Small Takes of Marine Mammals Incidental to Specified Activities; Ocean Bottom Cable Seismic Survey in the Liberty Prospect, Beaufort Sea, Alaska in 2008, 40512-40538 [E8-15962]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XI81


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

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

ACTION:  Notice; issuance of an incidental take authorization.

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

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

ADDRESSES: The application containing a list of the references used in 
this document, an addendum to the application, and the IHA are 
available by writing to P. Michael Payne, Chief, Permits, Conservation 
and Education

[[Page 40513]]

Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225 or by 
telephoning the contact listed below (FOR FURTHER INFORMATION CONTACT), 
or online at: https://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: https://www.mms.gov/alaska/. A copy of NMFS' 2008 
Supplemental Environmental Assessment (SEA) is available at https://
www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

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

SUPPLEMENTARY INFORMATION:

Background

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

Summary of Request

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

Description of Activity

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

Comments and Responses

    A notice of receipt of BPXA's MMPA application and NMFS' proposal 
to issue an IHA to BPXA was published in the Federal Register on May 2, 
2008 (73 FR 24236). That notice described, in detail, BPXA's proposed 
activity, the marine mammal species that may be affected by the 
activity, and the anticipated effects on marine mammals. During the 30-
day public comment period on BPXA's application, comments were received 
from the Marine Mammal Commission (MMC), the Center for Biological 
Diversity (CBD) on behalf of several environmental organizations, the 
Alaska Eskimo Whaling Commission (AEWC), the North Slope Borough (NSB) 
Office of the Mayor and the NSB Department of Wildlife Management 
(DWM), the Native Village of Point Hope (NVPH), and Oceana and the 
Ocean Conservancy. CBD attached the comments submitted by the Natural 
Resources Defense Council (NRDC) on the 2006 MMS PEA as an appendix to 
its comments on the IHA. With the exception of some comments relevant 
to this specific action which are addressed here, comments on the Draft 
PEA have been addressed in Appendix D of the

[[Page 40514]]

Final PEA and are not repeated here. Copies of those comment letters 
and the responses to comments can be found at: https://www.mms.gov/
alaska/. CBD also attached the comments submitted by EarthJustice on 
the 2007 DPEIS. Those comments are not substantially different from the 
comments submitted on the PEA. There are no specific comments in that 
appendix to the BPXA project that were not raised in their comment 
letter specific to the BPXA proposed IHA or on the PEA. Therefore, they 
are not addressed separately in this document.

General Activity Concerns

    Comment 1: The AEWC attached a copy of the signed Conflict 
Avoidance Agreement (CAA) and the addendum to BPXA's application for an 
IHA. Both documents indicate that BPXA will cease all seismic 
operations on August 25. The clarification in timing provided by these 
documents addresses the concerns of the AEWC and the NSB regarding late 
season monitoring.
    Response: NMFS has reviewed both of these documents and concurs 
that additional late season monitoring is not needed for the BPXA 
Liberty project since seismic activity will not occur after August 25.
    Comment 2: CBD urges NMFS not to issue any take authorization to 
BPXA for the proposed activities unless and until the agency can ensure 
that mitigation measures are in place that truly avoid adverse impacts 
to all species and their habitats and only after full and adequate 
public participation has occurred and environmental review of the 
cumulative impacts of such activities on these species and their 
habitats has been undertaken. CBD feels that the proposed IHA does not 
meet these standards and therefore violates the MMPA, the Endangered 
Species Act (ESA), the National Environmental Policy Act (NEPA), and 
other governing statutes and regulations.
    Response: In its proposed IHA Federal Register notice (73 FR 24236, 
May 2, 2008), NMFS outlined in detail the proposed mitigation and 
monitoring requirements. The implementation of these measures will 
reduce the impacts of the proposed survey on marine mammals and their 
surrounding environment to the lowest level practicable. The public was 
given 30 days to review and comment on these measures, in accordance 
with section 101(a)(5)(D) of the MMPA. NMFS has prepared a SEA to the 
2006 MMS PEA. The PEA was available for comment in 2006. NMFS has 
fulfilled its obligations under NEPA by completing a SEA, which is not 
required to be available for public comment prior to its finalization. 
These documents fully analyze the cumulative impacts of seismic 
activity in the Arctic region. Additionally, NMFS completed a 
Biological Opinion in June, 2006, as required by section 7 of the ESA, 
which concluded that this action is not likely to jeopardize the 
continued existence of listed species or result in the destruction or 
adverse modification of critical habitat. The 2008 seismic survey in 
the Liberty Prospect area of the Beaufort Sea does not meet any of the 
triggers that would require reinitiating consultation. Therefore, NMFS 
has not violated the ESA.
    Comment 3: CBD assumes that BPXA is seeking authorization from the 
U.S. Fish and Wildlife Service (USFWS) for the take of polar bears and 
Pacific walrus that will occur from their proposed activities. While 
these species are outside of NMFS' jurisdiction for purposes of take 
authorization, they are clearly part of the ``affected environment'' 
adversely impacted by NMFS' action and therefore cannot lawfully be 
simply discounted, as NMFS has done in the proposed IHA.
    Response: Since the IHA issued by NMFS can only regulate take of 
species under NMFS' jurisdiction, the Notice of Proposed IHA does not 
go into detail regarding species under the jurisdiction of other 
Federal agencies. However, NMFS does analyze the impacts to these 
species in its NEPA analysis as part of the ``affected environment.'' 
The USFWS has issued a Letter of Authorization (LOA) for BPXA to take 
species under its jurisdiction (i.e., polar bears and walruses).
    Comment 4: The NSB DWM states that transit of the M/V Arctic Wolf 
through the Chukchi Sea should not occur until the beluga harvest at 
Point Lay is completed. When it does transit through the Chukchi Sea, 
it should remain at least 80 km (50 mi) offshore to mitigate potential 
impacts to subsistence hunting of belugas, seals, or walrus.
    Response: Transit of the Arctic Wolf through the Chukchi Sea will 
be done in accordance with the requirements in the CAA signed by BPXA 
on May 30, 2008.
    Comment 5: Oceana and the Ocean Conservancy state that they agree 
with the concerns raised in the comment letter submitted on this 
application by CBD and others. The NVPH incorporated the CBD's comment 
in their entirety in their letter.
    Response: NMFS' responses to the CBD's comments are addressed in 
this section of the document.

MMPA Concerns

    Comment 6: CBD and the NSB state that because the proposed seismic 
activity carries the real potential to cause injury or death to marine 
mammals, neither an IHA nor an LOA (because NMFS has not promulgated 
regulations for mortality by seismic activities) can be issued for 
BPXA's proposed activities.
    Response: Section 101(a)(5)(D) of the MMPA authorizes Level A 
(injury) harassment and Level B (behavioral) harassment takes. While 
NMFS' regulations indicate that a LOA must be issued if there is a 
potential for serious injury or mortality, NMFS does not believe that 
BPXA's seismic surveys require issuance of a LOA. As explained 
throughout this Federal Register Notice, it is highly unlikely that 
marine mammals would be exposed to sound pressure levels (SPLs) that 
could result in serious injury or mortality. The best scientific 
information indicates that an auditory injury is unlikely to occur as 
apparently sounds need to be significantly greater than 180 dB for 
injury to occur (Southall et al., 2007). NMFS has determined that 
exposure to several seismic pulses at received levels near 200-205 dB 
(rms) might result in slight temporary threshold shift (TTS) in hearing 
in a small odontocete, assuming the TTS threshold is a function of the 
total received pulse energy. Seismic pulses with received levels of 
200-205 dB or more are usually restricted to a radius of no more than 
200 m (656 ft) around a seismic vessel operating a large array of 
airguns. BPXA's airgun array is considered to be of moderate size. For 
baleen whales, while there are no data, direct or indirect, on levels 
or properties of sound that are required to induce TTS, there is a 
strong likelihood that baleen whales (bowhead and gray whales) would 
avoid the approaching airguns (or vessel) before being exposed to 
levels high enough for there to be any possibility of onset of TTS. For 
pinnipeds, information indicates that for single seismic impulses, 
sounds would need to be higher than 190 dB rms for TTS to occur while 
exposure to several seismic pulses indicates that some pinnipeds may 
incur TTS at somewhat lower received levels than do small odontocetes 
exposed for similar durations. Consequently, NMFS has determined that 
it would be lawful to issue an IHA to BPXA for the 2008 seismic survey 
program.
    Comment 7: CBD states that the MMPA allows take authorization only 
for explicitly ``specified activities'' within a ``specified geographic 
region'' (16 U.S.C. 1371(a)(5)(D)(i)). NMFS'

[[Page 40515]]

regulations also explicitly require an applicant for take authorization 
to provide the ``date(s) and duration'' of the activity and ``the 
specific geographic region where it will occur'' (50 CFR 
216.104(a)(2)). While BPXA's application does generally describe the 
location and duration of the seismic activities themselves, there is 
minimal description and no analysis of the impacts on marine mammals of 
the transport and deployment of the 11 vessels that will be involved in 
the survey. Presumably, some or all of these vessels would transit 
through U.S. waters in the Bering, Chukchi, and/or Beaufort Seas and 
harass marine mammals along the way. By failing to adequately specify 
the activities and impacts of these vessels, BPXA has failed to comply 
with (16 U.S.C. 1371(a)(5)(D)(i) and 50 CFR 216.104(a)(2)).
    Response: The majority of the vessels to be used in the seismic 
survey will be transported to the North Slope on trailers via the haul 
road to West Dock; however, one vessel will transit the Arctic Ocean to 
the survey area, leaving from Anchorage and steaming well offshore 
around Pt Barrow to West Dock. Normal shipping and transit operations 
do not rise to a level requiring an authorization under the MMPA. To 
require IHAs and LOAs for standard shipping would reduce the ability of 
NMFS to review activities that have a potential to cause harm to marine 
mammal populations. For example, in the Arctic Ocean, NMFS would need 
to issue authorizations for barging operations that supply the North 
Slope villages in addition to various onshore and offshore oil and gas 
projects. Instead, NMFS prefers to seek applications from activities 
that have a potential impact of a more serious nature, such as shipping 
and transit operations during the fall bowhead migration and 
subsistence harvest periods. On this matter, BPXA will (in keeping with 
the CAA signed by BPXA and the Native communities) follow a route 48 km 
(30 mi) offshore and will avoid Ledyard Bay.
    Comment 8: The NSB and CBD both state that an authorization of 
incidental take of marine mammals from specified activities can only be 
issued if such take will be limited to ``small numbers'' and have a 
``negligible impact'' on the species or stock (16 U.S.C. 
1371(a)(5)(D)(i)(I); 50 CFR 206.107). These are separate and distinct 
statutory requirements (Id.). NMFS must find that both requirements are 
met. CBD states that NMFS does not make a separate finding that only 
``small numbers'' of marine mammals will be harassed by BPXA's planned 
activities. The closest thing to a separate ``small numbers'' finding 
is a single sentence in the Preliminary Conclusions section of the 
proposed IHA. In recent proposed IHAs, NMFS has directly cited its 
invalid ``small numbers'' definition. In the current IHA, NMFS does not 
directly cite to the regulatory definition of ``small numbers'', but 
nevertheless conducts its analysis according to this invalid standard. 
Yet neither the Federal Register document nor BPXA's application 
provide any support whatsoever for this ``conclusion.'' The CBD 
continues that for BPXA's proposed seismic surveys in the Beaufort Sea, 
the number of marine mammals likely to be exposed to sounds of 160 dB 
re 1 microPa (rms) or greater, and therefore ``harassed'' according to 
NMFS' operative thresholds, is almost 300. In absolute terms this 
number cannot be considered ``small.'' Given the MMPA is designed to 
protect not just populations but individual [emphasis added by 
commenter] marine mammals, any number in the hundreds simply cannot be 
considered ``small.'' The proposed seismic surveys simply are not 
designed to avoid impacting more than small numbers of marine mammals, 
and, therefore, the IHA must be denied.
    Response: NMFS believes that the small numbers requirement has been 
satisfied. The species most likely to be harassed during seismic 
surveys in the Liberty Prospect area of the Beaufort Sea is the ringed 
seal, with an ``average estimate'' of 156 exposures to SPLs of 160 dB 
or greater at 4 m (13 ft) tow depth. This does not mean that this is 
the number of ringed seals that will actually exhibit a disruption of 
behavioral patterns in response to the sound source; rather, it is 
simply the best estimate of the number of animals that potentially 
could have a behavioral modification due to the noise. For example, 
Moulton and Lawson (2002) indicate that most pinnipeds exposed to 
seismic sounds lower than 170 dB do not visibly react to that sound, 
and, therefore, pinnipeds are not likely to react to seismic sounds 
unless they are greater than 170 dB re 1 Pa (rms). In addition, these 
estimates are calculated based upon line miles of survey effort, animal 
density, and the calculated zone of influence (ZOI). While this 
methodology is valid for seismic surveys that transect long distances, 
for those surveys that ``mow the lawn'' (that is, remain within a 
relatively small area, transiting back and forth while shooting 
seismic), the numbers tend to be highly inflated. However, BPXA tried 
to eliminate some of the overlap by entering the seismic survey lines 
into a MapInfo Geographic Information System (GIS) to determine the 
area of ensonification. GIS was then used to identify the relevant 
areas by ``drawing'' the applicable 160-dB buffer around each seismic 
source line and then to calculate the total area within the buffers. 
This method avoids the large overlap of buffer zones from each seismic 
source line and hence an overestimation of the potential number of 
marine mammals exposed.
    The Level B harassment take estimate of 156 ringed seals is a small 
number, at least in relative terms, in that it represents only 0.06 
percent of the regional stock size of that species (249,000), if each 
``exposure'' at 160 dB represents an individual ringed seal. The 
percentage would be even lower if a higher SPL is required for a 
behavioral reaction (as is expected) or, if as expected, animals move 
out of the seismic area. As a result, NMFS believes that these 
``exposure'' estimates are conservative, and seismic surveys will 
actually affect less than 0.06 percent of the Beaufort Sea ringed seal 
population.
    The ``average estimates'' of exposures for the remaining species 
that could potentially occur in the Liberty Prospect (i.e., beluga, 
bowhead, and gray whales and bearded and spotted seals) are only 
between 1 and 11 animals, which constitute at most 0.09 percent of any 
of these five species populations in the Arctic. Additionally, the 
presence of beluga, bowhead, and gray whales in the shallow water 
environment within the barrier islands is possible but expected to be 
very limited.
    Further, NMFS believes that it is incorrect to add the number of 
exposures together to support an argument that the numbers are not 
``small.'' The MMPA is quite clear ''...taking by harassment of small 
numbers of marine mammals of a species or population stock...'' does 
not refer to an additive calculation (small numbers, not small number).
    Based on the fact that only small numbers of each species or stock 
will possibly be impacted and mitigation and monitoring measures will 
reduce the number of animals likely to be exposed to seismic pulses and 
therefore avoid injury and mortality, NMFS finds that BPXA's 3D OBC 
seismic survey will have a negligible impact on the affected species or 
stock.
    Comment 9: CBD states that in 2006, NMFS required surveys of a 120-
dB safety zone for bowhead cow/calf pairs and ``large groups'' (greater 
than 12 individuals). If 12 bowheads constitute a ``large group,'' we 
do not see how the numerous bowheads that will be

[[Page 40516]]

harassed by BPXA are a ``small number.'' This displacement and the 
disruption of pod integrity clearly constitute harassment under the 
MMPA. BPXA's activities can be expected to have similar effects. As 
with its ``small numbers'' conclusion, NMFS' determination that BPXA's 
activities will have a ``negligible impact'' also does not withstand 
scrutiny. First, as explained above and in our NEPA comments, the 
calculation of numbers of marine mammals harassed by BPXA is likely an 
underestimate as it relies on a received sound threshold (160/170 dB) 
that is too high. Any negligible impacts determination based on such 
flawed data is itself unsupportable. Moreover, NMFS has previously 
recognized a harassment threshold of 120 dB for continuous sounds. 
Given that BPXA is using two seismic ships in conjunction, firing every 
4 s, these sources should be treated as ``continuous'' for purposes of 
estimating harassment thresholds. The MMPA is precautionary. In making 
its determinations, NMFS must give the benefit of the doubt to the 
species. As the D.C Circuit has repeatedly stated, ``it is clear that 
'the Act was to be administered for the benefit of the protected 
species rather than for the benefit of commercial exploitation''' 
(Kokechik Fishermen's Association v. Secretary of Commerce, 839 F.2d 
795, 800 (D.C. Cir. 1988) citing Committee for Humane Legislation, Inc. 
v. Richardson, 540 F.2d 1141, 1148 (D.C. Cir. 1976)). NMFS seems to be 
ignoring this mandate in analyzing the impacts of BPXA's activities.
    Response: On CBD's first point, there is no relationship between 
the term ``large group'' and ``small numbers.'' The first term refers 
to a number of 12 or more in order to implement additional mitigation 
measures, the second to a concept found in the MMPA, which has been 
addressed previously in this notice. NMFS agrees that while the 
``displacement and the disruption of pod integrity constitute 
harassment under the MMPA,'' NMFS is unaware of any information that 
seismic survey operations will result in bowhead whale pod integrity 
disruption. On the contrary, traditional knowledge indicates that when 
migrating bowhead whales encounter anthropogenic noises, as a group 
they all divert away from the noise and continue to do so even if the 
noise ceases.
    Secondly, NMFS does not agree that the source used in BPXA's 
activity should be considered ``continuous.'' As mentioned in the IHA 
application and the Federal Register notice of proposed IHA (73 FR 
24236, May 2, 2008), each source vessel will have two 440 in\3\ arrays 
comprised of four guns in clusters of 2 x 70 in\3\ and 2 x 150 in\3\. 
Each source vessel will fire shots every 8 s, resulting in 4 s shot 
intervals with two operating source vessels. As the total time for each 
seismic ``shot'' will last approximately 6 msec, the amount of time 
without seismic sounds is 99.85 percent. As there is a significant 
period of time between shot events, this does not qualify as a 
continuous sound source.
    The decision in Kokechik Fishermen's Association v. Secretary of 
Commerce, 839 F.2d 795 (D.C. Circ. 1988), does not apply to this case 
because it is factually and legally distinguishable. The incidental 
take permit challenged in Kokechik was for commercial fishing 
operations, governed by section 101(a)(2) of the MMPA, whereas the 
incidental authorization that is the subject of this IHA is for an 
activity other than commercial fishing and is appropriately authorized 
pursuant to section 101(a)(5)(D). Consequently, as discussed throughout 
this document, it is not unlawful for NMFS to apply section 
101(a)(5)(D) when issuing an IHA to BPXA for the take of marine mammals 
incidental to seismic surveys.
    Comment 10: Additionally, CBD and NSB state that NMFS has no idea 
of the actual population status of several of the species subject to 
the proposed IHA. For example, in the most recent Stock Assessment 
Reports (SARs) prepared pursuant to the MMPA, NMFS acknowledges it has 
no accurate information on the status of ribbon, spotted, bearded, and 
ringed seals. See 2007 Alaska SAR at 58 (``A reliable abundance 
estimate for the Alaska stock of ribbon seals is currently not 
available,'' and ``reliable data on trends in population abundance for 
the Alaska stock of ribbon seals are unavailable.'') Id. at 45 & 46 
(``A reliable estimate of spotted seal population abundance is 
currently not available,'' and ``reliable data on trends in population 
abundance for the Alaska stock of spotted seals are considered 
unavailable.'') Id. at 49 & 50 (``There is no reliable population 
abundance estimate for the Alaska stock of bearded seals,'' and ``At 
present, reliable data on trends in population abundance for the Alaska 
stock of bearded seals are unavailable.''); and Id. at 53 & 54 (``There 
is no reliable population abundance estimate for the Alaska stock of 
ringed seals,'' and ``At present, reliable data on trends in population 
abundance for the Alaska stock of ringed seals are unavailable.'') CBD 
and NSB both indicate that without this data, NMFS cannot make a 
rational ``negligible impact'' finding. This is particularly so given 
there is real reason to be concerned about the status of these 
populations. Such concerns were raised in a recent letter to NMFS from 
the MMC following the MMC's 2005 annual meeting in Anchorage, Alaska. 
With regard to these species, the MMC cautioned against assuming a 
stable population. ``Given apparent changes in the Bering, Chukchi, and 
Beaufort Seas and the declines of many other Alaska marine mammals, we 
are concerned that significant changes in the status of these seal 
species might go undetected and that the need for management actions 
would not be recognized in time to assure their conservation and 
continued function in these ecosystems, as well as their availability 
for subsistence use'' (MMC, January 25, 2006 Letter).
    On December 20, 2007, CBD petitioned NMFS to list the ribbon seal 
under the ESA due to the loss of its sea-ice habitat from global 
warming and the adverse impacts of oil industry activities on the 
species. On May 27, 2008, CBD submitted a similar petition seeking 
listing of the spotted, bearded, and ringed seals. We request that NMFS 
consider the information contained in these petitions, as well as other 
information in its files on the status of these species, when analyzing 
the impacts of the proposed IHA on these increasingly imperiled 
species. Because the status of the ribbon, spotted, ringed, and bearded 
seals and other stocks is unknown, NMFS cannot conclude that surveys 
which will harass untold numbers of individuals of each species will 
have no more than a ``negligible effect'' on the stocks.
    Response: As required by the MMPA implementing regulations at 50 
CFR 216.102(a), NMFS has used the best scientific information available 
in making its determinations required under the MMPA. The Alaska SAR 
provides population estimates based on past survey work conducted in 
the region. The proposed survey by BPXA is not expected to have adverse 
impacts on ice seals. The activity will last for approximately 40 days 
in the open-water environment of the Beaufort Sea, where bearded and 
spotted seals are found only occasionally. On March 28, 2008, NMFS 
published a notice of a 90-day petition finding, request for 
information, and initiation of status reviews of ribbon, bearded, 
ringed, and spotted seals (73 FR 16617). The comment period for this 
action closed on May 27, 2008. NMFS is currently reviewing all relevant 
information and within 1 year of receipt of the petition, NMFS shall 
conclude the review with a finding as to whether or not the petitioned 
action is warranted. The

[[Page 40517]]

ribbon seal petition submitted in December, 2007, is not relevant for 
this survey, as ribbon seals are not found in the project area. 
Information contained in the May, 2008, petition does not provide 
sufficient evidence that NMFS' preliminary determination that only 
small numbers of ringed, bearded, and spotted seals would be affected 
as a result of BPXA's seismic activity in the Liberty Prospect.
    Comment 11: CBD states that the analyses in the proposed IHA are 
largely confined to looking at the immediate effects of BPXA's airgun 
surveys in the Beaufort Sea on several marine mammal species. However, 
there is no analysis of the impacts of the 11 vessels and any related 
aircraft participating in the surveys on marine mammals. The impacts of 
these activities must be analyzed and mitigated before any ``negligible 
impact'' finding can be made. CBD and NSB believe that NMFS must 
consider these effects together with other oil and gas activities that 
affect these species, stocks and local populations, other anthropogenic 
risk factors such as climate change, and the cumulative effect of these 
activities over time. The effects should be analyzed with respect to 
their potential population consequences at the species level, stock 
level, and at the local population level. See Anderson v. Evans, 350 
F.3d 815 (9th Cir. 2003) as amended by 371 F.3d 475 (9th Cir. 2004) 
(``Even if the eastern Pacific gray whales overall or the smaller PCFA 
group of whales are not significantly impacted by the Makah Tribe's 
whaling, the summer whale population in the local Washington area may 
be significantly affected. Such local effects are a basis for a finding 
that there will be a significant impact from the Tribe's hunts.'')
    Response: Under section 101(a)(5)(D) of the MMPA, NMFS is required 
to determine whether the taking by the applicant's specified activity 
will have a negligible impact on the affected marine mammal species or 
population stocks. Cumulative impact assessments are NMFS' 
responsibility under NEPA, not the MMPA. In that regard, the MMS Final 
PEA and NMFS SEA address cumulative impacts. The Final PEA's cumulative 
activities scenario and cumulative impact analysis focused on oil and 
gas-related and non-oil and gas-related noise-generating events/
activities in both Federal and State of Alaska waters that were likely 
and foreseeable. Other appropriate factors, such as Arctic warming, 
military activities, and noise contributions from community and 
commercial activities were also considered. Appendix D of the Final PEA 
addresses similar comments on cumulative impacts, including global 
warming. That information was incorporated into and updated in the NMFS 
2008 SEA and into this document by citation. NMFS adopted the MMS Final 
PEA, and it is part of NMFS' Administrative Record. Finally, the 
proposition for which CBD cites Anderson was in the context of the 
court's analysis under NEPA, not MMPA section 101(a)(5)(D) 
authorizations, which was not at issue in Anderson.
    NMFS does not require authorizations under section 101(a)(5) of the 
MMPA for normal shipping or transit. A further explanation was 
addressed in the response to Comment 7.
    Comment 12: NSB and CBD are both concerned about cumulative impacts 
from multiple operations. BPXA's proposal is only one of numerous oil 
industry activities recently occurring, planned, or ongoing in the U.S. 
portions of the Chukchi and Beaufort Seas (e.g., proposed IHA for on-
ice seismic surveys in Harrison Bay; proposed scientific seismic survey 
by the National Science Foundation (NSF); NMFS' 5-year regulations for 
activities related to Northstar; Shell IHA for Beaufort Sea exploratory 
drilling; Conoco IHA for Beaufort Sea; Shell IHA for Beaufort Sea; two 
proposed IHAs for Chukchi Sea and two proposed for the Beaufort Sea; 
and USFWS 5-year regulations for oil and gas activities in the Beaufort 
Sea). No analysis of seismic surveys in the Russian or Canadian 
portions of the Chukchi and Beaufort seas is mentioned either. 
Similarly, significant increases in onshore oil and gas development 
with attendant direct impacts and indirect impacts on marine mammals 
such as through increased ship traffic are also occurring and projected 
to occur at greater rates than in the past (e.g., NMFS' IHA for barge 
traffic to NPR-A; IHA for barge operations in the Beaufort Sea; and a 
notice regarding new oil and gas development in the NPR-A). CBD states 
that further cumulative effects impacting the marine mammals of the 
Beaufort and Chukchi Seas are outlined in their NEPA comments on the 
MMS PEA and the DPEIS.
    The NSB points out that in addition to the proposed offshore 
industrial operations listed above, there will be supply and fuel 
barging to villages, barging for support of onshore development and 
exploration, scientific cruises, climate change studies, USCG 
operations, tourist vessel traffic, and other activities as well. The 
cumulative impacts of all these activities must be factored into any 
negligible impact determination. Further, without an analysis of the 
effects of all of the planned operations, it is impossible to determine 
whether the monitoring plans are sufficient.
    Response: See the response to the previous comment. The issue of 
cumulative impacts has been addressed in the 2006 MMS Final PEA and the 
2008 NMFS SEA.
    Comment 13: According to CBD, another factor causing NMFS' 
``negligible impact'' findings to be suspect is the fact that the 
Beaufort Sea area is undergoing rapid change as a result of global 
warming. For species under NMFS' jurisdiction, and therefore subject to 
the proposed IHA, seals are likely to face the most severe 
consequences. The Arctic Climate Impact Assessment (ACIA) concluded 
that ringed, spotted, and bearded seals would all be severely 
negatively impacted by global warming this century. The ACIA stated 
that ringed seals are particularly vulnerable: ``Ringed seals are 
likely to be the most highly affected species of seal because all 
aspects of their lives are tied to sea ice'' (ACIA, 2004). In 2003, the 
NRC noted that oil and gas activities combined with global warming 
presented a serious cumulative impact to the species: ``Climate warming 
at predicted rates in the Beaufort Sea region is likely to have serious 
consequences for ringed seals and polar bears, and those effects will 
accumulate with the effects of oil and gas activities in the region.'' 
NMFS' failure to address global warming as a cumulative effect renders 
its negligible impact findings invalid.
    Response: Under section 101(a)(5)(D) of the MMPA, ``the Secretary 
shall authorize... taking by harassment of small numbers of marine 
mammals of a species or population stock by such citizens while 
engaging in that activity within that region if the Secretary finds 
that such harassment during each period concerned (I) will have a 
negligible impact on such species or stock, and (II) will not have an 
unmitigable adverse impact on the availability of such species or stock 
for taking for subsistence uses.'' Section 101(a)(5)(D) of the MMPA 
does not require NMFS to base its negligible impact determination on 
the possibility of cumulative effects of other actions.
    As stated in previous responses, cumulative impact assessments are 
NMFS' responsibility under NEPA, not the MMPA. In that regard, the MMS 
2006 Final PEA and NMFS' 2008 SEA address cumulative impacts. The PEA's 
cumulative activities scenario and cumulative impact analysis focused 
on oil and gas-related and non-oil and gas-

[[Page 40518]]

related noise-generating events/activities in both Federal and State of 
Alaska waters that were likely and foreseeable. Other appropriate 
factors, such as Arctic warming, military activities, and noise 
contributions from community and commercial activities were also 
considered. Appendix D of the PEA addresses similar comments on 
cumulative impacts, including global warming. That information was 
incorporated into and updated in the NMFS 2008 SEA and into this 
document by citation. NMFS adopted the MMS Final PEA, and it is part of 
NMFS' Administrative Record.
    Comment 14: The NSB states that the proposed IHA should be more 
specific in defining dates for which seismic activities will be 
permitted. BPXA suggests the seismic surveys will take 60 days to 
complete. The company currently intends to conduct sound source 
verification of the airgun arrays and for the vessels to be used for 
the seismic surveys on July 15, 2008 (based on recent correspondence 
from BPXA to the AEWC). Therefore, the surveys are not likely to be 
completed by the end of August. NMFS should make clear that the IHA 
permits seismic surveying only until the end of August. Seismic 
activity should cease during the bowhead whale hunt at Kaktovik and 
Nuiqsut.
    Response: BPXA has informed NMFS that they have agreed to end all 
airgun activity on August 25 before the beginning of the bowhead whale 
hunt at Kaktovik and Nuiqsut. This change in duration is reflected in 
this notice.

Marine Mammal Impact Concerns

    Comment 15: CBD states that they referenced the scientific 
literature linking seismic surveys with marine mammal stranding events 
in its comments to MMS on the 2006 Draft PEA and in comments to NMFS 
and MMS on the 2007 DPEIS. NMFS' failure to address these studies and 
the threat of serious injury or mortality to marine mammals from 
seismic surveys renders NMFS' conclusory determination that serious 
injury or morality will not occur from BPXA's activities arbitrary and 
capricious.
    Response: MMS briefly addressed the humpback whale stranding in 
Brazil on page PEA-127 in the Final PEA. Marine mammal strandings are 
also discussed in the NMFS/MMS DPEIS. A more detailed response to the 
cited strandings has been provided in several previous IHA issuance 
notices for seismic surveys. Additional information has not been 
provided by CBD or others regarding these strandings. As NMFS has 
stated, the evidence linking marine mammal strandings and seismic 
surveys remains tenuous at best. Two papers, Taylor et al. (2004) and 
Engel et al. (2004), reference seismic signals as a possible cause for 
a marine mammal stranding. Taylor et al. (2004) noted two beaked whale 
stranding incidents related to seismic surveys. The statement in Taylor 
et al. (2004) was that the seismic vessel was firing its airguns at 
1300 hrs on September 24, 2004, and that between 1400 and 1600 hrs, 
local fishermen found live-stranded beaked whales some 22 km (12 nm) 
from the ship's location. A review of the vessel's trackline indicated 
that the closest approach of the seismic vessel and the beaked whales' 
stranding location was 33 km (18 nm) at 1430 hrs. At 1300 hrs, the 
seismic vessel was located 46 km (25 nm) from the stranding location. 
What is unknown is the location of the beaked whales prior to the 
stranding in relation to the seismic vessel, but the close timing of 
events indicates that the distance was not less than 33 km (18 nm). No 
physical evidence for a link between the seismic survey and the 
stranding was obtained. In addition, Taylor et al. (2004) indicate that 
the same seismic vessel was operating 500 km (270 nm) from the site of 
the Galapagos Island stranding in 2000. Whether the 2004 seismic survey 
caused two beaked whales to strand is a matter of considerable debate 
(see Cox et al., 2004). NMFS believes that scientifically, these events 
do not constitute evidence that seismic surveys have an effect similar 
to that of mid-frequency tactical sonar. However, these incidents do 
point to the need to look for such effects during future seismic 
surveys. To date, follow-up observations on several scientific seismic 
survey cruises have not indicated any beaked whale stranding incidents.
    Engel et al. (2004), in a paper presented to the International 
Whaling Commission (IWC) in 2004 (SC/56/E28), mentioned a possible link 
between oil and gas seismic activities and the stranding of eight 
humpback whales (seven off the Bahia or Espirito Santo States and one 
off Rio de Janeiro, Brazil). Concerns about the relationship between 
this stranding event and seismic activity were raised by the 
International Association of Geophysical Contractors (IAGC). The IAGC 
(2004) argues that not enough evidence is presented in Engel et al. 
(2004) to assess whether or not the relatively high proportion of adult 
strandings in 2002 is anomalous. The IAGC contends that the data do not 
establish a clear record of what might be a ``natural'' adult stranding 
rate, nor is any attempt made to characterize other natural factors 
that may influence strandings. As stated previously, NMFS remains 
concerned that the Engel et al. (2004) article appears to compare 
stranding rates made by opportunistic sightings in the past with 
organized aerial surveys beginning in 2001. If so, then the data are 
suspect.
    Second, strandings have not been recorded for those marine mammal 
species expected to be harassed by seismic in the Arctic Ocean. Beaked 
whales and humpback whales, the two species linked in the literature 
with stranding events with a seismic component are not located in the 
area of the Beaufort Sea where seismic activities would occur (although 
humpback whales have been spotted in the Chukchi Sea and much farther 
west in the Beaufort Sea). Moreover, NMFS notes that in the Beaufort 
Sea, aerial surveys have been conducted by MMS and industry during 
periods of industrial activity (and by MMS during times with no 
activity). No strandings or marine mammals in distress have been 
observed during these surveys; nor reported by NSB inhabitants. 
Finally, if bowhead and gray whales react to sounds at very low levels 
by making minor course corrections to avoid seismic noise and 
mitigation measures require BPXA to ramp-up the seismic array to avoid 
a startle effect, strandings are highly unlikely to occur in the Arctic 
Ocean. Ramping-up of the array will allow marine mammals the 
opportunity to vacate the area of ensonification and thus avoid any 
potential injury or impairment of their hearing capabilities. In 
conclusion, NMFS does not expect any marine mammals will incur serious 
injury or mortality as a result of seismic surveys in the Beaufort Sea 
in 2008.
    Comment 16: CBD states that seismic surveys pose the risk of 
permanent hearing loss by marine mammals, which itself is a ``serious 
injury'' likely to lead to the death of these animals. Seismic pulses 
of sufficient volume, such as those proposed to be used by BPXA, have 
the potential to cause temporary and permanent hearing loss in marine 
mammals.
    Response: NMFS does not expect that animals will be injured, or for 
that matter seriously injured or killed, if they are within the 180 dB 
(cetaceans) and 190 dB (pinnipeds) isopleths. These criteria were set 
to approximate where Level A harassment (defined as ``any act of 
pursuit, torment or annoyance which has the potential to injure a 
marine mammal or marine mammal stock in the wild'') from acoustic 
sources begins. NMFS has determined that a TTS,

[[Page 40519]]

which is the mildest form of hearing impairment that can occur during 
exposures to a strong sound may occur at these levels. For sound 
exposures at or somewhat above TTS, hearing sensitivity recovers 
rapidly after exposure to the noise ends. Few data on sound levels and 
durations necessary to elicit mild TTS have been obtained for marine 
mammals, and none of the published data concern TTS elicited by 
exposure to multiple pulses of sound. TTS is not an injury, as there is 
no injury to individual cells.
    As NMFS has published several times in Federal Register notices 
regarding issuance of IHAs for seismic survey work or in supporting 
documentation for such authorizations, for whales exposed to single 
short pulses, the TTS threshold appears to be a function of the energy 
content of the pulse. Given the data available at the time of the IHA 
issuance, the received level of a single seismic pulse might need to be 
approximately 210 dB re 1 microPa rms in order to produce brief, mild 
TTS. Exposure to several seismic pulses at received levels near 200-205 
dB (rms) might result in slight TTS in a small odontocete, assuming the 
TTS threshold is a function of the total received pulse energy. Seismic 
pulses with received levels of 200-205 dB or more are usually 
restricted to a radius of no more than 200 m (656 ft) around a seismic 
vessel operating a large array of airguns. Since BPXA is operating a 
moderate-sized array, this array would be even smaller. For baleen 
whales, there are no data, direct or indirect, on levels or properties 
of sound that are required to induce TTS. However, there is a strong 
likelihood that baleen whales (bowhead and gray whales) would avoid the 
approaching airguns (or vessel) before being exposed to levels high 
enough for there to be any possibility of onset of TTS.
    A marine mammal within a radius of 100 m (328 ft) or less around a 
typical large array of operating airguns may be exposed to a few 
seismic pulses with levels greater than or equal to 205 dB and possibly 
more pulses if the marine mammal moves with the seismic vessel. When 
permanent threshold shift (PTS) occurs, there is physical damage to the 
sound receptors in the ear. In some cases, there can be total or 
partial deafness, whereas in other cases, the animal has an impaired 
ability to hear sounds in specific frequency ranges. However, there is 
no specific evidence that exposure to pulses of airgun sound can cause 
PTS in any marine mammal, even with airgun arrays larger than that 
proposed to be used in BPXA's survey. Given the possibility that 
mammals close to an airgun array might incur TTS, there has been 
further speculation about the possibility that some individuals 
occurring very close to airguns might incur PTS. Single or occasional 
occurrences of mild TTS are not indicative of permanent auditory damage 
in terrestrial mammals. Relationships between TTS and PTS thresholds 
have not been studied in marine mammals but are assumed to be similar 
to those in humans and other terrestrial mammals.
    The information provided here regarding PTS is for large airgun 
arrays. BPXA is proposing to use an 880 in\3\ array, which is 
considered mid-size. Therefore, animals would have to be very close to 
the vessel to incur serious injuries. Because of the monitoring and 
mitigation measures required in the IHA (i.e., marine mammal observers 
[MMOs], ramp-up, power-down, shutdown, etc.), it is expected that 
appropriate corrective measures can be taken to avoid any injury, 
including serious injury.
    Comment 17: The NSB DWM states that the summary in Section 3 of 
BPXA's application reflects the changes that have been observed in 
recent years regarding the distribution of marine mammals. Industrial 
surveys have revealed marine mammals not commonly seen in the Chukchi 
and Beaufort Seas until recently. These include fin, minke, and 
humpback whales. Hunters have noticed increased numbers of narwhals as 
well. While BPXA has appropriately included most of these species in 
this section, it has not included humpback whales. MMOs hired by 
industry have encountered humpback whales in the Beaufort Sea more 
frequently than they have seen fin or minke whales. According to the 
NSB DWM, humpback whales should too be considered in BPXA's IHA 
application. Additionally, the NSB feels that Section 4 of BPXA's 
application provides a good summary of the stocks of marine mammals 
that may be encountered in the area that BPXA has proposed to conduct 
seismic surveys. However, humpbacks should be considered in assessments 
of takes of marine mammals from seismic surveys in the Beaufort and 
Chukchi Seas.
    Response: Until 2007, historic and recent information did not 
indicate humpback whales inhabit northern portions of the Chukchi Sea 
or enter the Beaufort Sea. No sightings of humpback whales were 
reported during aerial surveys of endangered whales in summer (July) 
and autumn (August-October) of 1979-1987 in the Northern Bering Sea 
(from north of St. Lawrence Island), the Chukchi Sea north of lat. 
66[deg] N. and east of the International Date Line, and the Alaskan 
Beaufort Sea from long. 157[deg] 01' W. east to long. 140[deg] W. and 
offshore to lat. 72[deg] N. (Ljungblad et al., 1988). Humpbacks have 
not been observed during annual aerial surveys of the Beaufort Sea 
conducted in September and October from 1982-2007 (e.g., Monnett and 
Treacy, 2005; Moore et al., 2000; Treacy, 2002; Monnett, 2008, pers. 
comm.). During a 2003 research cruise in which all marine mammals 
observed were recorded from July 5 to August 18 in the Chukchi and 
Beaufort Seas, no humpback whales were observed (Bengtson and Cameron, 
2003). One observation of one humpback whale was recorded in 2006 by 
MMOs aboard a vessel in the southern Chukchi Sea outside of the Chukchi 
Sea Planning Area (Patterson et al., 2007; MMS, 2006, unpublished 
data). During summer 2007 between August 1 and October 16, humpback 
whales were observed during seven observation sequence events in the 
western Alaska Beaufort Sea (1 animal) and eastern and southeastern 
Chukchi Sea (6 animals; MMS, 2007, unpublished data) and one other 
observation in the southern Chukchi Sea in 2007 (Sekiguchi, In prep.). 
The one humpback sighting in the Beaufort Sea in 2007 was in Smith Bay, 
which is hundreds of kilometers west of the BPXA project area. 
Therefore, humpback whales are not expected to occur in the Liberty 
Prospect area, the location of BPXA's survey.
    Comment 18: CBD and the NSB state that NMFS' estimate of the number 
of marine mammals that may be harassed under the proposed authorization 
is based on the assumption that sounds below 160 dB re 1 microPa (rms) 
do not constitute harassment. This assumption is incorrect, and 
therefore BPXA's and NMFS' estimated take numbers represent an 
underestimate of the possible true impact. As noted above, an activity 
can constitute harassment if it has the ``potential'' to affect marine 
mammal behavior. In our NEPA comments on the 2006 PEA, we pointed out 
the numerous studies showing significant behavioral impacts from 
received sounds well below 160 dB. Even the 2006 PEA itself 
acknowledges that impacts to bowheads occur at levels of 120 dB and 
below. This clearly meets the statutory definition of harassment and 
demonstrates that the numbers of bowhead estimated in the proposed IHA 
to be taken by BPXA's activities likely constitute a significant 
underestimate. NMFS' ``small numbers'' conclusion is therefore 
arbitrary and capricious for this reason as well.

[[Page 40520]]

    The NSB DWM notes that BPXA suggests that bowheads are responsive 
to industrial sounds to the 160 to 170 dB zones. However, it is not 
clear why they do not also acknowledge that bowheads avoided an area 
around active seismic to much lower sound levels, down to 120 dB or 
lower (Richardson et al., 1999). Furthermore, BPXA has avoided 
referencing studies from Northstar showing that bowheads are deflected 
by very low levels of industrial sounds, possibly even lower than 120 
dB. Bowheads' sensitivity to very low level of industrial sounds must 
be considered in assessing impacts from one industrial operation, as 
well as impacts from cumulative impacts from multiple operations.
    Response: On the first point, NMFS uses the best science available 
when making its determinations under section 101(a)(5)(D) of the MMPA. 
On the second point, CBD misunderstands the purpose of ``potential to 
harass'' in the MMPA. This was not meant to mean that highly 
speculative numbers of marine mammals could ``potentially be harassed'' 
but that Congress intended for U.S. citizens to apply for an MMPA 
authorization prior to its activity taking marine mammals, not waiting 
until after the taking occurred and someone needed to ``prove'' that 
the taking happened.
    As stated previously, the ``take'' numbers provided in BPXA's 
application are considered the numbers of animals ``exposed'' to the 
sounds based on species density, the area potentially affected, and the 
length of time the noise would be expected to last. This does not 
necessarily indicate that all animals will have a significant 
behavioral reaction to that sound at the level of 160 dB. In addition, 
CBD took the maximum number of marine mammals (based on animal 
density), instead of the expected density (as explained in BPXA's 
application). Using maximum density estimates is problematic as it 
tends to inflate harassment take estimates to an unreasonably high 
number and is not based on empirical science. As a result, and 
understanding the assumptions made in BPXA's IHA application, NMFS 
believes that far fewer marine mammals would receive SPLs sufficient to 
cause a significant biological reaction by the species. In regard to 
bowhead whales, while this species reacts to sounds at levels lower 
than 160 dB, during its fall westward migration (but not while in a 
non-migratory behavior), those reactions are not detectable by MMOs and 
that information is obtained only later during computer analysis of 
collected data.
    Richardson et al. (1999) monitored the reactions of migrating 
bowhead whales and found that most avoided the area of seismic activity 
within 20 km (12.4 mi) of the source at levels as low as 120-130 dB 
(rms). Also, the Northstar recordings are conducted during the fall 
migration westward across the Beaufort. Migration will not occur during 
the time of BPXA's survey. Therefore, the timing of the survey makes it 
unnecessary to monitor out to the 120-dB radius.
    Lastly, the requirement to assess cumulative impacts is required 
under NEPA, not the MMPA. Cumulative impacts were assessed and analyzed 
in both the 2006 PEA and the 2008 SEA.
    Comment 19: The NSB DWM and CBD states that a 160-dB threshold for 
belugas is similarly flawed. As NMFS is aware, belugas are among the 
most sensitive of marine mammals to anthropogenic sound. In previous 
IHA notices, NMFS has acknowledged the impacts of sounds on belugas 
even at significant distances from a sound source. For example, in a 
recent proposed take authorization related to seismic surveys by NSF, 
NMFS noted that belugas can be displaced at distances of up to 20 km 
(12.4 mi) from a sound source. Aerial surveys during seismic operations 
in the southeastern Beaufort Sea recorded much lower sighting rates of 
beluga whales within 10-20 km (6.2-12.4 mi) of an active seismic 
vessel. These results were consistent with the low number of beluga 
sightings reported by observers aboard the seismic vessel, suggesting 
that some belugas might be avoiding the seismic operations at distances 
of 10-20 km (6.2-12.4 mi). Such displacement clearly meets the 
statutory definition of harassment and demonstrates that the number of 
belugas estimated to be taken by BPXA's activities constitutes a 
significant underestimate. Belugas are also extremely sensitive to 
ships. A study of Canadian belugas showed flight responses from ice-
breakers at received sound levels as low as 94 dB. Presumed alarm 
vocalizations of belugas indicated that they were aware of an 
approaching ship over 80 km (50 mi) away and they showed strong 
avoidance reactions to ships approaching at distances of 35-50 km (22-
31 mi) when received noise levels ranged from 94 to 105 dB re 1 Pa in 
the 20-1000 Hz band. The ``flee'' response of the beluga involved large 
herds undertaking long dives close to or beneath the ice edge; pod 
integrity broke down and diving appeared asynchronous. Belugas were 
displaced along ice edges by as much as 80 km (50 mi; Finley et al., 
1990). The NSB DWM states that the 120-dB zone should be used for 
estimating numbers of beluga whales that may be taken during seismic 
operations in the Beaufort Sea, especially if BPXA surveys occur in 
September or later.
    Response: BPXA will be conducting their activities in shallow 
waters of maximum 9.1 m (30 ft) deep inside the barrier islands of the 
Liberty Prospect in Foggy Island Bay in July and August (and not into 
September or later). Much of the Beaufort Sea seasonal population of 
belugas enters the Mackenzie River estuary (in Canada) for a short 
period from July through August to molt their epidermis, but they spend 
most of the summer in offshore waters of the eastern Beaufort Sea, 
Amundsen Gulf, and more northerly areas (Davis and Evans, 1982; Harwood 
et al., 1996; Richard et al., 2001). Belugas are rarely seen in the 
central Alaskan Beaufort Sea during the early summer. During late 
summer and autumn, most belugas migrate westward far offshore near the 
pack ice (Frost et al., 1988; Hazard, 1988; Clarke et al., 1993; Miller 
et al., 1999), with the main fall migration corridor approximately 160 
km (100 mi) or more north of the coast. Therefore, most belugas migrate 
well offshore away from the proposed project area, although there is a 
small possibility that they could occur near the project area in small 
numbers. Additionally, as BPXA does not intend to use ice-breakers 
during its seismic survey, statements regarding beluga reactions to 
ice-breaker noise are not relevant to this activity.

Estimated Take Calculation Concerns

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

[[Page 40521]]

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

Subsistence Use Concerns

    Comment 21: CBD states that the MMPA requires that any incidental 
take authorized will not have ``an unmitigable adverse impact on the 
availability of such species or stock for taking for subsistence uses'' 
by Alaska Natives. Additionally, CBD notes they are aware that the 
NVPH, a federally recognized tribal government, has submitted comments 
opposing the proposed take authorizations due to impacts on 
subsistence, and along with many community members has commented on 
myriad other related agency documents that have direct bearing on these 
take authorization such as the Chukchi Sea Sale 193, MMS Five-Year 
Plan, and the DPEIS. Similarly, the NSB, the AEWC, and REDOIL have all 
filed challenges in federal court and/or the IBLA challenging offshore 
activities due to impacts on the subsistence hunt of bowheads and other 
species. In light of the positions of these communities and 
organizations, we do not see how NMFS can lawfully make the findings 
required under the MMPA for approving BPXA's proposed IHA.
    Response: NMFS believes that the concerns expressed by subsistence 
hunters and their representatives have been addressed by NMFS through 
the comments that they submitted to this action, which are responded to 
in this section of the document.
    Comment 22: The NSB feels that if BPXA is permitted to conduct 
seismic after the bowhead hunt, NMFS must impose additional monitoring 
requirements, as discussed above. Without additional monitoring, it 
will not be possible for NMFS to determine whether seismic affects the 
migration in ways that could result in unmitigable adverse impacts to 
subsistence.
    Response: As stated previously in this document, BPXA has stated 
that it no longer plans to conduct seismic data acquisition after the 
subsistence bowhead hunt in the Beaufort Sea.
    Comment 23: The NVPH states that the MMPA requires NMFS to find 
that the specified activities covered by an IHA ``will not have an 
unmitigable adverse impact on the availability of [marine mammal 
populations] for taking for subsistence uses `` (16 U.S.C. 
1371(a)(5)(D)(i)(II)). NMFS is required to make a preliminary 
determination in its Federal Register notice that the proposed 
activities will not have an unmitigable adverse impact on the 
availability