other communities that depend upon
these migratory species, or the effectiveness of mitigation measures to
eliminate such impacts. For example, NMFS does not explain in
sufficient detail how the mitigation measure of moving from east to
west will reduce impacts to the bearded seal hunt from Thetis Island in
July and August. Also, because the survey will occur during the fall
bowhead hunt in Nuiqsut, information out to the 120-dB isopleth is
needed. The proposed mitigation measures are inadequate because they
fail to extend to the 120-dB zone. The IHA also provides inadequate
information to determine whether or where whales would return to their
original migration routes once deflected.
    Response: During the fall bowhead migration, PGS will not conduct
data acquisition in the migration corridors. The 120-dB isopleth is
expected to extend 10-15 km (6.2-9 mi) from the source; however, much
of this sound is expected to be absorbed by the islands, which are
closer than this distance. Therefore, little sound (if any) is expected
in the migration corridor, thus avoiding deflection of whales farther
offshore. The work outside of the barrier islands will occur prior to
the beginning of the bowhead migration and hunt. Beginning on August
25, PGS will be required to monitor out to the 120-dB isopleth and will
fly aerial surveys three times a week, weather permitting. PGS will
also be required to shutdown if an aggregation of 12 or more whales are
sighted within the 160-dB isopleth.
    To avoid impacts to the bearded seal subsistence hunt at Thetis
Island, PGS has agreed to begin work on the east side of the project
area (outside the barrier islands) in July and slowly move to the west
away from Thetis Island. This action was recommended and approved by
the Kuukpikmiut Subsistence Oversight Panel (KSOP), the Nuiqsut
subsistence users' group. Additionally, PGS will use the following
mechanisms to identify and address concerns of subsistence users during
the project, including concerns about impacts to the Thetis Island seal
hunt:
    (1) PGS will maintain open communication with subsistence users by
providing weekly reports to KSOP that discuss project activities as per
an agreement with KSOP.
    (2) PGS has hired a local resident as a Subsistence Advisor who
will maintain communication with the communities of Nuiqsut and Barrow
so that concerns about potential impacts on subsistence can be brought
to PGS' attention.
    (3) PGS has hired local residents (from Nuiqsut and Barrow) as
members of the seismic crew who will have the additional duty of
observing for marine mammals. They will be able to provide the PGS
project manager with information about the timing and status of ongoing
subsistence activities (such as the Thetis Island seal hunt).
    (4) Nuiqsut whalers (who also harvest other subsistence species
such as seals) will likely be using PGS facilities at Oliktok Point (a
temporary dock and boat launch) to launch boats for whaling at Cross
Island. Although this will likely take place after the Thetis Island
seal hunt, this interaction will allow subsistence users from Nuiqsut
to bring up any concerns they have with the Subsistence Advisor and the
Project Manager.
    Comment 31: REDOIL believes that NMFS has not made any effort to
discern whether seismic surveying activities in the Beaufort Sea in
2006 or 2007 had an adverse impact on the

[[Page 45980]]

availability of seal and whale species for subsistence uses. Before
authorizing another year of surveys, NMFS must at least evaluate the
effect of recent surveys, assess the effectiveness of mitigation
measures used during those surveys, and make the results of such
assessment available to the affected public, including the NVPH and
REDOIL.
    Response: In preparing the 2008 SEA, NMFS reviewed the
comprehensive monitoring reports from 2006 and 2007. Those reports do
not note any instances of serious injury or mortality. In November,
2007, Shell (in coordination and cooperation with other Arctic seismic
IHA holders) released a final, peer-reviewed edition of the 2006 Joint
Monitoring Program in the Chukchi and Beaufort Seas, July-November 2006
(LGL, 2007). This report is available for download on the NMFS website
(see ADDRESSES). A draft comprehensive report for 2007 was provided to
NMFS and those attending the NMFS/MMS Open-water Meeting in Anchorage,
AK, on April 14-16, 2008. Based on reviewer comments made at that
meeting, Shell and others are currently revising this report and plans
to make it available to the public shortly. Additionally, the annual
summary monitoring reports submitted by BP to NMFS for its operations
at the Northstar facility indicate that in 2006, Nuiqust whalers landed
the full quota of four bowhead whales. In 2007, the hunters landed
three whales, and one whale was struck and lost at sea. These reports
are also available on the NMFS website.
    Comment 32: REDOIL states that there is no guarantee that the
development of a Plan of Cooperation (POC) will result in enforceable
limits that ensure PGS' activities have no unmitigable adverse impact
on the availability of seals and whales for subsistence purposes. By
relying on these processes without ensuring that they produce a
meaningful outcome, NMFS has effectively deferred its determination
whether PGS' activities will have an unmitigable adverse impact on the
availability of seals and whales for subsistence uses by communities
along the Beaufort Sea until after such a POC has been developed.
Consequently, NMFS has failed its basic duty under the MMPA and its own
regulations to make a proposed determination available to the public to
scrutinize and comment on. Absent specification of the restrictions and
mitigation measures that will result from these processes, NMFS cannot
reasonably conclude that they will prove effective, which it must in
order to determine that they will eliminate potential for substantial
impacts to our subsistence activities. Without any indication of what
the agency may impose if these processes should prove ineffective, it
has failed to make a meaningful finding available for the public to
comment upon. Additionally, the NSB DWM points out that impacts to the
bowhead hunt off Cross Island are possible unless conflicts are avoided
through a CAA and that there could be impacts to hunting of ringed and
spotted seals for the communities of Barrow and Nuiqsut.
    Response: PGS distributed a Draft POC to NMFS, USFWS, and the
affected communities and subsistence user groups in March, 2008. Based
on input from these various groups and additional meetings, PGS updated
the POC and finalized it in early July. The Final POC contains
mitigation measures that resulted from discussions with the KSOP and
the AEWC to avoid conflicts with the seal and whale hunts.
Additionally, PGS signed a CAA with AEWC and the affected village
whaling captains on June 23, 2008. Conditions that will help avoid or
reduce impacts on subsistence activities have been included in the IHA
as well. NMFS believes that the measures contained in the POC, CAA, and
IHA will ensure that there is no unmitigable adverse impact on the
availability of marine mammal species for subsistence uses.

Mitigation Concerns

    Comment 33: CBD states that the MMPA authorizes NMFS to issue a
small take authorization only if it can first find that it has required
adequate monitoring of such taking and all methods and means of
ensuring the least practicable impact have been adopted (16 U.S.C.
1371(a)(5)(D)(ii)(I)). The proposed IHA largely ignores this statutory
requirement. In fact, while the proposed IHA lists various monitoring
measures, it contains virtually nothing by way of mitigation measures.
The specific deficiencies of the ``standard'' MMS mitigation measures
as outlined in the 2006 PEA are described in detail in our NEPA
comments, incorporated by reference, and are not repeated here. Because
the MMPA explicitly requires that ``means effecting the least
practicable impact'' on a species, stock, or habitat be included, an
IHA must explain why measures that would reduce the impact on a species
were not chosen (i.e., why they were not ``practicable''). Neither the
proposed IHA, PGS' application, the 2006 PEA, or the 2007 DPEIS
attempts to do this.
    Response: The proposed IHA outlined several mitigation, monitoring,
and reporting requirements to be implemented during the Beaufort Sea
survey. By way of mitigation, the Notice of Proposed IHA (73 FR 34254,
June 17, 2008) described the following actions to be undertaken by PGS
including: speed and course alterations; power-downs and shutdowns when
marine mammals are sighted just outside or in the specified safety
zones; and ramp-up procedures. Speed or course alteration helps to keep
marine mammals out of the 180 or 190 dB safety zones. Additionally,
power-down and shutdown procedures are used to prevent marine mammals
from exposure to received levels that could potentially cause injury.
Ramping-up provides a ``warning'' to marine mammals in the vicinity of
the airguns, providing them time to leave the area and thus avoid any
potential injury or impairment of hearing capabilities. After August
25, PGS will be required to shutdown if an aggregation of 12 or more
bowhead or gray whales are sighted within the 160-dB isopleth.
Additionally, after this date, PGS will be required to monitor out to
the 120-dB isopleth via both vessel and aerial surveys. If a group of
four or more bowhead whale cow/calf pairs are sighted within this zone,
operations must be shutdown until two consecutive surveys indicate that
there are not more than three pairs in the area of operations. Because
these mitigation measures will be included in the IHA to PGS, no marine
mammal injury or mortality is anticipated. Numbers of individuals of
all species taken are expected to be small (relative to stock or
population size), and the take is anticipated to have a negligible
impact on the affected species or stock.
    Additionally, the survey design itself has been created to mitigate
the effects to the lowest level practicable. Two seismic source vessels
will be used simultaneously (alternating their shots) to minimize the
total survey period. Also, by agreeing to begin activities in the east
and move towards the west, impacts to migrating fish and seal hunts at
Thetis Island will be avoided. Similarly, by working outside of the
barrier islands prior to August 5 and inside the islands from August 25
until the end of the bowhead hunt in Nuiqsut, impacts to hunters and
the whales will be greatly reduced. Beluga whales are not hunted in the
area during the time of the PGS survey. Additionally, although ringed
seals are available to be taken by subsistence hunters year-round, the
seismic survey will not occur during the primary period when this
species is typically harvested (October through June). For these
reasons, NMFS believes that it has required all methods and means
necessary to ensure the least

[[Page 45981]]

practicable impact on the affected species or stocks. CBD's comments on
the 2006 PEA and the responses to those comments were addressed in
Appendix D of the PEA and are not repeated here.
    Comment 34: CBD and REDOIL state that while NMFS has not performed
any analysis of why additional mitigation measures are not
``practicable,'' the proposed IHA contains information to suggest that
many such measures are in fact practicable. For example, in 2006, NMFS
required monitoring of a 120-dB safety zone for bowhead cow/calf pairs
and monitoring of a 160-dB safety zone for large groups of bowhead and
gray whales (greater than 12 individuals). The PGS IHA is silent as to
the applicability of these safety zones. Moreover, the fact that a 120-
dB safety zone is possible for aggregations of bowheads means that such
a zone is also possible for other marine mammals such as belugas which
are also subject to disturbance at similar sound levels. The failure to
require such, or at least analyze it, violates the MMPA. REDOIL also
adds that NMFS does not even discuss the option of requiring PGS to
power down its airguns or cease its surveying during the annual bearded
seal hunt near Thetis Island.
    Response: Several of the previous responses in this document
address the issues raised here. PGS has agreed to several mechanisms to
avoid conflicts during the Thetis Island seal hunt and signed a CAA to
avoid conflicts with whalers from Nuiqsut. After August 25, PGS will be
required to monitor and take mitigative measures inside both the 160-dB
and 120-dB isopleths. Also, because the seismic survey will take place
shoreward of the barrier islands during the main migration period in
very shallow waters up to 15 m deep (49 ft; where high seismic
propagation loss is expected), few bowhead whales are likely to occur
in the data acquisition area. The distance of received levels that
might elicit avoidance will likely not (or barely) reach the main
migration corridor and then only through the inter-island passages.
Additionally, over the past 25-30 years, gray whales have not commonly
or consistently been seen in the area of the Beaufort Sea where PGS
will conduct its activities.
    Comment 35: The Commission recommends that NMFS issue the IHA
provided that NMFS require: (a) the applicant to implement all
described monitoring and mitigation measures to protect bowhead whales
and other marine mammals from disturbance; and (b) operations to be
suspended immediately if a dead or seriously injured marine mammal is
found in the vicinity of the operations and if that death or injury
could be attributable to the applicant's activities. Any suspension
should remain in place until NMFS: (1) has reviewed the situation and
determined that further deaths or serious injuries are unlikely to
occur; or (2) has issued regulations authorizing such takes under
section 101(a)(5)(A) of the MMPA.
    Response: NMFS concurs with the Commission's recommendation and
will require the immediate suspension of seismic activities if a dead
or injured marine mammal has been sighted within an area where the
holder of the IHA deployed and utilized seismic airguns within the past
24 hours.
    Comment 36: REDOIL suggests that another practicable mitigation
measure that NMFS fails to discuss, let alone impose, is a mandatory
limit on the number of concurrent seismic and/or shallow hazard surveys
in the Beaufort Sea. At all times, but especially during the fall
bowhead migration, NMFS should prohibit the simultaneous operations of
multiple vessels within the Beaufort Sea. Moreover, it should require
that no two vessels operate within 100 km (62 mi) of one another. Given
the large size of the 120-dB zone, closer simultaneous operation would
pose a real risk of disrupting the bowhead whale migration and the
behaviors of beluga and gray whales.
    Response: PGS' survey will overlap with BP's Liberty seismic survey
for approximately one month. However, BP's activity will occur nearly
100 km (62 mi) to the east of PGS' project. Shell's Beaufort Sea
activities should only have minimal temporal overlap with PGS' survey.
Additionally, the IHA will contain the following measure: The taking of
any marine mammals by seismic sounds when the seismic vessel is within
15 mi (24.1 km) of another operating seismic vessel, which is being
used for a separate operation, is prohibited.

Monitoring Concerns

    Comment 37: CBD states that MMOs cannot effectively detect 100
percent of the marine mammals that may enter the safety zones. NMFS
allows seismic vessels to operate airguns during periods of darkness,
but does not require MMOs to monitor the exclusion zones during
nighttime operations except when starting airguns at night or if the
airgun was powered down due to marine mammal presence the preceding
day. Even during the day, visually detecting marine mammals from the
deck of a seismic vessel presents challenges and may be of limited
effectiveness due to glare, fog, rough seas, the small size of animals
such as seals, and the large proportion of time that animals spend
submerged. CBD feels that there is no documentation to prove that PGS'
operations will more effectively monitor exclusion zones than in 2006
and 2007. Therefore, marine mammals will likely be exposed to sound
levels that could result in permanent hearing loss and therefore
serious injury. As such, because PGS' proposed activities ``have the
potential to result in serious injury or mortality'' to marine mammals,
NMFS cannot lawfully issue the requested IHA. Moreover, NMFS cannot
authorize some take (i.e., harassment) if other unauthorized take
(i.e., serious injury or mortality) may also occur. However, even if an
IHA were the appropriate vehicle to authorize take for PGS' planned
activities, because the proposed IHA is inconsistent with the statutory
requirements for issuance, it cannot lawfully be granted by NMFS.
    Response: The seismic vessels will be traveling at speeds of about
1-5 knots (1.9-9.3 km/hr). With a 180-dB safety range of 492 m (0.31
mi), a vessel will have moved out of the safety zone within a few
minutes. As a result, during underway seismic operations, MMOs are
instructed to concentrate on the area ahead of the vessel, not behind
the vessel where marine mammals would need to be voluntarily swimming
towards the vessel to enter the 180-dB zone. In fact, in some of NMFS'
IHAs issued for scientific seismic operations, shutdown is not required
for marine mammals that approach the vessel from the side or stern in
order to ride the bow wave or rub on the seismic streamers deployed
from the stern (and near the airgun array) as some scientists consider
this a voluntary action on the part of an animal that is not being
harassed or injured by seismic noise. While NMFS concurs that shutdowns
are not likely warranted for these voluntary approaches, in the Arctic
Ocean, all seismic surveys are shutdown or powered down for all marine
mammal close approaches. Also, in all seismic IHAs, including PGS' IHA,
NMFS requires that the safety zone be monitored for 30 min prior to
beginning ramp-up to ensure that no marine mammals are present within
the safety zones. Implementation of ramp-up is required because it is
presumed it would allow marine mammals to become aware of the
approaching vessel and move away from the noise, if they find the noise
annoying.
    Periods of total darkness will not set in during PGS' survey until
early September. For the final few weeks of data acquisition, nighttime
conditions will occur for approximately 1.5-5 hrs.

[[Page 45982]]

However, during times of reduced light, MMOs will be equipped with
night vision devices. During poor visibility conditions, if the entire
safety zone is not visible for the entire 30 min pre-ramp-up period,
operations cannot begin.
    NMFS believes that an IHA is the proper authorization required to
cover PGS' survey. As described in other responses to comments in this
document, NMFS does not believe that there is a potential for serious
injury or mortality from these activities. The monitoring reports from
2006 and 2007 do not note any instances of serious injury or mortality.
Additionally, NMFS feels it has met all of the requirements of section
101(a)(5)(D) of the MMPA (as described throughout this document) and
therefore can issue an IHA to PGS for seismic operations in 2008.
    Comment 38: The NSB and CBD states that with regard to nighttime
and poor visibility conditions, BPXA proposes essentially no
limitations on operations, even though the likelihood of observers
seeing marine mammals in such conditions is very low. The obvious
solution, not analyzed by PGS or NMFS, is to simply prohibit seismic
surveying when conditions prevent observers from detecting all marine
mammals in the safety zone. CBD also states that in its treatment of
passive acoustic monitoring (PAM), NMFS and PGS are also deficient.
While past IHAs have required PAM, this IHA completely ignores even
discussing the possibility of using such monitoring. Additional
mitigation measures that are clearly ``practicable'' are included in
our NEPA comments on the PEA and DPEIS and incorporated by reference
here. The NSB DWM acknowledges that the proposed IHA notice contained
an explanation of the acoustic monitoring planned for this project.
However, they feel it has some weaknesses. The five hydrophone offshore
array is not adequate as it will not cover the entire ensonified area.
A sixth hydrophone is needed to more appropriately cover the proposed
seismic survey area. The NSB DWM feels that NMFS should require PGS to
carefully monitor impacts from the seismic operations on all marine
mammals and subsistence hunters of those marine mammals.
    Response: Total darkness will not occur until early September in
the project area. Beginning around July 29, nautical twilight will
begin to occur for short periods of time each day, with the amount of
time that twilight occurs increasing by about 15-30 minutes each day.
Nautical twilight is defined as the sun being approximately 12[deg]
below the horizon. At the beginning or end of nautical twilight, under
good atmospheric conditions and in the absence of other illumination,
general outlines of ground objects may be distinguishable, but detailed
outdoor operations are not possible, and the horizon is indistinct.
Beginning on September 5, there will be periods of darkness, which will
occur between the end of nautical twilight and the beginning of morning
nautical twilight. Nighttime or darkness periods will not last more
than 5 hrs and then only around the last week of operations. During
periods of impaired light or fog, operations will not be allowed to
resume after a full shutdown if the entire 180-dB safety radius cannot
be monitored for a full 30-min period. Additionally, night vision
devices will be onboard each source vessel.
    Contrary to CBD's assertion, acoustic monitoring is being required
for this project. A full description can be found in the ``Monitoring
and Reporting Plan'' section of this document. Since the offshore
recorders to be deployed by PGS will not be the only acoustic
monitoring devices located in the Beaufort Sea at this time, NMFS feels
that the five recorders will provide sufficient coverage. Every fall,
BPXA deploys Directional Autonomous Seafloor Acoustic Recorders
(DASARs) near its Northstar facility in the Beaufort Sea, which is
slightly westward of this survey to record bowhead whale calls during
the fall migration. Results of those recordings are available in the
Northstar reports and can be found on the NMFS PR website (see
ADDRESSES for availability). Additionally, Shell proposes to deploy
DASARs east and northwest of the PGS DASAR site.
    Reports and data that must be contained in those reports can be
found in the ``Monitoring and Reporting Plan'' section of this
document. If marine mammals are sighted during seismic operations, PGS
is required to record information such as species and reaction (if
any). Additionally, PGS has agreed to communicate with subsistence
hunters throughout the season to determine if their activities are
having an impact on the hunts.
    Comment 39: REDOIL notes that NMFS regulations require that an IHA
set forth ``requirements for the independent peer-review of proposed
monitoring plans where the proposed activity may affect the
availability of a species or stock for taking for subsistence uses''
(50 CFR 216.107(a)(3)). The proposed IHA fails to provide for peer
review of PGS' proposed monitoring plans. NMFS should reject any
suggestion that the 2008 Open-water meeting satisfied the peer review
requirement. Peer review by independent, objective reviewers remains
necessary.
    Response: In order for the independent peer-review of Arctic area
activity monitoring plans, it must be conducted in an open and timely
process. Review by an independent organization, such as the National
Academy of Sciences, would be costly (at least $500,000), take at least
a year to complete, would limit NMFS, USFWS, MMS, and stakeholder
input, would likely provide for an inflexible, multi-year monitoring
plan (e.g., any modifications may require reconvening the Committee),
and may not address issues of mutual concern (degree of bowhead
westward migration, etc.). As a result, NMFS believes that independent
peer-review of monitoring plans can be conducted via two means. First,
the monitoring plans are made public and available for review by
scientists and members of the public in addition to scientists from the
NSB, NMFS, and the USFWS. In accordance with the MMPA, the Commission's
Committee of Scientific Advisors reviews all IHA applications,
including the monitoring plans. Second, monitoring plans and the
results of previous monitoring are reviewed once or twice annually at
public meetings held with the industry, the AEWC, the NSB, Federal
agencies, and the public. PGS' mitigation and monitoring plan was
reviewed by scientists and stakeholders at a meeting in Anchorage
between April 14, 2008, and April 16, 2008, and by the public between
June 17, 2008 (73 FR 34254) and July 17, 2008.

Cumulative Impact Concerns

    Comment 40: REDOIL feels that NMFS has not adequately analyzed the
impacts of PGS' surveying activity against the background of the many
other seismic surveys planned for the Beaufort in the summer of 2008,
let alone provided adequate mitigation of the effects of this activity
on subsistence activities.
    Response: NMFS disagrees. The 2008 SEA provides an analysis of all
seismic surveys planned for the Arctic Ocean for summer 2008.
Additionally, NMFS believes that it has required in the IHA all
practicable monitoring and mitigation measures required to ensure the
least practicable adverse impact on the affected species or stocks and
that there is no unmitigable adverse impact on the availability of the
species or stocks for subsistence uses.
    Comment 41: The MMC recommends that NMFS, together with the
applicant and other appropriate agencies and

[[Page 45983]]

organizations, develop and implement a broad-based population
monitoring and impact assessment program to collect baseline population
information sufficient to detect changes and identify their possible
causes and to verify that ongoing and planned oil and gas-related
activities, in combination with other risk factors, are not
individually or cumulatively having any significant adverse population-
level effects on marine mammals or having an unmitigable adverse effect
on the availability of marine mammals for subsistence uses by Alaska
Natives.
    Response: A description of the monitoring program submitted by PGS
was provided in PGS' application, outlined in the Federal Register
notice of the proposed IHA (73 FR 34254, June 17, 2008), and posted on
the NMFS PR IHA webpage. As a result of a dialogue on monitoring by
scientists and stakeholders attending NMFS' public meetings in
Anchorage in April, 2006, October, 2006, and April, 2007, the industry
has expanded its monitoring program in order to fulfill its
responsibilities under the MMPA. For the third year, industry
participants have included a marine mammal research component designed
to provide baseline data on marine mammals for future operations
planning. A description of this research is provided later in this
document (see ``Joint Industry Program'' section). Scientists are
continuing discussions to ensure that the research effort obtains the
best scientific information possible. Finally, it should be noted that
this far-field monitoring program follows the guidance of the MMC's
recommended approach for monitoring seismic activities in the Arctic
(Hofman and Swartz, 1991), that additional research might be warranted
when impacts to marine mammals would not be detectable as a result of
vessel observation programs.

ESA Concerns

    Comment 42: CBD states that the proposed IHA will affect, at a
minimum, three endangered species, the bowhead and humpback whales and
the polar bear. As a consequence, NMFS must engage in consultation
under Section 7 of the ESA prior to issuing the IHA. Previous recent
biological opinions for industrial activities in the Arctic (e.g., the
2006 ARBO) have suffered from inadequate descriptions of the proposed
action, inadequate descriptions of the status of the species,
inadequate descriptions of the environmental baseline, inadequate
descriptions of the effects of the action, inadequate analysis of
cumulative effects, and inadequate descriptions and analysis of
proposed mitigation. We hope NMFS performs the full analysis required
by law and avoids these problems in its consultation for the proposed
IHA.
    Response: Under section 7 of the ESA, NMFS has completed
consultation with the MMS on the issuance of seismic permits for
offshore oil and gas activities in the Beaufort and Chukchi seas. In a
Biological Opinion issued on July 17, 2008, NMFS concluded that the
issuance of seismic survey permits by MMS and the issuance of the
associated IHAs for seismic surveys are not likely to jeopardize the
continued existence of threatened or endangered species (specifically
the bowhead whale) under the jurisdiction of NMFS or destroy or
adversely modify any designated critical habitat. The 2008 ARBO takes
into consideration all oil and gas related activities that are
reasonably likely to occur, including exploratory (but not production)
oil drilling activities. In addition, NMFS issued an Incidental Take
Statement under this Biological Opinion, which contains reasonable and
prudent measures with implementing terms and conditions to minimize the
effects of take of bowhead whales. Regarding the polar bear, MMS has
contacted the USFWS about conducting a section 7 consultation.
    Comment 43: CBD states NMFS may authorize incidental take of the
listed marine mammals under the ESA pursuant to Section 7(b)(4) of the
ESA, but only where such take occurs while ``carrying out an otherwise
lawful activity.'' To be ``lawful,'' such activities must ``meet all
State and Federal legal requirements except for the prohibition against
taking in section 9 of the ESA''. As discussed above, PGS' proposed
activities violate the MMPA and NEPA and therefore are ``not otherwise
lawful.'' Any take authorization for listed marine mammals would,
therefore, violate the ESA, as well as these other statutes.
    Response: As noted in this document, NMFS has made the necessary
determinations under the MMPA, the ESA, and NEPA regarding the
incidental harassment of marine mammals by PGS while it is conducting
activities permitted legally under MMS' jurisdiction.

NEPA Concerns

    Comment 44: The NSB, REDOIL, and CBD state that NEPA requires
Federal agencies to prepare an EIS for all ``major Federal actions
significantly affecting the quality of the human environment.'' In the
notice of proposed IHA, NMFS cites the 2006 PEA and the 2007 DPEIS. As
explained in our comment letters on these two documents (incorporated
by reference), neither of these documents satisfy NMFS' NEPA
obligation. The 2006 PEA explicitly limited its scope to the 2006
seismic season. Additional seismic work cannot be authorized without
further NEPA analysis of the cumulative impacts of increasing activity
offshore in the Arctic Ocean.
    The monitoring reports from 2006 and 2007 seismic testing must be
considered in any NEPA analysis for further seismic testing. Moreover,
these reports indicate that the 120 dB and 160 dB zones from seismic
surveys were much larger than anticipated or analyzed in the PEA. As
such, the analysis of the PEA is simply inaccurate and underestimates
the actual impacts from seismic activities. Also, in 2007, significant
bowhead feeding activity occurred in Camden Bay, rendering the PEA's
analyses of important bowhead feeding areas inadequate and inaccurate.
Additionally, sea ice in 2007 retreated far beyond that predicted or
analyzed in the PEA, rendering any discussion of cumulative impacts of
seismic activities in the context of climate change horribly out of
date.
    Moreover, even if the EA was not of limited scope and out of date,
the proposed surveys threaten potentially significant impacts to the
environment, and must be considered in a full EIS. (See 42 U.S.C. 5
4332(2)(c); Idaho Sporting Cong v. Thomas, 137 F.3d 1146, 1149 (9th
Cir. 1998)). As explained in our comment letter of May 10, 2006, on the
PEA (incorporated by reference), seismic surveys trigger several of the
significance criteria enumerated in NEPA regulations. Additionally, the
``significance thresholds'' in the PEA are, as explained in our comment
letters, arbitrary and unlawful. Moreover, the 120 dB and 160 dB safety
zones that NMFS relied upon to avoid a finding of significance in the
2006 PEA are not part of the current proposal and cannot in anyway
support a finding of no significant impact (FONSI). Finally, where, as
here, a proposed action may have cumulatively significant impacts, an
EIS must be prepared, and cannot be avoided by breaking a program down
into multiple actions. See Blue Mountains Biodiversity Project v.
Blackwood, 161 F.3d 1208, 1215 (9th Cir. 1998); Kern v. Bureau of Land
Mgmt., 284 F.3d 1062, 1078 (9th Cir. 2002).
    Response: NMFS prepared a Final SEA to analyze further the effects
of PGS' (and other companies') proposed open-water seismic survey
activities for the 2008 season. NMFS has incorporated by reference the
analyses contained in the MMS 2006 Final PEA

[[Page 45984]]

and has also relied in part on analyses contained in the DPEIS
submitted for public comment on March 30, 2007.
    The 2006 PEA analyzed a broad scope of proposed seismic activities
in the Arctic Ocean. In fact, the PEA assessed the effects of multiple,
ongoing seismic surveys (up to 8 surveys) in the Beaufort and Chukchi
Seas for the 2006 season. Although PGS' proposed activity for this
season was not explicitly identified in the 2006 PEA, the PEA did
contemplate that future seismic activity, such as PGS', could occur.
NMFS believes the range of alternatives and environmental effects
considered in the 2006 PEA, combined with NMFS' SEA for the 2008 season
are sufficient to meet the agency's NEPA responsibilities. In addition,
the 2008 SEA includes new information obtained since the 2006 Final PEA
was issued, including updated information on cumulative impacts. NMFS
also includes a new section in the 2008 SEA, which provides a review of
the 2006 and 2007 monitoring reports. As a result of this review and
analysis, NMFS has determined that it was not necessary to prepare an
EIS for the issuance of an IHA to PGS in 2008 for seismic activity in
the Beaufort Sea but that preparation of an SEA and issuance of a FONSI
were sufficient under NEPA.
    As stated in previous responses in this document and explained in
the ``Mitigation Measures'' section later in this document, NMFS will
require PGS to monitor the 120-dB and 160-dB zones.
    Comment 45: The NSB and CBD state that NMFS also appears to rely on
the NEPA analysis in the DPEIS in clear violation of NEPA law. Here,
the very purpose of the PEIS process is to consider seismic surveys in
the Chukchi and Beaufort Seas for the years 2007 and beyond. NMFS
cannot authorize such activities before the NEPA process is complete.
See Metcalf v. Daley, 214 F.3d 1135, 1143-44 (9th Cir. 2000). In sum,
NMFS seems to either be relying on a NEPA document that is not just
inadequate, but which by its very terms only covers activities from two
years ago (the 2006 PEA), or one which is nowhere near complete (the
2007 DPEIS). Neither of these is sufficient to meet NMFS' NEPA
obligations under the law. The NSB believes that NMFS may not avoid the
requirements of NEPA by only completing a SEA this season because the
seismic activity has the potential to significantly impact marine
resources and subsistence hunting.
    Response: See previous responses on this concern. Contrary to the
NSB's and CBD's statement, NMFS relied on information contained in the
MMS 2006 Final PEA, as updated by NMFS' 2008 SEA for making its
determinations under NEPA and that the DPEIS was not the underlying
document to support NMFS' issuance of PGS' IHA. NMFS merely relied upon
specific pieces of information and analyses contained in the DPEIS to
assist in preparing the SEA. It is NMFS' intention that the PEIS
currently being developed will be used to support, in whole, or in
part, future MMPA actions relating to oil and gas exploration in the
Arctic Ocean. Additionally, NMFS believes that a SEA is the appropriate
NEPA analysis for this season as the amount of activity for 2008 is
less than what was analyzed in the 2006 PEA.
    Comment 46: REDOIL believes that the analysis in the PEA
understates the risk of significant impacts to bowhead whales and all
marine mammals. It assumes the source vessels-both 3D seismic and
shallow hazard vessels-will ensonify much smaller zones than those
which have been subsequently measured in the field. In practice,
seismic airgun noise has propagated far greater distances than NMFS
anticipated in the PEA and thus authorized activity presumably has
displaced marine mammals from far more habitat, including important
feeding and resting habitats, than NMFS' analysis in the PEA
anticipated. See, e.g., PEA Figures III.F-10 and III.F-11 (assuming 20
km avoidance of surveys by bowhead whales). Based on the propagation
actually measured in 2006 and 2007, the impacts of a single 3D seismic
survey are two to three times as large as NMFS anticipated or more. The
impacts of a single shallow hazard survey are comparable to the impacts
NMFS anticipated from a single 2D or 3D seismic survey. Before
authorizing further seismic surveying activity or shallow hazard
surveys in the Arctic Ocean, NMFS must complete the PEIS that it began
in 2006 to evaluate the potentially significant impacts of such
activities.
    Response: The subject PEA was written by MMS, not NMFS. However,
NMFS was a cooperating agency under NEPA in its preparation. As noted
in your cited part in the PEA, 20 km (12.4 mi) was used for
illustrative purposes in an exercise to estimate the impact of four
seismic vessels operating within 24 km (15 mi) of each other. To do so,
MMS created a box (that was moveable along the Beaufort Sea coast) to
make these estimates. NMFS believes that the use of 20 km (12.4 mi)
remains the best information available at this time and was the radius
agreed to by participants at the 2001 Arctic Open-water Noise Peer
Review Workshop in Seattle, Washington. This estimate is based on the
results from the 1998 aerial survey (as supplemented by data from
earlier years) as reported in Miller et al. (1999). In 1998, bowhead
whales below the water surface at a distance of 20 km (12.4 mi) from an
airgun array received pulses of about 117-135 dB re 1 microPa rms,
depending upon propagation. Corresponding levels at 30 km (18.6 mi)
were about 107-126 dB re 1 microPa rms. Miller et al. (1999) surmise
that deflection may have begun about 35 km (21.7 mi) to the east of the
seismic operations, but did not provide SPL measurements to that
distance, and noted that sound propagation has not been studied as
extensively eastward in the alongshore direction, as it has northward,
in the offshore direction. Therefore, while this single year of data
analysis indicates that bowhead whales may make minor deflections in
swimming direction at a distance of 30-35 km (18.6-21.7 mi), there is
no indication that the SPL where deflection first begins is at 120 dB,
it could be at another SPL lower or higher than 120 dB. Miller et al.
(1999) also note that the received levels at 20-30 km (12.4-18.6 mi)
were considerably lower in 1998 than have previously been shown to
elicit avoidance in bowheads exposed to seismic pulses. However, the
seismic airgun array used in 1998 was larger than the ones used in 1996
and 1997. Therefore, NMFS believes that it cannot scientifically
support adopting any single SPL value below 160 dB and apply it across
the board for all species and in all circumstances. For this reason,
until more data collection and analyses are conducted on impacts of
anthropogenic noise (principally from seismic) on marine mammals in the
Beaufort and Chukchi Seas, NMFS will continue to use 20 km (12.4 mi) as
the radius for estimating impacts on bowhead whales during the fall
migration period.
    In regards to REDOIL's statement, ``The impacts of a single shallow
hazard survey are comparable to the impacts NMFS anticipated from a
single 2D or 3D seismic survey,'' NMFS notes that PGS' seismic program
is not a shallow hazards survey but a 3D seismic survey conducted in
shallow water, partly inside the barrier islands. This OBC/TZ survey is
similar to those conducted for BP by Western Geophysical in the late
1990s at the nearby Northstar Prospect (see Richardson, W.J. (ed) 1997,
1998, 1999, 2000a, and 2000b for acoustic measurements and marine
mammal impact assessments from OBC surveys during 1996 through 2000,
respectively).

[[Page 45985]]

As a result of these previous acoustic propagation measurements, NMFS
believes that the sound propagation characteristics for the 880 in 3
airgun array proposed by NMFS in the proposed IHA notice (73 FR 34254,
June 17, 2008) for PGS' 2008 OBC/TZ survey has been accurately
calculated for the 190 dB, 180 dB, 160 dB, and 120 (rms) zones. In
addition, in compliance with the terms and conditions of its IHA, PGS
will conduct a sound source verification test prior to conducting its
survey to ensure that the correct distances are applied to the safety
and monitoring zones (see ``Mitigation Measures'' section later in this
document).
    Comment 47: REDOIL states that the PEA fails to provide site-
specific analysis. Thus, in order to reduce the likelihood of
significant impacts, NMFS has imposed 160-dB and 120-dB safety zones
when authorizing surveys pursuant to the PEA. At a minimum, it must do
the same for PGS' seismic surveys.
    Response: The SEA prepared for the 2008 open-water season
activities provides site specific information for the various projects,
in particular PGS' project. NMFS will require that PGS monitor
exclusion zones of 160-dB for aggregations of 12 or more whales and
120-dB for four or more cow/calf pairs. These conditions are contained
in the IHA.
    Comment 48: REDOIL states that the scope of the PEA is explicitly
limited to activities that occur during 2006. Those seismic survey
activities have already occurred, as well as an additional season worth
of activities in 2007. The PEA does not evaluate activities that will
occur over a period of several years, though NMFS has continued to rely
on it as if its scope were for a multi-year program of seismic surveys.
In addition, the PEA uses arbitrary significance criteria for non-
endangered marine mammals that would allow long-lasting impacts to
populations, or in fact the entire Arctic ecosystem, that would
nonetheless be deemed insignificant. These significance criteria are
inappropriate for an evaluation of impacts from seismic surveys, as
indicated by MMS' use of more defensible significance criteria based on
potential biological removal form marine mammal populations affected by
seismic surveys in the Gulf of Mexico.
    Response: NMFS prepared and released to the public, a SEA for
seismic surveys that are expected to occur in 2008 (see ADDRESSES for
availability). This SEA incorporates by reference the relevant
information contained in the 2006 PEA and updates that information
where necessary to assess impacts on the marine environment from the
2008 seismic survey activities. NMFS believes that it is fully
compliant with the requirements of NEPA in its preparation of its NEPA
documents.

Marine Mammals Affected by the Activity

    The Beaufort Sea supports a diverse assemblage of marine mammals,
including bowhead, gray, beluga, killer, minke, fin, humpback, and
North Pacific right whales, harbor porpoises, ringed, spotted, bearded,
and ribbon seals, polar bears, and walruses. These latter two species
are under the jurisdiction of the USFWS and are not discussed further
in this document. Within the project activity areas, only the polar
bear is known to occur in significant numbers, and a separate LOA was
issued to PGS by the USFWS for this species.
    A total of three cetacean species and three pinniped species are
known to occur or may occur in the Beaufort Sea in or near the proposed
project area (see Table 3.0-1 in PGS' application for information on
habitat and estimated abundance). Of these species, only the bowhead
whale is listed as endangered under the ESA. The killer whale, harbor
porpoise, minke whale, fin whale, North Pacific right whale, humpback
whale, and ribbon seal could occur in the Beaufort Sea, but each of
these species is rare or extralimital and unlikely to be encountered in
the survey area.
    The marine mammal species expected to be encountered most
frequently throughout the seismic survey in the project area is the
ringed seal. The bearded and spotted seal can also be observed but to a
far lesser extent than the ringed seal. Presence of beluga, bowhead,
and gray whales in the shallow water environment within the barrier
islands is possible but expected to be very limited as this is not
their typical habitat. Descriptions of the biology, distribution, and
population status of the marine mammal species under NMFS' jurisdiction
can be found in PGS' application, the 2007 NMFS/MMS DPEIS on Arctic
Seismic Surveys, and the NMFS SARs. The Alaska SAR is available at:
http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2007.pdf. Please refer to those
documents for information on these species.

Potential Effects of Airgun Sounds on Marine Mammals

    The effects of sounds from airguns might include one or more of the
following: tolerance, masking of natural sounds, behavioral
disturbance, and temporary or permanent hearing impairment or non-
auditory effects (Richardson et al., 1995). As outlined in previous
NMFS documents, the effects of noise on marine mammals are highly
variable, and can be categorized as follows (based on Richardson et
al., 1995):
    (1) The noise may be too weak to be heard at the location of the
animal (i.e., lower than the prevailing ambient noise level, the
hearing threshold of the animal at relevant frequencies, or both);
    (2) The noise may be audible but not strong enough to elicit any
overt behavioral response;
    (3) The noise may elicit reactions of variable conspicuousness and
variable relevance to the well being of the marine mammal; these can
range from temporary alert responses to active avoidance reactions such
as vacating an area at least until the noise event ceases;
    (4) Upon repeated exposure, a marine mammal may exhibit diminishing
responsiveness (habituation), or disturbance effects may persist; the
latter is most likely with sounds that are highly variable in
characteristics, infrequent, and unpredictable in occurrence, and
associated with situations that a marine mammal perceives as a threat;
    (5) Any anthropogenic noise that is strong enough to be heard has
the potential to reduce (mask) the ability of a marine mammal to hear
natural sounds at similar frequencies, including calls from
conspecifics, and underwater environmental sounds such as surf noise;
    (6) If mammals remain in an area because it is important for
feeding, breeding, or some other biologically important purpose even
though there is chronic exposure to noise, it is possible that there
could be noise-induced physiological stress; this might in turn have
negative effects on the well-being or reproduction of the animals
involved; and
    (7) Very strong sounds have the potential to cause temporary or
permanent reduction in hearing sensitivity. In terrestrial mammals, and
presumably marine mammals, received sound levels must far exceed the
animal's hearing threshold for there to be any temporary threshold
shift (TTS) in its hearing ability. For transient sounds, the sound
level necessary to cause TTS is inversely related to the duration of
the sound. Received sound levels must be even higher for there to be
risk of permanent hearing impairment. In addition, intense acoustic or
explosive events may cause trauma to tissues associated with organs
vital for hearing, sound production, respiration and other functions.
This

[[Page 45986]]

trauma may include minor to severe hemorrhage.
    The notice of the proposed IHA (73 FR 34254, June 17, 2008)
included a discussion of the effects of sounds from airguns on
mysticetes, odontocetes, and pinnipeds, including tolerance, masking,
behavioral disturbance, and hearing impairment. The notice also
included a discussion on the effects of bathymetric equipment on marine
mammals. Based on available information, the bathymetric equipment to
be used within the project area will not overlap with the hearing range
of marine mammals. Therefore, NMFS believes it is unlikely that marine
mammals will be exposed to signals from the bathymetric equipment at
levels at or above those likely to cause harassment.

Estimated Take of Marine Mammals by Incidental Harassment

    The anticipated harassments from the activities described above may
involve temporary changes in behavior and short-term displacement
within ensonified areas. There is no evidence that the planned
activities could result in injury, serious injury, or mortality, for
example due to collisions with vessels or from sound levels high enough
to result in PTS. Disturbance reactions, such as avoidance, are very
likely to occur amongst marine mammals in the vicinity of the source
vessel. The mitigation and monitoring measures proposed to be
implemented (described later in this document) during this survey are
based on Level B harassment criteria and will minimize any potential
risk of injury or mortality.
    The notice of the proposed IHA (73 FR 34254, June 17, 2008)
included an in-depth discussion of the methodology used by PGS to
estimate incidental take by harassment by seismic and the numbers of
marine mammals that might be affected in the seismic acquisition
activity area in the Beaufort Sea. Additional information was provided
in PGS' application. A summary is provided here.
    The bowhead whale, beluga whale, and bearded seal density estimates
are based on the estimates developed by LGL (2005) for the University
of Alaska IHA and used here for consistency. The ringed seal density
estimates are from Frost et al. (2002). Spotted seal density estimates
were derived from Green et al. (2005; 2006; 2007) observations that
spotted seals in the Beaufort Sea in the vicinity represent about 5
percent of all phocid seal sightings and then multiplying Frost et
al.'s (2002) density estimates times 5 percent.

Exposure Calculations for Marine Mammals

    PGS' application provides both average and maximum density data for
the marine mammals that are likely to be adversely affected. These
density numbers were based on survey and monitoring data of marine
mammals in recent years in the vicinity of the action area (LGL, 2005;
Frost et al., 2002; Green et al., 2005; 2006; 2007). Additionally, PGS
provided maximum density estimates for those marine mammal populations.
The average and maximum population densities of marine mammals are
provided in Table 6.2-1 of PGS' application. However, PGS did not
provide a rationale regarding the maximum estimate or a description as
to how these maximum density estimates were calculated. NMFS decided to
use the average density data of marine mammal populations to calculate
estimated take numbers because these numbers are based on surveys and
monitoring of marine mammals in the vicinity of the project area.
    In its review of PGS' application, NMFS determined that the safety
radii calculated by PGS were too small based on the size and source
level of the airgun array to be used. Therefore, NMFS requested that
PGS submit an addendum to the IHA application, which outlined in
greater detail the modeling techniques used. Based on this additional
information, NMFS recalculated the distances to the 160-, 180-, and
190-dB isopleths, using 250 dB as the source output. Based on this new
information, the respective radii for the 160-, 180-, and 190-dB
isopleths are: 2,894 m (1.8 mi); 492 m (0.31 mi); and 203 m (0.13 mi).
    The area of ensonification was assumed to be the length of
trackline in marine waters multiplied by the 160-dB isopleth times 2.
The total length of trackline in marine waters is estimated at 1,280 km
(795 mi), including 770 km (478 mi) outside the barrier islands and 510
km (317 mi) inside the barrier islands. The total area of
ensonification using the 160-dB criteria is 7,398.4 km\2\ (2,856.5
mi\2\; including 4,450.6 km\2\, or 1,718.4 mi\2\ outside the barrier
islands; and 2,947.8 km\2\, or 1,138.1 mi\2\ inside the barrier
islands). However, given that none of the area occurs in waters greater
than 15 m (49 ft) deep (and half the area is in waters less than 4 m,
13 ft, deep), which is not suitable habitat for migrating bowhead
whales, which has been defined as waters 15-200 m (49-660 ft) deep
(Richardson and Thomson, 2002), this calculation provides a very
conservative estimate of potential take. Therefore, only the area
outside the barrier islands was used in the calculations for bowhead
whales.
    The ``take'' estimates were determined by multiplying the various
density estimates in Table 6.2-1 by the ensonification area using the
160-dB criteria for cetaceans and the 170-dB criteria for pinnipeds.
However, NMFS has noted in the past that it is current practice to
estimate Level B harassment takes based on the 160-dB criterion for all
species and has revised pinniped take estimates based on the 160-dB
criterion.
    Based on the calculation of using the average density estimates
presented in Table 6.2-1 in PGS' application and the area of
ensonification outlined above, it is estimated that up to approximately
28 bowhead whales, 25 beluga whales, 3,551 ringed seals, 178 spotted
seals, and 94 bearded seals would be affected by Level B behavioral
harassment as a result of PGS' 3D OBC/TZ seismic survey in the Beaufort
Sea. These take numbers represent 0.27 percent of the western Arctic
stock of bowhead whales, 0.06 percent of the Beaufort Sea stock of
beluga whales, and 1.4 percent, 0.3 percent, and 0.04 percent of the
Alaska stocks of ringed, spotted, and bearded seals, respectively.
    Although gray whales are considered to be an extralimital species
in the project area, there have been a few rare sightings in the
Beaufort Sea east of Point Barrow in late summer and as far east as
Smith Bay (Green et al., 2007). Currently, there are no reliable
density or population estimates for gray whales in the project area. It
is estimated that up to two gray whales may be taken by this survey.
This number is considered minimal based on the population size of the
eastern North Pacific stock of gray whales.
    PGS plans to continue seismic surveying after August 25, the
commencement of the annual bowhead whale hunt, and the beginning of the
fall bowhead migration. NMFS requires take estimates be evaluated out
to the 120-dB isopleth for any operation occurring after August 25,
unless the operator can show that their sound source would attenuate to
less than 120 dB before reaching the normal bowhead whale migration
lanes. Because of the downward sound directionality of the proposed
array configuration, the radius to the 120-dB isopleth would extend out
to about 10-15 km (6.2-9 mi). Further, PGS will move their operations
inside the barrier islands by August 25 and remain there throughout the
subsistence hunt and whale migration. Consequently, the closest 120 dB
level sounds could reach migrating whales is a point approximately 10
km (6.2 mi)

[[Page 45987]]

north of a line between Spy and Thetis islands. At this point the water
depth is approximately 6 m (20 ft), less than suitable habitat for
migrating bowhead whales. Further, much of the sound emanating from
inside the barrier islands would be blocked by Spy, Thetis, and Leavitt
Islands, leaving only a fraction of the survey area inside the barrier
islands from which the 120-dB radius could even reach a point 10 km (6
mi) north of the barrier islands. During most of the survey inside the
barrier islands, it is expected that the 120-dB radii would not extend
at all outside the barrier islands since the islands will absorb the
sound. However, the 120-dB radius estimate is based on modeling. Actual
field measurements of acoustical signatures for the proposed array are
planned at the onset of the surveys.Impacts of seismic sounds on
cetaceans are generally expected to be restricted to avoidance of a
limited area around the seismic operation and short-term changes in
behavior, falling within the MMPA definition of Level B harassment. No
Level A takes (including injury, serious injury, or mortality) are
expected as a result of the proposed activities. The estimated numbers
of cetaceans and pinnipeds potentially exposed to sound levels
sufficient to cause behavioral disturbance are small relative to their
stock or population sizes in the Bering-Chukchi-Beaufort seas.
    Mitigation measures such as look outs, non-pursuit, shutdowns or
power-downs when marine mammals are seen within defined ranges, and
avoiding migration pathways when animals are likely most sensitive to
noise will further reduce short-term reactions, and minimize any
effects on hearing sensitivity. In all cases, the effects are expected
to be short-term, with no lasting biological consequence. Subsistence
issues are addressed later in this document.

Potential Impact on Habitat

    A detailed discussion of the potential effects of this action on
marine mammal habitat, including behavioral and physiological effects
on marine fish and invertebrates, was included in the notice of
proposed IHA (73 FR 34254, June 17, 2008). Based on the discussion in
the proposed IHA and the nature of the activities (moderate-size airgun
array, short duration of the survey, and the location inside the
barrier islands in very shallow water), the authorized operations are
not expected to have any habitat-related effects that could cause
significant or long-term consequences for individual marine mammals or
their populations or stocks.

Effects of Seismic Noise and Other Related Activities on Subsistence

    Subsistence hunting and fishing is historically, and continues to
be, an essential aspect of Alaska Native life, especially in rural
coastal villages. The Inupiat people participate in subsistence hunting
and fishing activities in and around the Beaufort Sea. The animals
taken for subsistence provide a significant portion of the food that
will feed the people throughout the year. Along with providing the
nourishment necessary for survival, subsistence activities strengthen
bonds within the culture, provide a means for educating the young,
provide supplies for artistic expression, and allow for important
celebratory events.
    Only minor, temporary effects from the seismic survey project are
anticipated on Native subsistence hunting. PGS does not expect any
permanent impacts on marine mammals that will adversely affect
subsistence hunting. Mitigation efforts will be implemented to minimize
or completely avoid any adverse effects on marine mammals.
Additionally, areas being used for subsistence hunting grounds will be
avoided. It is anticipated that only minor, temporary displacement of
marine mammals will occur.
    Alaska Natives, including the Inupiat, legally hunt several species
of marine mammals. Marine animals used for subsistence within the
Beaufort Sea region include bowhead and beluga whales and ringed,
spotted, and bearded seals. Each village along the Beaufort Sea hunts
key subsistence species. Hunts for these animals occur during different
seasons throughout the year. Depending upon the success of a village's
hunt for a certain species, another species may become a priority in
order to provide enough nourishment to sustain the village. Communities
that participate in subsistence activities potentially affected by
seismic surveys within the proposed development area are Nuiqsut and
Barrow.
    Nuiqsut is the village nearest to the proposed seismic activity
area. Bowhead and beluga whales and ringed, spotted, and bearded seals
are harvested by residents of Nuiqsut. Because the village is 56 km (35
mi) inland (Alaska community Online Database, 2008), whaling crews
travel in aluminum skiffs equipped with outboard motors to offshore
areas such as Cross Island (Funk and Galginaitis, 2005). Of the marine
mammals harvested, bowhead whales are most commonly harvested. In 1992,
an estimated 34,884 kg (76,906 lbs) were harvested (ADF&G, 2008). Seals
are also regularly hunted and may account for up to 3,770 kg (8,310
lbs) of harvest, while beluga whale harvests account for little or none
(ADF&G, 2008).
    Barrow's main subsistence focus is concentrated on biannual bowhead
whale hunts that take place in the spring and fall. Other animals, such
as seals, are hunted outside of the whaling season, but they are not
the primary source of the subsistence harvest (URS Corp., 2005).
    The notice of proposed IHA (73 FR 34254, June 17, 2008) contained a
complete description of the species that could potentially be affected
by the seismic surveys in the Beaufort Sea area and the subsistence
hunting conducted by the Native Alaskans of these species. A summary of
whether or not PGS' activity will affect the subsistence hunting of
these various species is provided below.

Bowhead Whales

    The bowhead whales that could potentially be affected by seismic
activity in the Beaufort Sea come from the Western Arctic stock. Ten
primary coastal Alaskan villages deploy whaling crews during whale
migrations. Of these ten, Nuiqsut has the potential to be affected by
the project, as it is the village situated closest to the project area.
Barrow is located farther from the proposed seismic activity but also
has the potential to be affected, albeit to a lesser degree than
Nuiqsut. These two communities are part of the AEWC. The AEWC was
formed as a response to the IWC's past closure of bowhead whale hunting
for subsistence purposes. IWC sets a quota for the whale hunt, and AEWC
allocates the quota between villages. Each of the villages within the
AEWC is represented by a Whaling Captains' Association. Bowhead whales
migrate within the hunting range of whaling crews in the spring (north
migration) and the fall (south migration). In the spring, the whales
must travel through leads in the ice that tend to occur close to shore.
In the fall, the water is much more open, allowing the whales to swim
farther from the coast.Whaling crews in Barrow hunt in both the spring
and the fall (Funk and Galginaitis, 2005). In the spring, the whales
are hunted along leads that occur when the pack ice starts
deteriorating. This tends to occur in Barrow between the first week of
April and the first week of June, well before the geophysical surveys
will be conducted. The seismic survey is anticipated to start after all
the ice melts, in approximately mid-July, and will not affect spring
whaling. Fall whaling activities are anticipated to take

[[Page 45988]]

place east of Point Barrow (BLM, 2005). The project area is located 260
km (160 mi) east of Point Barrow. It is anticipated that the project
will not impact the Barrow fall hunt. The Nuiqsut fall whale hunt takes
place in the vicinity of Cross Island, ranging from there to
approximately 50 km (30 mi) north of the island. The project area is
located approximately 60 km (37 mi) west of Cross Island and is too
shallow (less than 15 m, 50 ft deep) to support bowhead whales. It is
unlikely that the Nuiqsut fall hunt would extend to the project area
since the village's efforts are usually centered father east, closer to
Cross Island. Adverse impacts on the subsistence harvest of bowhead
whales as a result of the proposed survey are not anticipated.

Beluga Whales

    Beluga whales summer in the waters of the Chukchi and Beaufort Seas
and winter in the Bering Sea. Beluga whales can be hunted from the
first week in April to July or August. It is common for the Inupiat to
refrain from hunting beluga during the spring or fall bowhead whale
hunt to prevent scaring the larger whales away from hunting locations.
Belugas do not account for a majority of the total subsistence harvest
in Barrow or Nuiqsut (ADF&G, 2008).

Ringed Seals

    Ringed seals are distributed throughout the Arctic Ocean. They
inhabit both seasonal and permanent ice. Ringed seals are available to
subsistence users year-round, but they are primarily hunted in the
winter due to the rich availability of other mammals in the summer. In
2000, the annual estimated subsistence ``take'' from Alaska of ringed
seals was 9,567. Because the bulk of the ringed seal hunting will occur
outside the timeframe of the project, adverse impacts on ringed seals
as a result of PGS' survey are not anticipated.

Spotted Seals

    Spotted seals in Alaska are distributed along the continental shelf
of the Beaufort, Chukchi, and Bering Seas. These seals migrate south
from the Chukchi Sea, through the Bering Strait, into the Bering Sea
beginning in October. They spend the winter in the Bering Sea traveling
east and west along the ice edge (Lowry et al., 1998). Because of the
numbers of whales and bearded seals and the opportunities for
subsistence harvesting of them, spotted and ringed seals are primarily
hunted during winter months in the Beaufort Sea. Since this time frame
is outside the scope of the proposed project, subsistence activities
involving spotted and ringed seals are unlikely to occur during the
survey (BLM, 2005). PGS does not anticipate adverse effects to spotted
seals as a result of project activities.

Bearded Seals

    Bearded seals tend to inhabit relatively shallow water (less than
200 m, 656 ft, deep) that does not have much ice. Bearded seals are an
important source of meat and hide for Chukchi Sea villages. They tend
to be targeted by subsistence users over ringed and spotted seals
because they are very large. This provides a large amount of meat and
skins for constructing boats (BLM, 2005).
    Bearded seals are primarily hunted during July in the Beaufort Sea;
however, in 2007, bearded seals were harvested in the months of August
and September at the mouth of the Colville River Delta (Smith, pers.
comm., 2008). The project location is not a primary subsistence hunting
ground; however, it is occasionally used by residents of Nuiqsut for
subsistence hunting of bearded seals. An annual bearded seal harvest
occurs in the vicinity of Thetis Island in July through August (J.
Nukapigak, Nuiqsut hunter, pers. comm., 2008). Approximately 20 bearded
seals are harvested annually through this hunt. PGS anticipates that
there is not a significant potential for the proposed project to affect
the bearded seal subsistence hunt. Mitigation measures will be in place
to minimize potential impacts.

Plan of Cooperation

    Regulations at 50 CFR 216.104(a)(12) require IHA applicants for
activities that take place in Arctic waters to provide a POC or
information that identifies what measures have been taken and/or will
be taken to minimize adverse effects on the availability of marine
mammals for subsistence purposes. PGS developed a Draft POC, which
included a timeline of meetings set to occur in the communities
identified as potentially being affected by the proposed project. These
communities are Nuiqsut and Barrow. The Draft POC document was
distributed to the communities, subsistence users groups, NMFS, and
USFWS on March 20, 2008. Based upon discussions with communities and
subsistence users, PGS has incorporated changes to the project to
reduce potential subsistence conflicts. These changes are discussed in
Addendum 1 of the Draft POC, which was submitted to the potentially
affected communities and subsistence user groups, NMFS, and USFWS on
May 7, 2008. Copies were also available during POC meetings in Barrow
on May 8, 2008, and in Nuiqsut on May 9, 2008. A Final POC document
including all input from potentially affected communities and
subsistence users groups was submitted to NMFS on July 10, 2008. This
document was also distributed to other Federal agencies and affected
communities and subsistence user groups. PGS conducted the following
meetings:
     February 7, 2008: AEWC 2008 CAA meeting with Nuiqsut
whalers in Deadhorse to present the proposed project and to gather
feedback in support of a 2008 CAA;
     February 11, 2008: AEWC 2008 CAA meeting with Barrow
whalers in Barrow to present the proposed project and to gather
feedback in support of a 2008 CAA;
     February 28, 2008: AEWC 2008 CAA meeting in Barrow to
discuss the 2008 CAA with the AEWC;
     April 1, 2008: Kuukpikmiut Subsistence Oversight Panel,
Inc. (KSOP) Meeting and the Nuiqsut POC Meeting/Open House in Nuiqsut
to present the proposed project and to gather feedback;
     April 2, 2008: NSB Planning Commission in Barrow to
present the proposed project in support of a NSB Development Permit
application;
     April 14-16, 2008: Open Water Meeting in Anchorage to
present the proposed project to NMFS and other attendees in support of
the IHA application. The Open Water Meeting includes a forum for
discussion of potential conflicts between industry activities and
subsistence use activities.
     May 8, 2008: Barrow POC Meeting/Open House in Barrow to
present the proposed project and to gather feedback from the community;
and
     May 9, 2008: Nuiqsut POC Meeting/Open House in Nuiqsut and
the KSOP meeting to present the project revisions and gather feedback
from the community.
    It should be noted that NMFS must make a determination under the
MMPA that an activity would not have an unmitigable adverse impact on
the availability of marine mammal species or stocks for taking for
subsistence uses. While this includes usage of both cetaceans and
pinnipeds, the primary impact by seismic activities is expected to be
impacts from noise on bowhead whales during its westward fall feeding
and migration period in the Beaufort Sea. NMFS has defined unmitigable
adverse impact as an impact resulting from the specified activity: (1)
That is likely to reduce the availability of the species to a level
insufficient for a harvest to meet subsistence needs by: (i)

[[Page 45989]]

causing the marine mammals to abandon or avoid hunting areas, (ii)
directly displacing subsistence users, or (iii) placing physical
barriers between the marine mammals and the subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to increase
the availability of marine mammals to allow subsistence needs to be met
(50 CFR 216.103).
    Based on the signed CAA, the mitigation and monitoring measures
included in the IHA (see next sections), and the project design itself,
NMFS has determined that there will not be an unmitigable adverse
impact on subsistence uses from PGS' activities.

Mitigation Measures

    This section describes the measures that have been included in the
survey design and those that are required to be implemented during the
survey. Mitigation measures to reduce any potential impact on marine
mammals that have been considered and included in the planning and
design phase are as follows:
     The seismic vessel will remain within 5 km (3 mi) of the
coastline and is not expected to pass the state/Federal boundary line,
avoiding bowhead whale migration routes;
     In response to discussions with the AEWC, PGS has
negotiated the following operational windows to further avoid potential
impacts to migrating whales. The timing of the proposed survey would be
divided into two parts. Data acquisition outside the barrier islands
(Thetis, Spy, and Leavitt Islands), the deepest water in the survey
area, would be performed first and would be completed by August 25
(just before the bowheads begin their westward migration across the
Beaufort Sea). Data acquisition inside the barrier islands, with
maximum water depth of approximately 4.6 m (15 ft), would then be
conducted from approximately August 25-mid- to late-September. No data
acquisition would be conducted outside the barrier islands after August
5. If necessary, data acquisition may be performed outside the barrier
islands after the close of the Nuiqsut fall bowhead hunt. No data
acquisition would be conducted or permitted to occur outside the
barrier islands from August 25 until the close of the Nuiqsut fall
bowhead hunt.
     Although seismic operations will be conducted during the
fall whale hunt (after August 25), they would not occur within the
areas normally used by hunters from Barrow (Point Barrow) or Nuiqsut
(Cross Island). The survey area is 60 km (37 mi) west of Cross Island
(and downstream of the bowhead fall migration) and 260 km (160 mi) east
of Point Barrow.
     Although seismic operations will be conducted during the
fall whale migration, activities would occur in shallow waters within
the barrier islands that are not considered whale habitat. The barrier
islands are also expected to act as an obstacle to sounds generated by
seismic activities, effectively keeping sound propagation from entering
the migration corridor.
     MMOs will be stationed on source vessels to ensure that
the airguns are not operated in close proximity to marine mammals and
will be actively involved in vessel operations during all survey
operations.
     PGS has offered to hire Inupiat speakers to perform
seismic work on each of the PGS vessels. As part of their duties, the
Inupiat speakers will also keep watch for marine mammals and will
communicate with the MMOs located on the source vessels.
     PGS will participate in the Com Centers proposed to be
operated in Barrow and Deadhorse. Com Centers enable vessel operators
to be aware of and avoid marine mammal and subsistence activity in the
area. Communications of vessel operations and transit will occur via
telephones, the Internet, and very high frequency radios.
     PGS will designate an individual to act as the conduit for
information to and from potentially affected communities, subsistence
users, and stakeholder groups.
     PGS proposes to avoid potential conflicts with subsistence
users by not conducting operations during subsistence activities, to
the extent practicable, or in marine mammal migration routes and known
subsistence use areas.
     The airgun energy source is of moderate size, reducing the
ensonified zone and the impacts to marine mammals.
     The airgun source will be acoustically measured from all
directions and in varying water depths at the start of operations to
determine avoidance radii within which any marine mammal sighting will
cause immediate airgun shutdown.
     Ramp-up and soft start methods will be conducted while
seismic operations are initiated. This is intended to alert marine
mammals in the area so that they may swim away from the source before
the full energy source is employed.
     Shutdown safety radii of 203 m (0.13 mi) and 492 m (0.31
mi) for pinnipeds and cetaceans, respectively, will be monitored during
operations to ensure that injurious ``takes'' are avoided. These radii
will be adjusted accordingly based on the results of the acoustic
measurements mentioned above. After August 25, shutdown safety radii of
2,894 m (1.8 mi) will be required for sightings of groups of 12 or more
bowhead or gray whales and of 10 km (6.2 mi) when 4 or more cow/calf
pairs are sighted.
     PGS will participate in an offshore monitoring program
that will take place from mid-August until mid- to late September in
cooperation with Pioneer Natural Resources, Inc., (Pioneer) and ENI and
in coordination with Shell Offshore, Inc. which includes: (1) Monitor
in-water sound near and distant from Pioneer's Oooguruk drill site,
ENI's Spy Island drill pad, and vessel operations using four autonomous
seafloor acoustic recorders (ASARs); (2) Monitor and characterize
sounds produced from shallow-depth seismic survey planned by PGS using
ASARs and directional autonomous seafloor recorders (DASARs); (3)
Detect and localize marine mammal vocalizations using an array of
DASAR's positioned north and northwest of the Pioneer and ENI projects;
and (4) Visually survey the coastal Beaufort Sea from an aircraft to
search for bowhead whales and characterize behavior of those animals
observed.

Establishment and Monitoring of Safety Zones

    In-water sounds from support vessels and associated with the
Pioneer and ENI projects will be measured and source levels determined.
Primary vessels may include crew boats, tugs, and barges. A total of 12
vessels will be associated with the PGS seismic survey, many of these
relatively small, outboard powered skiffs. Between all three
operations, it is expected that sounds will be measured from 18-20
vessels.
    Most measurements will be made using JASCO Research's Ocean Bottom
Hydrophones (OBH) prior to the beginning of the survey with methods
used previously (Zykov et al., 2008b; Laurinolli et al., 2008).
Measurements will be made with a single OBH system positioned in 4.6-9
m (15-30 ft) of water with the vessel sailing along a line from 10-25
km (6-15.5 mi) away to directly over the OBH. The sail past is
conducted at normal operating speed of the vessel. Some vessel
measurement may be performed using the ASARs stationed near ODS and SID
(instead of the OBHs).
    Sound source measurements will be made of the two PGS airgun arrays
at two locations (inside and outside the barrier islands prior to
seismic data

[[Page 45990]]

acquisition). Both airgun array configurations will be measured at each
location, leading to four separate measurements. The measurements will
be made using four OBH systems (see PGS' application, Figure 2 in
Appendix B). These recorders sample at 48 kHz, using a high-resolution
24-bit digitization systems. They can record autonomously for up to 3
days per deployment. The distances to the important sound level
thresholds will vary strongly with operating water depth. In the
shallowest depths of near 1.2 m (4 ft), sounds will be rapidly
attenuated and the distances will be relatively small. The survey area
outside the barrier islands reaches depths that support much better
sound propagation, and ENI expects the 120-dB distance could be as
great as 10-20 km (6.2-12.4 mi). The OBH placement should be made to
correspond with the best pre-field estimates of the 190, 180, 160, and
120 dB re 1 Pa (rms) thresholds. JASCO will consider previous sound
source verification (SSV) measurements near BP's Liberty prospect in
similar water depths, combined with modeling to estimate the
appropriate distances prior to the SSV measurements.
    The OBH deployment configuration distances will be determined as
discussed previously. The optimal deployment configurations will be
determined for both the inside barrier island and outside barrier
island locations. The OBHs will be deployed and seismic vessels asked
to shoot along pre-defined test tracks. The test tracks will be
oriented in at least two directions to capture the directivity
characteristics of the airgun arrays; airgun arrays typically produce
greater sound energy perpendicular to the tow direction than in line
with the tow direction.
    PGS will apply appropriate adjustments to the estimated safety
zones of 203 m (0.13 mi) for the 190-dB isopleth, 492 m (0.31 mi) for
the 180-dB isopleth, and 2,894 m (1.8 mi) for the 160-dB isopleth.
Results will be used for the implementation of mitigation measures to
power down or shutdown the sound source and reduce the size of the
safety zones when required.

Speed and Course Alterations

    If a marine mammal (in water) is detected outside the safety radius
and, based on its position and the relative motion, is likely to enter
the safety radius, the vessel's speed and/or direct course would be
changed in a manner that does not compromise safety requirements. The
animal's activities and movements relative to the seismic vessel will
be closely monitored to ensure that the individual does not approach
within the safety radius. If the mammal appears likely to enter the
safety radius, further mitigative actions will be taken, i.e., either
further course alterations or power-down or shutdown of the airgun(s).

Power-down Procedure

    A power-down involves decreasing the number of airguns in use such
that the radii of the 190-dB and 180-dB zones are decreased to the
extent that observed marine mammals are not in the applicable safety
zone. Situations that would require a power-down are listed below.
    (1) When the vessel is changing from one source line to another,
one airgun or a reduced number of airguns is operated. The continued
operation of one airgun or a reduced airgun array is intended to: (a)
alert marine mammals to the presence of the seismic vessel in the area
and (b) retain the option of initiating a ramp-up to full operations
under poor visibility conditions.
    (2) If a marine mammal is detected outside the safety radius but is
likely to enter the safety radius, and if the vessel's speed and/or
course cannot be changed to avoid the animal from entering the safety
zone. As an alternative to a complete shutdown, the airguns may be
powered- down before the animal is within the safety zone.
    (3) If a marine mammal is already within the safety zone when first
detected, the airguns would be powered-down immediately if this is a
reasonable alternative to a complete shutdown, to have the marine
mammal outside the newly established safety zone that would be smaller
due to the reduced number of operating airguns. This decision will be
made by the MMO and can be based on the results obtained from the
acoustic measurements for the establishments of safety zones.
    Following a power-down, operation of the full airgun array will not
resume until the marine mammal has cleared the safety zone. The animal
will be considered to have cleared the safety zone if it:
    (1) Is visually observed to have left the safety zone;
    (2) Has not been seen within the zone for 15 min in the case of
small odontocetes and pinnipeds; or
    (3) Has not been seen within the zone for 30 min in the case of
mysticetes (large odontocetes do not occur within the study area).

Shutdown Procedure

    A shutdown procedure involves the complete turn off of all airguns.
Ramp-up procedures will be followed during resumption of full seismic
operations. The operating airgun(s) will be shut down completely during
the following situations:
    (1) If a marine mammal approaches or enters the applicable safety
zone, and a power- down is not practical or adequate to reduce exposure
to less than 190 dB (rms; pinnipeds) or 180 dB (rms; cetaceans).
    (2) If a marine mammal approaches or enters the estimated safety
radius around the reduced source that will be used during a power-down.
    (3) If a marine mammal is detected within the safety radius and a
power down would not keep the animal outside the reduced new safety
radius, the airguns will be shut-down.
    (4) If, after August 25, a group of 12 or more bowhead or gray
whales enters the 160-dB (rms) radius or a group of four or more cow/
calf pairs enters the 120-dB (rms) radius.
    Airgun activity will not resume until the marine mammal has cleared
the safety radius. The animal will be considered to have cleared the
safety radius as described above for power-down procedures.

Ramp-up Procedure

    A ramp-up procedure will be followed when the airgun array begins
operating after a specified duration with no or reduced airgun
operations. The specified duration depends on the speed of the source
vessel, the size of the airgun array that is being used, and the size
of the safety zone, but is often about 10 min.
    NMFS requires that, once ramp-up commences, the rate of ramp-up be
no more than 6 dB per 5 min period. Ramp-up will likely begin with the
smallest airgun, in this case, 80 in\3\. PGS intends to follow the
ramp-up guideline of no more than 6 dB per 5 min period. During the
ramp-up, the safety zone for the full 8-gun array will be maintained. A
ramp-up procedure can be applied only in the following situations:
    (1) If, after a complete shutdown, the entire 180 dB safety zone
has been visible for at least 30 min prior to the planned start of the
ramp-up in either daylight or nighttime. If the entire safety zone is
visible with vessel lights and/or night vision devices, then ramp-up of
the airguns from a complete shutdown may occur at night.
    (2) If one airgun has operated during a power-down period, ramp-up
to full power will be permissible at night or in poor visibility, on
the assumption that marine mammals will either be alerted by the sounds
from the single airgun

[[Page 45991]]

and could move away or may be detected by visual observations.
    (3) If no marine mammals have been sighted within or near the
applicable safety zone during the previous 15 min in either daylight or
nighttime, provided that the entire safety zone was visible for at
least 30 min.

Monitoring and Reporting Plan

    PGS will sponsor marine mammal monitoring during the seismic survey
in order to implement the required mitigation measures that require
real-time monitoring, to satisfy the required monitoring requirements
of the IHA, and to meet any monitoring requirements agreed to as part
of the POC/CAA. PGS will meet the requirements by using two techniques:
use of MMOs and participating in an acoustics monitoring plan through
ENI. The monitoring plan is described here.

Vessel-based Visual Monitoring by MMOs

    PGS' approach to monitoring is to station two or more NMFS-approved
MMOs aboard each seismic vessel to document the occurrence of marine
mammals near the vessel, to help implement mitigation requirements, and
to record the reactions of marine mammals to the survey. At least one
MMO, if not all, will be an Inupiat trained in collecting marine mammal
data. Each MMO will, while on duty, scan the area of operation (using 8
to 10 power binoculars) for marine mammals, recording the species,
location, distance from survey vessel, and behavior (and associated
weather data) of all that are seen. Observer watches will last no more
than 4 consecutive hours, and no observer will watch more than 12 total
hours in a 24-hr day. Observation will occur while survey operations
are conducted. Night vision devices will be available on each source
vessel for low light conditions or times when there is insufficient
ambient light to see the entire monitoring area. Most importantly,
however, each MMO will determine that the safety radius is clear of
marine mammals prior to operating the high-energy sound equipment, and
each will have the authority to suspend active side-scan sonar or
sleeve gun operations should a marine mammal be observed approaching
the safety radius. NMFS will be provided with weekly reports of the
marine mammal observations as long as the onboard communication systems
allow.
    In addition to the marine mammal monitoring to be performed by the
MMOs located on the source vessels, PGS has offered to hire Inupiat
speakers to perform seismic work on each of the PGS vessels. As part of
their duties, the Inupiat speakers will also keep watch for marine
mammals and will communicate with the MMOs located on the source
vessels.

Acoustic Monitoring of Drillsite Activities and Marine Mammal
Vocalizations

    Acoustic measurements of drillsite activities and marine mammal
vocalizations in 2008 will be performed using Greeneridge's autonomous
seafloor recorders. For monitoring the near-drillsite sounds, four
omnidirectional ASARs (Greene et al., 1997) will be used, which sample
at a rate of 5 kHz and have an acoustic bandwidth of 10-2,200 Hz. The
ASARs can record ambient and anthropogenic sounds and vocalizations
from bowhead whales, beluga whales, seals, and walrus.
    For the whale-call acoustic array, five directional DASARs (Greene
et al., 2004; see Figure 3 in Appendix B of PGS' application) will be
used, which have an acoustic bandwidth of 10-450 Hz. In addition to
bowhead whale calls, the DASARs will also detect and record industrial
sounds, including those produced by vessels and seismic airguns.
Regarding the ability to detect ultra-low frequency sounds that might
be produced from drilling, the DASAR and the ASAR can record sounds as
low as 1 or 2 Hz but at reduced sensitivity relative to frequencies
above 10 Hz. The DASARs will be modified versions of units (DASAR
``b'') that were used for Shell's 2007 Beaufort Sea Monitoring Program
and will be identical to those proposed for monitoring BP's Northstar
Island and Shell's five DASAR arrays in 2008. The modification involves
a new version of the sensor (a three-channel device). In total, nine
recorders will be used for Pioneer/ENI in 2008; four ASARs will be
deployed in the vicinity of the ODS and SID and five DASARs will be
located approximately 13-20 km (8-12.4 mi) north of the drillsites in
9-15.2 m (30-50 ft) of water (see Figure 4 in Appendix B of PGS'
application).
    The acoustic recorders will be deployed/retrieved using a workboat
supplied by Pioneer/ENI. Recorders will be retrieved from a tag line
and the grapple method. The recorders will be deployed in mid-August
and then allowed to record as long as possible into September, taking
weather factors (e.g., sea state and ice formation) into consideration.
The NSB DWM will be informed prior to removing the recorders.
    The four ASARs will be placed near the two drillsites to monitor
sounds produced from drilling (ODS only), vessel (ODS and SID), and
construction activities (primarily SID). Figure 5 in Appendix B of PGS'
application provides a finer scale resolution of the acoustic recorders
in the vicinity of ODS and SID than in Figure 4. One ASAR will be
placed approximately 0.4 km (0.25) mi from each ODS and SID. One ASAR
will be placed 6.4 km (4 mi) north of ODS and one 0.6 km (1 mi) north
of SID. Similar to the nearby Shell DASAR Site 1 and Site 2 arrays, the
DASARs will be spaced 7 km (4.3 mi) from each other and will detect
marine mammal vocalizations to the north and south of the array out to
10 to 15 km (6.2 to 9 mi) from any one recorder.
    The acoustic data collected during the summer 2008 near ODS and SID
will be suitable to compute sound levels received from: (1) heavy
equipment and machinery operating on the drillsites; (2) small vessels
and crew change vessels operating around the ODS and SID and between
Oliktok Point and the ODS; (3) loaded and empty barges traversing to
and from Oliktok Point and ODS and SID; and (4) the process of holding
the barges in place at the drillsites while offloading equipment and
supplies.
    An important aspect to characterizing sounds and correlating them
to specific activities will be to maintain an accurate record of all
sound-producing activities in the project areas. Time-referenced
information of vessel movements and construction activities at and
around the drillsites will be required in order to interpret acoustic
sound level data. This is especially important in order to determine
whether measured sound levels are generated by activities at or near
the drillsites. To acquire detailed position information from key
sources of in-water sounds, Pioneer/ENI proposes to place GPS units
capable of logging position data on selected project vessels during the
open-water period. The vessel logs and GPS position data will be used
to verify (or exclude) various sources of anthropogenic sounds that are
detected on the acoustic recorders and to associate any visual
observations of marine mammal behavior from aerial surveys with project
activities. Pioneer/ENI will also maintain logs of equipment inventory
and associated daily activities at ODS and SID and the drilling
activity at ODS.
    Additional information on how the ASARs and DASARs will be utilized
is found in Appendix B of the PGS application.

Acoustic Monitoring of Seismic Survey and Ambient Sounds

    PGS will use an automated process developed by A. Thode of Scripps
to

[[Page 45992]]

detect airgun pulses in the DASAR data and compute the instantaneous
peak pressure, the SPL (rms), the sound exposure level, and the pulse
duration. Background sound levels (between the pulses) are also
characterized using this automated procedure. These measurements
provide time series for the entire study period, expected to be from 4-
6 weeks beginning in mid-August. Vessel sounds will be noted and their
levels included in the background time series (Blackwell et al., 2008).

Aerial Surveys

    Working with NSB scientists in 2006, Pioneer developed an aerial
survey program to assess the distribution of bowhead whales within 24-
32 km (15-20 mi) of the Pioneer operation during fall whale migration.
These surveys were done in 2006 and 2007 and were conducted with two
dedicated observers from a Bell 412 helicopter (Reiser et al., 2008;
Williams et al., 2008).
    For 2008, PGS will collaborate with Shell to expand the temporal
coverage of their aerial survey program, which is otherwise planned to
start around September 7. These surveys are to be performed in support
of Shell's shallow hazard surveys being planned from mid-September
through October, 2008. PGS will expand the duration of these surveys to
start August 25 and be conducted along the survey tracklines.
    Weather conditions permitting, surveys will be conducted 3 or more
days per week beginning August 25 and continuing through as far into
October as Shell continues its operation. Surveys will extend to
approximately 80 km (50 mi) offshore. The surveys will be conducted
from a de Havilland Twin Otter following similar protocols used by
Shell in the Beaufort Sea in 2006 and 2007. Survey tracklines will be
spaced 8 km (5 mi) apart and will run approximately 64.4 km (40 mi) in
a north-south direction. Surveys will be conducted in good survey
conditions (i.e., favorable weather and sea state). Four trained and
experienced surveyors seated in the rear of the aircraft will make
observations from the right and left sides of the airplane. The
airplane will be operated by two pilots in the front seats who will
also survey the area ahead of the aircraft.
    Standard aerial survey procedures used by LGL and others in many
previous marine mammal projects will be followed, including those
surveys completed for Shell in the Alaskan Beaufort Sea in 2006 (Thomas
et al., 2007) and 2007 (Lyons et al., 2008). Following these procedures
will facilitate comparisons and (as appropriate) pooling of results
with other datasets (e.g., sighting rates, whale group size and
composition). The aircraft will be flown at 100 knots ground speed and
at an altitude of 457 m (1500 ft). Aerial surveys at an altitude of 457
m (1500 ft) do not provide much information about seals but are
suitable for both bowhead and beluga whales. The need for a 457 m (1500
ft) cloud ceiling will limit the dates and times when surveys can be
flown. The surveys will follow GPS-referenced tracklines.
    When a large whale is sighted, the pilot will break transect and
circle the sighting at least twice to confirm species, group size, and
composition. If additional sightings are made in the vicinity, these
will also be circled to confirm species, group size, composition, and
activity if it can be determined (such as feeding or migrating). An
aggregation of 12 whales is defined as 12 whales seen, either on
transect or while circling, within a circular area with a diameter of
15 km (9.3 mi). Therefore, after a sighting is made, it should be
circled sufficiently to check a 7.5 km (4.7 mi) radius around the area,
and any subsequent sightings should be circled to see if they are
within 15 km (9.3 mi) of the original sighting.
    For each marine mammal sighting, the observer will note the
species, number, size/age/sex class when determinable, activity,
heading, swimming speed category (if traveling), sighting cue, ice
conditions (type and percentage), and inclinometer reading. An
inclinometer reading (angle from horizontal) will be taken when the
animal's location is at a right angle to the side of the aircraft
track, allowing calculation of lateral distance from the aircraft
trackline. Transect information, sighting data, and environmental data
will be entered into a GPS-linked data logger.

Reporting

    A report on the preliminary results of the acoustic verification
measurements, including as a minimum the measured 190- and 180-dB (rms)
radii of the airgun sources, will be submitted within 72-hrs after
collection of those measurements at the start of the field season. This
report will specify the distances of the safety zones that were adopted
for the survey.
    A report on PGS' activities and on the relevant monitoring and
mitigation results will be submitted to NMFS within 90 days after the
end of the seismic survey. The report will describe the operations that
were conducted, the measured sound levels, and the cetaceans and seals
that were detected near the operations. The report will be submitted to
NMFS, providing full documentation of methods, results, and
interpretation pertaining to all acoustic and vessel-based marine
mammal monitoring. The 90-day report will summarize the dates and
locations of seismic operations, and all whale and seal sightings
(dates, times, locations, activities, associated seismic survey
activities). Marine mammal sightings will be reported at species level,
however, especially during unfavorable environmental conditions (e.g.,
low visibility, high sea states) this will not always be possible. The
number and circumstances of ramp-up, power-down, shutdown, and other
mitigation actions will be reported. The report will also include
estimates of the amount and nature of potential impact to marine
mammals encountered during the survey.
    Some of PGS' monitoring (e.g., aerial surveys and acoustic arrays)
will provide additional information for the Joint Industries Program.
This program includes coastal aerial surveys in the Chukchi Sea,
acoustic ``net'' arrays in the Chukchi Sea, and acoustic arrays in the
Beaufort Sea. These studies aid in the gathering of data on abundance
and distribution of marine mammals in the Chukchi and Beaufort Seas.

Comprehensive Monitoring Report

    In November, 2007, Shell (in coordination and cooperation with
other Arctic seismic IHA holders) released a final, peer-reviewed
edition of the 2006 Joint Monitoring Program in the Chukchi and
Beaufort Seas, July-November 2006 (LGL, 2007). This report is available
for downloading on the NMFS website (see ADDRESSES). A draft
comprehensive report for 2007 was provided to NMFS and those attending
the NMFS/MMS Arctic Ocean open water meeting in Anchorage, Alaska, on
April 14-16, 2008. Based on reviewer comments made at that meeting,
Shell and others are currently revising this report and plans to make
it available to the public shortly.
    Following the 2008 open water season, a comprehensive report
describing the proposed acoustic, vessel-based, and aerial monitoring
programs will be prepared. The 2008 comprehensive report will describe
the methods, results, conclusions and limitations of each of the
individual data sets in detail. The report will also integrate (to the
extent possible) the studies into a broad based assessment of industry
activities and their impacts on marine mammals in the Beaufort Sea
during 2008. The 2008 report will form the basis for future monitoring
efforts and will establish long term data sets to help evaluate changes
in the Beaufort/

[[Page 45993]]

Chukchi Sea ecosystems. The report will also incorporate studies being
conducted in the Chukchi Sea and will attempt to provide a regional
synthesis of available data on industry activity in offshore areas of
northern Alaska that may influence marine mammal density, distribution,
and behavior.
    This comprehensive report will consider data from many different
sources including two relatively different types of aerial surveys;
several types of acoustic systems for data collection (net array, PAM,
vertical array, and other acoustical monitoring systems that might be
deployed), and vessel based observations. Collection of comparable data
across the wide array of programs will help with the synthesis of
information. However, interpretation of broad patterns in data from a
single year is inherently limited. Much of the 2008 data will be used
to assess the efficacy of the various data collection methods and to
establish protocols that will provide a basis for integration of the
data sets over a period of years.

ESA

    Under section 7 of the ESA, NMFS has completed consultation with
the MMS on the issuance of seismic permits for offshore oil and gas
activities in the Beaufort and Chukchi seas. In a Biological Opinion
issued on July 17, 2008, NMFS concluded that the issuance of seismic
survey permits by MMS and the issuance of the associated IHAs for
seismic surveys are not likely to jeopardize the continued existence of
threatened or endangered species (specifically the bowhead, humpback,
and fin whales) under the jurisdiction of NMFS or destroy or adversely
modify any designated critical habitat. The 2008 Biological Opinion
takes into consideration all oil and gas related activities that are
reasonably likely to occur, including exploratory (but not production)
oil drilling activities. In addition, NMFS has issued an Incidental
Take Statement under this Biological Opinion which contains reasonable
and prudent measures with implementing terms and conditions to minimize
the effects of take of listed species.

NEPA

    In 2006, the MMS prepared Draft and Final PEAs for seismic surveys
in the Beaufort and Chukchi Seas. NMFS was a cooperating agency in the
preparation of the MMS PEA. On November 17, 2006 (71 FR 66912), NMFS
and MMS announced that they were preparing a DPEIS in order to assess
the impacts of MMS' annual authorizations under the Outer Continental
Shelf Lands Act to the U.S. oil and gas industry to conduct offshore
geophysical seismic surveys in the Chukchi and Beaufort Seas off Alaska
and NMFS' authorizations under the MMPA to incidentally harass marine
mammals while conducting those surveys.
    On March 30, 2007 (72 FR 15135), the Environmental Protection
Agency (EPA) noted the availability for comment of the NMFS/MMS DPEIS.
Based upon several verbal and written requests to NMFS for additional
time to review the DPEIS, EPA has twice announced an extension of the
comment period until July 30, 2007 (72 FR 28044, May 18, 2007; 72 FR
38576, July 13, 2007). Because NMFS has been unable to complete the
PEIS, it was determined that the 2006 PEA would need to be updated in
order to meet NMFS' NEPA requirements. This approach was warranted as
it was reviewing five proposed Arctic seismic survey IHAs for 2008,
well within the scope of the PEA's eight consecutive seismic surveys.
To update the 2006 Final PEA, NMFS prepared a SEA which incorporates by
reference the 2006 Final PEA and other related documents.

Determinations

    Based on the information provided in PGS' application and addendum,
public comments received on PGS' application, the proposed IHA notice
(73 FR 34254, June 17, 2008), this document, the 2006 and 2007
Comprehensive Monitoring Reports by Shell and others, public review of
PGS' mitigation and monitoring program in Anchorage, Alaska, in April,
2008, and the analysis contained in the MMS Final PEA and NMFS' 2008
Final SEA, NMFS has determined that the impact of PGS conducting
seismic surveys in the Beaufort Sea in 2008 will have a negligible
impact on the affected species or stock of marine mammals and that
there will not be an unmitigable adverse impact on their availability
for taking for subsistence uses provided the mitigation measures
required under the authorization are implemented. Moreover, as
explained below, NMFS has determined that only small numbers of marine
mammals of a species or population stock would be taken by PGS' seismic
activities. The impact of conducting a seismic survey in this area will
result, at worst, in a temporary modification in behavior of small
numbers of the affected marine mammal species.
    NMFS has determined that the short-term impact of conducting
seismic surveys in the U.S. Beaufort Sea may result, at worst, in a
temporary modification in behavior by certain species of marine
mammals. While behavioral and avoidance reactions may be made by these
species in response to the resultant noise, this behavioral change is
expected to have a negligible impact on the affected species or stocks.
In addition, no take by death and/or serious injury is anticipated or
authorized, and the potential for temporary or permanent hearing
impairment will be avoided through the incorporation of the mitigation
and monitoring measures described above.
    For reasons explained in this document, NMFS does not expect that
any marine mammals will be seriously injured or killed during PGS'
seismic survey activities, even if some animals are not detected prior
to entering the 180-dB (cetacean) and 190-dB (pinniped) safety zones.
These criteria were set originally by the HESS Workshop (1997, 1999) to
approximate where Level A harassment (i.e., defined as ``any act of
pursuit, torment or annoyance which has the potential to injure a
marine mammal or marine mammal stock in the wild'') from acoustic
sources begins. Scientists have determined that these criteria are
conservative as they were set for preventing TTS, not PTS. NMFS has
determined that a TTS which is the mildest form of hearing impairment
that can occur during exposure to a strong sound may occur at these
levels. When a marine mammal experiences TTS, the hearing threshold
rises and a sound must be stronger in order to be heard. TTS can last
from minutes or hours to (in cases of strong TTS) days. For sound
exposures at or somewhat above the TTS threshold, hearing sensitivity
recovers rapidly after exposure to the noise ends. Few data on sound
levels and durations necessary to elicit mild TTS have been obtained
for marine mammals, and none of the published data concern TTS elicited
by exposure to multiple pulses of sound. It should be understood that
TTS is not an injury, as there is no injury to individual cells.
    For whales exposed to single short pulses (such as seismic), the
TTS threshold appears to be a function of the energy content of the
pulse. As noted in this document, the received level of a single
seismic pulse might need to be greater than 210 dB re 1 microPa rms
(approximately 221-226 dB pk-pk) in order to produce brief, mild TTS.
Exposure to several seismic pulses at received levels near 200-205 dB
(rms) might result in slight TTS in a small odontocete, assuming the
TTS threshold is a function of the total received pulse energy. Seismic
pulses with received levels of 200-205 dB or more are usually
restricted to a radius of no more

[[Page 45994]]

than 200 m (656 ft) around a seismic vessel operating a large array of
airguns. As a result, NMFS believes that injury or mortality is highly
unlikely due to the injury zone being close to the airgun array (astern
of the vessel), the establishment of conservative safety zones and
shutdown requirements (see ``Mitigation Measures'') and the fact that
there is a strong likelihood that baleen whales (bowhead and gray
whales) would avoid the approaching airguns (or vessel) before being
exposed to levels high enough for there to be any possibility of onset
of TTS.
    For pinnipeds, information indicates that for single seismic
impulses, sounds would need to be higher than 190 dB rms for TTS to
occur while exposure to several seismic pulses indicates that some
pinnipeds may incur TTS at somewhat lower received levels than do small
odontocetes exposed for similar durations. This indicates to NMFS that
the 190-dB safety zone provides a sufficient buffer to prevent PTS in
pinnipeds.
    In conclusion, NMFS believes that a marine mammal within a radius
of <100 m (<328 ft) around a typical large array of operating airguns
(larger than that to be used by PGS) may be exposed to a few seismic
pulses with levels of >205 dB, and possibly more pulses if the marine
mammal moved with the seismic vessel. However, there is no specific
evidence that exposure to pulses of airgun sound can cause PTS in any
marine mammal, even with large arrays of airguns. The array to be used
by PGS is of moderate size. Given the possibility that marine mammals
close to an airgun array might incur TTS, there has been further
speculation about the possibility that some individuals occurring very
close to airguns might incur PTS. Single or occasional occurrences of
mild TTS are not indicative of permanent auditory damage in terrestrial
mammals. Relationships between TTS and PTS thresholds have not been
studied in marine mammals, but are assumed to be similar to those in
humans and other terrestrial mammals.
    While the number of potential incidental harassment takes will
depend on the distribution and abundance of marine mammals (which vary
annually due to variable ice conditions and other factors) in the area
of seismic operations, the number of potential harassment takings is
estimated to be small (less than 1.5 percent of any of the estimated
population sizes) and has been mitigated to the lowest level
practicable through incorporation of the measures mentioned previously
in this document.
    In addition, NMFS has determined that the location for seismic
activity in the Beaufort Sea meets the statutory requirement for the
activity to identify the ``specific geographical region'' within which
it will operate. With regard to dates for the activity, PGS intends to
work beginning upon receipt of the IHA (late-July) and ceasing activity
by late-September.
    Finally, NMFS has determined that the seismic activity by PGS in
the Beaufort Sea in 2008 will not have an unmitigable adverse impact on
the availability of marine mammals for subsistence uses. This
determination is supported by the information in this Federal Register
Notice, including: (1) the fall bowhead whale hunt in the Beaufort Sea
will either be governed by the CAA between PGS and the AEWC and village
whaling captains or by mitigation measures contained in the IHA; (2)
the CAA and IHA conditions will significantly reduce impacts on
subsistence hunters to ensure that there will not be an unmitigable
adverse impact on subsistence uses of marine mammals; (3) because
ringed seals are hunted mainly from October through June, although they
are available year-round; however, the seismic survey will not occur
during the primary period when these seals are typically harvested; (4)
because spotted seals are hunted mainly during times outside of the
project timeframe; and (5) because the project will begin in the east
and move towards the west to avoid conflicts with the bearded seal hunt
at Thetis Island, which usually ends in August.

Authorization

    As a result of these determinations, NMFS has issued an IHA to PGS
for conducting a seismic survey in the Beaufort Sea in 2008, provided
the previously mentioned mitigation, monitoring, and reporting
requirements are incorporated.

    Dated: July 30, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. E8-18104 Filed 8-6-08; 8:45 am]

BILLING CODE 3510-22-S

Local Navigation

• FR Home
• About the Site
• FR Listserv
• FR Search
• Contact Us
• Selected Electronic Dockets
• Regulatory Agenda
• Executive Orders
• Current Laws and Regulations

• EPA Home
• Privacy and Security Notice
• Contact Us