[Federal Register Volume 73, Number 153 (Thursday, August 7, 2008)]
[Notices]
[Pages 45969-45994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18104]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XJ56


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

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

ACTION:  Notice; issuance of an incidental take authorization.

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

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

ADDRESSES: The application containing a list of references used in this 
document, an addendum to the application, and the IHA are available by 
writing to P. Michael Payne, Chief, Permits, Conservation and Education 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225 or by 
telephoning the contact listed below (FOR FURTHER INFORMATION CONTACT) 
or online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents cited in this notice may be 
viewed, by appointment, during regular business hours, at the 
aforementioned address.
    A copy of the 2006 Minerals Management Service's (MMS) Final 
Programmatic Environmental Assessment (PEA) and/or the NMFS/MMS Draft 
Programmatic Environmental Impact Statement (DPEIS) are available on 
the internet at: http://www.mms.gov/alaska/. NMFS' 2008 Supplemental 
Environmental Assessment (SEA) is available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ''...an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Except with respect to certain activities not pertinent here, the MMPA 
defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
marine mammals. Within 45 days of the close of the comment period, NMFS 
must either issue or deny the authorization.

Summary of Request

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

[[Page 45970]]

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

Description of Activity

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

Comments and Responses

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

General Concerns

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

[[Page 45971]]

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

MMPA Concerns

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

[[Page 45972]]

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

[[Page 45973]]

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

[[Page 45974]]

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

Marine Mammal Impact Concerns

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

[[Page 45975]]

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

[[Page 45976]]

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

[[Page 45977]]

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

[[Page 45978]]

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

Estimated Take Calculation Concerns

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

[[Page 45979]]

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

Subsistence Use Concerns

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

[[Page 45980]]

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

Mitigation Concerns

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

[[Page 45981]]

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

Monitoring Concerns

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

[[Page 45982]]

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

Cumulative Impact Concerns

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

[[Page 45983]]

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

ESA Concerns

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

NEPA Concerns

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

[[Page 45984]]

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

[[Page 45985]]

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

Marine Mammals Affected by the Activity

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

Potential Effects of Airgun Sounds on Marine Mammals

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

[[Page 45986]]

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

Estimated Take of Marine Mammals by Incidental Harassment

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

Exposure Calculations for Marine Mammals

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

[[Page 45987]]

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

Potential Impact on Habitat

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

Effects of Seismic Noise and Other Related Activities on Subsistence

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

Bowhead Whales

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

[[Page 45988]]

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

Beluga Whales

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

Ringed Seals

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

Spotted Seals

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

Bearded Seals

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

Plan of Cooperation

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

[[Page 45989]]

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

Mitigation Measures

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

Establishment and Monitoring of Safety Zones

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

[[Page 45990]]

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

Speed and Course Alterations

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

Power-down Procedure

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

Shutdown Procedure

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

Ramp-up Procedure

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

[[Page 45991]]

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

Monitoring and Reporting Plan

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

Vessel-based Visual Monitoring by MMOs

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

Acoustic Monitoring of Drillsite Activities and Marine Mammal 
Vocalizations

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

Acoustic Monitoring of Seismic Survey and Ambient Sounds

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

[[Page 45992]]

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

Aerial Surveys

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

Reporting

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

Comprehensive Monitoring Report

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

[[Page 45993]]

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

ESA

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

NEPA

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

Determinations

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

[[Page 45994]]

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

Authorization

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

    Dated: July 30, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-18104 Filed 8-6-08; 8:45 am]
BILLING CODE 3510-22-S