[Federal Register Volume 73, Number 35 (Thursday, February 21, 2008)]
[Notices]
[Pages 9535-9544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3257]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF10


Taking of Marine Mammals Incidental to Specified Activities; An 
On-ice Marine Geophysical and Seismic Programs in the U.S. Beaufort Sea

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

ACTION: Notice of issuance of three incidental harassment 
authorizations.

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SUMMARY: In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that Incidental 
Harassment Authorizations (IHAs) to take marine mammals, by Level-B 
harassment, incidental to conducting on-ice marine geophysical research 
and seismic surveys by CGGVeritas (Veritas) and Shell Offshore, Inc. 
(SOI) in the U.S. Beaufort Sea, have been issued for a period of one 
year from the IHAs effective date.

DATES: These authorizations are effective from February 15, 2008, until 
February 14, 2009.

ADDRESSES: Copies of the applications, IHAs, the Environmental 
Assessment (EA) on Regulations Governing the Taking of ringed and 
Bearded Seals Incidental to On-ice Seismic Activities in the Beaufort 
Sea (NMFS' 1998 EA), the 2008 Supplemental Environmental Assessment on 
the Issuance of Three Incidental Harassment Authorizations to Take 
Marine Mammals by Harassment Incidental to Conducting On-ice Seismic 
Survey Operations in the U.S. Beaufort Sea (SEA), and/or a list of 
references used in this document may be obtained by writing to P. 
Michael Payne, Chief, Permits, Conservation and Education Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225, or by telephoning one 
of the contacts listed here (see FOR FURTHER INFORMATION CONTACT).

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    Permission shall be granted if NMFS finds that the taking will have 
a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and 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 for certain categories of activities not pertinent here, the 
MMPA defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
marine mammals. Within 45 days of the close of the comment period, NMFS 
must either approve or disapprove the request for authorization.

Summary of Request

    On August 8 and 14, 2007, NMFS received two applications from 
Veritas for the taking, by harassment, of three species of marine 
mammals incidental to conducting on-ice seismic surveys in Smith Bay 
and Pt. Thomson areas of the U.S. Beaufort Sea. On September 10, 2007, 
NMFS received an application from SOI for the taking, by harassment, of 
three species of marine mammals incidental to conducting an on-ice 
marine geophysical survey program offshore west of Simpson Lagoon, U.S. 
Beaufort Sea. Veritas plans to acquire 3D seismic data within the 
months of February - May, 2008. The energy source for the proposed 
activity will be vibroseis. The proposed SOI on-ice seismic survey will 
also use vibroseis as energy sources, and is scheduled to begin in 
early March 2008 with camp mobilization expected to begin approximately 
March 11 from Oliktok Point. No under-ice acoustic sources would be 
deployed during the on-ice marine seismic program. Data acquisition 
will begin in mid-March and continue for approximately 60 days until 
mid-May, followed by camp demobilization to Oliktok Point.

Description of the Activity

Veritas

    The first specified geographic region of Veritas activities is a 
569-km\2\ (220-mi2) area extending across Smith Bay from point of entry 
from the west at approximately 71[deg]06'00.05'' N, 154[deg]30'21.00'' 
W to the east at point of exit to land at approximately 
70[deg]54'37.03'' N, 153[deg]46'43.43'' W. Water depths in most (> 80 
percent) of the area are less than 10 ft (3 m) based on bathymetry 
charts. The second specified geographic area is a 276-km\2\ (107-mi\2\)

[[Page 9536]]

area extending across the Beaufort Sea from point of entry from the 
southwest corner at approximately 70[deg]10'41.84''N, 
146[deg]43'03.36''W to the northwest corner at approximately 
70[deg]14'52.92''N, 146[deg]42'15.21''W to the southeast corner at 
approximately 70[deg]08'43.98''N, 145[deg]58'10.70''W to the northeast 
corner off of Flaxman Island at approximately 70[deg]11'28.82''N, 
145[deg]54'11.46''W. Water depths in most (> 75 percent) of the area 
are less than 10 ft (3 m) based on bathymetry charts. The proposed 
vibroseis operations for the Veritas' on-ice seismic project is 
expected to cover 1,345 line-miles (2,164 km).

SOI

    The proposed SOI on-ice marine geophysical (seismic) program would 
be conducted over 10 to 20 MMS Outer Continental Shelf (OCS) lease 
blocks located offshore from Oliktok Point in the Alaskan Beaufort Sea. 
The proposed program location is in the vicinity of Thetis and Spy 
Islands, north-northwest of Oliktok Point. The majority of the OCS 
blocks covered in the proposed program are surrounding the 33 ft (10 m) 
water depth contour. Assuming seismic acquisition occurred over up to 
20 OCS blocks, the proposed on-ice seismic project would cover a 
maximum estimated 3,000 line-miles (4,828 km) of surveying within a 265 
mi2 (686 km2) area.
    Detailed descriptions of these activities were published in the 
Federal Register on November 30, 2007 (72 FR 67713). No changes have 
been made to these proposed on-ice seismic survey activities.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on November 30, 
2007 (72 FR 67713). During the 30-day public comment period, NMFS 
received the following comments from the Marine Mammal Commission 
(Commission), the North Slope Borough (NSB), the North Alaska 
Environmental Center (NAEC), and the Center for Biological Diversity 
(CBD). Overall, the NSB supports the efforts to collect geological data 
from the ice instead of during the open water period when bowhead 
whales (Balaena mysticetus) and other marine mammals might be present 
and significant subsistence activity takes place.
    Comment 1: The Commission recommends that NMFS issue the IHAs 
subject to the mitigation measures proposed in the November 30, 2007, 
Federal Register notice (72 FR 67713). The Commission recommends 
further that any authorization issued specify that, if a mortality or 
serious injury of a marine mammal occurs that appears to be related to 
the applicants' operations, activities will be suspended until NMFS has 
(1) reviewed the situation and determined that further deaths or 
serious injuries are unlikely or (2) issued regulations authorizing 
such takes under section 101(a)(5)(A) of the MMPA.
    Response: NMFS agrees with the Commission's comments and 
recommendation that the applicants must implement monitoring and 
mitigation measures to achieve the least practicable impact on marine 
mammals species or stocks that may be exposed to the on-ice seismic 
activities. As described below, NMFS is requiring the applicants to 
implement a number of measures to reduce the level of impact on seals, 
which may be found within the vicinity of the projects.
    NMFS agrees further with the Commission that on-ice seismic 
operations must be suspended immediately if a dead or injured marine 
mammal is found in the vicinity of the project areas and the death or 
injury of the animal could be attributable to the applicants' 
activities. This requirement is a condition in the IHA.
    Comment 2: The Commission recommends that if other species marine 
mammals (e.g., beluga whales or bowhead whales) are observed in the 
vicinity of the surveys, activities be suspended until the animals 
depart or authorization to take such species is issued.
    Response: NMFS agrees with the Commission's recommendation that if 
marine mammals not covered by these IHAs are observed within the 
vicinity of the survey areas and it is determined that on-ice seismic 
activities could adversely affect these marine mammals, the activities 
be suspended until the animals depart or authorization to take such 
species is granted. NMFS considers it is extremely unlikely, however, 
that beluga whales or bowhead whales will be present in the vicinity of 
the on-ice seismic operations. Due to safety reasons, these on-ice 
seismic operations can only be conducted in areas with ice thickness of 
at least 50 in (1.3 m) to support the heavy equipment and personnel, 
and the nearest lead would be at least 10 mi (16 km) away. This is not 
typical habitat for cetacean species, including bowhead and beluga 
whales and it is very unlikely cetacean species would be found near the 
project locations.
    Comment 3: CBD argued that NMFS cannot lawfully issue IHAs because 
the proposed activities ``have the potential to result in serious 
injury or mortality to marine mammals.'' Rather, NMFS is required to 
promulgate regulations pursuant to 16 U.S.C. 1371(a)(5)(A) to authorize 
take by injury or mortality. Specifically, CBD notes that because these 
activities will occur during the pupping season for ringed seals, there 
is a likelihood they will be killed by vehicles or they will be driven 
into the water prematurely, and therefore, unable to survive. (CBD 
cited a 2003 NRC report that at least one ringed seal pup was killed by 
a bulldozer clearing seismic lines on the shore-fast.
    Response: NMFS does not agree with CBD's argument and believes the 
risk of injury or mortality from these activities is minimal. The 
Federal Register notice published on November 30, 2007 (72 FR 67713), 
provided a detailed description of the proposed activities, the 
potential impacts to marine mammals resulting from on-ice seismic 
surveys, and the proposed mitigation and monitoring measures. All 
project areas with water deeper than 3 m (9.9 ft) would be surveyed by 
trained seal lair sniffing dogs to locate ringed seal (not ``ring 
seal'' as mentioned in the CBD's comment) lairs prior to the start of 
any activities. All locations of seal structure would be marked and 
protected by a 150 m (490 ft) exclusion zone, within which seal 
structures could suffer damages (NMFS, 1998). The applicants would be 
prohibited therefore, from conducting any on-ice seismic activities 
within these areas. Trained seal lair sniffing dogs were used in 
previous on-ice activities in the U.S. Beaufort Sea (e.g., Smith and 
Codere, 2007) and have proven to be an effective way to locate seal 
structures during pre-activity surveys, thereby helping to avoid 
pinniped injuries or deaths that may result from moving vehicles 
running over seal lairs (Smith and Codere, 2007). The NRC (2003) 
example in CBD's comment that a ringed seal pup was killed by a 
bulldozer was due to ice road construction. The proposed on-ice seismic 
surveys would not require the construction of ice roads and that the 
affected footprint is small. In addition, as mentioned in the Federal 
Register notice (72 FR 67713), the applicants' vehicles would be 
required to avoid any pressure ridges, ice ridges, and ice deformation 
areas where seal structures may be present. With these monitoring and 
mitigation measures, it is extremely unlikely that marine mammals could 
be injured or killed as a result of the proposed on-ice seismic survey.
    Comment 4: CBD states that the proposed authorizations ``are 
legally infirm as they rely on a regulatory definition of 'small 
numbers' that is at odds with the statute and has been

[[Page 9537]]

struck down by the courts.'' CBD states further that by relying on the 
existing definition, NMFS is ``committing prejudicial error rendering 
the IHAs invalid.''
    Response: NFMS does not agree with CBD's statement. The ``small 
numbers'' of ringed, bearded, and spotted seals that could be affected 
by the proposed on-ice seismic operations were analyzed and these 
numbers were compared to the relative population size of these species. 
As discussed in the previous Federal Register notice (72 FR 67713, 
November 30, 2007), it is estimated that up to 984 ringed seals (0.39 
percent of estimated total Alaska population of 249,000) could be taken 
by Level B harassment due to Veritas' Smith Bay on-ice seismic survey, 
up to 477 ringed seals (0.19 percent of the total Alaska population) by 
Veritas' Pt. Thomson on-ice seismic surveys, and up to 1,187 ringed 
seals (0.47 percent of the total Alaska population) by SOI's on-ice 
geophysical program. Due to the unavailability of reliable bearded and 
spotted seals densities within the proposed project area, NMFS is 
unable to estimate take numbers for these two species. However, it is 
expected that much fewer bearded and spotted seals would be subject to 
takes by Level B harassment since their occurrence is very low within 
the proposed project areas, especially during spring (Moulton and 
Lawson, 2002; Treacy, 2002a; 2002b; Bengtson et al., 2005). 
Consequently, the levels of take of these two pinniped species by Level 
B harassment within the proposed project areas would represent only 
small fractions of the total population sizes of these species in 
Beaufort Sea.
    Comment 5: CBD states that NMFS did not make a separate finding 
that only ``small numbers'' of ringed seals, spotted seals, and bearded 
seals would be harassed by Veritas and Shell's planned activities in 
the proposed IHAs. NSB also states that without density information for 
bearded and spotted seals within the proposed project area, NMFS cannot 
grant IHAs under the MMPA.
    Response: NMFS does not agree with CBD's statement. The November 
30, 2007, Federal Register notice for the proposed IHAs identified the 
number of ringed seals expected to be taken by these activities. NMFS 
estimates that up to 984 ringed seals (0.39 percent of the estimated 
total Alaska population of 249,000) could be taken by Level B 
harassment due to Veritas' Smith Bay on-ice seismic survey; up to 477 
ringed seals (0.19 percent of the estimated total Alaska population) by 
Veritas' Pt. Thomson on-ice seismic surveys; and up to 1,187 seals 
(0.47 percent of the estimated total Alaskan population) by SOI's on-
ice geographical program. While NMFS was not able to develop a specific 
estimate of take for spotted and bearded seals due to data limitations, 
NMFS described, as highlighted below, that take of these other species 
is likely to be extremely low due to their infrequent occurrence in the 
project area.
    NMFS has evaluated the projects and the level of take that could 
result from each on-ice seismic activity. NMFS finds, based on its 
evaluation of each of the three activities and the best available 
information that the number of ringed seal take is small relative to 
the overall affected population of the species.
    Regarding NSB's concern, the Federal Register notice stated that 
``it is expected much fewer bearded and spotted seals would subject to 
takes by Level B harassment since their occurrence is very low within 
the proposed project areas, especially during spring (Moulton and 
Lawson, 2002; Treacy, 2002a; 2002b; Bengtson et al., 2005). 
Consequently, the levels of take of these two pinniped species by Level 
B harassment within the proposed project areas would represent only 
small fractions of the total population sizes of these species in 
Beaufort Sea.'' NMFS relied on the best available information to 
determine the overall density estimates of spotted and bearded seals. 
Specifically, early estimates of bearded seals in the Bering and 
Chukchi seas range from 250,000 to 300,000 (Popov, 1976; Burns, 1981), 
and for spotted seals in the Bering Sea was 335,000 to 450,000 (Burns, 
1973). In addition, these seals tend to congregate in areas with broken 
pack ice or along the ice edge, which are to be avoided by the proposed 
on-ice seismic operations due to safety reasons. Therefore, NMFS 
believes any take, if any, of spotted and bearded seals would be small 
relative to their overall estimated population. Please refer to the 
Federal Register notice for detailed information regarding the number 
of marine mammals expected to be taken for the proposed activities and 
the methods of calculating these numbers.
    Comment 6: Citing NMFS' Stock Assessment Reports (SAR), CBD asserts 
that NMFS cannot make a ``negligible impact'' finding for the Veritas 
and SOI projects because NMFS does not have accurate information on the 
status of spotted seals, bearded seals, and ringed seals. NSB and NAEC 
are also concerned that no adequate information is available on bearded 
and spotted seals.
    Response: NMFS does not agree with CBD's argument that a ``rational 
negligible impact finding'' cannot be made because of a lack of 
accurate or reliable data. Although the SAR stated that no up-to-date 
population estimates are available for these three species, recent 
population estimates from many studies point out that the population 
levels of these species are healthy and stable (e.g., ringed seal: 
Moulton et al., 2002; Frost et al., 2002; 2004; Bengtson et al., 2005; 
spotted seal: Frost et al., 1993: spotted seal; Lowry et al., 1994; 
bearded seal: Bengtson et al., 2000; Bengtson et al., 2005). In 
addition, none of the species in question is listed under the 
Endangered Species Act, and the SAR clearly states that due to a very 
low level of interactions between U.S. commercial fisheries and ringed, 
bearded, and spotted seals, the species are not considered a strategic 
stock (Angliss and Outlaw, 2007).
    Moreover, NMFS has reviewed each of the applications carefully and 
determined that no more than Level-B harassment of pinnipeds for each 
on-ice seismic survey would occur. Any animals that could be exposed to 
vibroseis would likely experience short-term annoyance as supported by 
prior studies (Burns and Kelly, 1982; Lyderseen and Hammill, 1993), 
because seals will not be physically harmed by on-ice seismic 
operations. In addition, because of the required mitigation and 
monitoring measures, NMFS is confident that any impacts, if at all, to 
pinnipeds resulting from the on-ice seismic surveys would be short-term 
and of little consequence.
    NMFS has reviewed Veritas' applications carefully and it is clear 
that Veritas did request both of their IHAs to have Level B harassment 
of up to 10 bearded seals for each on-ice seismic activity. Please 
refer to Response to Comment 5 for additional information regarding 
take information for bearded and spotted seals.
    Comment 7: CBD comments that in making its ``negligible impact'' 
determinations, NMFS must give the benefit of the doubt to the species. 
CBD implies that NMFS should adopt a precautionary approach when 
dealing with situations in which the population status of a species is 
unknown, and therefore, the true impacts of a project on the species 
cannot be ascertained.
    Response: NMFS does not agree with CBD's argument that a 
precautionary approach should be employed for the on-ice seismic 
surveys. Moreover, CBD has not presented NMFS with any data to support 
its contention that the precautionary approach should apply in this 
case.

[[Page 9538]]

    NMFS has reviewed the available literature and concluded that the 
most recent population estimate for ringed seals in Alaska is 249,000 
animals. As described in Response to Comment 5, NMFS determined that 
take, by Level-B harassment of ringed seals within the project areas 
would result in no more than a negligible impact, because the number of 
seals that would be taken by Level B harassment represents only a small 
fraction of the Alaska population. Although there is no up-to-date 
assessment of the population level of Alaska ringed seal stock, there 
is no reason to believe that this population is declining or would be 
adversely affected by the proposed activities (Angliss and Outlaw, 
2007).
    Early estimates of bearded seals in the Bering and Chukchi seas 
range from 250,000 to 300,000 (Popov, 1976; Burns, 1981), and for 
spotted seals in the Bering Sea was 335,000 to 450,000 (Burns, 1973). 
Although there is no reliable recent population estimates for these two 
species, there is no reason to believe that these populations suffered 
significant decline. Therefore, according to NMFS' Stock Assessment 
Reports, it is recommended that the pinniped maximum theoretical net 
productivity rate of 12 percent be employed for these stocks (Wade and 
Angliss, 1997). In addition, since bearded and spotted seals occur 
mainly in areas with broken pack ice or along the ice edge (Burns, 
1967; Lowry et al., 1998), which are areas avoided by the proposed on-
ice seismic operations for safety reasons, it is expected that Level B 
harassment from the proposed on-ice activities would be rare. 
Therefore, the precautionary approach is not appropriate given their 
infrequent occurrence in the project areas.
    Moreover, NMFS will require the IHA holders to implement specific 
mitigation and monitoring measures, which are expected to avoid the 
possibility of injury or mortality and reduce the likelihood of 
behavioral harassment. Please refer to the Federal Register for 
detailed information on the impact analyses and a detailed description 
on the proposed monitoring, mitigation, and reporting measures for the 
Veritas and SOI's planned on-ice activities.
    Comment 8: CBD argues that further cumulative environmental impact 
analysis would be particularly important for species such as the 
spotted seal, which has a very small Beaufort Sea population.
    Response Regarding the cumulative environmental impact analysis, 
please refer to Response to Comment 9 below. NMFS has also assessed the 
potential cumulative impacts of these IHAs in conjunction with other 
industrial activities in our Supplemental Environmental Assessment for 
the 2008 On-Ice Seismic Activities.
    There is no scientifically-recognized Beaufort Sea population of 
spotted seals. The Alaska spotted seal stock is the only population 
found in U.S. waters and recognized under the MMPA (Angliss and Outlaw, 
2007). Based on satellite tagging studies, spotted seals migrate south 
from the Chukchi Sea in October and pass through the Bering Strait in 
November and overwinter in the Bering Sea along the ice edge (Lowry et 
al., 1998). During spring they tend to prefer small floes (i.e., < 20 m 
in diameter), and inhabit mainly the southern margin of the ice, with 
movement to coastal habitats after the retreat of the sea ice (Fay 
1974; Shaughnessy and Fay, 1977; Simpkins et al., 2003), therefore, 
they are rarely found within the proposed on-ice project areas which 
require ice thickness of at least 4 ft (1.2 m) for safety reasons.
    Comment 9: CBD asserts that NMFS' negligible impact finding for 
pinnipeds under the MMPA is ``suspect'' because NMFS has failed to 
consider the cumulative impacts of numerous industrial activities 
(including other Arctic oil and gas development activities) and global 
warming.
    Response: Section 101(a)(5)(D) of the MMPA allows citizens of the 
United States to take by harassment, small numbers of marine mammals 
incidental to a specified activity (other than commercial fishing) 
within a specified geographical region if NMFS is able to make certain 
findings. NMFS must issue an incidental harassment authorization if the 
taking will have a negligible impact on the species or stock(s), will 
not have an unmitigable adverse impact on the availability of the 
species or stock(s) for subsistence uses, and if the permissible 
methods of taking and requirements pertaining to the mitigation, 
monitoring, and reporting of such takings are set forth.
    Pursuant to NEPA, NMFS is required to analyze the potential 
environmental effects of its actions. As part of the NEPA analysis 
(e.g., an EIS or EA), NMFS is required to consider the direct, indirect 
and cumulative impacts resulting from the proposed action along with a 
reasonable range of alternatives, including the proposed action.
    NMFS has decided to issue 3 incidental harassment authorizations to 
Veritas and SOI, to take, by no more than Level B harassment, small 
numbers of marine mammals incidental to their proposed on-ice seismic 
surveys in the U.S. Beaufort Sea. After careful consideration of the 
proposed activities, and having considered the context in which these 
activities would occur, NMFS has determined that the proposed 
activities: (1) would not result in more than behavioral harassment 
(i.e., Level B) of small numbers of marine mammal species or stocks; 
(2) would not result in more than a negligible impact; (3) would not 
lead to an unmitigable adverse impact on subsistence uses; and (4) 
would be unlikely to directly, indirectly or cumulatively cause 
significant impacts to the human environment.
    In reaching these conclusions, NMFS gave careful consideration to a 
number of issues and sources of information. In particular, NMFS 
assessed the potential direct impacts of the 2008 on-ice seismic 
surveys, the cumulative impacts from multiple activities in the U.S. 
Beaufort Sea, and the effects of climate change in the context of the 
specified activity and other activities occurring in the Beaufort Sea.
    NMFS relied upon a number of scientific reports, including its most 
recent Alaska marine mammal stock assessment to support its findings 
(Angliss and Outlaw, 2007). The stock assessment contains a description 
of each marine mammal stock, its geographic range, a minimum population 
estimate, current population trends, current and maximum net 
productivity rates, optimum sustainable population levels and allowable 
removal levels, and estimates of annual human-caused mortality and 
serious injury through interactions with commercial fisheries and 
subsistence hunters. NMFS also considered, to the extent the data 
exists, the potential impacts of climate change on pinniped 
populations. NMFS recognizes that climate change is a concern for the 
sustainability of the entire Arctic ecosystem and has reviewed the 
available literature and stock assessment reports to support its 
negligible impact determination and finding of no significant impact. 
Moreover, according to a number of scientific studies, population 
levels of ringed, spotted and bearded seals are healthy and stable, 
with none being listed under the ESA or considered strategic stocks for 
purposes of the MMPA. This information affirms NMFS' position that 
these pinniped populations can sustain the short-term, localized 
impacts from the 2008 on-ice seismic surveys.
    In addition, NMFS analyzed in its NEPA documents the effects of the 
proposed 2008 on-ice seismic surveys and the cumulative effects of 
past, present and reasonably foreseeable activities conducted in the 
Arctic

[[Page 9539]]

region, and concluded that impacts to marine mammals, particularly 
pinnipeds would be insignificant. NMFS anticipates that any pinnipeds 
exposed to vibroseis would be annoyed for a short period of time and 
would not experience physical harm. While there is a greater likelihood 
that larger numbers of ringed seals could be exposed to vibroseis 
(principally because of their higher occurrence in the project area and 
dependence upon thicker ice than spotted or bearded seals), NMFS does 
not believe that this species would be negatively impacted by the on-
ice seismic surveys. Furthermore, the required mitigation and 
monitoring measures are expected to reduce the likelihood or severity 
of any impacts to pinnipeds over the course of the 2008 survey season. 
With respect to cumulative impacts, NMFS evaluated a number of other 
activities that could impact marine mammals, and concluded that the 
incremental impact of the on-ice seismic surveys, combined with these 
other activities are not likely to result in a significant impact on 
the human environment. Finally, NMFS considered whether climate change 
could impact ice-dependent species such as ringed, spotted and bearded 
seals and acknowledged that reductions in sea ice could adversely 
affect pinniped production. However, it is unclear at this time the 
extent to which climate change contributes to a reduction in pinniped 
habitat or pinniped productivity. Any future oil and gas exploration or 
extraction activities and permit reviews would likely need to undertake 
similar analyses to determine how global warming may affect marine 
mammals in the Arctic region.
    Comment 10: CBD asserts that NMFS cannot make a finding that on-ice 
seismic activities would not have an unmitigable adverse impact on the 
availability of marine mammal species or stocks for subsistence uses by 
Alaska Natives.
    Response NMFS disagrees with CBD. The subsistence harvest during 
winter and spring is primarily ringed seals, but during the open-water 
period both ringed and bearded seals are taken. Nuiqsut hunters may 
hunt year round; however, most of the harvest has been in open water 
instead of the more difficult hunting of seals at holes and lairs 
(McLaren, 1958; Nelson, 1969). Subsistence patterns may be reflected 
through the harvest data collected in 1992, when Nuiqsut hunters 
harvested 22 of 24 ringed seals and all 16 bearded seals during the 
open water season from July to October (Fuller and George, 1997). 
Harvest data for 1994 and 1995 show 17 of 23 ringed seals were taken 
from June to August, while there was no record of bearded seals being 
harvested during these years (Brower and Opie, 1997). Only a small 
number of ringed seals was harvested during the winter to early spring 
period, which corresponds to the time of the proposed on-ice seismic 
operations.
    Based on harvest patterns and other factors, on-ice seismic 
operations in the activity area are not expected to have an unmitigable 
adverse impact on subsistence uses of ringed and bearded seals because:
    (1) Operations would end before the spring ice breakup, after which 
subsistence hunters harvest most of their seals.
    (2) The areas where seismic operations would be conducted are small 
compared to the large Beaufort Sea subsistence hunting area associated 
with the extremely wide distribution of ringed seals.
    Comment 11 CBD cites to the SOI IHA application and criticizes what 
it believes to be ``nonsensical'' mitigation measures, i.e., timing and 
locations for active seismic work during a time of year that has the 
least potential to affect marine mammals.
    Response NMFS agrees with CBD's assessment that the timing of 
Veritas and SOI's on-ice seismic surveys should not be viewed as a 
mitigation measure. Therefore, NMFS has not factored this element into 
its required mitigation and monitoring requirements. It is worth 
noting, however, that in the context of Arctic oil and gas exploration, 
NMFS believes on-ice vibroseis activities during the winter and spring 
have the potential to result in substantially fewer adverse effects to 
marine mammal species or stocks compared with open water seismic 
surveys.
    Comment 12: CBD points out the difference between Federal Register 
notice (72 FR 67713, November 30, 2007) and Veritas' IHA application 
regarding spaces between transect lines for pre-activity seal lair 
surveys. The Federal Register states that the transect lines will be 
spaced 250 m (820 ft) apart, while in Veritas' application the transect 
lines are proposed to be a quarter mile (402 m or 1,320 ft) apart. CBD 
also states that there is no explanation of the exclusion of seal-
sniffing dog surveys in waters less than 3 meters deep.
    Response As stated in the November 30, 2007, Federal Register 
notice (72 FR 67713), NMFS proposed that pre-activity seal lair surveys 
be conducted with transect lines spaced 250 m (820 ft) apart. NMFS will 
require the applicants to conduct surveys with transect lines spaced 
250 m apart.
    Based on aerial surveys of seals near BP's Northstar and Liberty 
sites between May and June, 2000, ringed seal densities in water depth 
between 0 - 3 m (0 - 9.8 ft) were much lower than densities observed in 
deeper strata (Moulton et al., 2001). All these ringed seals were 
observed from a fixed-wing aircraft during surveys. Moulton et al. 
(2001) also noted that most of the 0 - 2 m (0 - 6.6 ft) portion of the 
0 - 3 m (0 - 9.8 ft) would be frozen solid in spring and could not be 
used by seals, not to mention seal lairs, and that the 2 - 3 m (6.6 - 
9.8 ft) portion would be marginal habitat at best. Therefore, NMFS does 
not believe seal lair surveys by trained dogs are warranted. All seals 
hauled out on ice would be spotted before the on-ice activities and 
thus Level A harassment can be avoided. In addition, as mentioned in 
the Federal Register notice (72 FR 67713), the applicants' vehicles 
would be required to avoid any pressure ridges, ice ridges, and ice 
deformation areas where seal structures may be present, though unlikely 
in shallow water areas.
    Comment 13: CBD states that it submitted comments to the Minerals 
Management Services' (MMS') draft Programmatic Environmental Assessment 
for Arctic Outer Continental Slope Seismic Surveys (OCS EIS/EA MMS 
2006-019) (PEA) on May 10, 2006, and argues that NMFS cannot adopt that 
draft PEA because it had serious legal deficiencies.
    Response CBD must have commented on an outdated early draft version 
of the document, which has since been updated and superseded by the 
Final Programmatic Environmental Assessment (FPEA) on the Arctic Ocean 
Outer Continental Shelf Seismic Surveys - 2006 (OCS EIS/EA MMS 2006-
038) in June 2006. The draft PEA CBD commented on is not the correct 
document that NMFS listed in its November 30, 2007, Federal Register 
notice (72 FR 67713), therefore, its comments are irrelevant to the 
proposed IHAs. In addition, NMFS plans to use, instead, its 1998 
Environmental Assessment (EA) for a similar action with a Supplemental 
EA (SEA) for the 2008 proposed on-ice seismic operations. Please refer 
to the ``National Environmental Policy Act'' section below for detailed 
information.
    Comment 14: NSB and NAEC point out that the MMS FPEA on the Arctic 
Ocean Outer Continental Shelf Seismic Surveys - 2006 is for open water 
seismic surveys, instead of on-ice vibroseis.
    Response NMFS agrees with NSB and NAEC's comment that the MMS FPEA

[[Page 9540]]

on the Arctic Ocean Outer Continental Shelf Seismic Surveys - 2006 
focuses on open water seismic instead of on-ice vibroseis. Therefore, 
based upon further consideration, NMFS has decided to rely on the EA 
prepared in 1998 with an newly prepared SEA for the analysis under the 
National Environmental Policy Act (NEPA). Please refer to the NEPA 
section below for a detailed description.
    Comment 15: NSB states that none of the applications provided 
sufficient detail as to the exact locations where seismic activity 
would occur, and that Veritas' applications failed to include the 
attached program area maps. NSB further points out that depending on 
within which portion of this large proposed area would seismic 
operations be conducted, the impacts to marine mammal will be different 
as animals are not distributed evenly within the proposed project area.
    Response NMFS does not agree with NSB's comment. All applicants 
provided detailed information on the locations of their proposed on-ice 
seismic surveys, along with maps with clear boundaries. Although NMFS 
failed to post the maps of the Veritas' proposed on-ice activities, 
NMFS did make all documents available to the public through its 
November 30, 2007, Federal Register (72 FR 67713) notice announcing 
receipt of the applications and request for public comments. NSB should 
have contacted NMFS if it was interested in viewing the maps.
    The exact location of the on-ice seismic surveys and transect 
routes will depend on suitable ice conditions and operational 
efficiency during the time of the activity, and the presence and 
absence of seal lairs after pre-activity surveys. The estimated takes 
are calculated and analyzed based on the maximum availability of marine 
mammals in the entire project areas. Since the actual on-ice activities 
would be conducted within portions of these areas that are analyzed, 
the actual impacts to marine mammals are expected to be lower.
    Comment 16: NSB is concerned that bowhead whales and belugas 
(Delphinapterus leucas) could be potentially taken as a result of the 
proposed action. NSB states that bowheads and belugas typically begin 
passing by Barrow in mid-April, and that in a typical year, bowheads 
and belugas could be off the project area by mid-April within several 
days of passing Barrow.
    Response NMFS does not agree with NSB's assessment. The nature of 
the proposed on-ice seismic R&D program would require ice thickness of 
at least 50 in (1.3 m) to support the heavy equipment and personnel, 
and the nearest lead would be at least 10 mi (16 km) away. This is not 
typical habitat for cetacean species, including bowhead and beluga 
whales, thus, no cetacean species are likely to be found in the 
vicinity of the project area. Therefore, NMFS does not believe the 
proposed project would affect bowhead or beluga whales. Due to safety 
concerns, Veritas and SOI will not operate in an area where the ice 
condition is thin enough to allow an open lead to develop.
    Comment 17: NSB states that it is not clear that all the seal 
breathing holes or lairs would be located. NSB states that not enough 
information is provided in the application to determine how frequently 
the surveys would be conducted and whether enough passes would be 
conducted to locate all the lairs. NSB further states that if birthing 
lairs are not located, it is possible that seals could be injured or 
killed by being crushed by seismic equipment. NSB requests NMFS to 
complete a statistical analysis of the detection rate of dogs in a 
given area relative to observed, or estimated, population densities.
    Response A detailed seal breathing holes and lairs survey protocol 
by trained seal lair sniffing dogs by transects that are spaced 250 m 
(820 ft) apart was described in the Federal Register notice (72 FR 
67713, November 30, 2007), and is not repeated here. A more detailed 
report using seal lair-detecting dogs by Smith and Codere (2007) is 
available upon request. This report states that at distances of more 
than 0.25 miles (400 m, or 1,320 ft) the dogs can detect 80 percent or 
more of the seal structures in an area. Since the seal structure 
transects are more closely spaced for the Veritas and SOI's on-ice 
program (250 m, or 820 ft), the detection rate will be over 90 percent 
(T. Smith. Eco Marine. Pers. Comm. March, 2007). In addition, this 
project will use multiple dogs, which would further increase the 
detection rate. It is also important to understand that even though 100 
percent of the ringed seals would not be detected within the proposed 
project area, the site where the equipment will be placed and the route 
where vehicles travel will be adequately surveyed and marked so that 
Level A harassment will be prevented. A statistical analysis of the 
detection rate of dogs in a given area relative to observed, or 
estimated, population densities is beyond the scope of the issuance of 
the IHAs; however, NMFS will consider this analysis when adequate data 
become available.
    Comment 18: NSB states that it is possible that ringed seals could 
sustain hearing damage from the proposed on-ice seismic operations. NSB 
is also concerned that female ringed seals will likely remain near 
their pups even with considerable amounts of human activities, and 
could, therefore, be within the 190 dB zone of seismic activities if 
all lairs are not found. NSB points out that it is not possible to 
determine whether the 150 m (492 ft) exclusion zone from seal 
structures is sufficient.
    Response NMFS does not agree with NSB's assessment that ringed 
seals or any other pinnipeds could sustain hearing damage from exposure 
of sounds resulting from on-ice vibroseis. Although effective source 
levels of vibroseis arrays for horizontal propagation in water under 
the ice are uncertain, estimates range from at least 185 dB to 212 dB 
re 1 microPa (Holliday et al., 1984; Malme et al., 1989, Richardson et 
al., 1995), which is considerably lower than source levels for large 
arrays of airguns. Therefore, it is highly unlikely that the received 
levels at 150 m (492 ft) would be close to 190 dB re 1 microPa and 
cause hearing damage or hearing threshold shifts to pinnipeds. In 
addition, the strongest energy is produced at frequencies sweeping from 
10 to 70 Hz (Holliday et al., 1984), which are below pinnipeds' hearing 
range. The 150 m (492 ft) exclusion zone is mainly used to reduce any 
Level B harassment caused by the vibration of the seismic vehicles and 
the presence of the survey crew, and it has been shown to be effective 
in providing protections to seal structures in several studies (e.g., 
Burns and Kelly, 1982) and previous on-ice seismic activities.
    Comment 19: NSB points out that Veritas failed to provide any 
information about whether a field camp would be used and how, where and 
when the seismic equipment and/or camps would travel.
    Response Although Veritas did not provide any information about 
whether a field camp would be used, the IHAs issued to Veritas and SOI 
require that no camps are allowed to be established within 150 m (492 
ft) of seal lairs. All on-ice seismic operations (camp included) shall 
be conducted as far away as possible from seal structures.
    In addition, the IHAs further require that no ice road may be built 
between the mobile camp and work site. Travel between the mobile camp 
and work site shall also be monitored for marine mammals and be done by 
vehicles driving through on a snow road. Vehicles must avoid any 
pressure ridges, ice ridges, and ice deformation

[[Page 9541]]

areas where seal structures are likely to be present.
    Comment 20: NAEC points out that the proposed IHA for SOI did not 
mention any other types of geophysical activities to be conducted by 
SOI, either during the winter or later in the year, therefore no other 
surveys can be covered by this proposed IHA.
    Response The proposed IHA to SOI would only cover SOI's on-ice 
geophysical program described in the Federal Register notice (72 FR 
67713, November 30, 2007), within 10 to 20 MMS OCS lease blocks located 
offshore from Oliktok Point in the Alaskan Beaufort Sea, in the 
vicinity of Thetis and Spy Islands, north-northwest of Oliktok Point.
    Comment 21: NAEC points out that SOI plans to conduct a number of 
additional geotechnical surveys this coming year, including during the 
time period of February to May 2008, which could add to the incidental 
take and activities which need to be addressed in NMFS proposed IHA 
review and NEPA analysis.
    Response SOI has no other projects planned for the time period of 
February through May 2008 within the on-ice marine seismic program 
boundary. SOI does plan on deploying Argos data buoys beginning mid-
late January 2008 on Beaufort Sea ice in the Sivulliq area, which is 
approximately 60 mi (97 km) east of the 2008 on-ice marine seismic 
program area. At various times during the 2008 open water season, SOI 
also plans on conducting marine surveys, 3D seismic surveys, 
potentially a geotechnical survey, and an exploration-drilling program. 
However, those additional activities would be based on separate 
analyses on the potential impacts on marine mammals.
    Under the MMPA, if SOI plans to conduct future activities and 
wishes to obtain ``take'' coverage under section 101(a)(5) of the 
statute, SOI would need to contact NMFS and apply for incidental take 
permits of marine mammals if future activities could result in the take 
of marine mammal species or stocks. Any subsequent IHA applications 
from SOI for taking of marine mammals would be evaluated and reviewed 
on a case-by-case basis.
    Comment 22: NAEC points out that the MMS and NMFS have co-authored 
a draft programmatic Environmental Impact Statement, Seismic Surveys in 
the Beaufort and Chukchi Seas, Alaska (OCS EIS/EA MMS 2007-001), and 
that since this NEPA process is still on-going, it needs to be 
completed with a Final EIS and decision prior to issuance of these 
incidental take authorizations.
    Response NMFS does not agree with NAEC's assessment. The draft 
programmatic Environmental Impact Statement, Seismic Surveys in the 
Beaufort and Chukchi Seas, Alaska (OCS EIS/EA MMS 2007-001) covers open 
water seismic surveys, not on-ice vibroseis. Please refer to Response 
to Comment 14 above and the NEPA section below for additional 
information regarding NEPA review.
    Comment 23: NAEC states that even though polar bears are regulated 
by the USFWS, NMFS still has the obligation to consider the ecological 
relationships between this species and its primary food source, the 
ringed seals.
    Response Comment noted. However, as mentioned in the November 30, 
2007, Federal Register notice (72 FR 67713) Veritas and SOI are seeking 
a take authorization from the U.S. Fish and Wildlife Service (USFWS) 
for the incidental taking of polar bears because USFWS has management 
authority for this species. A detailed analysis on ecological 
relationships between polar bears and their ringed seals are beyond the 
scope of the proposed IHAs. However, NMFS notes that no ringed seals 
will be removed from the population from the proposed action.
    Comment 24: NAEC states that NMFS has underestimated the impacts of 
the seismic surveys on ringed seals and ignored important documented 
impacts from past surveys and the effects to subsistence. NAEC states 
that NMFS did not mention that ringed seal lairs and pups have been 
crushed and the pups killed by past seismic surveys and other on-ice 
activities according to monitoring done for the Northstar project, and 
other scientific studies conducted by Dr. Brendan Kelly.
    Response NMFS does not agree with NAEC's statement. NAEC provided 
an incomplete description on NMFS analysis of the potential effects on 
marine mammals from on-ice seismic activities. In the ``Potential 
Effects on Marine Mammals and Their Habitat'' section of the November 
30, 2007, Federal Register notice (72 FR 67713), NMFS stated that 
``[i]ncidental harassment to marine mammals could result from physical 
activities associated with on-ice seismic operations, which have the 
potential to disturb and temporarily displace some seals. For ringed 
seals, pup mortality could occur if any of these animals were nursing 
and displacement were protracted.''
    The analyses provided in the Federal Register notice (72 FR 67713, 
November 30, 2007) are based on the best scientific information 
available, including on-ice activities according to monitoring done for 
BP's Northstar project (e.g., William et al., 2001; Moulton et al., 
2001; 2005; Williams et al., 2006). In the report Monitoring of 
Industrial Sounds, Seals, and Whale Calls During Construction of BP's 
Northstar Oil Development, Alaskan Beaufort Sea, 2000 (Richardson and 
Williams, 2001), the authors concluded that ``[d]uring the 1999 - 2000 
ice-covered season, no evidence of seal injuries or fatalities was 
evident, nor was it expected,'' and that the expected 99 seals within 
the potential impact zone were taken by Level B harassment only. The 
report further stated that the monitoring results, ``along with the 
presence of active structures near Northstar during the dog-assisted 
search in May 2000, indicate that effects of industrial activities were 
likely minor and localized.'' In addition, the most recent studies by 
Moulton et al. (2005) and Williams et al. (2006) also showed that 
effects of oil and gas development on local distribution of seals and 
seal lairs are no more than slight, and are small relative to the 
effects of natural environmental factors.
    Although NMFS recognizes that in the past seal lairs have been 
crushed and at least one seal pup was killed by a bulldozer (NRC, 
2003), however, those were caused by lack of adequate pre-activity seal 
lair surveys by trained dogs, as mentioned previously. The proposed 
monitoring and mitigation measures, described in this document below, 
will prevent serious injury and mortality to marine mammals and are 
also expected to reduce the potential for behavioral harassment.
    In calculating the estimated take of marine mammals, NMFS did use 
Dr. Brenden Kelly's research data (Kelly and Quakenbush, 1990).
    Comment 25: NAEC states that it is unclear whether the entire 
seismic survey line areas will be surveyed using trained dogs to 
identify lairs and how NMFS will ensure that this is done prior to the 
surveys.
    Response NMFS does not agree with NAEC's statement. As stated in 
the November 30, 2007, Federal Register notice (72 FR 67713), only 
areas with water and ice deeper than 3 m (9.8 ft) will be surveyed for 
seal lairs using trained dogs. Please refer to the Federal Register 
notice for a detailed description regarding on the pre-activity seal 
survey would be conducted. The IHAs to Veritas and SOI will require 
that they complete these pre-activity surveys before any on-ice seismic 
activities are carried out.
    Comment 26: NAEC states that NMFS failed to provide any analysis 
describing the subsistence use areas and nature of use for the Alaska 
Natives in Nuiqsut,

[[Page 9542]]

Kaktovik, and Barrow. NAEC further states that there are no analysis of 
local or regional impacts to the seals or an assessment of the harm to 
the animals used by each community and the cumulative impacts.
    Response NMFS does not agree with NAEC's statement. As analyzed in 
the November 30, 2007, Federal Register notice (72 FR 67713), the on-
ice seismic operations are not expected to have an unmitigable adverse 
impact on availability of marine mammal species and stocks for taking 
for subsistence uses because: (1) operations would end before the 
spring ice breakup, when most subsistence harvest activities occur; and 
(2) the areas where on-ice seismic operations would be conducted are 
small compared to the large Beaufort Sea subsistence hunting area 
associated with the extremely wide distribution of ringed seals.
    NMFS further described in the Federal Register notice (72 FR 67713, 
November 30, 2007) that Nuiqsut, Kaktovik, and Barrow communities have 
been working closely with Veritas and SOI to ensure that there will be 
no unmitigable adverse impact to subsistence use of marine mammals as a 
result of the proposed on-ice seismic operations. Specific measures 
include hiring native advisors for the proposed on-ice seismic 
operations, and implement mitigation and monitoring measures to ensure 
the availability of seals to subsistence use. Please refer to 
``Potential Effects on Subsistence'' section for a detailed description 
and update.
    Comment 27: NAEC points out that the NMFS failed to provide 
documentation that Shell or Veritas held plan of cooperation meetings 
in the affected communities for the seismic program proposed in the 
Federal Register notice, nor the results of those meetings or that 
plans of cooperation were agreed to by these communities to the agency.
    Response NMFS does not agree with NAEC's statement. In the Federal 
Register notice (72 FR 67713, November 30, 2007), NMFS stated that 
``Veritas will consult with the potentially affected subsistence 
communities of Barrow, Nuiqsut, Kaktovik, and other stakeholder groups 
to develop a Plan of Cooperation,'' and that ``Plan of Cooperation 
meetings in the communities of Nuiqsut and Barrow are being held during 
October 2007 by SOI.'' An update of additional meetings and their 
results are described in the ``Potential Effects on Subsistence'' 
section of this document.
    Comment 28: NAEC points out that the monitoring plans described by 
Veritas in its August 14, 2007, application are vague and NMFS should 
include additional requirements in Veritas' IHA.
    Response NAEC should refer to the November 30, 2007, Federal 
Register notice (72 FR 67713) and this document for a detailed 
description of monitoring measures.

Description of Marine Mammals Affected by the Activity

    Four marine mammal species are known to occur within the proposed 
survey area: ringed seal (Phoca hispida), bearded seal (Erignathus 
barbatus), spotted seal (Phoca largha), and polar bear (Ursus 
maritimus). Although polar bears are now proposed to be listed as 
threatened, none of these species are listed under the Endangered 
Species Act (ESA) as endangered or threatened species. Other marine 
mammal species that seasonally inhabit the Beaufort Sea, but are not 
anticipated to occur in the project area during the proposed R&D 
program, include bowhead whales and beluga whales. Veritas and SOI will 
seek a take Authorization from the USFWS for the incidental taking of 
polar bears because USFWS has management authority for this species. A 
detailed description of these species can be found in Angliss and 
Outlaw (2007), which is available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2006.pdf. A more detailed description 
of these species and stocks within the proposed action area provided in 
the November 30, 2007, Federal Register (72 FR 67713). Therefore, it is 
not repeated here.

Potential Effects on Marine Mammals and Their Habitat

    Incidental harassment to marine mammals could result from physical 
activities associated with on-ice seismic operations, which have the 
potential to disturb and temporarily displace some seals. For ringed 
seals, pup mortality could occur if any of these animals are nursing 
and displacement is protracted. However, it is unlikely that a nursing 
female would abandon her pup given the normal levels of disturbance 
from the proposed activities, potential predators, and the typical 
movement patterns of ringed seal pups among different holes. Ringed 
seals also use as many as four lairs spaced as far as 3,437 m (11,276 
ft) apart. In addition, seals have multiple breathing holes. Pups may 
use more holes than adults, but the holes are generally closer together 
than those used by adults. This indicates that adult seals and pups can 
move away from seismic activities, particularly since the seismic 
equipment does not remain in any specific area for a prolonged time. 
Given those considerations, combined with the small proportion of the 
population potentially disturbed by the proposed activities, impacts to 
ringed seals from each project are expected to be negligible.
    The seismic surveys would only introduce low level acoustic 
energies into the water column and no objects would be released into 
the environment. In addition, the total footprint of the proposed 
seismic survey areas represent only a small fraction of the Beaufort 
Sea pinniped habitat. Sea-ice surface rehabilitation is often 
immediate, occurring during the first episode of snow and wind that 
follows passage of the equipment over the ice.

Number of Marine Mammals Expected to Be Taken

    NMFS estimates that up to 984 ringed seals (0.39 percent of 
estimated total Alaska population of 249,000) could be taken by Level B 
harassment due to Veritas' Smith Bay on-ice seismic survey, up to 477 
ringed seals (0.19 percent of the total Alaska population) by Veritas' 
Pt. Thomson on-ice seismic surveys, and up to 1,187 ringed seals (0.47 
percent of the total Alaska population) by SOI's on-ice geophysical 
program. The estimated take numbers are based on consideration of the 
number of ringed seals that might be disturbed within each of the 
proposed project areas, calculated from the adjusted ringed seal 
density of 1.73 seal per km\2\ (Kelly and Quakenbush, 1990).
    Due to the unavailability of reliable bearded and spotted seals 
densities within the proposed project area, NMFS is unable to estimate 
take numbers for these two species. However, since bearded and spotted 
seals mainly occur in areas with broken pack ice and along the ice edge 
(Burns, 1967; Lowry et al., 1998), which are avoided by on-ice seismic 
operations for safety reasons, it is expected that significantly fewer, 
if any, bearded and spotted seals would be subject to takes by Level B 
harassment since their occurrence in these areas is very low (Moulton 
and Lawson, 2002; Treacy, 2002a; 2002b; Bengtson et al., 2005). 
Consequently, the levels of take of these two pinniped species by Level 
B harassment within the proposed project areas would represent only 
small fractions of the total population sizes of these species in 
Beaufort Sea.
    In addition, NMFS expects that the actual take by Level B 
harassment from the proposed on-ice seismic programs would be much 
lower than the estimates due to the implementation of the proposed 
mitigation and monitoring

[[Page 9543]]

measures discussed below. Therefore, NMFS believes that any potential 
impacts to ringed, bearded, and spotted seals to the proposed on-ice 
geophysical seismic program would be no more than negligible, and would 
be limited to distant and transient exposure.

Potential Effects on Subsistence

    The affected pinniped species are all taken by subsistence hunters 
of the Beaufort Sea villages. However, on-ice seismic operations in the 
activity areas are not expected to have an unmitigable adverse impact 
on availability of these stocks for taking for subsistence uses 
because:
    (1) Operations would end before the spring ice breakup, after which 
subsistence hunters harvest most of their seals; and
    (2) The areas where on-ice seismic operations would be conducted 
are small compared to the large Beaufort Sea subsistence hunting area 
associated with the extremely wide distribution of ringed seals.
    In addition, trained dogs will be used to locate ringed seal lairs 
before the onset of seismic activities. Subsistence advisors will be 
used as marine mammal observers during performance of the seismic 
program. During the seal pupping season, planned seismic line segments 
will be surveyed via the research biologists teamed with lair sniffing 
dogs; these teams will be accompanied by Inupiat subsistence hunters 
experienced in the area of the project.
    For the two proposed Veritas on-ice seismic projects, most of the 
anticipated program areas are within 3 - 4 miles (4.8 - 6.4 km) of the 
coast on the proposed surveys. The proposed on-ice seismic surveys are 
not thought to hinder subsistence harvest greatly during the timing of 
the programs. For the proposed Smith Bay project, Nuiqsut and Barrow 
are the closest communities to the area of the proposed activity, and 
Veritas has held the following Plan of Cooperation meetings:
    (1) Veritas presented the proposed on-ice program in Wainwright on 
November 1, 2007, in Barrow on November 8, 2007, and in Atqasuk on 
November 9, 2007.
    (2) Veritas presented the proposed on-ice program to the Native 
Village of Barrow (NVB) and to the Inupiat Community of the Arctic 
Slope (ICAS) in November 2007; and to the Kuukpik Subsistence Oversight 
Panel (KSOP) and Subsistence Oversight Panel in Nuiqsut on December 6, 
2007.
    (3) The Arctic Slope Regional Corporation (ASRC) and NVB were 
contracted for the hiring of subsistence representatives for the 
proposed Veritas on-ice seismic program.
    For the proposed Pt. Thomson project, Kaktovik is the closest 
community to the area of the proposed activity, and Veritas has held 
the following Plan of Cooperation meetings:
    (1) Veritas presented the proposed on-ice program in Kaktovik on 
December 17, 2007.
    (2) Veritas representatives met with the Kaktovik Inupiat 
Corporation (KIC) and the Subsistence Oversight Panel in Nuiqsut on 
December 6, 2007, regarding the proposed on-ice seismic program.
    (3) Veritas has contracted with KIC for the hiring of subsistence 
representatives for the on-ice seismic program.
    In any of these affected villages, Veritas stated that there was no 
negative feedback that expected or requested additional mitigation 
measures other than Veritas' standard operating procedures and 
mitigation measures.
    For the proposed SOI on-ice geophysical program, the following Plan 
of Cooperation meetings were held:
    (1) SOI held Plan of Cooperation meetings on November 1, 2007, with 
the community of Nuiqsut, and the KSOP for the purpose of presenting 
the proposed 2008 on-ice marine seismic program.
    (2) SOI has hired a local subsistence advisor for Nuiqsut, in 
addition to the other North Slope communities of Barrow, Kaktovik, 
Wainwright, Pt. Lay, and Pt. Hope. The roles of these subsistence 
advisors are to present maps and subsistence questionnaires which ask 
subsistence related questions to the residents and subsistence hunters 
of each community. Subsistence advisors are available during the 
performance of each SOI program/project in order to effectively 
communicate between the community and SOI where subsistence activities 
are on-going, or proposed. This enables SOI to conduct activities with 
prepared mitigation measures that lessen and avoid impacts to 
subsistence activities.

Mitigation and Monitoring

    The following mitigation and monitoring measures are required for 
the subject on-ice seismic surveys. All activities will be conducted as 
far as practicable from any observed ringed seal lair and no energy 
source will be placed over a seal lair.
    Trained seal lair sniffing dogs will be employed by Veritas and SOI 
for areas of sea ice beyond 3 m (9.8 ft) depth contour to locate seal 
structures under snow (subnivean) before the seismic program begins. 
The areas for the proposed projects and camp sites must be surveyed for 
the subnivean seal structures using trained dogs running together. 
Transects will be spaced 250 m (820 ft) apart and oriented 90o to the 
prevailing wind direction. The search tracks of the dogs shall be 
recorded and marked. Subnivean structures shall be probed by a steel 
rod to check if each is open (active), or frozen (abandoned).
    Veritas and SOI must also use trained dogs to survey the snow road 
and establish a route where no seal structure presents. The surveyed 
road must be entered into GPS and flagged for vehicle to follow.
    Any locations of seal structures must be marked and protected by a 
150-m (490-ft) exclusion distance from any existing routes and on-ice 
seismic activities. During active seismic vibrator source operations, 
the 150-m (490-ft) exclusion zone shall be monitored for entry by any 
marine mammals.
    No ice road may be built between the mobile camp and work site. 
Travel between mobile camp and work site shall also be monitored for 
marine mammals and be done by vehicles driving through on a snow road. 
Vehicles must avoid any pressure ridges, ice ridges, and ice 
deformation areas where seal structures are likely to be present.

Reporting

    NMFS requires that annual reports must be submitted to NMFS within 
90 days of completing the year's activities. The reports shall include 
any seal structures, categorized by size and odor to indicate whether 
the structure is a birth lair, resting lair, resting lair of rutting 
male seals, or a breathing hole. The reports shall also contain 
detailed descriptions of any marine mammal, by species, number, age 
class, and sex if possible, that is sighted in the vicinity of the 
proposed project areas; description of the animal's observed behaviors 
and the activities occurring at the time.

Endangered Species Act (ESA)

    NMFS has determined that no species listed as threatened or 
endangered under the ESA will be affected by issuing the incidental 
harassment authorizations under section 101(a)(5)(D) of the MMPA to 
Veritas and SOI for these three proposed on-ice seismic survey 
projects.

National Environmental Policy Act (NEPA)

    In 1998, NMFS prepared an Environmental Assessment on Regulations 
Governing the Taking of Ringed and Bearded Seals Incidental to On-ice 
Seismic Activities in the Beaufort Sea (NMFS' 1998 EA). The information

[[Page 9544]]

provided in NMFS' 1998 EA led NMFS to conclude that implementation of 
the preferred alternative identified in the EA would not have a 
significant impact on the human environment. In considering the 
adequacy of NMFS' 1998 EA for analysis of potential environmental 
consequences associated with the 2008 proposed authorizations, NMFS 
conducted an informal review and analysis of that EA and prepared a 
supplemental EA (SEA) to address the following specific issues: (1) 
purpose and need; (2) affected environment to include spotted seals; 
(3) environmental consequences to include spotted seals; (4) cumulative 
impacts analysis; and (5) revised mitigation and monitoring measures. 
NMFS believes that the information in NMFS' 1998 EA remains valid, 
except as noted or modified in the SEA. Therefore, an Environmental 
Impact Statement was not prepared. NMFS issued a Finding of No 
Significant Impact Statement on February 14, 2008.

Determinations

    For the reasons discussed in this document and in the identified 
supporting documents, NMFS has determined that the impact of the on-ice 
marine geophysical and seismic surveys by Veritas and SOI would result, 
at worst, in Level B harassment of small numbers of ringed seals, and 
that such taking will have no more than a negligible impact on this 
species. In addition, NMFS has determined that bearded and spotted 
seals, if present within the vicinity of the project area could also be 
taken incidentally, by no more than Level B harassment and that such 
taking would have a negligible impact on such species or stocks. 
Although there is not a specific number assessed for the taking of 
bearded and spotted seals due to their rare occurrence in the project 
area, NMFS believes that any take would be significantly lower than 
those of ringed seals and would be small relative to the overall 
population of spotted and bearded seals. NMFS also finds that the 
action will not have an unmitigable adverse impact on the availability 
of such species or stocks for taking for subsistence uses.
    In addition, no take by Level A harassment (injury) or death is 
anticipated or authorized, and harassment takes should be at the lowest 
level practicable due to incorporation of the mitigation measures 
described in this document.

Authorization

    NMFS has issued two IHAs to Veritas and one IHA to SOI for the 
potential Level B harassment of small numbers of ringed seals, and 
potential Level B harassment of small numbers of bearded and spotted 
seals incidental to conducting on-ice marine geophysical and seismic 
surveys in the U.S. Beaufort Sea, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: February 14, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-3257 Filed 2-20-08; 8:45 am]
BILLING CODE 3510-22-S