[Federal Register Volume 73, Number 136 (Tuesday, July 15, 2008)]
[Notices]
[Pages 40512-40538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15962]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XI81


Small Takes of Marine Mammals Incidental to Specified Activities; 
Ocean Bottom Cable Seismic Survey in the Liberty Prospect, Beaufort 
Sea, Alaska in 2008

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

ACTION:  Notice; issuance of an incidental take authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an IHA 
to BP Exploration (Alaska), Inc. (BPXA) to take, by harassment, small 
numbers of six species of marine mammals incidental to a 3D, ocean 
bottom cable (OBC) seismic survey in the Liberty Prospect, Beaufort 
Sea, Alaska during July and August, 2008.

DATES: Effective July 8, 2008, through August 25, 2008.

ADDRESSES: The application containing a list of the 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

[[Page 40513]]

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/. A copy of 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 November 21, 2007, NMFS received an application from BPXA for 
the taking, by Level B harassment only, of small numbers of several 
species of marine mammals incidental to conducting a 3D, OBC seismic 
survey in the Liberty Prospect area of the Alaskan Beaufort Sea in 
2008. BPXA submitted an addendum to their application on April 21, 
2008, which updated the vessel inventory, refined the dates of the 
survey, and withdrew the request for take of one narwhal. The survey 
would occur over a period of 40-60 days in July and August, 2008, with 
operations ceasing on August 25 prior to the start of the Nuiqsut 
whaling season. Seismic data acquisition is planned to start in early 
July, depending on the presence of ice. Open water seismic operations 
can only start when the project area is ice free (i.e., less than 10 
percent ice coverage), which in this area normally occurs around July 
20 (+/- 14 days). Limited layout of receiver cables might be possible 
on the mudflats in the Sagavanirktok River delta areas before the ice 
has cleared.
    The Liberty field contains one of the largest undeveloped light-oil 
reservoirs near the North Slope infrastructure, and the development of 
this field could recover an estimated 105 million barrels of oil. The 
field is located in Federal waters of the Beaufort Sea about 8.9 km 
(5.5 mi) offshore in 6.1 m (20 ft) of water and approximately 8 to 13 
km (5 to 8 mi) east of the existing Endicott Satellite Drilling Island 
(SDI; see Figure 1 of BPXA's application). The project area encompasses 
351.8 km\2\ (135.8 mi\2\) in Foggy Island Bay, Beaufort Sea, of which 
one percent is on mudflats, 18.5 percent is in water depths of 0.3-1.5 
m (1-5 ft), 12.5 percent is in water depths of 1.5-3 m (5-10 ft), 43 
percent is in water depths of 3-6.1 m (10-20 ft), and 25 percent is in 
water depths of 6.1-9.1 m (20-30 ft; see Figure 2 of BPXA's 
application). The approximate boundaries of the total surface area are 
between 70[deg] 11' N. and 70[deg] 23' N. and between 147[deg] 10' W. 
and 148[deg] 02' W.
    Additional background information regarding BPXA's request was 
included in NMFS' Notice of Proposed IHA, which published in the 
Federal Register on May 2, 2008 (73 FR 24236).

Description of Activity

    OBC seismic surveys are used to acquire seismic data in water that 
is too shallow for large marine-streamer vessels and/or too deep to 
have grounded ice in the winter. This type of seismic survey requires 
the use of multiple vessels for cable deployment/recovery, recording, 
shooting, and utility boats. The planned 3D, OBC seismic survey in the 
Liberty area will be conducted by CGGVeritas, a BPXA contractor. A 
detailed overview of the activities of this survey were provided in the 
Notice of Proposed IHA (73 FR 24236, May 2, 2008). No changes have been 
made to these proposed activities. Additional information is contained 
in BPXA's application and application addendum, which are available for 
review (see ADDRESSES).

Comments and Responses

    A notice of receipt of BPXA's MMPA application and NMFS' proposal 
to issue an IHA to BPXA was published in the Federal Register on May 2, 
2008 (73 FR 24236). That notice described, in detail, BPXA's 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 BPXA's application, comments were received 
from the Marine Mammal Commission (MMC), the Center for Biological 
Diversity (CBD) on behalf of several environmental organizations, the 
Alaska Eskimo Whaling Commission (AEWC), the North Slope Borough (NSB) 
Office of the Mayor and the NSB Department of Wildlife Management 
(DWM), the Native Village of Point Hope (NVPH), and Oceana and the 
Ocean Conservancy. 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

[[Page 40514]]

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. There are no specific comments in that 
appendix to the BPXA project that were not raised in their comment 
letter specific to the BPXA proposed IHA or on the PEA. Therefore, they 
are not addressed separately in this document.

General Activity Concerns

    Comment 1: The AEWC attached a copy of the signed Conflict 
Avoidance Agreement (CAA) and the addendum to BPXA's application for an 
IHA. Both documents indicate that BPXA will cease all seismic 
operations on August 25. The clarification in timing provided by these 
documents addresses the concerns of the AEWC and the NSB regarding late 
season monitoring.
    Response: NMFS has reviewed both of these documents and concurs 
that additional late season monitoring is not needed for the BPXA 
Liberty project since seismic activity will not occur after August 25.
    Comment 2: CBD urges NMFS not to issue any take authorization to 
BPXA 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 feels 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 24236, 
May 2, 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 June, 2006, 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 in 
the Liberty Prospect area of the Beaufort Sea does not meet any of the 
triggers that would require reinitiating consultation. Therefore, NMFS 
has not violated the ESA.
    Comment 3: CBD assumes that BPXA 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) for BPXA to take 
species under its jurisdiction (i.e., polar bears and walruses).
    Comment 4: The NSB DWM states that transit of the M/V Arctic Wolf 
through the Chukchi Sea should not occur until the beluga harvest at 
Point Lay is completed. When it does transit through the Chukchi Sea, 
it should remain at least 80 km (50 mi) offshore to mitigate potential 
impacts to subsistence hunting of belugas, seals, or walrus.
    Response: Transit of the Arctic Wolf through the Chukchi Sea will 
be done in accordance with the requirements in the CAA signed by BPXA 
on May 30, 2008.
    Comment 5: Oceana and the Ocean Conservancy state that they agree 
with the concerns raised in the comment letter submitted on this 
application by CBD and others. The NVPH incorporated the CBD's comment 
in their entirety in their letter.
    Response: NMFS' responses to the CBD's comments are addressed in 
this section of the document.

MMPA Concerns

    Comment 6: 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 an LOA (because NMFS has not promulgated 
regulations for mortality by seismic activities) can be issued for 
BPXA's 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 
BPXA's 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. BPXA's 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 BPXA for the 2008 seismic survey 
program.
    Comment 7: CBD states that the MMPA allows take authorization only 
for explicitly ``specified activities'' within a ``specified geographic 
region'' (16 U.S.C. 1371(a)(5)(D)(i)). NMFS'

[[Page 40515]]

regulations also explicitly require an applicant for take authorization 
to provide the ``date(s) and duration'' of the activity and ``the 
specific geographic region where it will occur'' (50 CFR 
216.104(a)(2)). While BPXA's 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 11 vessels that will be involved in 
the survey. Presumably, some or all of these vessels would transit 
through U.S. waters in the Bering, Chukchi, and/or Beaufort Seas and 
harass marine mammals along the way. By failing to adequately specify 
the activities and impacts of these vessels, BPXA has failed to comply 
with (16 U.S.C. 1371(a)(5)(D)(i) and 50 CFR 216.104(a)(2)).
    Response: The majority of the vessels to be used in the seismic 
survey will be transported to the North Slope on trailers via the haul 
road to West Dock; however, one vessel will transit the Arctic Ocean to 
the survey area, leaving from Anchorage and steaming well offshore 
around Pt Barrow to West Dock. 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. For example, in the Arctic Ocean, NMFS would need 
to issue authorizations for barging operations that supply the North 
Slope villages in addition to various onshore and offshore oil and gas 
projects. Instead, NMFS prefers to seek applications from activities 
that have a potential impact of a more serious nature, such as shipping 
and transit operations during the fall bowhead migration and 
subsistence harvest periods. On this matter, BPXA will (in keeping with 
the CAA signed by BPXA and the Native communities) follow a route 48 km 
(30 mi) offshore and will avoid Ledyard Bay.
    Comment 8: The NSB and CBD both state that an authorization of 
incidental take of marine mammals from specified activities can only be 
issued if such take will be limited to ``small numbers'' and have a 
``negligible impact'' on the species or stock (16 U.S.C. 
1371(a)(5)(D)(i)(I); 50 CFR 206.107). These are separate and distinct 
statutory requirements (Id.). NMFS must find that both requirements are 
met. CBD states that NMFS does not make a separate finding that only 
``small numbers'' of marine mammals will be harassed by BPXA's planned 
activities. 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 BPXA's application 
provide any support whatsoever for this ``conclusion.'' The CBD 
continues that for BPXA's 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 300. In absolute terms this 
number cannot be considered ``small.'' Given the MMPA is designed to 
protect not just populations but individual [emphasis added by 
commenter] marine mammals, any number in the hundreds simply 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 in the Liberty Prospect area of the Beaufort Sea is the ringed 
seal, with an ``average estimate'' of 156 exposures to SPLs of 160 dB 
or greater at 4 m (13 ft) tow depth. 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 Pa (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 numbers tend to be highly inflated. However, BPXA tried 
to eliminate some of the overlap by entering the seismic survey lines 
into a MapInfo Geographic Information System (GIS) to determine the 
area of ensonification. GIS was then used to identify the relevant 
areas by ``drawing'' the applicable 160-dB buffer around each seismic 
source line and then to calculate the total area within the buffers. 
This method avoids the large overlap of buffer zones from each seismic 
source line and hence an overestimation of the potential number of 
marine mammals exposed.
    The Level B harassment take estimate of 156 ringed seals is a small 
number, at least in relative terms, in that it represents only 0.06 
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 0.06 percent of the Beaufort Sea ringed seal 
population.
    The ``average estimates'' of exposures for the remaining species 
that could potentially occur in the Liberty Prospect (i.e., beluga, 
bowhead, and gray whales and bearded and spotted seals) are only 
between 1 and 11 animals, which constitute at most 0.09 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).
    Based on the fact that only small numbers of each species or stock 
will possibly be impacted and mitigation and monitoring measures will 
reduce the number of animals likely to be exposed to seismic pulses and 
therefore avoid injury and mortality, NMFS finds that BPXA's 3D OBC 
seismic survey will have a negligible impact on the affected species or 
stock.
    Comment 9: 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

[[Page 40516]]

harassed by BPXA are a ``small number.'' This displacement and the 
disruption of pod integrity clearly constitute harassment under the 
MMPA. BPXA's activities can be expected to have similar effects. As 
with its ``small numbers'' conclusion, NMFS' determination that BPXA's 
activities will have a ``negligible impact'' also does not withstand 
scrutiny. First, as explained above and in our NEPA comments, the 
calculation of numbers of marine mammals harassed by BPXA 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 continuous sounds. 
Given that BPXA is using two seismic ships in conjunction, firing every 
4 s, these sources 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 BPXA's 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 source used in BPXA's 
activity should be considered ``continuous.'' As mentioned in the IHA 
application and the Federal Register notice of proposed IHA (73 FR 
24236, May 2, 2008), each source vessel will have two 440 in\3\ arrays 
comprised of four guns in clusters of 2 x 70 in\3\ and 2 x 150 in\3\. 
Each source vessel will fire shots every 8 s, resulting in 4 s shot 
intervals with two operating source vessels. As the total time for each 
seismic ``shot'' will last approximately 6 msec, the amount of time 
without seismic sounds is 99.85 percent. As there is a significant 
period of time between shot events, this does not qualify as a 
continuous sound source.
    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 BPXA for the take of marine mammals 
incidental to seismic surveys.
    Comment 10: 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 Stock Assessment 
Reports (SARs) prepared pursuant to the MMPA, NMFS acknowledges it has 
no accurate information on the status of ribbon, spotted, bearded, and 
ringed seals. See 2007 Alaska SAR at 58 (``A reliable abundance 
estimate for the Alaska stock of ribbon seals is currently not 
available,'' and ``reliable data on trends in population abundance for 
the Alaska stock of ribbon seals are unavailable.'') Id. at 45 & 46 
(``A reliable estimate of spotted seal population abundance is 
currently not available,'' and ``reliable data on trends in population 
abundance for the Alaska stock of spotted seals are considered 
unavailable.'') Id. at 49 & 50 (``There is no reliable population 
abundance estimate for the Alaska stock of bearded seals,'' and ``At 
present, reliable data on trends in population abundance for the Alaska 
stock of bearded seals are unavailable.''); and Id. at 53 & 54 (``There 
is no reliable population abundance estimate for the Alaska stock of 
ringed seals,'' and ``At present, reliable data on trends in population 
abundance for the Alaska stock of ringed seals are unavailable.'') 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 MMC following the MMC's 2005 annual meeting in Anchorage, Alaska. 
With regard to these species, the MMC cautioned against assuming a 
stable population. ``Given apparent changes in the Bering, Chukchi, and 
Beaufort Seas and the declines of many other Alaska marine mammals, we 
are concerned that significant changes in the status of these seal 
species might go undetected and that the need for management actions 
would not be recognized in time to assure their conservation and 
continued function in these ecosystems, as well as their availability 
for subsistence use'' (MMC, January 25, 2006 Letter).
    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. The proposed survey by BPXA is not expected to have adverse 
impacts on ice seals. The activity will last for approximately 40 days 
in the open-water environment of the Beaufort Sea, where bearded and 
spotted seals are found only occasionally. 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

[[Page 40517]]

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 BPXA's seismic activity in the Liberty Prospect.
    Comment 11: CBD states that the analyses in the proposed IHA are 
largely confined to looking at the immediate effects of BPXA's airgun 
surveys in the Beaufort Sea on several marine mammal species. However, 
there is no analysis of the impacts of the 11 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. See Anderson v. Evans, 350 
F.3d 815 (9th Cir. 2003) as amended by 371 F.3d 475 (9th Cir. 2004) 
(``Even if the eastern Pacific gray whales overall or the smaller PCFA 
group of whales are not significantly impacted by the Makah Tribe's 
whaling, the summer whale population in the local Washington area may 
be significantly affected. Such local effects are a basis for a finding 
that there will be a significant impact from the Tribe's hunts.'')
    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 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. Finally, the 
proposition for which CBD cites Anderson was in the context of the 
court's analysis under NEPA, not MMPA section 101(a)(5)(D) 
authorizations, which was not at issue in Anderson.
    NMFS does not require authorizations under section 101(a)(5) of the 
MMPA for normal shipping or transit. A further explanation was 
addressed in the response to Comment 7.
    Comment 12: NSB and CBD are both concerned about cumulative impacts 
from multiple operations. BPXA's 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 (e.g., proposed IHA for on-
ice seismic surveys in Harrison Bay; proposed scientific seismic survey 
by the National Science Foundation (NSF); NMFS' 5-year regulations for 
activities related to Northstar; Shell IHA for Beaufort Sea exploratory 
drilling; Conoco IHA for Beaufort Sea; Shell IHA for Beaufort Sea; two 
proposed IHAs for Chukchi Sea and two proposed for the Beaufort Sea; 
and USFWS 5-year regulations for oil and gas activities in the Beaufort 
Sea). 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 13: 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: ``Ringed seals are 
likely to be the most highly affected species of seal because all 
aspects of their lives are tied to sea ice'' (ACIA, 2004). In 2003, the 
NRC noted that oil and gas activities combined with global warming 
presented a serious cumulative impact to the species: ``Climate warming 
at predicted rates in the Beaufort Sea region is likely to have serious 
consequences for ringed seals and polar bears, and those effects will 
accumulate with the effects of oil and gas activities in the region.'' 
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-

[[Page 40518]]

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.
    Comment 14: The NSB states that the proposed IHA should be more 
specific in defining dates for which seismic activities will be 
permitted. BPXA suggests the seismic surveys will take 60 days to 
complete. The company currently intends to conduct sound source 
verification of the airgun arrays and for the vessels to be used for 
the seismic surveys on July 15, 2008 (based on recent correspondence 
from BPXA to the AEWC). Therefore, the surveys are not likely to be 
completed by the end of August. NMFS should make clear that the IHA 
permits seismic surveying only until the end of August. Seismic 
activity should cease during the bowhead whale hunt at Kaktovik and 
Nuiqsut.
    Response: BPXA has informed NMFS that they have agreed to end all 
airgun activity on August 25 before the beginning of the bowhead whale 
hunt at Kaktovik and Nuiqsut. This change in duration is reflected in 
this notice.

Marine Mammal Impact Concerns

    Comment 15: 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 BPXA's 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. 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 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 BPXA 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 16: 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 BPXA, 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,

[[Page 40519]]

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 microPa 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 BPXA is operating a 
moderate-sized array, this array 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 BPXA's 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. BPXA is proposing to use an 880 in\3\ 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., marine mammal observers 
[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 17: The NSB DWM states that the summary in Section 3 of 
BPXA's application reflects the changes that have been observed in 
recent years regarding the distribution of marine mammals. Industrial 
surveys have revealed marine mammals not commonly seen in the Chukchi 
and Beaufort Seas until recently. These include fin, minke, and 
humpback whales. Hunters have noticed increased numbers of narwhals as 
well. While BPXA has appropriately included most of these species in 
this section, it has not included humpback whales. MMOs hired by 
industry have encountered humpback whales in the Beaufort Sea more 
frequently than they have seen fin or minke whales. According to the 
NSB DWM, humpback whales should too be considered in BPXA's IHA 
application. Additionally, the NSB feels that Section 4 of BPXA's 
application provides a good summary of the stocks of marine mammals 
that may be encountered in the area that BPXA has proposed to conduct 
seismic surveys. However, humpbacks should be considered in assessments 
of takes of marine mammals from seismic surveys in the Beaufort and 
Chukchi Seas.
    Response: 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 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 one 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 hundreds of kilometers west of the BPXA project area. 
Therefore, humpback whales are not expected to occur in the Liberty 
Prospect area, the location of BPXA's survey.
    Comment 18: 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 BPXA's and NMFS' estimated take numbers represent an 
underestimate of the possible true impact. As noted above, an activity 
can constitute harassment if it has the ``potential'' to affect marine 
mammal behavior. 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 BPXA's activities likely constitute a significant 
underestimate. NMFS' ``small numbers'' conclusion is therefore 
arbitrary and capricious for this reason as well.

[[Page 40520]]

    The NSB DWM notes that BPXA suggests that bowheads are responsive 
to industrial sounds to the 160 to 170 dB zones. However, it is not 
clear why they do not also acknowledge that bowheads avoided an area 
around active seismic to much lower sound levels, down to 120 dB or 
lower (Richardson et al., 1999). Furthermore, BPXA has avoided 
referencing studies from Northstar showing that bowheads are deflected 
by very low levels of industrial sounds, possibly even lower than 120 
dB. 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 BPXA's 
application are considered the numbers of animals ``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 BPXA's 
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, and 
understanding the assumptions made in BPXA's IHA application, 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. Migration will not occur during 
the time of BPXA's survey. Therefore, the timing of the survey makes it 
unnecessary to monitor out to the 120-dB radius.
    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 19: The NSB DWM and CBD states that a 160-dB threshold for 
belugas is similarly 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, suggesting 
that some belugas might be avoiding the seismic operations at distances 
of 10-20 km (6.2-12.4 mi). Such displacement clearly meets the 
statutory definition of harassment and demonstrates that the number of 
belugas estimated to be taken by BPXA's 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, especially if BPXA surveys occur in 
September or later.
    Response: BPXA will be conducting their activities in shallow 
waters of maximum 9.1 m (30 ft) deep inside the barrier islands of the 
Liberty Prospect in Foggy Island Bay in July and August (and not into 
September or later). 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. Additionally, as BPXA 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.

Estimated Take Calculation Concerns

    Comment 20: The NSB DWM points out that BPXA states that the 
densities of marine mammals used to estimate takes are based on 95 
percent of seismic surveys occurring in summer (i.e., July and August) 
and 5 percent occurring during fall (i.e., September). If the seismic 
surveys will last for 60 days and BPXA won't begin until mid-July (as 
BPXA recently informed the AEWC), the seismic surveys will last into 
mid-September. The timing and duration of seismic surveys suggests that 
75 percent of the seismic surveys will occur in summer and 25 percent 
will occur in fall. Therefore, the estimated numbers of bowhead and 
beluga whales in BPXA's application and possibly other marine mammals 
that will be harassed are too low. The estimates of takes must be 
recalculated to provide a more realistic estimate of how many marine 
mammals will be taken. This correction is especially needed in 
assessing cumulative impacts to marine mammals from the multiple 
industrial activities planned for 2008.
    Response: BPXA has informed NMFS that the survey will last for

[[Page 40521]]

approximately 40 days and that airgun activity will cease on August 25. 
Therefore, NMFS believes that a recalculation of the take estimates is 
not needed, as they may in fact be overestimates now that the duration 
of the project has been scaled back.

Subsistence Use Concerns

    Comment 21: CBD states 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. Additionally, CBD notes they are aware that the 
NVPH, a federally recognized tribal government, has submitted comments 
opposing the proposed take authorizations 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 and/or the IBLA 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 BPXA's 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 to this action, which are responded to 
in this section of the document.
    Comment 22: The NSB feels that if BPXA is permitted to conduct 
seismic after the bowhead hunt, NMFS must impose additional monitoring 
requirements, as discussed above. Without additional monitoring, it 
will not be possible for NMFS to determine whether seismic affects the 
migration in ways that could result in unmitigable adverse impacts to 
subsistence.
    Response: As stated previously in this document, BPXA has stated 
that it no longer plans to conduct seismic data acquisition after the 
subsistence bowhead hunt in the Beaufort Sea.
    Comment 23: The NVPH states 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 is required to make a preliminary 
determination in its Federal Register notice that the proposed 
activities will not have an unmitigable adverse impact on the 
availability of marine mammals for subsistence uses. See 16 U.S.C. 
1371(a)(5)(D)(iii) (proposed authorizations must be made available for 
public comment); 50 CFR 216.104(c) (preliminary finding of no 
unmitigable adverse impact must be proposed for public comment). In its 
Federal Register notice, NMFS makes a preliminary finding that BPXA's 
proposed surveys will not have an unmitigable adverse impact on the 
availability of affected populations of marine mammals-including 
bowhead whales, beluga whales, and seals-for subsistence uses. That 
finding is arbitrary because NMFS fails to provide the substantive 
analysis required to support its conclusory finding.
    As an initial matter, NMFS should recognize that bowhead and beluga 
whales and ringed seals, all of which may be harassed as a result of 
BPXA's activities, each provide unique and irreplaceable subsistence 
resources that are important to the preservation of our culture. Our 
communities consume bowhead whale meat, which provides food for the 
ceremonial Nalukataq and important nutritional values. Bones from 
bowhead whales are used for carving by Inupiat artists, and bowhead 
jawbones are used to protect graveyards from animals. Communities along 
the Beaufort and Chukchi Seas also rely on beluga whales and ringed 
seals for subsistence. Other subsistence resources cannot be 
substituted for these important resources.
    All of these species move widely throughout the Chukchi and 
Beaufort Seas, and BPXA's proposed activities may affect subsistence 
uses of these animals not only in the location of the activities but 
also elsewhere. In addition, subsistence foods are traditionally shared 
among communities, so diminishment of subsistence resources in one 
area-for instance Barrow, Nuiqsut, or Kaktovik-may have a ripple effect 
throughout other North Slope communities. A threat to these animals and 
their availability for subsistence is a threat to our culture. Even a 
slight interference with the availability of these species to 
communities on the Beaufort and Chukchi Seas will constitute an 
unmitigable adverse impact to their overall availability for 
subsistence uses and their unique ability to meet specific subsistence 
needs in Nuiqsut, Point Hope, and elsewhere.
    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 
BPXA on May 30, 2008, and include black-out periods during subsistence 
hunts for bowhead and beluga whales, avoidance of transiting in the 
spring leads, and coastal community communication stations and 
emergency assistance. BPXA's activities will cease prior to the 
beginning of the bowhead hunt in the Beaufort Sea. It will also occur 
at a time of year when little seal subsistence hunting occurs in the 
project area.
    Comment 24: In evaluating the effects of seismic noise on the 
availability of marine mammals for subsistence uses, NMFS states that 
BPXA proposes to mitigate impacts to subsistence activities through the 
negotiation of a CAA among itself, the AEWC, and the Whaling Captains' 
Associations of the affected North Slope communities, including the 
NVPH (73 FR 24248, May 2, 2008). This agreement is also supposed to 
cover impact to subsistence uses of seals. The NSB points out that the 
CAA does not address potential impacts to seal hunts, however, and NMFS 
cannot rely on a CAA with AEWC and the village whaling captains to 
ensure that no unmitigable adverse impacts occur to the subsistence 
hunt of other marine mammals.
    The NVPH believes that by relying on this yet-to-be-completed 
agreement to mitigate impacts to subsistence, NMFS explicitly defers 
its determination whether BPXA's activities will have an unmitigable 
adverse impact on the availability of bowhead whales and seals for 
subsistence uses until after such a CAA has been negotiated. NMFS does 
not give any indication how it will assess the sufficiency of a CAA. It 
states that if no CAA is reached among the parties, NMFS may impose 
additional mitigation measures in the IHA. It does not identify those 
mitigation measures. Nevertheless, NMFS issues a preliminary conclusion 
that seismic activities will not have an unmitigables adverse impact on 
the subsistence uses of affected marine mammals (73 FR 24253, May 2, 
2008). This preliminary conclusion is expressly conditioned on the 
implementation and effectiveness of restrictions included in a CAA or 
mitigation measures included in an IHA. NVPH and the NSB both note that 
absent specification of these restrictions and mitigation measures, 
NMFS cannot reasonably conclude that they will prove effective. Because 
it relies on the presumed effectiveness of non-existent

[[Page 40522]]

mitigation measures, NMFS' preliminary conclusion is arbitrary and 
capricious, as NMFS has failed to prescribe measures that will minimize 
impacts to subsistence.
    If NMFS bases its final ``unmitigable adverse impact'' 
determination for affected marine mammals on conditions imposed in a 
CAA, or, absent conclusion of a CAA, subsequent mitigation measures in 
an IHA, it must provide for another public comment period during which 
the public is able to evaluate such conditions. Otherwise, the agency 
has effectively deprived the public of the opportunity to comment on 
this determination.
    Response: NMFS understands that the CAA does not address issues 
related to subsistence hunt of seals and apologizes for this erroneous 
statement in the proposed IHA notice. However, NMFS feels that BPXA's 
seismic survey will not have an unmitigable adverse impact on pinniped 
subsistence hunts in the Arctic region. Ringed seals, the most common 
pinniped in the project area, are primarily hunted from October through 
June, outside of the timeframe of the project. Thus, there should be no 
effect on subsistence harvest of ringed seals from the proposed 
activity.
    BPXA signed a CAA with the AEWC on May 30, 2008. BPXA's activities 
will not occur during the beluga hunts, and the company agrees to abide 
by the transit routes to the project site laid out in the CAA. 
Additionally, BPXA will end seismic shooting by August 25 to avoid 
impacts on the fall bowhead subsistence hunt in the U.S. Beaufort Sea.
    The design of BPXA's proposed surveys is itself a mitigation 
measure. The location of the project (inside the barrier islands) is in 
water too shallow to be suitable habitat for most whale species. 
Additionally, activities will not occur during subsistence hunting of 
bowheads or belugas. NMFS presented all of this information in its 
proposed IHA notice. Therefore, additional time for public comment is 
not warranted.
    Comment 25: The NVPH states that BPXA appears not to have complied 
with the regulatory requirement to include a plan of cooperation (POC) 
or a description of the measures that will be taken to minimize adverse 
effects on the availability of marine mammals for subsistence uses. For 
example, the Federal Register notes that BPXA had not even met with the 
very subsistence communities potentially most directly affected by its 
activities prior to submitting its IHA application. See 73 FR 24248 
(noting two meetings with co-management organizations that took place 
prior to the submission of the IHA application, but no meetings at all 
with affected communities such as Nuiqsut or Kaktovik). BPXA also 
appears to have failed to meet its obligation to provide a ``schedule 
for meeting with the affected subsistence communities to discuss 
proposed activities and to resolve potential legal conflicts regarding 
any aspects of either the operation or the plan of cooperation,'' (50 
CFR 216.104(a)(12)(ii)), or to have specified what plans it has to 
continue to meet with affected communities during its operations in 
order to resolve conflicts (50 CFR 216.104(a)(12)(iv)). See id. 
(setting forth no schedule to meet with affected communities; noting 
only that ``subsequent meetings'' will be held ``as necessary''). BPXA 
also does not appear to have described the measures it will take to 
ensure that seismic surveys will not interfere with subsistence whaling 
and seal hunting, as the regulations require, relying instead on a non-
existent, hypothetical CAA. Absent a detailed description, it is 
impossible for NMFS or Point Hope to actually determine how BPXA 
intends to reduce subsistence impacts, let alone to assess the adequacy 
and effectiveness of such measures.
    Response: Since publication of the Federal Register notice of 
proposed IHA (73 FR 24236, May 2, 2008), BPXA has submitted an updated 
list of POC meetings with affected communities. On February 7, 2008, 
BPXA met with Nuiqsut and Kaktovik whalers in Deadhorse to introduce 
the proposed 2008 offshore oil and gas activities. On February 28, 
2008, BPXA attended the First Annual Programmatic CAA Meeting in Barrow 
with AEWC commissioners and representatives from the villages. At the 
Open-water Meeting in Anchorage in April, BPXA presented its project 
and monitoring and mitigation plans to NMFS, MMS, the AEWC, the NSB, 
and other members of the public. On May 13, 2008, BPXA met with the NSB 
DWM to discuss Liberty seismic environmental monitoring plans and 
concerns. Also, on June 18, 2008, BPXA held two meetings in Nuiqsut to 
provide an overview of the seismic projects, one with Nuiqsut whaling 
captains and one with both Nuiqsut whaling captains and community 
representatives. Responses to previous comments in this document 
address the concern that BPXA has not described the measures it will 
take to avoid interfering with subsistence hunts in the Beaufort Sea.

Mitigation Concerns

    Comment 26: 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. The 
problems with the mitigation measures as explained for NEPA purposes 
are even more compelling with regard to the substantive standards of 
the MMPA. 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, BPXA's 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 24236, 
May 2, 2008) described the following actions to be undertaken by BPXA 
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. Because these 
mitigation measures will be included in the IHA to BPXA, 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. The total geographic area 
for which seismic data are required has been minimized by re-analyzing 
and re-interpreting existing data, thereby reducing the total area

[[Page 40523]]

from approximately 220 km\2\ (85 mi\2\) to approximately 91 km\2\ (35 
mi\2\). Also, the total airgun discharge volume has been reduced to the 
minimum volume needed to obtain the required data. Lastly, two seismic 
source vessels will be used simultaneously (alternating their shots) to 
minimize the total survey period. BPXA has also agreed to complete all 
of its seismic acquisition by August 25, prior to the westward 
migration of the bowhead whales across the Beaufort and the start of 
the subsistence hunt of these animals. Beluga whales are not hunted in 
the Liberty Prospect area during the time of the BPXA 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 
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 27: CBD states 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 BPXA 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. The NSB DWM 
adds that the 120-dB zone must be considered for bowheads and possibly 
belugas if surveys are to occur in September and that sound source 
verification tests should empirically measure, and not extrapolate, the 
distance to which BPXA's seismic sounds for Liberty attenuate to 120 
dB.
    Response: NMFS has considered a monitoring and shutdown requirement 
for the 160-dB and 120-dB safety zones and has determined they would 
not be applicable to the BPXA survey. These measures are only required 
if activities occur after August 25 in the Alaskan Beaufort Sea. NMFS 
has found the 160-dB safety zone to be practicable in the Chukchi Sea. 
Therefore, IHA holders operating in the Chukchi Sea will be required to 
monitor and shutdown within the 160-dB safety radius if an aggregation 
of 12 or more bowhead or gray whales that appear to be engaged in a 
non-migratory, significant biological behavior is observed during a 
monitoring program. Seismic activity will not recommence until two 
consecutive surveys indicate the animals are no longer present within 
the 160-dB zone. While aerial surveys out to the 120-dB will be 
required in the Beaufort Sea for activities occurring after August 25, 
NMFS has found that such surveys are impractical in the Chukchi Sea 
because of the lack of adequate landing facilities and the prevalence 
of fog and other inclement weather in that area, thereby resulting in 
safety concerns.
    Also, because the Liberty seismic survey will take place shoreward 
of the barrier islands in very shallow waters from 1-9.1 m (3-30 ft; 
where high seismic propagation loss is expected), few bowhead whales 
are likely to occur in the project 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. BPXA's activities will cease before the beginning of the fall 
bowhead migration across the U.S. Beaufort Sea. Additionally, gray 
whales have not commonly or consistently been seen in the area of the 
Beaufort Sea where BPXA will conduct its activities over the last 25-30 
years.
    Comment 28: The MMC recommends that NMFS issue the IHA provided 
that NMFS require: (a) the applicant to implement all practicable 
monitoring and mitigation measures to protect bowhead whales and other 
marine mammal species from disturbance and that ramp-up be allowed only 
when the entire area encompassed by the safety zones is clearly visible 
for a sufficiently long period to ensure that marine mammals are not 
present; 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 MMC's recommendation and extends 
the requirement to any type of injury, not just serious injury, if it 
could be attributable to BPXA's seismic survey activities. A condition 
to this effect has been included in the IHA. Ramp-up will not be 
permitted unless the entire area encompassed by the safety zones has 
been clearly visible for at least 30 min prior to start-up of the 
airguns.

Monitoring Concerns

    Comment 29: 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 
BPXA's 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 BPXA's 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 BPXA's 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 880 m (0.55 
mi) at full strength at 4 m (13 ft) tow depth, 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

[[Page 40524]]

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 BPXA's 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.
    Total darkness will not set in during BPXA's survey. During the 
first two weeks of data acquisition, there will be 24 hrs of daylight. 
However, during times of impaired 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 BPXA's survey. As described in other responses to comments in 
this document, NMFS does not believe that there is a risk of 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 BPXA for seismic operations in 2008.
    Comment 30: 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 BPXA or NMFS, is to simply prohibit seismic 
surveying when conditions prevent observers for detecting all marine 
mammals in the safety zone. CBD also states that in its treatment of 
passive acoustic monitoring (PAM), NMFS and BPXA 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.
    Response: The time of year when BPXA will be conducting its survey 
is a time when total darkness does not occur. During the first 2 weeks 
of data acquisition, it will be light 24 hr/day. 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. 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. BPXA and NMFS considered the use of PAM for this project. 
However, since cetaceans are not expected to be present in the shallow 
water environment, it was determined not to be practical to require 
such monitoring. It should be noted, however, that every fall, BPXA 
deploys Directional Autonomous Seafloor Acoustic Recorders 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).
    Comment 31: The NSB DWM notes that in its application, BPXA states 
MMOs ``on board of the vessels play a key role in monitoring these 
safety zones and implementation of mitigation measures.'' The 190 and 
180 dB safety zones (at an airgun depth of 4 m, 13 ft) are 390 m and 
880 m (0.24 mi and 0.55 mi), respectively. The NSB DWM is concerned 
given that BPXA is using relatively small vessels for conducting the 
seismic surveys, it is not clear that the MMOs will be observing from a 
high enough position to adequately clear the safety zones, especially 
in inclement weather or darkness. Additional information is needed 
regarding the adequacy of MMOs for clearing safety zones, especially 
with the relatively small safety zones anticipated for these seismic 
surveys.
    BPXA has considered the limitation of MMOs in implementing 
mitigation measures to prevent Level A takes. BPXA has not planned on 
any additional monitoring efforts, however. If seismic surveys are 
going to extend into September, when darkness and inclement weather are 
more common than in August, there should be additional monitoring 
efforts to avoid Level A takes and to evaluate numbers of Level B takes 
of marine mammals. Aerial surveys or acoustic monitoring would be 
suitable means to this additional monitoring.
    Response: Bridge height for the Peregrine is 4.5 m (14.8 ft) and 
3.7 m (12.1 ft) for the Miss Dianne. In addition to these heights, one 
also needs to take into account the height of the MMO (BPXA assumes an 
average height of 1.7 m, 5.6 ft). From these heights, MMOs are able to 
clear the 180-dB and 190-dB safety zones. Under conditions of low or 
poor visibility, the measures mentioned in previous responses will be 
required. Additionally, night vision devices will be available on all 
source vessels. Surveys will not extend into September, so there would 
be no need for additional monitoring efforts.
    Comment 32: The NSB is concerned that if the seismic surveys do 
occur in September, bowhead whales have a much greater chance of being 
exposed to seismic sounds, and BPXA must increase its proposed 
monitoring program. The NSB and NSB DWM state that aerial surveys and 
acoustic monitoring programs will be needed if BPXA resumes its seismic 
surveys in September. The increased monitoring should include: (1) 
Aerial surveys at least 3 times per week, both inshore and offshore of 
the barrier islands; (2) enhanced acoustic monitoring, especially in 
areas offshore of the barrier islands; and (3) increased MMO coverage. 
Without additional monitoring plans for September and October, the NSB 
opposes an IHA that permits seismic activity during that time period. 
The NSB DWM notes that it is not clear where BPXA will deploy acoustic 
recorders. Further information is needed. If seismic surveys are to 
extend into September, hydrophones should at least be deployed to the 
west and east of McClure Islands and shoreward of the barrier islands. 
The NSB DWM also believes that MMOs should be deployed to vessels other 
than the source vessels if surveys continue into the fall migration 
period to help avoid Level A takes and to provide information about how 
many marine mammals may be affected in the disturbance zones (i.e., 
120- and 160-dB zones).
    Response: As stated previously in this Federal Register notice, 
BPXA has

[[Page 40525]]

stated that it no longer plans to conduct seismic data acquisition in 
September and October.
    Comment 33: The NVPH 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 BPXA's proposed monitoring plans. It states only that BPXA 
participated in the ``open water meeting'' in Anchorage in April. This 
does not suffice to meet the independent peer review requirement for 
BPXA's monitoring plans. Such peer review, by independent, objective 
reviewers is both necessary and required.
    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, FWS, 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 MMC'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. 
BPXA's 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 May 2, 2008 (73 FR 24236) and 
June 2, 2008.

Cumulative Impact Concerns

    Comment 34: Oceana and the Ocean Conservancy are concerned that oil 
and gas activities may have substantial negative effects on marine 
mammals and other Arctic species. Oceana and the Ocean Conservancy 
further state that there has never been a comprehensive evaluation of 
the cumulative effects of seismic activities in the Arctic. Oceana and 
the Ocean Conservancy request that in light of the dramatic effects of 
climate change in the Arctic, NMFS must not approve further seismic 
activities without such a comprehensive evaluation.
    Response: While it is possible that substantial negative effects on 
marine mammals and other Arctic species could occur from oil and gas 
activities, NMFS believes that proactive conservation measures for 
protected species, such as NMFS' initiation of status reviews of ice 
seals and the recent USFWS ESA-listing of polar bears, coupled with 
prudent natural resources management and regulations on industrial 
activities by Federal agencies would reduce these adverse impacts to 
biologically non-significant or negligible levels. In addition, 
monitoring and mitigation measures required for conducting particular 
industrial activities would further reduce and minimize such negative 
effects to marine mammal species and stocks. Long term research and 
monitoring results on ice seals in Alaska's North Slope have shown 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 (Moulton et al., 2005; 
Williams et al., 2006).
    NMFS does not agree with Oceana's and Ocean Conservancy's statement 
that there has never been a comprehensive evaluation of the cumulative 
effects of seismic activities in the Arctic. The MMS 2006 PEA, NMFS 
2007 SEA, 2007 MMS/NMFS DPEIS, and NMFS 2008 SEA for the proposed 
issuance of IHAs for five seismic survey and shallow hazard and site 
clearance survey activities for the 2008 open water season all provide 
comprehensive evaluation of the cumulative effects of seismic 
activities in the Arctic. In issuing the IHA to BPXA for its proposed 
OBC seismic survey in the Beaufort Sea, NMFS has conducted extensive 
environmental reviews.
    Comment 35: The MMC recommends that NMFS, together with the 
applicant and other appropriate agencies and organizations, develop a 
broad-based population monitoring and impact assessment program to 
ensure that these 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. Such a monitoring program should focus 
initially on the need to collect adequate baseline information to allow 
for future analyses of effects.
    As the MMC has noted in previous letters to NMFS, the NRC (2003) 
report Cumulative Environmental Effects of Oil and Gas Activities on 
Alaska's North Slope states that the predicted rate of climate change 
in the Beaufort Sea region may, at some point, have more than a 
negligible impact on marine mammal populations, particularly when 
combined with the effects of oil and gas operations and other human 
activities that are likely to be initiated or to increase in Arctic 
regions. The MMC therefore questions whether there is sufficient basis 
for concluding that the cumulative effects of the proposed activities, 
coupled with past, ongoing, and planned activities in the Beaufort and 
Chukchi Seas, will be negligible for bowhead whales and other marine 
mammals and will not have an unmitigable adverse impact on their 
availability to Alaska Natives for subsistence use.
    Response: The report Cumulative Environmental Effects of Oil and 
Gas Activities on Alaska's North Slope (Report) released by the 
National Academy of Science lists industrial noise and oil spills as 
major impacts to marine mammals from oil and gas development. So far, 
the prevalent human induced mortalities on marine mammals (bowhead 
whales, seals, and polar bears) in this region are from subsistence 
hunting. The Report further predicts that ``if climate warming and 
substantial oil spills did not occur, cumulative effects on ringed 
seals and polar bears in the next 25 years would likely be minor and 
not accumulate''. In its findings, the Report concludes that 
``industrial activity in marine waters of the Beaufort Sea has been 
limited and sporadic and likely has not caused serious accumulating 
effects on ringed seals or polar bears; and ``careful 
mitigation can help to reduce the effects of North Slope oil and gas 
development and their accumulation, especially if there is no major oil 
spill''. The proposed activity would have no potential for an oil 
spill. It is also highly unlikely given the mitigation and monitoring 
measures required in the IHA and the distribution of marine mammals 
during the survey activity period that injury or mortality of marine 
mammals would occur as a result of BPXA's seismic survey.
    A description of the monitoring program submitted by BPXA was 
provided in BPXA's application, outlined in the Federal Register notice

[[Page 40526]]

of the proposed IHA (73 FR 24236, May 2, 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.
    Additionally, although not required as part of the IHA issued by 
NMFS to BPXA, at the request of the NSB, BPXA has agreed to conduct 
three fish related studies in the proposed project area. First, BPXA 
will conduct a literature review on the effects of airgun sounds on 
fish and lower-level animals, including larval fish and invertebrates. 
Secondly, BPXA will sample behind the operation seismic airgun survey 
vessels to gather qualitative data on fish mortality. Lastly, BPXA has 
agreed to analyze catch-per-unit-effort data from fyke net in the 
Endicott area to look for a ``seismic effect.'' These studies will aid 
in collecting baseline ecosystem data in Foggy Island Bay.

ESA Concerns

    Comment 36: 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 Arctic Regional Biological Opinion (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 June 16, 2006, 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 2006 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.
    NMFS has indicated that the findings in the 2006 ARBO are still 
relevant to BPXA's 2008 open water seismic survey planned for the 
Liberty Prospect, Foggy Island Bay, Beaufort Sea. MMS and NMFS are 
conducting a section 7 consultation for 2008 activities in the Chukchi 
Sea only, as there is evidence that humpback and fin whales may be 
affected by seismic surveys in 2008. However, since these species are 
not likely to occur in BPXA's project area, reinitiation of 
consultation for this particular IHA is not warranted. 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 
bowhead whales. Regarding the polar bear, MMS has contacted the USFWS 
about conducting a section 7 consultation.
    Comment 37: Additionally, 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, BPXA's 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 BPXA while it is conducting 
activities permitted legally under MMS' jurisdiction.

NEPA Concerns

    Comment 38: The NSB, NVPH, 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)). ``[A]n EIS must be prepared if ``substantial questions are 
raised as to whether a project . . . may cause significant degradation 
of some human environmental factor'' Idaho Sporting Cong., 137 F.3d at 
1149). 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

[[Page 40527]]

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 BPXA's (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 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 BPXA's proposed activity for this 
season was not explicitly identified in the 2006 PEA, the PEA did 
contemplate that future seismic activity, such as BPXA's, 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 BPXA in 2008 for seismic activity in 
the Beaufort Sea but that preparation of an SEA and issuance of a FONSI 
were sufficient under NEPA.
    NMFS has determined that it is not necessary for BPXA to monitor a 
120-dB safety radius, as stated in several of the preceding responses. 
BPXA will establish a 160-dB safety radius to monitor for Level B 
harassment exposures; however, no serious injury or mortality is 
expected of any marine mammal species that enters this radius. Because 
BPXA will be conducting its activities in shallow water, inshore of the 
barrier islands, sound is not expected to propagate as far as it would 
outside the islands. The islands are also expected to absorb the 
majority of the sound produced by the airguns.
    Comment 39: The NSB and CBD state that NMFS also appears to rely on 
the NEPA analysis in the DPEIS in clear violation of NEPA law. NEPA 
requires agencies to prepare a draft EIS, consider public and other 
agency comments, respond to these comments in its final EIS, and wait 
60 days before issuing a final decision. Before the record of decision 
has been issued on the final PEIS, NMFS cannot authorize BPXA's 
proposed seismic surveys. Here, the very purpose of the PEIS process is 
to consider seismic surveys in the Chukchi and Beaufort Seas for the 
years 2008 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.
    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 BPXA's 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 40: The NVPH states that because NMFS has not yet made a 
copy of its SEA available to the public, it is impossible to comment 
fully on the agency's NEPA analysis of BPXA's shallow hazard surveys. 
Nevertheless, we hereby incorporate by reference in their entirety the 
following comments that identify the flaws with the analysis provided 
in the PEA and explain why it is inappropriate for NMFS to continue to 
rely on that document: (i) our comments on NMFS proposed IHA for Arctic 
Slope Regional Corporation Energy Services (AES), submitted on May 28, 
2008; (ii) our comment on the 2006 PEA, submitted on May 24, 2006; and 
(iii) the comments submitted to NMFS by the NRDC on May 10, 2006. As 
these comments recount, the analysis in the PEA understates the risk of 
significant impacts to bowhead whales and all marine mammals, fails to 
provide site-specific analysis, fails to evaluate activities beyond 
2006, and uses arbitrary significance criteria for non-endangered 
marine mammals, among many other failures.
    Response: The NVPH alleges that NMFS violated NEPA's standards when 
it failed to circulate the draft SEA for public comment prior to 
finalizing the SEA. Neither NEPA, nor the Council on Environmental 
Quality's regulations explicitly require circulation of a draft EA for 
public comment prior to finalizing the EA. The Federal courts have 
upheld this conclusion, and in one recent case, the Ninth Circuit 
squarely addressed the question of public involvement in the 
development of an EA. In Bering Strait Citizens for Responsible 
Resource Development v. U.S. Army Corps of Engineers (9th Cir., 2008), 
the court held that the circulation of a draft EA is not required in 
every case; rather, Federal agencies should strive to involve the 
public in the decision-making process by providing as much 
environmental information as is practicable prior to completion of the 
EA so that the public has a sufficient opportunity to weigh in on 
issues pertinent to the agency's decision-making process. In the case 
of BPXA's MMPA IHA request, NMFS involved the public in the decision-
making process by distributing BPXA's IHA application for a 30-day 
notice and comment period. The IHA application and NMFS' Federal 
Register notice of the proposed IHA (73 FR 24236, May 2, 2008) 
contained information relating to the project. For example, the 
application includes a project description, its location, environmental 
matters such as species and habitat to be affected by project 
construction, and measures designed to minimize adverse impacts to the 
environment and the availability of affected species or stocks for 
subsistence uses. As documented herein, NMFS considered all of the 
public comments received on the IHA application, in particular issues 
related to the availability of marine mammals for subsistence uses and 
means for effecting the least practicable impact on the availability of 
marine mammal populations for subsistence uses and addressed many of 
the public's environmental concerns in the final

[[Page 40528]]

SEA. NMFS also incorporated, where appropriate, measures to reduce 
impacts to marine mammals resulting from the surveys. As NMFS stated 
earlier, the final SEA will be made available to the public upon its 
completion.
    NMFS responded to comments submitted regarding the 2006 PEA in 
Appendix D of that document and will not repeat those comments and 
responses here. The comments submitted by the NVPH for the AES proposed 
IHA regarding NEPA issues are addressed in comments 41-43 in this 
document.
    Comment 41: The NVPH 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 Pa rms, depending 
upon propagation. Corresponding levels at 30 km (18.6 mi) were about 
107-126 dB re 1 micro Pa 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 the NVPH 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 BPXA's seismic 
program is not a shallow hazards survey but a 3D seismic survey 
conducted in shallow water, inside the barrier islands. This OBC survey 
is similar to those conducted for BPXA 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). 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 BPXA for its 2008 OBC survey 
at the Liberty Prospect, has been accurately calculated for the 190 dB, 
180 dB and 160 dB (rms) zones, as shown in Table 3 of BPXA's IHA 
application and Table 1 below. Also, it should be recognized that since 
BPXA will not be operating after August 25 (prior to the start of the 
bowhead whale westward migration), ``exposure'' estimates to the 120-dB 
isopleth are unnecessary, as no animals are presumed to be affected to 
that distance. In addition, in compliance with the terms and conditions 
of its IHA, BPXA will conduct a sound source verification test prior to 
conducting its OBC survey to ensure that the correct distances are 
applied to the safety and monitoring zones (see ``Mitigation Measures'' 
section later in this document).
    Comment 42: The NVPH 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 BPXA's surveys but with the modifications to the safety 
zones discussed above.
    Response: The SEA prepared for the 2008 open-water season 
activities provides site specific information for the various projects, 
in particular BPXA's project. NMFS has determined that it is 
unnecessary to impose 160-dB and 120-dB safety zones on BPXA since 
their activities will cease prior to such zones being required in the 
Beaufort Sea. The 160-dB zone is for large aggregations of bowhead 
whales. Since the majority of the stock will be in the Canadian 
Beaufort during BPXA's activities, NMFS has determined that this 
measure is not necessary. Additionally, NMFS has determined that BPXA 
does not need to monitor a 120-dB shutdown zone since this is only 
necessary when 4 or more cow/calf pairs are sighted. Since the animals 
are not normally located in the part of the Beaufort Sea where BPXA 
will be conducting its survey in July and August and the shallow water 
depths (which are not considered suitable bowhead habitat), it is 
highly unlikely that 4 or more cow/calf pairs will be sighted during 
BPXA's activity.
    Comment 43: 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

[[Page 40529]]

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: The NMFS has 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, and humpback 
whales, harbor porpoises, ringed, spotted, and bearded seals, polar 
bears, and walruses. These latter two species are under the 
jurisdiction of the USFWS and are not discussed further in this 
document. A separate LOA was issued to BPXA by the USFWS specific to 
walruses and polar bears.
    A total of three cetacean species and four pinniped species are 
known to occur or may occur in the Beaufort Sea in or near the Liberty 
area (see Table 1 in BPXA's application for information on habitat and 
abundance). Of these species, only the bowhead whale is listed as 
endangered under the ESA. The narwhal, killer whale, harbor porpoise, 
minke whale, fin whale, and humpback whale could occur in the Beaufort 
Sea, but each of these species is rare or extralimital and unlikely to 
be encountered in the Liberty area.
    The marine mammal species expected to be encountered most 
frequently throughout the seismic survey in the Liberty 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 because bowhead and 
beluga whales are mostly found farther east in the Mackenzie Delta, 
Camden Bay, and other parts of the Canadian Beaufort Sea in July and 
August. Also, during this time, gray whales are mostly found in the 
northern Bering and Chukchi Seas and are rarely seen in the project 
area. Descriptions of the biology, distribution, and population status 
of the marine mammal species under NMFS' jurisdiction can be found in 
BPXA's application, the 2007 NMFS/MMS DPEIS, 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 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 trauma may include 
minor to severe hemorrhage.
    The notice of the proposed IHA (73 FR 24236, May 2, 2008) included 
a discussion of the effects of sounds from airguns on mysticetes, 
odontocetes, and pinnipeds, including tolerance, masking, behavioral 
disturbance, hearing impairment and other physical effects, and non-
auditory physiological effects. Additional information on the 
behavioral reactions (or lack thereof) by all types of marine mammals 
to seismic vessels can be found in Appendix C of BPXA's application.
    The notice of proposed IHA also included a discussion of the 
effects of pinger signals on marine mammals. Because of the low power 
output and the weaker signals produced by the pingers than by the 
airguns, NMFS believes it unlikely that marine mammals will be exposed 
to pinger signals 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. There is no evidence that the 
planned activities could result in serious injury or mortality, for 
example due to collisions with vessels, strandings, or from sound 
levels high enough to result in PTS. Disturbance reactions, such as 
avoidance, are very likely to occur among marine mammals in the 
vicinity of the source vessel. The mitigation and monitoring measures 
proposed to be implemented (see below) during this survey are based on 
Level B harassment

[[Page 40530]]

criteria and will minimize the potential for serious injury or 
mortality.
    The notice of the proposed IHA (73 FR 24236, May 2, 2008) included 
an in-depth discussion of the methodology used by BPXA 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 included in BPXA's 
application. A summary is provided here.
    The density estimates for the species covered under this proposed 
IHA are based on the estimates by Moore et al. (2000b) for beluga 
whales, Miller et al. (2002) for bowhead whales, and Moulton et al. 
(2003) and Frost et al. (2003) for ringed seals. The estimates for the 
number of marine mammals that might be affected during the proposed OBC 
seismic survey in the Liberty area are based on expected marine mammal 
density and anticipated area ensonified by levels of greater than 170 
and 160 dB re 1 microPa.
    In its application, BPXA provides estimates of the number of 
potential ``exposures'' to sound levels greater than 160 dB re 1 
microPa (rms) and greater than 170 dB. BPXA states that while the 160-
dB criterion applies to all species of cetaceans and pinnipeds, BPXA 
believes that a 170-dB criterion should be considered appropriate for 
delphinids and pinnipeds, which tend to be less responsive, whereas the 
160-dB criterion is considered appropriate for other cetaceans (LGL, 
2007). However, NMFS has noted in the past that it is current policy to 
estimate Level B harassment takes based on the 160-dB criterion for all 
species.
    Expected density of marine mammals in the survey area of operation 
and area of influence are based on best available data. Density data 
derived from studies conducted in or near the proposed survey area are 
used for calculations, where available. When estimates were derived 
from data collected in regions, habitats, or seasons that differ from 
the proposed seismic survey, adjustments to reported population or 
density estimates were made to account for these differences insofar as 
possible (see Section 6.1 of BPXA's application).
    The anticipated area to be ensonified by levels of greater than 160 
dB re 1 Pa is a combination of the area covered by the approximately 
3,219 km (2,000 mi) survey lines and the estimated safety radii. The 
close spacing of neighboring vessel tracklines within the planned 
seismic survey area results in a limited area exposed to sounds of 160 
dB or greater, while much of that area is exposed repeatedly.

Marine Mammal Density Estimates

    The duration of the seismic data acquisition in the Liberty area is 
estimated to be approximately 40 days, based on a continuous 24-hr 
operation. Therefore, the nearshore marine mammal densities for the 
summer period have been applied to 95 percent of the total trackline 
kilometers. The fall densities have been applied to the remaining 5 
percent.
    Most marine mammals in the Alaskan Beaufort Sea are migratory, 
occupying different habitats and/or locations during the year. The 
densities can therefore vary greatly within seasons and for different 
locations. For the purpose of this IHA request, different densities 
have been derived for the summer (late July through August) and the 
fall (September through early October). In addition to seasonal 
variation in densities, spatial differentiation is also an important 
factor for marine mammal densities, both in latitudinal and 
longitudinal gradient. Taking into account the size and location of the 
proposed seismic survey area and the associated area of influence, only 
the nearshore zone (defined as the area between the shoreline and the 
50 m, 164 ft, line of bathymetry) in the western part of the Beaufort 
Sea (defined as the area west of 141[deg] W.) is relevant for the 
density calculations. If the best available density data cover other 
zones than the nearshore zone or areas outside the western part of the 
Beaufort Sea, densities were derived based on expert judgment.
    Because the available density data are not always representative 
for the area of interest, and correction factors were not always known, 
there is some uncertainty in the data and assumptions used in the 
density calculations. To provide allowance for these uncertainties, 
maximum estimates of the numbers potentially affected have been 
provided in addition to average densities, although NMFS relies on the 
average density estimate to derive potential exposure estimates. The 
marine mammal densities presented are believed to be close to, and in 
most cases, higher than the densities that are expected to be 
encountered during the survey.
Cetaceans
    The densities of beluga and bowhead whales present in the Beaufort 
Sea are expected to vary by season and location. During the early and 
mid-summer, most belugas and bowheads are found in the Canadian 
Beaufort Sea or adjacent areas. During fall, both species migrate 
through the Alaskan Beaufort Sea, sometimes interrupting their 
migration to feed. However, since survey activity will cease prior to 
the fall migration period, few cetaceans are expected to be taken. 
Additional species specific information for both bowhead and belugas 
was contained in the notice of proposed IHA.
Pinnipeds
    Pinnipeds in the polar regions are mostly associated with sea ice 
and most census methods count pinnipeds when they are hauled out on the 
ice, not in open-water where seismic surveys are conducted. 
Consequently, the density and potential take (exposure) numbers for 
seals in the Beaufort Sea will likely overestimate the number of seals 
that would likely be encountered and/or exposed to seismic airguns 
because only animals in the water near the survey area would be exposed 
to the seismic activity sound sources. Because seals would be more 
widely dispersed at this time of the year, animal densities would be 
less than when seals are concentrated on and near the ice. However, to 
account for the proportion of animals present but not hauled out 
(availability bias) or seals present on the ice but missed (detection 
bias), a correction factor should be applied to the ``raw'' counts. 
This correction factor is very dependent on the behavior of each 
species. To estimate the proportion of ringed seals visible resting on 
the ice surface, radio tags were placed on seals during the spring 
months during 1999-2003 (Kelly et al., 2006). Applying the probability 
that seals were visible to the data from past aerial surveys indicated 
that the fraction of seals visible varied from less than 0.4 to more 
than 0.75 between survey years. The environmental factors that are 
important in explaining the availability of seals to be counted were 
found to be time of day, date, wind speed, air temperature, and days 
from snow melt (Kelly et al., 2006). No correction factors have been 
applied to the seal densities reported here. The seismic activities 
covered by the present IHA request will occur during the open water 
season. Seal density during this period is generally lower than during 
spring when animals are hauled out on the ice. No distinction is made 
in density of pinnipeds between summer and autumn season. Additional 
species specific information for ringed, bearded, and spotted seals was 
contained in the proposed IHA notice.

Exposure Calculations for Marine Mammals

    Impacts on marine mammals from the planned seismic survey focus on 
the

[[Page 40531]]

sound sources of the seismic airguns. A complete description of the 
methodology used to estimate the safety radii for received levels of 
190, 180, and 160 dB re 1 microPa for pulsed sounds emitted by the 
airgun array with a total discharge volume of 880 in\3\ and the 
assumptions underlying these calculations were provided in the proposed 
IHA notice and BPXA's application (more specifications of this airgun 
array are included in Appendix B of BPXA's application). A summary is 
provided here. The distance to reach received sound levels of 160 dB re 
1 microPa (rms) will be used to calculate the potential numbers of 
marine mammals that may be exposed to these sound levels. The distances 
to received levels of 180 and 190 dB re 1 microPa (rms) are mainly 
relevant as safety radii for mitigation purposes (see below).
    Table 3 in BPXA's application and Table 1 here outline the 
estimated distances for specified received levels from airgun arrays 
with total discharge volumes of 440 in\3\ and 880 in\3\ in both 1 and 4 
m (3.3 and 13 ft) of water. The estimated distances are based on 
transmission loss profiles within the barrier islands. It is expected 
that these islands will function as a sound barrier beyond which sound 
will not propagate much, although most propagation is expected through 
the channels between the islands. Therefore, the estimated distances 
for 120 dB and maybe 160 dB (especially for the source lines closest to 
the islands) may be overestimations.

 Table 1. Estimated distances for specified received levels from airgun arrays with a total discharge volume of
      440 in\3\ and 880 in\3\. Note that the array depth is an important factor for sound propagation loss.
----------------------------------------------------------------------------------------------------------------
                                   Distance in meters \b\ (array depth 1   Distance in meters \b\ (array depth 4
Received levels (dB re 1 microPa                    m)                                      m)
            rms) \a\             -------------------------------------------------------------------------------
                                       440 in\3\           880 in\3\           440 in\3\           880 in\3\
----------------------------------------------------------------------------------------------------------------
190                               120                 235                 200                 390
----------------------------------------------------------------------------------------------------------------
180                               280                 545                 462                 880
----------------------------------------------------------------------------------------------------------------
170                               640                 1,190               1,030               1,830
----------------------------------------------------------------------------------------------------------------
160                               1,380               2,380               2,090               3,430
----------------------------------------------------------------------------------------------------------------
120                               10,800              13,700              12,900              16,000
----------------------------------------------------------------------------------------------------------------
\a\ The distance in meters for each received level was calculated using the radius calculator available to the
  public at www.greeneridge.com (courtesy of W.C. Burgess, Ph.D.)
\b\ Received levels of airgun sounds are expressed in dB re 1 microPa (rms, averaged over pulse duration).

    The distances from the source to specific received sound levels as 
summarized in Table 3 of the application and Table 1 above are 
estimates used for the purpose of this IHA request. These estimated 
distances will be verified with field measurements at the start of the 
survey.
    The radii associated with received sound levels of 160 and/or 170 
dB re 1 microPa (rms) or higher are used to calculate the number of 
potential marine mammal ``exposures'' to sounds that have the potential 
to impact their behavior. The 160-dB criterion is applied for all 
species, and for pinnipeds additional calculations were made for the 
170-dB criterion.
    The potential number of each species that might be exposed to 
received levels of 160 and 170 dB re 1 microPa (rms) or greater is 
calculated by multiplying:
     The expected species density as provided in Table 2 of 
BPXA's application; by
     The anticipated area to be ensonified to that level during 
airgun operations.
    The area expected to be ensonified was determined by entering the 
seismic survey lines into a MapInfo Geographic Information System 
(GIS). GIS was then used to identify the relevant areas by ``drawing'' 
the applicable 160-dB buffer from Table 3 in the application or Table 1 
above around each seismic source line and then to calculate the total 
area within the buffers. This method avoids the large overlap of buffer 
zones from each seismic source line and hence an overestimation of the 
potential number of marine mammals exposed.
    The following table indicates the authorized take levels for each 
species, as well as the estimated percent of the population that these 
numbers constitute. Only small numbers of all species are expected to 
be taken by harassment during the proposed OBC seismic survey, with 
less than 1 percent of the population of each species authorized for 
take by Level B (behavioral) harassment.

  Table 2. Summary of the number of marine mammals potentially exposed to received sound levels of [gteqt]160 dB and [gteqt]170 dB (for pinnipeds only)
                    during BPXA's seismic survey in the Liberty area, based on radii for 880 in\3\ array and 4 m (13 ft) array depth.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Exposures to [gteqt]160 dB            Exposures to [gteqt]170 dB
                         Species                          ----------------------------------------------------------------------------   Estimated % of
                                                                Average            Maximum            Average            Maximum         population\*\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beluga Whale                                                              1                  6                 NA                 NA              0.003
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bowhead Whale                                                             2                 12                 NA                 NA               0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 40532]]

 
Ringed Seal                                                             156                222                141                201               0.06
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bearded Seal                                                             11                 16                 10                 14              0.004
--------------------------------------------------------------------------------------------------------------------------------------------------------
Spotted Seal                                                              2                  2                  1                  2              0.003
--------------------------------------------------------------------------------------------------------------------------------------------------------
\*\ The percentage is based on the average number of animals potentially exposed to 160 dB or greater.

Conclusions

    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. The authorized harassment for each species is 
based on the estimated average numbers exposed to 160 dB re 1 microPa 
(rms) or greater from an airgun array operating at 4 m (13 ft) depth.
    The estimated numbers of cetaceans and pinnipeds potentially 
exposed to sound levels sufficient to cause behavioral disturbance are 
very low percentages of the regional stock or population size in the 
Bering-Chukchi-Beaufort seas. For the bowhead whale, a species listed 
as endangered under the ESA, BPXA's estimates include approximately 2 
bowheads. This is approximately 0.02 percent of the estimated 2008 
Bering-Chukchi-Beaufort population of 13,330 (based on a population 
size of 10,545 in 2001 and an annual population growth of 3.4 percent, 
cf Table 1 in the application). Although the best available data 
suggest that beluga whales are not likely to be present in or near the 
Liberty area, it is possible that some individuals might be observed. 
Belugas also show aggregate behavior, and so there is the unlikely 
event that if belugas appear in this area it might be in a larger 
group. Even so, this larger number still constitutes a very low 
percentage of the estimated regional stock or population size (see 
Table 6 in the application).
    The many reported cases of apparent tolerance by cetaceans of 
seismic operations, vessel traffic, and some other human activities 
show that co-existence is possible. Mitigation measures such as 
controlled speed, 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. Additionally, the fact that BPXA does not intend to 
conduct any activities during or after the fall migration period 
further reduces the potential for effects to cetaceans. In all cases, 
the effects are expected to be short-term, with no lasting biological 
consequence. Subsistence issues are addressed below.
    From the few pinniped species likely to be encountered in the study 
area, the ringed seal is by far the most abundant marine mammal that 
could be encountered. The estimated number of ringed seals potentially 
exposed to airgun sounds at received levels of 160 dB re 1 microPa 
(rms) during the seismic survey represent 0.06 percent of the Bering-
Chukchi-Beaufort stock, and these are even smaller portions for bearded 
and spotted seals (see Table 6 in the application and Table 2 above). 
It is probable that at this received level, only a small percentage of 
these seals would actually experience behavioral disturbance, if any at 
all. The short-term exposures of pinnipeds to airgun sounds are not 
expected to result in any long-term negative consequences for the 
individuals or their stocks. Additionally, since these numbers do not 
take into account that mitigation and monitoring measures will be 
implemented during the survey (see below), the numbers should in fact 
be even lower.

Potential Impact on Habitat

    The seismic survey will not result in any permanent impact on 
habitats used by marine mammals or to the food sources they utilize. 
The activities will be of short duration in any particular area at any 
given time; thus any effects would be localized and short-term. The 
main impact issue associated with the activity will be temporarily 
elevated sound levels and the associated direct effects on marine 
mammals, as discussed above.
    During the seismic study 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 ceases. Thus, the survey 
would have little, if any, impact on the abilities of marine mammals to 
feed in the area where seismic work is planned.
    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 feeding mysticetes. More 
importantly, bowhead whales are not expected to occur or feed in the 
shallow area covered by the seismic survey. Thus, the activity is not 
expected to have any habitat-related effects that could cause 
significant or long-term consequences for individual marine mammals or 
their populations.

Effects of Seismic Noise and Other Related Activities on Subsistence

    The disturbance and potential displacement of marine mammals by 
sounds from seismic activities are the principal concerns related to 
subsistence use of the area. Subsistence remains the basis for Alaska 
Native culture and community. Marine mammals are legally hunted in 
Alaskan waters by coastal Alaska Natives. In rural Alaska, subsistence 
activities are often central to many aspects of human existence, 
including patterns of family life, artistic expression, and community 
religious and celebratory activities. The

[[Page 40533]]

main species that are hunted include bowhead and beluga whales, ringed, 
spotted, and bearded seals, walruses, and polar bears . The importance 
of each of these species varies among the communities and is largely 
based on availability.
    In the Beaufort Sea, bowhead and beluga whales are the species 
primarily harvested during the open water season, when the seismic 
survey is planned. Bowhead whale hunting is the key activity in the 
subsistence economies of Barrow and two smaller communities, Nuiqsut 
and Kaktovik. The whale harvests have a great influence on social 
relations by strengthening the sense of Inupiat culture and heritage in 
addition to reinforcing family and community ties. Barrow residents 
focus hunting efforts on bowhead whales during the spring but can also 
conduct bowhead hunts in the fall. The communities of Nuiqsut and 
Kaktovik engage only in the fall bowhead hunt. Few belugas are present 
or harvested by Nuiqsut or Kaktovik.
    The Nuiqsut subsistence hunt for bowhead whales has the potential 
to be impacted by the seismic survey due to its proximity to Cross 
Island. Around late August, the hunters from Nuiqsut establish camps on 
Cross Island from where they undertake the fall bowhead whale hunt. The 
hunting period starts normally in early September and may last as late 
as mid-October, depending mainly on ice and weather conditions and the 
success of the hunt. Most of the hunt occurs offshore in waters east, 
north, and northwest of Cross Island where bowheads migrate and not 
inside the barrier islands (Galginaitis, 2007). Hunters prefer to take 
bowheads close to shore to avoid a long tow, but Braund and Moorehead 
(1995) report that crews may (rarely) pursue whales as far as 80 km (50 
mi) offshore. BPXA's seismic survey will take place within the barrier 
islands in very shallow water (<10 m, 33 ft). BPXA discussed potential 
concerns with the affected communities (see ``POC'' section) throughout 
the early part of 2008 and recently signed a CAA with the AEWC and 
affected community whaling captains. One of the agreements reached by 
the parties to reduce impacts on subsistence was that BPXA will cease 
all activity by August 25.
    Ringed seals are hunted mainly from October through June. Hunting 
for these smaller mammals is concentrated during the ice season because 
of larger availability of seals on the ice. In winter, leads and cracks 
in the ice off points of land and along the barrier islands are used 
for hunting ringed seals. Although ringed seals are available year-
round, the seismic survey will not occur during the primary period when 
these seals are typically harvested.
    The more limited seal harvest that takes place during the open 
water season starts around the second week of June. Hunters take boats 
on routes in the Colville River and much of Harrison Bay. The main seal 
hunt occurs in areas far west from the Liberty area, so impacts on the 
subsistence seal hunt are not expected.
    Potential impacts on subsistence uses of marine mammals will be 
mitigated by application of the procedures established in the CAA 
between the seismic operators, the AEWC, and the Captains' Associations 
of Barrow, Nuiqsut, Kaktovik, Wainwright, Pt. Lay, and Pt. Hope. The 
CAA curtails the times and locations of seismic and other noise 
producing sources during times of active bowhead whale scouting and 
actual whaling activities within the traditional subsistence hunting 
areas of the potentially affected communities.

POC

    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. BPXA negotiated a POC in the form of 
a CAA with representatives of the communities of Nuiqsut and Kaktovik, 
the AEWC, and the NSB for the 2008 Liberty seismic survey in Foggy 
Island Bay, Beaufort Sea. BPXA worked with the people of these 
communities and organizations to identify and avoid areas of potential 
conflict. Meetings that have taken place prior to the survey include:
     October 25, 2007: Meeting with AEWC and NSB 
representatives during the AEWC convention;
     October 29, 2007: Meeting with NSB Wildlife Group to 
provide updates of the survey and to obtain information on their 
opinions and views on mitigation and monitoring requirements.
     February 7, 2008: Meeting in Deadhorse with Nuiqsut and 
Kaktovik whaling captains to provide an introduction to the planned 
2008 Liberty seismic survey.
     February 28, 2008: First Annual Programmatic CAA Meeting 
with AEWC commissioners and community representatives from the affected 
villages in Barrow.
     April 2008: As in previous years, BPXA participated in the 
``open water peer/stakeholder review meeting'' convened by NMFS in 
Anchorage in mid-April 2008, where representatives of the AEWC and NSB 
also participated.
     May 13, 2008: Meeting with the NSB DWM to discuss 
monitoring plans and project concerns.
     June 18, 2008: Two meetings in Nuiqsut to provide a survey 
overview to the whaling captains and representatives from the 
community.
    The CAA covers the phases of BPXA's seismic survey planned to occur 
in July and August. This plan identifies measures that will be taken to 
minimize any adverse effects on the availability of marine mammals for 
subsistence uses and to ensure good communication between BPXA 
(including the seismic team leads), native communities along the coast, 
and subsistence hunters at sea.
    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 subsistence needs for marine mammals. 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) 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 BPXA's 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 area for which seismic data is required, i.e., the 
well path from SDI to the Liberty Prospect, has been minimized by re-
analyzing and re-

[[Page 40534]]

interpreting existing data (to the extent available and usable). This 
has led to a reduction in size from approximately 220 km\2\ (85 mi\2\) 
to approximately 91 km\2\ (35 mi\2\). This is not the total seismic 
area extent that includes the seismic source vessels and receiver 
lines, although they are related.
     The total airgun discharge volume has been reduced to the 
minimum volume needed to obtain the required data. The total volume for 
the proposed survey is 880 in\3\ (consisting of two 4-gun arrays of 440 
in\3\).
     Two seismic source vessels will be used simultaneously 
(alternating their shots) to minimize the total survey period. This 
will allow the survey to be completed prior to the start of the whale 
fall migration and whaling season.
    The seismic survey will take place inside the barrier islands in 
nearshore shallow waters. The survey period will be July-August, prior 
to the bowhead whale migration season. It is unlikely that whales will 
be present in the nearshore zone where the seismic survey is taking 
place, and if they are present, the numbers are expected to be low. The 
main marine mammal species to be expected in the area is the ringed 
seal. With the required mitigation measures (see below), any effect on 
individuals is expected to be limited to short-term behavioral 
disturbance with a negligible impact on the affected species or stock.
    The mitigation measures are an integral part of the survey in the 
form of specific procedures, such as: (1) speed and course alterations; 
(2) power-down, ramp up, and shutdown procedures; and (3) provisions 
for poor visibility conditions. For the implementation of these 
measures, it is important to first establish and verify the distances 
of various received levels that function as safety zones and second to 
monitor these safety zones and implement mitigation measures where 
required.

Establishment and Monitoring of Safety Zones

    Greeneridge Sciences, Inc. estimated for BPXA the distances from 
the 880 in\3\ seismic airgun array where sound levels 190, 180, and 160 
dB re 1 microPa (rms) would be received (Table 3 in BPXA's application 
and Table 1 above). For these estimations, the results from 
transmission loss data obtained in the Liberty area in 1997 were used 
(Greene, 1998). The calculations included distances for a reduced array 
of 440 in\3\ and two array depths (1 and 4 m, 3 and 13 ft). These 
calculations form the basis for estimating the number of animals 
potentially affected.
    Received sound levels will be measured as a function of distance 
from the array prior to the start of the survey. This will be done for: 
(a) two 440 in\3\ arrays (880 in\3\), (b) one 440 in\3\ array, and (c) 
one 70 in\3\ airgun (smallest volume of array). BPXA will apply 
appropriate adjustments to the estimated safety zones (see Table 3 in 
the application or Table 1 above) based on measurements of the 880 
in\3\ (two 440 in\3\) array. Results from measurements of the 440 in\3\ 
and 70 in\3\ data will be used for the implementation of mitigation 
measures to power down the sound source and reduce the size of the 
safety zones when required.
    MMOs on board the vessels play a key role in monitoring the safety 
zones and implementing the mitigation measures. Their primary role is 
to monitor marine mammals near the seismic source vessel during all 
daylight airgun operations and during any nighttime start-up of the 
airguns. These observations will provide the real-time data needed to 
implement the key mitigation measures described below. When marine 
mammals are observed within or about to enter designated safety zones, 
airgun operations will be powered down (or shut down if necessary) 
immediately. These safety zones are defined as the distance from the 
source to a received level of 190 dB for pinnipeds and 180 dB for 
cetaceans. A specific dedicated vessel monitoring program to detect 
aggregations of baleen whales (12 or more) within the 160-dB zone or 4 
or more bowhead whale cow-calf pairs within the 120-dB zone is not 
considered applicable here as none of these situations are expected in 
the survey based on the estimated safety zones, as well as the time of 
year that activities will occur.

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 will 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 may be powered-down immediately if this is a 
reasonable alternative to a complete shutdown. 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

[[Page 40535]]

around the reduced source that will be used during a power-down.
    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 begin with the 
smallest airgun, in this case, 70 in\3\. BPXA intends to follow the 
ramp-up guideline of no more than 6 dB per 5 min period. A common 
procedure is to double the number of operating airguns at 5-min 
intervals. 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 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.

Poor Visibility Conditions

    BPXA plans to conduct 24-hr operations. Regarding nighttime 
observations, note that there will be no periods of total darkness 
during the survey. There will be 24 hrs of daylight each day for the 
first two weeks, after which, nautical twilight will set in for 1-7.5 
hrs at a time each day. MMOs are proposed not to be on duty during 
ongoing seismic operations at night, given the very limited 
effectiveness of visual observation at night. At night, bridge 
personnel will watch for marine mammals (insofar as practical) and will 
call for the airguns to be shut down if marine mammals are observed in 
or about to enter the safety zones. If a ramp-up procedure needs to be 
conducted following a full shutdown at night, two MMOs need to be 
present to monitor for marine mammals near the source vessel and to 
determine if proper conditions are met for a ramp-up. The proposed 
provisions associated with operations at night or in periods of poor 
visibility include:
    (1) During any nighttime operations, if the entire 180-dB safety 
radius is visible using vessel lights and/or night vision devices, then 
start of a ramp-up procedure after a complete shutdown of the airgun 
array may occur following a 30-min period of observation without 
sighting marine mammals in the safety zone.
    (2) If during foggy conditions or darkness (which may be 
encountered starting in late August), the full 180-dB safety zone is 
not visible, the airguns cannot commence a ramp-up procedure from a 
full shutdown.
    (3) If one or more airguns have been operational before nightfall 
or before the onset of foggy conditions, they can remain operational 
throughout the night or foggy conditions. In this case, ramp-up 
procedures can be initiated, even though the entire safety radius may 
not be visible, on the assumption that marine mammals will be alerted 
by the sounds from the single airgun and have moved away.
    BPXA considered the use of PAM in conjunction with visual 
monitoring to allow detection of marine mammals during poor visibility 
conditions, such as fog. The use of PAM for this specific survey might 
not be very effective because the species most commonly present (ringed 
seal) is not vocal during this time period.

Monitoring and Reporting Plan

    BPXA will sponsor marine mammal monitoring during the Liberty 
seismic survey in order to implement the required mitigation measures 
that require real-time monitoring, to satisfy the monitoring 
requirements of the IHA, and to meet any monitoring requirements agreed 
to as part of the POC/CAA. The monitoring plan is described below.
    The monitoring work described here is planned as a self-contained 
project independent of any other related monitoring projects that may 
occur simultaneously in the same area. Provided that an acceptable 
methodology and business relationship can be worked out in advance, 
BPXA is prepared to work with other energy companies in its efforts to 
manage, understand, and fully communicate information about 
environmental impacts related to its activities.

Vessel-based Visual Monitoring by MMOs

    There will be three MMOs on each source vessel during the entire 
survey. These vessel-based MMOs will monitor marine mammals near the 
seismic source vessels during all daylight hours and during any ramp-up 
of airguns at night. In case the source vessels are not shooting but 
are involved in the deployment or retrieval of receiver cables, the 
MMOs will remain on the vessels and will continue their observations. 
The main purpose of the MMOs is to monitor the established safety zones 
and to implement the mitigation measures described previously in this 
document.
    The main objectives of the visual marine mammal monitoring from the 
seismic source vessels are as follows:
    (1) To form the basis for implementation of mitigation measures 
during the seismic operation (e.g., course alteration, airgun power-
down, shutdown and ramp-up);
    (2) To obtain information needed to estimate the number of marine 
mammals potentially affected, which must be reported to NMFS within 90 
days after completion of the 2008 seismic survey program;
    (3) To compare the distance and distribution of marine mammals 
relative to the source vessel at times with and without seismic 
activity; and
    (4) To obtain data on the behavior and movement patterns of marine 
mammals observed and compare those at times with and without seismic 
activity.
    Note that potential to successfully achieve objectives 3 and 4 is 
subject to the number of animals observed during the survey period.
    Two MMOs will also be placed on the mothership the Arctic Wolf 
during its transit from Homer or Anchorage, via the Chukchi Sea and 
around Barrow to the survey area. Presence of MMOs on this vessel is to 
prevent any potential impact on beluga whales during the spring hunt, 
in addition to other measures that will be taken in close communication 
with the whale hunters of Pt. Lay and Kotzebue, Alaska. According to 
BPXA, it will be important that at least one Alaska native resident who 
speaks Inupiat be placed on this vessel.
    MMO Protocol - BPXA will work with experienced MMOs that have had 
previous experience working on seismic

[[Page 40536]]

survey vessels, which will be especially important for the lead MMO. At 
least one Alaska native resident who speaks Inupiat and is 
knowledgeable about the marine mammals of the area is expected to be 
included as one of the team members aboard both source vessels and the 
mother ship.
    At least one observer will monitor for marine mammals at any time 
during daylight hours and nighttime ramp-ups after a full shutdown (and 
if the entire safety zone is visible). There will be no periods of 
darkness until mid-August. Two MMOs will be on duty whenever feasible 
and practical, as the use of two simultaneous observers will increase 
the early detectability of animals present near the safety zone of the 
source vessels. MMOs will be on duty in shifts of maximum 4 hrs, but 
the exact shift regime will be established by the lead MMO in 
consultation with each MMO team member.
    Before the start of the seismic survey, the lead MMO will explain 
the function of the MMOs, their monitoring protocol, and mitigation 
measures to be implemented to the crew of the seismic source vessels 
Peregrine and Miss Dianne. Additional information will be provided to 
the crew by the lead MMO that will allow the crew to assist in the 
detection of marine mammals and (where possible and practical) in the 
implementation of mitigation measures.
    Both the Peregrine and Miss Dianne are relatively small vessels but 
form suitable platforms for marine mammal observations. Observations 
will be made from the bridges, which are respectively approximately 4.5 
m (approximately 15 ft) and approximately 3.7 m (approximately 12 ft) 
above sea level, and where MMOs have the best view around the vessel. 
During daytime, the MMO(s) will scan the area around the vessel 
systematically with reticle binoculars (e.g., 7 50 Fujinon) and the 
naked eye. During any periods of darkness, night vision devices will be 
available (ITT F500 Series Generation 3 binocular-image intensifier or 
equivalent). Laser rangefinding binoculars (Leica LRF 1200 laser 
rangefinder or equivalent) will be available to assist with distance 
estimation; these are useful in training observers to estimate 
distances visually, but are generally not useful in measuring distances 
to animals directly.
    Communication Procedures - When marine mammals in the water are 
detected within or about to enter the designated safety zones, the 
airgun(s) power-down or shutdown procedures will be implemented 
immediately. To assure prompt implementation of power-downs and 
shutdowns, multiple channels of communication between the MMOs and the 
airgun technicians will be established. During the power-down and 
shutdown, the MMO(s) will continue to maintain watch to determine when 
the animal(s) are outside the safety radius. Airgun operations can be 
resumed with a ramp-up procedure (depending on the extent of the power-
down) if the MMOs have visually confirmed that the animal(s) moved 
outside the safety zone, or if the animal(s) were not observed within 
the safety zone for 15 min (pinnipeds) or for 30 min (cetaceans). 
Direct communication with the airgun operator will be maintained 
throughout these procedures.
    Data Recording - All marine mammal observations and any airgun 
power-down, shutdown, and ramp-up will be recorded in a standardized 
format. Data will be entered into a custom database using a notebook 
computer. The accuracy of the data entry will be verified by 
computerized validity data checks as the data are entered and by 
subsequent manual checking of the database. These procedures will allow 
initial summaries of data to be prepared during and shortly after the 
field program and will facilitate transfer of the data to statistical, 
graphical, or other programs for further processing and archiving.

Acoustic Measurements and Monitoring

    Acoustic measurements and monitoring will be conducted for three 
different purposes: (1) To establish the distances of the safety zones; 
(2) to measure source levels (i.e., received levels referenced to 1 m 
(3 ft) from the sound source) of each vessel of the seismic fleet to 
obtain knowledge on the sounds generated by the vessels; and (3) to 
measure received levels offshore of the barrier islands from the 
seismic sound source.
    Verification and Establishment of Safety Zones - Prior to, or at 
the beginning of the seismic survey, acoustic measurements will be 
conducted to calculate received sound levels as a function of distance 
from the airgun sound source. These measurements will be conducted for 
different discharge volumes.
    The results of these acoustic measurements will be used to re-
define the safety zone distances for received levels of 190 dB, 180 dB, 
and 160 dB. The 160-dB received level is monitored to avoid any 
behavioral disturbances of marine mammals that may be in the area. The 
distances of the received levels as a function of the different sound 
sources (varying discharge volumes) will be used to guide power-down 
and ramp-up procedures. A preliminary report describing the methodology 
and results of the measurement for at least the 190-dB and 180-dB (rms) 
safety zones will be submitted to NMFS within 72-hrs of completion of 
the measurements.
    Measurements of Vessel Sounds - BPXA intends to measure vessel 
sounds of each representative vessel. The exact scope of the source 
level measurements (back-calculated as received levels at 1 m (3 ft) 
from the source) should follow a pre-defined protocol to eliminate the 
complex interplay of factors that underlie these measurements, such as 
bathymetry, vessel activity, location, season, etc. Where possible and 
practical the monitoring protocol will be developed in alignment with 
other existing vessel source level measurements.
    Received Sound Levels Offshore the Barrier Islands - The proposed 
seismic survey will take place inside the barrier islands, and, as 
such, the sounds from the seismic survey activities are not expected to 
propagate much beyond the shallow areas formed by these barrier 
islands.

Aerial Surveys

    During the July and August timeframe, no bowhead whales are 
expected to be present in or close to the survey area, so no aerial 
surveys are planned or required for BPXA's activity.

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 BPXA's 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,

[[Page 40537]]

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.
    Additionally, BPXA participates in and contributes money to the 
Joint Industry Studies Program. This 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, 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.
    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/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

    NMFS has previously consulted under section 7 of the ESA on the 
issuance of IHAs for seismic survey activities in the Beaufort and 
Chukchi Seas. NMFS issued a Biological Opinion on June 16, 2006, 
regarding the effects of this action on ESA-listed species and critical 
habitat under the jurisdiction of NMFS. The Opinion 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. A copy of the Biological Opinion is available at: 
http://www.mms.gov/alaska/ref/BioOpinions/ARBOIII-2.pdf.

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 requirement. 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 BPXA's application and 
addendum, public comments received on BPXA's application, the proposed 
IHA notice (73 FR 24236, May 2, 2008), this document, the 2006 and 2007 
Comprehensive Monitoring Reports by Shell Oil Inc. and others, public 
review of BPXA's 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 BPXA 
conducting seismic surveys in the Liberty Prospect, Foggy Island Bay, 
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 BPXA's 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 Liberty Prospect area of 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 BPXA's 
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

[[Page 40538]]

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 >210 dB re 1 Pa rms (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 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 BPXA) 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 BPXA 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 one 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 regards to dates for the activity, BPXA intends 
to work beginning the second week of July and ceasing activity on 
August 25.
    Finally, NMFS has determined that the seismic activity by BPXA 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) activities will cease prior to the fall bowhead 
whale hunt in the Beaufort Sea; (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; and (4) the main seal hunts that occur 
during the open water season occur in areas farther west than the 
Liberty Prospect, so it should not conflict with harvest activities.

Authorization

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

    Dated: July 8, 2008.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E8-15962 Filed 7-14-08; 8:45 am]
BILLING CODE 3510-22-S