[Federal Register Volume 73, Number 155 (Monday, August 11, 2008)]
[Notices]
[Pages 46774-46795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18199]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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Incidental Takes of Marine Mammals During Specified Activities; Shallow 
Hazard and Site Clearance Surveys in the Chukchi Sea in 2008; Notice

  Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / 
Notices  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XJ55


Incidental Takes of Marine Mammals During Specified Activities; 
Shallow Hazard and Site Clearance Surveys in the Chukchi Sea in 2008

ACTION: Notice of issuance of a marine mammal incidental take 
authorization.

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SUMMARY:  In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) to take marine mammals, by Level-B 
harassment, incidental to conducting open water shallow hazard and site 
clearance surveys by ASRC Energy Service (AES) in the Chukchi Sea, has 
been issued for a period of one year from the IHA effective date.

DATES:  The authorization is effective from July 30, 2008, until 
September 25, 2008.

ADDRESSES:  Copy of the application, IHA, the Final Programmatic 
Environmental Assessment for Arctic Ocean Outer Continental Shelf 
Seismic Surveys - 2006 (2006 PEA) prepared by the Minerals Management 
Service (MMS), the 2008 Supplemental Environmental Assessment (SEA) for 
the Issuance of five IHAs for open water seismic surveys and shallow 
hazard and site clearance surveys in the Arctic, and/or a list of 
references used in this document may be obtained by writing to P. 
Michael Payne, Chief, Permits, Conservation and Education Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225, or by telephoning one 
of the contacts listed here (see FOR FURTHER INFORMATION CONTACT).

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    Authorization shall be granted if NMFS finds that the taking will 
have a negligible impact on the species or stock(s) and will not have 
an unmitigable adverse impact on the availability of the species or 
stock(s) for certain subsistence uses, and if the permissible methods 
of taking and requirements pertaining to the mitigation, monitoring and 
reporting of such takings are set forth. NMFS has defined ``negligible 
impact'' in 50 CFR 216.103 as ''...an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Except 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 March 25, 2008, NMFS received an application from AES for the 
taking, by Level B harassment, of several species of marine mammals 
incidental to conducting shallow hazard and site clearance surveys in 
the Chukchi Sea for up to 100 days from approximately July 1, 2008 
until November 30, 2008. On June 26, 2008, AES notified NMFS that the 
proposed shallow hazard and site clearance survey could be finished 
before September 25, 2008, with a maximum of up to 60 days. The marine 
surveys would take place in the Chukchi Sea covering the area involved 
in MMS Lease Sale 193. The specific areas where the AES proposed 
shallow hazard and site clearance surveys would be are the Burger, 
Crackerjack, Ulu, and Caramel prospect sites in the Chukchi Sea. The 
marine surveys will be performed from a seismic vessel.
    Detailed information on the shallow hazard and seismic surveys can 
be found in the AES application and in the Federal Register notice for 
the proposed IHA published on April 28, 2008 (73 FR 22922) (hereinafter 
``FR Notice of Proposed IHA''). Except for the updated seismic activity 
period and specific locations, no changes have been made to the 
proposed activities.

Comments and Responses

    A FR Notice of Proposed IHA was published on April 28, 2008 (73 FR 
22922). During the 30-day public comment period, NMFS received comments 
from the Marine Mammal Commission (Commission), the California Gray 
Whale Coalition (CGWC); the Native Village of Point Hope (NVPH); the 
North Slope Borough (NSB); the Alaska Eskimo Whaling Commission (AEWC); 
the Center for Biological Diversity, Pacific Environment, Sierra Club, 
Natural Resources Defense Council and Alaska Wilderness League; Oceana 
and Ocean Conservancy; Dr. David E. Bain of the University of 
Washington; Dr. Richard Steiner of the University of Alaska; and one 
private citizen.

General Comments

    Comment 1: The Commission recommends that NMFS issue the IHA 
provided that (a) the proposed marine mammal mitigation and monitoring 
activities are carried out as described in NMFS' FR Notice of Proposed 
IHA; and (b) operations be suspended immediately if a dead or seriously 
injured marine mammal is found in the vicinity of the operations and 
the death or injury could have occurred incidental to those operations.
    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 2: The NSB points out that the AES application was poorly 
written, and that it did not reference the primary literature but used 
the summary information presented in the SAR. The NSB also points out 
that the scientific name of beluga whales was misspelled and the 
scientific name of the northern right whale was incorrect in the AES 
application. In essence, the NSB states that the application does not 
provide readers with confidence that AES has an

[[Page 46775]]

understanding of the background information or the need or expertise to 
conduct marine mammal monitoring or mitigation in association with the 
proposed site clearance or shallow hazard surveys.
    Response: Comment noted. NMFS reviewed the AES application and 
verified the information provided within. While information is lacking, 
NMFS conducted relevant research so that complete information is 
provided in the FR Notice of Proposed IHA. In addition, detailed and 
updated information on bowhead whales and other marine mammal species 
is provided in the MMS 2006 PEA, MMS 2007 draft PEIS, NMFS 2008 SEA, 
and the SAR, as referenced in the FR Notice of Proposed IHA.
    Comment 3: The NVPH, CBD, and NSB point out that neither NMFS, nor 
AES has identified the specific locations where AES plans to conduct 
its shallow hazard and site clearance surveys, except that its vessels 
would remain 40 km (25 mi) away from the Chukchi coast. The CBD further 
points out that NMFS did not provide specific dates of the proposed AES 
shallow hazard and site clearance surveys. As such, the CBD suggests 
NMFS should reject AES' application as incomplete and requests that 
NMFS reopen the public comment period for an additional 30 days. The 
NVPH requests that NMFS identify all of the areas where subsistence 
hunting occurs, and impose enforceable restrictions that would require 
AES to avoid such areas by a distance sufficient to prevent 
displacement of marine mammals.
    Response: At the time of the publication of the FR Notice of 
Proposed IHA, no information was available regarding the exact 
locations of the survey and the specific dates because AES was in the 
stage of securing its client(s) and therefore could not have known 
where seismic survey operations would occur in the Chukchi Sea. 
Nevertheless, NMFS was able to conduct an analysis of AES' proposed 
2008 open water seismic activities and its potential impacts on marine 
mammals and subsistence uses. NMFS' preliminary determination that the 
issuance of an IHA to AES would have a negligible impact on affected 
species or stocks of marine mammals and would result in no unmitigable 
adverse impact on the availability of such species or stock for taking 
for subsistence uses was based on information contained in the AES 
application, including overall area (i.e., the area denoted as LS 193 
in the Chukchi Sea), the period of the seismic operations (i.e., 
approximately July 1 - November 30, 2008), the acoustic equipment 
planned to be used for the surveys, marine mammal species and stocks 
that are likely to be found in the vicinity of the project area, and 
the proposed mitigation and monitoring measures.
    In addition, the MMPA and NMFS' implementing regulations provide a 
30-day comment period on a proposed IHA. Based upon the information 
contained in the FR Notice of Proposed IHA, NMFS believes that the 
comment period afforded the public with ample time to comment on AES' 
proposed seismic surveys, despite the fact that AES did not identify an 
exact location in which the proposed surveys would occur. At this time, 
the precise survey locations and operation timeframe have been 
identified (see Description of the Specified Activity section above). 
Therefore, the IHA issued to AES limits its 2008 open water shallow 
hazard and site clearance surveys within these areas.
    Finally, the areas and season where subsistence hunting occurs are 
described and analyzed in detail in the MMS 2007 EIS on Chukchi Sea 
Lease Sale 193, and NMFS has developed a list of mitigation measures 
that restrict seismic activities when the subsistence hunt occurs. For 
example, no seismic activities would be permitted before July 15 in the 
Chukchi Sea spring lead system. Also, as analyzed in the FR Notice of 
Proposed IHA, it is possible that small numbers of marine mammals could 
be temporarily displaced from their feeding areas as a result of the 
proposed shallow hazard and site clearance surveys. However, NMFS 
believes any displacement would constitute Level B behavioral 
harassment with the magnitude of displacement being relatively slight. 
NMFS does not believe the displacement of marine mammals would result 
in an unmitigable adverse impact to the availability of marine mammal 
species and/or stocks to subsistence uses because the AES would 
complete their seismic surveys before the fall bowhead hunting season, 
and it would not begin their operations prior to the completion of the 
late spring whale harvest, which is already over.
    In addition, NMFS understands that AES has developed a POC with the 
Native communities. The POC specifies measures AES would take to help 
ensure that any harassment of marine mammals resulting from the 
proposed activities will not have an unmitigable adverse impact on the 
availability of marine mammal species or stocks for taking for 
subsistence uses. NMFS will also require AES to comply with certain 
terms and conditions in the IHA to help ensure the availability of 
marine mammals for taking for subsistence uses. Please see description 
of the mitigation and monitoring measures below.
    Comment 4: The CBD and CGWC urge NMFS not to issue any take 
authorization to AES 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. The CBD feels that the proposed 
IHA does not meet these standards and therefore violate the MMPA, ESA, 
NEPA, and other governing statutes and regulations.
    Response: NMFS does not agree with CBD's assessment. In its FR 
Notice of Proposed IHA, 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, as required by 
the MMPA. 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 Supplemental EA to the 2006 MMS PEA. 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. 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. Therefore, 
NMFS does not believe the issuance of an IHA to AES would result in a 
violation of the MMPA, ESA, NEPA, and other governing statutes and 
regulations.

Acoustics Impacts

    Comment 5: Citing studies on noise impacts to chinchillas 
(Henderson et al., 1991) and human noise exposure standards by the U.S. 
Occupational Safety Health Administration (OSHA), Dr. Bain states that 
``in humans, chronic exposure to levels of noise too low to generate a 
TTS can result in PTS.'' As OSHA standards require limiting human 
exposure to noise at 115 dBA above threshold to 15 minutes per day, Dr. 
Bain concludes that this level is equivalent to 145 dB re 1 microPa for 
killer whales.

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    Response: Although NMFS agrees that chronic exposure to noise 
levels that would not cause TTS could result in hearing impairment in 
the long-term, it is important to understand that such exposure has to 
be of a chronic and long-term nature. The OSHA standards for 
permissible exposure are based on daily impacts throughout an 
employee's career, while the noise exposure to seismic surveys by 
marine mammals is short-term and intermittent, as described in the FR 
Notice of Proposed IHA and in the MMS 2006 PEA. In addition, the 
reference Dr. Bain cites to (Henderson et al., 1991) does not address 
chronic noise impact to humans. The research by Henderson et al. (1991) 
focused on the applicability of the equal energy hypothesis (EEH) to 
impact (impulse) noise exposures on chinchillas, and the results 
indicated that hearing loss resulting from exposure to impact noise did 
not conform to the predictions of the EEH, which is the basis for OSHA 
standards for continuous noise exposure.
    Most importantly, Dr. Bain's extrapolation of 145 dB re 1 microPa 
for killer whale hearing safety from OSHA's 115 dBA is fundamentally 
flawed for three reasons:
    (1) The reference points when using decibel (dB) unit that address 
sound in air and in water are different. For airborne sounds, such as 
those by OSHA, the reference point is 20 microPa, while for underwater 
sounds, the reference point is 1 microPa. There are 26 dB differences 
between the values when different reference points are used for the 
same sound pressure, therefore, 115 dB re 20 microPa is 141 dB re 1 
microPa for the same sound pressure. So 115 dB re 20 microPa in air 
above human threshold (defined as 0 dB re 20 microPa in air) would be 
141 dB re 1 microPa underwater for the same sound pressure. Using the 
lowest threshold of 30 dB re 1 microPa as the killer whale hearing 
threshold, and assuming that noise impacts to killer whales are the 
same as for humans, one could extrapolate that continuous noise 
exposure of 171 dB re 1 microPa (141 dB over the 30 dB threshold) for 
15 minutes for killer whales would be equivalent to humans exposed to 
115 dB re 20 microPa for 15 minutes. Nevertheless, such extrapolation 
still leaves much uncertainty since marine mammals have a different 
mechanism for sound reception (Au, 1993; Richardson et al., 1005). Some 
of the most recent science have shown that for some odontocetes, the 
onset of TTS when exposed to impulse noise is much higher (Finneran et 
al., 2002) than NMFS' current thresholds.
    (2) The decibel values used by OSHA are expressed as broadband A-
weighted sound levels expressed in dBA. This frequency-dependent 
weighting function is used to apply to the sound in accordance with the 
sensitivity of the human ear to different frequencies. Thus, it is 
inappropriate to compare these values to an animal's hearing 
capability, including how an animal perceives sound in air (Richardson 
et al., 1995). For marine mammals, M-weighting functions have been 
suggested based on five different hearing functional groups to address 
different hearing sensitivities of different frequencies by each of the 
marine mammal groups (Southall et al., 2007).
    (3) Finally, the sound characteristic used in OSHA standards is 
continuous sound, while the seismic sound from the proposed shallow 
hazard and site clearance surveys is impulse sound, which by its very 
nature is not a continuous sound.
    Comment 6: Dr. Bain asserts that the zone of immediate risk of 
injury or death for marine mammals should be within the 150 - 215 dB re 
1 microPa contours and assumes that values can be extrapolated from 
terrestrial species. Dr. Bain supports his argument by stating that 
immediate injury may result from brief exposure to sound levels that 
are 120 to 140 dB above threshold in terrestrial mammals, and that 
marine mammals vary in their best sensitivity from killer whales at 
around 30 dB re 1 microPa (killer whale) to 60 dB re 1 microPa 
(phocids) and 75 dB re 1 microPa (otariids)
    Response: NMFS does not agree with Dr. Bain's assessment. As 
discussed in Response to Comment 4, the reference points when using 
decibel (dB) unit that address sound in air is 20 microPa, while in 
water the reference point is 1 microPa. Therefore, the decibel levels 
used to address injury in terrestrial mammals cannot be extrapolated to 
apply marine mammal species without adding a correction factor of 26 dB 
(see Richardson et al., 1995). Even so, plenty of controlled laboratory 
experiments on several marine mammal species (e.g., beluga whales, 
bottlenose dolphins, harbor seals, California sea lions, and northern 
elephant seals) in the past decade point out injuries (PTS) to marine 
mammals would probably occur at much higher sound exposure levels, far 
above the 180 and 190 dB re 1 microPa NMFS currently applies to protect 
cetaceans and pinnipeds from onset of Level A harassment (injury). (see 
review by Southall et al., 2007).
    Comment 7: Citing OSHA (2007) standards for human noise exposure 
standards, Nachtigall et al. (2003), and Henderson et al. (1991), Dr. 
Bain extrapolates that permanent injury to hearing from repeated 
exposure to noise at 120 dB re 1 microPa would occur to killer whales 
after being exposed for 8 hours.
    Response: NMFS does not agree with Dr. Bain's assessment as such an 
extrapolation is invalid. First, as discussed in Response to Comment 5, 
the reference point addressing sound levels or intensities in air, 
which is used by OSHA for the human noise exposure standards, is 
relative to 20 microPa, while the reference point used to address sound 
levels or intensities in water is relative to 1 microPa. These are 
fundamentally different acoustical measures and should not be confused. 
Second, as discussed in Response to Comment 5, the noise exposure 
standard unit used by OSHA is dBA, which is the weighted sound exposure 
level based on human hearing sensitivities, and is not suitable to be 
used in other animals which have very different hearing sensitivities 
across the spectrum. Third, the sound sources used by OSHA are based on 
continuous sound, as is the referenced paper by Nachtigall et al. 
(2003), while the sound sources from the proposed seismic surveys are 
impulse sounds. The prediction of acoustic injury from continuous noise 
exposure is not applicable to impulse noise exposure, as is shown in 
the referenced paper by Henderson et al. (1991); therefore, the 
extrapolation is invalid. Fourth, ambient noise levels at many shallow 
water areas could easily reach 120 dB re 1 microPa, coupled with surf 
and wave actions. If killer whales suffered from permanent hearing 
damage when exposed to this noise level for 8 hours as suggested by Dr. 
Bain, then most killer whales in the coastal areas would have no 
hearing left. The lab controlled experiments by Nachtigall et al. 
(2003), as cited by Dr. Bain, show that an Atlantic bottlenose dolphin 
exhibited TTS of an average 11 dB after being exposed to continued 
noise up to 179 dB re 1 microPa for 55 minutes, a much higher level 
than where Dr. Bain would consider TTS to occur. However, in the wild, 
animals are expected to avoid such intense noise levels, thus 
preventing onset of TTS. Finally, killer whales are not expected to 
occur frequently in the proposed Arctic shallow hazard and site 
clearance project area, so the risk to this species is minimal.
    Comment 8: Citing several papers on killer whales, harbor 
porpoises, and marbeled murrelets, Dr. Bain states that major behavior 
changes of these animals appear to be associated with received

[[Page 46777]]

levels of around 135 dB re 1 microPa, and that minor behavioral changes 
can occur at received levels from 90 - 110 dB re 1 microPa or lower. 
Citing his own studies, Dr. Bain states that ``killer whales are 40% 
less likely to forage at all when vessels are nearby, perhaps because 
vessel noise masks echoes from prey, making the probability of foraging 
successfully negligible (Bain et al., 2006a; 2006b).'' In addition, Dr. 
Bain states that the threshold for effects on harbor porpoise is 90 dB 
re 1 microPa, for killer whale is 100 dB re 1 microPa, and for beluga 
whale is 153 dB re 1 microPa, which are all lower than the threshold 
used to estimate the takes. CBD also cited a study of Canadian beluga 
whales showing flight responses from ice-breakers at received sound 
levels as low as 94 dB.
    Response: NMFS does not agree with Dr. Bain and CBD's assessment. 
Although it is possible that marine mammals could react to any sound 
levels detectable above the ambient noise level within the animals' 
respective frequency response range, this does not mean that such 
animals would react in a biologically significant way. In addition, as 
discussed in Response to Comment 6, ambient noise levels in many of the 
world's ocean can easily exceed 90 dB re 1 microPa (Urick, 1983).
    According to experts on marine mammal behavior, the degree of 
reaction which constitutes a ``take,'' i.e., a reaction deemed to be 
biologically significant that could potentially disrupt the migration, 
breathing, nursing, breeding, feeding, or sheltering, etc. of a marine 
mammal is complex and context specific, and it depends on several 
variables in addition to the received level of the sound by the 
animals. These additional variables include, but are not limited to, 
other source characteristics (such as frequency range, duty cycle, 
continuous vs. impulse vs. intermittent sounds, duration, moving vs. 
stationary sources, etc.); specific species, populations, and/or 
stocks; prior experience of the animals (naive vs. previously exposed); 
habituation or sensitization of the sound by the animals; and behavior 
context (whether the animal perceives the sound as predatory or simply 
annoyance), etc. (Southall et al., 2007).
    The references cited by Dr. Bain and CBD in this comment address 
different source characteristics (continuous sound rather than impulse 
sound that are planned for the proposed shallow hazard and site 
clearance surveys) or species (killer whales and harbor proposes) that 
rarely occur in the proposed Arctic action area. No reference 
supporting the ``threshold for effects'' on beluga whales is provided 
by Dr. Bain. Much research regarding bowhead and gray whales response 
to seismic survey noises has been conducted in addition to marine 
mammal monitoring studies during prior seismic surveys. Detailed 
descriptions regarding behavior responses of these marine mammals to 
seismic sounds are available (e.g., Richardson et al., 1995; review by 
Southall et al., 2007), and are also discussed in this document.
    Comment 9: Dr. Bain states that sound sources are typically divided 
into continuous and pulsed categories, and that behavioral effects from 
pulsed sound are likely to be independent of the repetition rate and 
duty cycle, and depend primarily on the duration of the survey. Dr. 
Bain further states that intermittent pulses can result in continuously 
received noise when sound arrives via multiple paths, which Dr. Bain 
explains as ``sound that bounces between the bottom and the surface 
will take longer to reach an animal than sound traveling via a direct 
path,'' and that ``noise can mask signals for a brief period before and 
after it is received, meaning an almost continuous received noise can 
mask signals continuously.'' Dr. Bain concludes that ``the subbottom 
profilers proposed for use during the site clearance surveys, with the 
very short intervals between pulses, present a risk of continuous 
masking effects.''
    Response: NMFS does not agree with Dr. Bain's statement on ocean 
acoustics and his subsequent analysis and assessment regarding 
underwater sound propagation and its effects to marine mammals. Within 
the scientific community on ocean acoustics and bioacoustics, two types 
of sounds are traditionally recognized: transient sounds (sounds of 
relatively short duration) and continuous sounds (sounds that go on and 
on). Transient sounds can be further classified into impulsive (such as 
seismic airguns, explosives, pile driving) and non-impulsive (such as 
military tactic sonars) sounds (Richardson et al., 1995). Other 
researchers working on noise impacts to marine mammals classified sound 
types into a single pulse (such as a single explosive), multiple pulses 
(seismic airguns, pile driving), and nonpulses (ship, sonar) (Southall 
et al., 2007). A simple way to distinguish pulses sound from nonpulses 
(continuous sound included) is that the former have rapid rise-time in 
relation to its extremely short duration. As mentioned in Response to 
Comment 8, behavioral responses from marine mammals when exposed to 
underwater noise is complex and context specific, and often depend on 
the sound characteristics (such as received levels, duration, duty 
cycles, frequency, etc.) and other variables.
    NMFS agrees that the distinction between transient and continuous 
sounds is not absolute, as continuous sound from a fast moving vessel 
is often treated as transient sound in relation to a stationary or slow 
moving marine mammal. Further, the distinction between pulses and 
nonpulses is also not always clear as certain pulsed sound sources 
(e.g., seismic airguns and explosives) may become nonpulses at greater 
distances due to signal decay through reverberation and other 
propagation paths. However, Dr. Bain's statement that intermittent 
pulses can result in continuously received noise when sound arrives via 
multiple paths is unfounded. For a marine mammal exposed to noise, 
multipath propagation would expose the animal to the noise multiple 
times, usually each subsequent exposure with lower sound level due to 
loss of acoustic energy from surface and bottom reflections; however, 
the noise arriving via multipath propagation would not become 
continuous sound because the intervals between signals would always 
exist. In addition, noise cannot mask a signal before or after it is 
received by the animal. Noise masking of signals can only occur when 
the unwanted sound (noise) interferes with the signal when received by 
the animal, generally at similar frequencies (Richardson et al., 1995). 
Therefore, Dr. Bain's assessment that the subbottom profilers proposed 
for shallow hazard and site clearance surveys would cause continuous 
masking effects to marine mammals is not supported.
    Comment 10:Dr. Bain states that one characteristic of pulsed 
sources is known as ``time-bandwidth'' product, and he explains that it 
is ``any sound with a finite duration (that is, any real-world sound) 
contains additional frequencies to the nominal frequency. That is, 
pulsed sources that nominally have a frequency that is too high to 
hear, may, in fact, be audible, as the source will contain lower 
frequencies that are detectable.''
    Response: NMFS does not agree with Dr. Bain's statement that high 
frequency pulsed sources nominally contain additional frequencies that 
are audible. The high frequency pulsed sources are expected to operate 
within their frequency range, although some mechanical noise at lower 
frequencies may be produced as a byproduct during the operation. The 
mechanical noise associated with acoustic equipment is

[[Page 46778]]

expected to be low intensity and is not expected to result in 
harassment of marine mammals. Furthermore, the term ``time-bandwidth 
product'' is generally used in signal process, which is irrelevant to 
the proposed Arctic seismic survey.
    Comment 11: Dr. Bain states that the directionality of the sources 
and whether they are on during turns would also affect the ensonified 
area.
    Response: All acoustic sources are downward directional, thus no 
additional ensonified area would result during turns.
    Comment 12: The CBD argues that NMFS analysis of the various high-
energy sound sources on marine mammals is deficient, with NMFS for the 
most part simply asserting that the sound generated by these sources is 
outside the hearing range of most marine mammals. The CBD further 
states that even NMFS acknowledges that odontocetes such as beluga 
whales can in fact hear these sounds.
    Response: NMFS does not agree with the CBD statement as it does not 
have scientific basis. In the FR Notice of the Proposed IHA, NMFS 
stated that the 445 kHz frequency band from the Klein System 3000 dual 
frequency digital side-scan sonar is outside any marine mammal species' 
hearing range, therefore, there would be no effect to marine mammals 
when this frequency is chosen. High frequency sounds above 200 kHz are 
clearly outside the hearing ranges for any marine mammals, which is 
well accepted among marine mammal bioacousticians (Richardson et al., 
1995; Southall et al., 2007). In addition, NMFS never acknowledged that 
odontocetes such as beluga whales can hear these sounds (CBD did not 
provide any reference to support its statement.) Furthermore, the sound 
generated by various side-scan sonars operated at the frequency of 120 
kHz and beyond produce signals above the hearing ranges for mysticetes, 
such as bowhead, gray, humpback, and minke whales (Richardson et al., 
1995; Southall et al., 2007).
    Comment 13: Citing Weilgart (2007), the CGWC states that seismic 
surveys can raise low-frequency noise over vast areas for more than a 
month, exposing large portions of a cetacean population to chronic 
noise. Citing Tyack (1988), the CGWC further states that avoidance 
behavior has been reported for gray whales in response to decibels 
great than 120 dB for continuous noise and 160 - 170 dB for pulsed 
sounds. In addition, the CGWC points out that playback of sounds from a 
Bell 212 turbine helicopter projected at random intervals of 10 seconds 
to 2 minutes showed significant course changes in gray whales in 
apparent avoidance of the sounds. Finally, the CGWC states that 
reactions to noise by gray whales are more pronounced on their 
breeding/calving grounds (Malme et al., 1983; 1984), and that gray 
whales were displaced for greater than 5 years from one of their 
breeding lagoons in response to industrial sounds (Jones et al., 1994).
    Response: NMFS does not agree with CGWC's ``one size fits all'' 
statement that ``seismic surveys can raise low-frequency noise over 
vast areas for more than a month, exposing large portions of a cetacean 
population to chronic noise.'' The degree and number of cetaceans, or 
any marine mammal species that can be exposed to a seismic survey 
depends on the duration of the survey, the intensity of the airgun 
source, and the density of cetacean population, or other marine 
mammals, in the vicinity of the survey area.
    NMFS agrees with CGWC's comments that behavioral modification of 
many marine mammals starts when exposed to pulsed sounds at 160 - 170 
dB, as cited in Tyack (1988), which is consistence with NMFS current 
criteria for Level B behavioral harassment of 160-dB when exposed to 
pulsed sounds, and 120-dB when exposed to continuous sounds. The 
signals produced by airguns and other acoustic equipment for the 
proposed AES shallow hazard and site clearance survey are all pulsed 
sounds.
    Finally, the proposed survey area in the Arctic Ocean is not gray 
whale breeding/calving grounds, so there will be no effect to this 
species' breeding/calving activities from the proposed activity.
    Comment 14: The CGWC states that when gray whales were on their 
feeding grounds, Malme et al. (1986) estimated that there was a 50 
percent probability of gray whale avoidance when the average pulse 
level of the received noise was approximately 173 dB and a 10 percent 
probability of avoidance at 163 dB.
    Response: Comment noted. Though some gray whales (10 percent) may 
be temporarily affected by seismic surveys when exposed to received 
level at 163 dB as referenced by Malme et al. (1986), NMFS does not 
consider this effect to be significant for the following reasons: (1) 
the proposed shallow hazard and site clearance survey area is in the 
Chukchi Sea and is not a primary feeding ground for gray whales. The 
majority of gray whales feed on amphipods in shallow coastal waters in 
the Bering Sea which is not located near the proposed seismic survey 
area; and (2) a 160-dB safety zone will be established requiring shut-
down of airguns when a congregation of 12 or more bowhead or gray 
whales is sighted during the AES seismic activities.
    Comment 15: Citing NMFS (2002), Weller et al. (2006a; 2006b), and 
IWC (2007), the CGWC states that noise has been thought to at least 
contribute to some species' decline or lack of recovery.
    Response: Comment noted. However, since the CGWC did not provide 
the full reference of the citation, NMFS is not able to verify its 
statement. Nevertheless, for the proposed AES shallow hazard and site 
clearance survey, NMFS has conducted a through analysis of the 
potential impacts from seismic noise to marine mammals in its FR Notice 
of Proposed IHA. More extensive analyses are also provided in the MMS 
2006 PEA, the MMS 2007 draft PEIS and the 2008 SEA. As stated in this 
document, NMFS finds that the impact of conducting the shallow hazard 
and site clearance surveys in Chukchi Sea may result, at worst, in a 
temporary modification in behavior of small numbers of certain species 
of marine mammals.

MMPA Comments

    Comment 16: The CBD and NSB state that since NMFS has not 
promulgated any regulations related to shallow hazard and site 
clearance surveys under the MMPA, and because such surveys and 
associated activities carry the real potential of injury or death to 
marine mammals, neither an IHA nor an LOA can be issued for the AES' 
proposed activities.
    Response: NMFS does not agree with the CBD and NSB's statement. 
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 AES' shallow hazard and 
site clearance survey require issuance of a LOA. As explained 
throughout this Federal Register Notice of the Proposed IHA, 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

[[Page 46779]]

(TTS) in hearing in a small odontocete, assuming the TTS threshold is a 
function of the total received pulse energy. Received levels of 200 205 
dB or more from the loudest acoustic device would be restricted to a 
radius of no more than 5 m (16 ft) around a seismic vessel. AES' airgun 
array is considered to be of small 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 AES for the 2008 seismic survey program.
    Comment 17:The CBD states that it 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. The CBD further states that 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 AES' 
activities arbitrary and capricious.
    Response: The MMS briefly addressed the humpback whale stranding in 
Brazil on page PEA-127 in the 2006 Final PEA. Marine mammal strandings 
are also discussed in the MMS 2007 DPEIS. A more detailed response to 
the cited strandings has been provided in several previous IHA issuance 
notices for seismic surveys (e.g., 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) indicates 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 either extralimital 
or not located in the Chukchi Sea where shallow hazard and site 
clearance survey would occur. Moreover, NMFS notes that in the Arctic, 
marine mammal observation and monitoring have been conducted by the 
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 AES 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 AES' shallow hazard and site 
clearance survey in the Chukchi Sea in 2008.
    Comment 18: The CBD states that NMFS failed to adequately specify 
AES' activities and impacts of vessels because neither AES' application 
nor NMFS' FR Notice of the Proposed IHA mention the various transit 
routes through U.S. waters in the Bering, Chukchi and/or Beaufort Seas 
that these vessels associated with AES' surveys would take.
    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. Since 
these support vessels are typically slow-moving, any risk of vessel 
collisions with marine mammals is expected to be minimal. Moreover, 
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 19: The AEWC and NSB state that a ``small take'' finding 
cannot be supported with actual data for the proposed AES shallow 
hazard and site

[[Page 46780]]

clearance survey, therefore, placing NMFS in the position of having to 
make an arbitrary decision. In addition, the CBD states that NMFS did 
not make the distinction between ``small number'' and ``negligible 
impact'' while making the decision in the FR Notice of the Proposed 
IHA.
    Response: NMFS does not agree with the CBD's statement. The 
analysis provided in the FR Notice of the Proposed IHA clearly 
described in detail the numbers of bowhead, gray, and beluga whales, 
and ringed and bearded seals that may be potentially taken by Level B 
harassment as a result of the seismic operations in the Chukchi Sea. 
(Take estimates for pinnipeds have since been revised based on the 160-
dB rms threshold.) As clearly stated in the aforementioned Federal 
Register notice, take numbers of these species represent 0.06, 0.06, 
and 0.6 percent of the western Arctic stock of bowhead (population 
estimated at 10,545), eastern North Pacific stock of gray (population 
estimated at 18,178), and eastern Chukchi stock of Beluga whales 
(population estimated at 3,710), respectively; and 3.96 and 0.438 
percent of the Alaska stocks of ringed (population estimated at 249,000 
in the Chukchi Sea) and bearded seal (population estimated at 250,000 - 
300,000 in the Bering and Chukchi Seas) populations within the Chukchi 
Sea, respectively. Although no take number was estimated for humpback, 
fin, minke, and killer whales, harbor porpoises, and spotted and ribbon 
seals in the vicinity of the project area due to their rare presence 
based in the Chukchi Sea, NMFS believes that the harassment of these 
species would be much less likely than those of bowhead and beluga 
whales and ringed and bearded seals. NMFS believes that the numbers for 
all affected species are small relative to their stock size. 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 aforementioned Federal Register notice, 
the MMS 2006 PEA, and 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 visual and 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. 
NMFS also found that the proposed action would not have an unmitigable 
adverse impact on the availability of such species or stocks for taking 
for subsistence uses. Please refer to the Federal Register notice (73 
FR 22922, April 28, 2008), MMS 2006 PEA, and NMFS 2008 SEA for a 
detailed description of the analysis.
    Comment 20: The CBD points out that AES only provided estimates for 
exposure to sounds greater than 170 dB re 1 microPa (rms) for 
pinnipeds, and that NMFS has in the previous IHAs rejected this 
threshold. The CBD further points out that neither NMFS nor ASRC 
provide any estimate of how many pinnipeds would be exposed to sounds 
greater than 160 dB.
    Response: To be consistent with NMFS' Level B behavioral harassment 
criteria for pinnipeds, NMFS will continue to use 160 dB re microPa as 
the threshold of onset for Level B behavioral harassment, as noted in 
this document. The estimated numbers of pinnipeds that could be exposed 
to SPLs by AES' activities have been recalculated based on NMFS' 
application of the 160-dB rms threshold and are described in this 
Federal Register notice (see response to comment 19). 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) showed 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 is smaller than 
that at 160 dB, the overall environmental effect of received sound 
levels at 170 dB versus 160 dB is expected to be similar based on the 
best available science.
    Comment 21: The CBD and NSB state that NMFS' estimates of the 
number of marine mammals that may be harassed based on the assumption 
that sounds below 160 dB re 1 microPa (rms) do not constitute 
harassment is incorrect because an activity can constitute harassment 
if it has the ``potential'' to affect marine mammal behavior. In 
addition, the CBD argues that 160 dB threshold for belugas is similarly 
flawed, as it points out in previous IHA notices, NMFS has acknowledged 
the impacts of sounds on beluga even at significant distances from a 
sound source (up to 20 km).
    Response: NMFS does not agree with CBD and NSB's statement. As 
stated in the MMPA, Level B harassment is defined as any act of 
pursuit, torment, or annoyance which ``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.'' Activities that 
affect marine mammal behavior briefly but not cause disruption of 
behavioral patterns are not considered ``takes.''
    In addition, in regard to impacts to marine mammal behaviors, 
distance is not the only factor that counts. The received levels at 
which marine mammals are affected are related to a number of factors 
including source levels, distances, and acoustic propagation pathways. 
The particular example CBD brought up regarding the seismic surveys by 
the National Science Foundation used airgun arrays with total discharge 
volume of 2,840 in\3\, while the proposed AES shallow hazard and site 
clearance survey would only use an airgun array with total discharge 
volume of 40 in\3\. The different source levels determine the 
ensonified zone where marine mammals, including beluga whales, would be 
impacted.
    Comment 22: The 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. CBD and NSB both indicate that without these data, NMFS 
cannot conclude that surveys which will harass untold numbers of 
individuals of each species would have no more than a ``negligible 
impact'' 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, and the SAR shows that based on the most recent 
information, all of these Alaska stocks of ice seal species have robust 
populations. The proposed survey by AES is not expected to have adverse 
impacts on ice seals. The activity will last for approximately 60 days 
in the open-water environment of the Chukchi Sea, where bearded and 
spotted seals are found only occasionally.
    In addition, it is expected that approximately 9,850 and 1,094 
ringed and bearded seals would be affected by

[[Page 46781]]

Level B behavioral harassment as a result of the proposed shallow 
hazard and site clearance surveys, respectively, and that these take 
umbers represent 3.96 and 0.438 percent of the Alaska stocks of ringed 
and bearded seal populations within the Chukchi Sea, respectively. 
Although spotted and ribbon seals could also be taken by Level B 
behavioral harassment as a result of the proposed marine surveys in the 
Chukchi Sea, the probability of take is very low since their presence 
is very rare within the proposed project area. Nonetheless, NMFS 
believes their take numbers would be much lower as compared to those 
marine mammals whose take numbers were calculated.
    Comment 23: Citing research on long term adverse effects to whales 
and dolphins from whale watching activities (Trites and Bain, 2000; 
Bain, 2002; Lusseau et al., 2006), Dr. Bain states that Level B 
behavioral harassment could be the primary threat to cetacean 
populations.
    Response: Although NMFS agrees that long-term, persistent, and 
chronic exposure to Level B harassment could have a profound and 
significant impact on marine mammal populations, such as described in 
the references cited by Dr. Bain, however, those examples do not 
reflect the impacts of seismic surveys to marine mammals for the 
proposed AES project. First, whale watching vessels are intentionally 
targeting and making close approaches to cetacean species so the 
tourists onboard can have a better view of the animals. Some of these 
whale/dolphin watching examples cited by Dr. Bain occurred in the 
coastal waters of the Northwest Pacific between April and October and 
for extended periods of time (``[r]ecreational and scientific whale 
watchers were active by around 6 a.m., and some commercial whale 
watching continued until around sunset.'') Thus multiple vessels have 
been documented to be in relatively close proximity to whales for about 
12 hours a day, six months a year, not counting some ``out of season'' 
whale watching activities and after dark commercial filming efforts. In 
addition, noise exposures to whales and dolphins from whale watching 
vessels are probably significant due to the vessels' proximity to the 
animals. To the contrary, the proposed 2008 open water shallow hazard 
and site clearance surveys, along with other potential four seismic 
activities and existing industrial operations in the Chukchi and 
Beaufort Seas, do not intentionally approaching marine mammals in the 
project areas. The two areas situate in a much larger Arctic Ocean 
Basin which is far away from most human impacts. Therefore, the adverse 
effects from each activity are remote and spread farther apart, as 
analyzed in the MMS 2006 PEA and draft EIS. The proposed seismic 
activities would only be conducted between July and November for a 
maximum of 100 days, weather permitting. In addition, although studies 
and monitoring reports from previous seismic surveys have detected 
Level B harassment of marine mammals, such as avoidance of certain 
areas by bowhead and beluga whales during the airgun firing, no 
evidence suggests that such behavioral modification is biologically 
significant or non-negligible (Malme et al., 1986; 1988; Richardson et 
al., 1987; 1999; Miller et al., 1999; 2005), as compared to those 
exposed by chronic whale watching vessels cited by Dr. Bain. Therefore, 
NMFS believes that potential impacts to marine mammals in the Arctic by 
shallow hazard and site clearance surveys would be limited to Level B 
harassment only, and due to the limited scale and remoteness of the 
projects in relation to a large area, such adverse effects would not 
accumulate to the point where biologically significant effects would 
realized.
    Comment 24: Dr. Bain states that changes in behavior resulting from 
noise exposure could lead to indirect injury in marine mammals in the 
wild. He presented several examples to suggest that marine mammals 
repeatedly exposed to Level B behavioral harassment could result in 
Level A takes: (1) Gas bubble lesions in beaked whales due to 
acoustically mediated bubble growth or rapid ascent by animals after 
deep diving; (2) a minke whale and harbor porpoises were observed 
traveling at high speed during exposure to mid-frequency sonar in Haro 
Strait in 2003, and that exhaustion from rapid flight could lead to 
heart or other muscle damage, which could cause mortality; (3) citing 
MMS' (2004) Environmental Assessment on Proposed Oil and Gas Lease Sale 
195 in the Beaufort Sea Planning Area (OCS EIS/EA MMS 2004-028) that 
feeding requires a prey density of 800 mg/m3 and his own observation, 
Dr. Bain is concerned displacement from high productive feeding areas 
would negatively affect individual whales, and that small cetaceans 
such as harbor porpoises would face a risk of death if they are unable 
to feed for periods as short as 48 - 72 hours; (4) individual killer 
whales have been observed splitting their pod when frightened by sonar, 
and that other killer whales' separation from their social units has 
resulted in death; (5) TTS may lead to harm as a minke whale was nearly 
struck by a research vessel in the area where one had been observed 
fleeing mid-frequency sonar; and (6) impaired auditory ability may 
increase predation as white-sided dolphins were attacked by killer 
whales due to the noise of the research vessel caused the approach of 
killer whales undetected by the dolphins.
    Response: NMFS agrees that it is possible that changes in behavior 
or auditory masking resulting from noise exposure could lead to injury 
in marine mammals under certain circumstances in the world, such as 
those examples/hypotheses raised by Dr. Bain. However, it is not likely 
that received sound pressure levels (SPLs) from the shallow hazard and 
site clearance surveys would drastically cause changes in behavior or 
auditory masking in marine mammals in the vicinity of the proposed 
action area. First, marine mammals in the aforementioned examples and 
hypotheses were exposed to high levels of non-pulse intermittent sounds 
such as the military sonar, which has been shown to cause flight 
activities (e.g., Haro Strait killer whales); and continuous sounds 
such as the vessel, which could cause auditory masking when animals are 
closer to the source. The sources produced by the acoustic equipment 
and airguns for the proposed shallow hazard and site clearance surveys 
are impulse sounds used in seismic profiling, bathymetry, and seafloor 
imaging. Unlike military sonar, seismic pulses have an extremely short 
duration (tens to hundreds milliseconds), and relatively long intervals 
(several seconds) between pulses. Therefore, the sound energy levels 
from these acoustic equipment and small airguns are far lower in a 
given time period. Second, the intervals between each short pulse would 
allow the animals to detect any biologically significant signals, and 
thus avoid or prevent auditory masking. In addition, NMFS requires 
mitigation measures to ramp up acoustic sources at a rate of no more 
than 6 dB every 5 minutes. This ramp up would prevent marine mammals 
from being exposed to high level noises without warning, thereby 
eliminating the possibility that animals would dramatically alter their 
behavior (i.e. from a ``startle'' reaction). NMFS also believes that 
long-term displacement of marine mammals from a feeding area is not 
likely because the seismic vessel is constantly moving, and the maximum 
160-dB ensonified radius is about 4 km, which would make an ensonified 
zone of approximately 50 km2 at any given moment, which is a small area 
compared to the Chukchi

[[Page 46782]]

Sea. In reality, NMFS expects the 160-dB ensonified zone to be smaller 
due to absorption and attenuation of acoustic energy in the water 
column.
    Comment 25: Citing that the difference between takes by subsistence 
harvest and potential biological removal (PBR) of the Western Arctic 
stock bowhead whales is about 28 individuals whales, or less than 0.3 
percent of the population, Dr. Bain is concerned that the cumulative 
effects of multiple seismic surveys would not need to be very large to 
push takes over PBR for bowheads.
    Response: NMFS does not agree with Dr. Bain's assessment. None of 
the five proposed 2008 open water Arctic seismic surveys and shallow 
hazard and site clearance surveys is expected to result in any Level A 
harassment (i.e., injury) or mortality. As analyzed in the NMFS 2008 
supplemental environmental assessment (SEA) for the issuance of five 
Arctic seismic surveys and shallow hazard and site clearance surveys, 
all incidental takes of marine mammals are expected to be Level B 
behavioral harassment (NMFS, 2008). Therefore, no PBR would be applied 
for the proposed AES seismic activities and other 2008 seismic 
activities in the Chukchi and Beaufort Seas.
    Comment 26: Citing MMS 2006 Programmatic Environmental Assessment 
(MMS 2006 PEA) and the MMS 2007 draft Programmatic Environmental Impact 
Statement (DEIS) for seismic surveys in the Arctic Ocean, Dr. Bain 
states that he supports the mitigation measures established in these 
documents that no more than 12 cow/calf pairs and aggregation of 
feeding or resting bowheads are within the area to be ensonified by 120 
dB and 160 dB, respectively. The CBD also states that the 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 or gray whales (>12 
individuals) were required by NMFS in 2006 and were practicable. The 
CBD states that the failure to require such conditions, or at least 
analyze it, violates the MMPA. Dr. Bain presumes that these numbers 
(using 120 and 160 dBs) reflect the difference between takes allocated 
to hunters and the PBR for the stock. Dr. Bain further suggests that 
this number be applied to all seismic activities combined, not 
individual seismic surveys, thus, if four seismic surveys occur 
concurrently, no single survey should be allowed to affect the 
migration of more than 3 cow/calf pairs or 3 aggregation of feeding or 
resting bowhead whales.
    Response: First, the additional mitigation measures in the MMS 2006 
PEA and the MMS 2007 draft PEIS, as well as in the 2007 NMFS SEA for 
the issuance of an IHA to Shell Offshore Inc. for its open water 
seismic surveys conducted in the Chukchi and Beaufort Seas in 2007, 
establish safety (shut-down) zones of 120 dB re 1 microPa for an 
aggregation of four or more bowhead cow/calf pairs and 160 dB re 1 
microPa for an aggregation of 12 or more bowhead or gray whales, not 12 
cow/calf pairs as Dr. Bain states in his comment. The rationale for 
this cautious and conservative approach when addressing the 120-dB and 
160-dB safety zones is clearly stated in the MMS 2006 PEA. These 
additional mitigation and monitoring measures were identified through 
the analyses to further reduce the potential for adverse environmental 
impacts and, depending on the scope of seismic-survey activities, could 
be adopted as requirements for seismic-survey-related marine mammal 
incidental take authorizations. With respect to CBD's concern that 
these measures were ``practicable'' in 2006, NMFS has re-evaluated the 
practicability of requiring aerial monitoring to the 120-dB isopleth in 
the Chukchi. NMFS has determined that it is not practicable to conduct 
aerial monitoring to the 120-dB isopleth because aerial surveys have 
currently been determined to be impracticable due to lack of adequate 
landing facilities, the prevalence of fog and other inclement weather 
in that area, thereby resulting in safety concerns. Additionally, these 
conditions are analyzed in NMFS' 2008 SEA. These numbers have nothing 
to do with the PBR of the bowhead whale stock, as assumed by Dr. Bain. 
As discussed in FR Notice of Proposed IHA, the proposed 2008 Arctic 
seismic surveys and shallow hazard and site clearance surveys are not 
expected to result in Level A harassment (injury) or mortality.
    In addition, Dr. Bain's suggestion of ``breaking up'' the 
aggregated takes of bowheads into small subsets that can be 
``allocated'' to each seismic survey is based on his assumption that 
these numbers were set by PBR. NMFS does not support this suggestion 
because it has no scientific support other than assumption. The safety 
zones of 120-dB for four or more cow/calf pairs and 160-dB for an 
aggregation of 12 bowhead or gray whales are based on the biology of 
the bowhead and gray whales as analyzed in the MMS 2007 draft PEIS.
    The threshold of four or more fall-migrating bowhead whale cow/calf 
pairs was set based on the following: (a) cow/calf pairs are identified 
as the most vulnerable portion of the population and disruption of 
their biologically significant behaviors or their avoidance of 
important habitats is more likely to lead to population level impacts; 
(b) mitigation measures for this portion of the population should be 
cautiously developed to ensure that takings are at the lowest 
practicable level and that significance is avoided; (c) bowhead whale 
cow/calf pairs migrate in groupings or pulses and the observed presence 
of cow/calf pairs by surveys generally indicates that additional cow/
calf pairs are present but unseen; (d) using professional judgment, 
NMFS and MMS have determined that the presence of four or more cow/calf 
pairs (as observed during surveys) indicates that enough cow/calf pairs 
are likely present (but some unseen) in the area in numbers equal to or 
greater than 12 animals; and (e) the potential for significance to 
occur therefore increases when four or more bowhead whale cow/calf 
pairs are observed (MMS, 2007).
    The threshold of an aggregation of 12 or more bowhead or gray 
whales is based on the following premises: (a) whales aggregate in 
order to communicate and perform ``biologically significant'' behaviors 
(as defined by NRC, 2005), such as feeding, resting, socializing, 
mating, and calving; (b) aggregations of animals can also indicate an 
area of preferred habitat and locations where biologically significant 
behaviors are likely occurring; (c) disruptions of these biologically 
significant behaviors and important habitats have a greater potential 
to lead to population level effects (i.e., result in limiting 
reproductive potential or recruiting success, impeding important 
mother/calf bonding); (d) protective measures should be designed to 
reduce the potential for disruption of biologically significant 
behaviors or help ensure whales do not avoid important key habitat 
areas (and thus potentially negate a negligible impact finding under 
the MMPA); and (e) standard scientific acceptance that the presence of 
observed whales (i.e., at the surface) during monitoring surveys 
indicates that additional whales are also present in the area but non-
detectable (i.e., below the surface) (MMS, 2007).
    Comment 27: Dr. Bain is concerned that the North Pacific right 
whale is excluded from consideration for the proposed seismic activity 
in the Chukchi Sea. Citing Nowacek et al. (2004), Dr. Bain further 
states that the [North] Atlantic right whale is less easily disturbed 
[than the North Pacific right whale], is known to be affected by 
received levels below 135 dB.
    Response: NMFS does not agree with Dr. Bain and believes his 
concern is

[[Page 46783]]

unwarranted. The North Pacific right whales are found in the northern 
part of the Pacific, such as the Bering Sea and the Gulf of Alaska 
(Moore et al.; 2000; 2002; LeDuc et al., 2001; Waite et al., 2003; 
Mellinger et al., 2004; Wade et al., 2006). They do not enter Chukchi 
Sea in the Arctic Ocean, where the proposed seismic activity is 
planned. In addition, NMFS is not able to verify Dr. Bain's statement 
that the North Atlantic right whale is less easily disturbed than the 
North Pacific right whale, since he did not provide a supporting 
reference.
    Comment 28: Dr. Bain is concerned that many species are sedentary, 
territorial, or have strong tendencies toward site fidelity, and that 
these species are unlikely to move away from a noise source. In 
addition, Dr. Bain is concerned that many predators are used to 
experiencing pain during feeding, and hence tolerate pain [from being 
exposed to loud noise] rather than abandoning their prey (e.g., many 
mammals involved in fishery-interactions).
    Response: First, the monitoring and mitigation measures described 
in this document and implemented for the proposed open water seismic 
activity would prevent any marine mammals from being exposed to 
received levels that could cause onset of injury (180 dB re 1 microPa 
for cetaceans and 190 dB re 1 microPa for pinnipeds). Second, there are 
no sedentary marine mammals. The proposed seismic activity is 
fundamentally different from commercial fisheries activity in which the 
appearance of a seismic vessel does not reinforce the marine mammal 
with food or prey, therefore, it is unlikely that predatory marine 
mammals would approach the seismic vessel or acoustic source while 
searching for prey. Even if a marine mammal happens to be in close 
vicinity of the vessel or source, monitoring and mitigation measures 
will required the crew to power-down or shut-down the acoustic sources 
so that the animal will not be affected by Level A harassment.
    Comment 29: Dr. Bain comments on NMFS' and AES' method of 
calculating estimated take numbers of marine mammals by multiplying the 
``strip width'' by the length of the survey, and states that ``[f]or 
bowheads, some studies showed behavioral changes in nearly all whales 
out to 20 km, and in many cases to at least 30 km.'' Dr. Bain further 
states that ``belugas and bowheads are known to be affected at 10 - 20 
km or more.'' At such, Dr. Bain observes that the ramp-up procedures 
would not be effective as it would take about 5 hours for the bowheads 
[near the source] to move to a distance of 30 km, and marine mammal 
monitoring over a distance of 20 km is very difficult.
    Response: First, the estimated takes of marine mammals were 
calculated by multiplying the expected average animal densities by the 
area of ensonification for the 160 dB re 1 microPa (rms) and 170 dB re 
1 microPa (rms) isopleths, for cetaceans and pinnipeds, respectively. 
The area of ensonification was determined by multiplying the total 
proposed trackline (760 km or 410 nm) times 2 (both sides of the 
trackline) times the distance to the 160-dB or 170-dB isopleths (not 
``strip width,'' a term usually used in the population survey, as 
stated by Dr. Bain in his comment).
    NMFS cannot verify Dr. Bain's statement that ``some studies showed 
behavioral changes in nearly all whales out to 20 km, and in many cases 
to at least 30 km'' and that ``belugas and bowheads are known to be 
affected at 10 - 20 km or more,'' since he did not provide any 
supporting references. Neither did Dr. Bain provide the source levels 
and displacement volumes of the airgun arrays in which these studies 
were conducted, nor the severity of the behavioral changes by the 
whales. Nevertheless, it is important to understand that the distance 
from the seismic sources where bowheads or other marine mammals can be 
affected depends on the source levels of the airgun arrays, which is 
also related to the size, or displacement volume of the airgun array. 
It is possible that if a large airgun array was used in the seismic 
survey, the received level at 20 to 30 km distance could still be high 
enough to cause behavioral changes (or behavioral harassment) by the 
bowhead whales. However, for the proposed shallow hazard and site 
clearance surveys, the source levels of the airgun array and other 
acoustic equipment are relatively low (about 214 dB re 1 ?Pa for the 
GeoChirp II, the loudest acoustic equipment planed to be used), and 
that the modeled distance to the 160-dB isopleths is estimated at 4,000 
m (13,123 ft). Please see Number of Marine Mammals Estimated to be 
Taken section below for a detailed description of the calculation.
    As far as mitigation measures are concerned, NMFS expects that the 
distance from the source to the safety zone for cetaceans is 
approximately 185 m (607 ft), where the received level is at 180 dB re 
1 microPa, which is a small enough area to be effectively monitored by 
NMFS-approved marine mammal monitors (MMOs). Furthermore, no seismic 
surveys, ramp up included, will commence if there is a marine mammal 
within the safety zone.
    Comment 30: Citing the 90-day monitoring report for the SOI 2007 
open water seismic activities, the NVPH is concerned that the shallow 
hazard and site clearance surveys could exclude nearly all migrating 
bowhead whales from waters within 20 km or more of the survey vessel, 
since the 120-dB isopleth extends over 25 km. The NVPH states that 
similar displacement of beluga whales at large distance is also 
possible.
    Response: NMFS does not agree with NVPH's assessment regarding the 
potential acoustic impacts to bowhead and beluga whales. First, as 
discussed in Response to Comment 5, although it is possible that marine 
mammals could react to any sound levels detectable above the ambient 
noise level within the animals' respective frequency response range, 
this does not mean that such animals are taken by Level B harassment 
(see definition of Level B harassment above). The degree of reaction 
which constitutes a ``take,'' i.e., a reaction deemed to be 
biologically significant that could potentially disrupt the migration, 
breathing, nursing, breeding, feeding, or sheltering, etc. of a marine 
mammal is complex and context specific, and it depends on several 
variables in addition to the received level of the sound by the 
animals. In many cases, bowhead or beluga whales that are exposed to 
120 dB re 1 ?Pa or higher do not exhibit noticeable behavioral changes 
(e.g., Malme et al., 1984; Richardson et al., 1986; 1999; Miller et 
al., 2005). Second, only migrating bowhead whales showed behavioral 
disturbance in a biologically significant manner from exposure to 
seismic airgun at received level around 120 dB re 1 microPa (Richardson 
et al., 1999). The proposed shallow hazard and site clearance surveys 
would be concluded by September 25, before the fall migrating bowhead 
whales arrive the Chukchi Sea. Therefore, NMFS does not believe that 
bowhead and beluga whales would be displaced when exposed to received 
level from seismic airguns at 120 dB re 1 microPa.
    Comment 31: The NSB states that if AES conducts surveys into 
October or November, it would also encounter belugas from the Beaufort 
Sea stock as the animals are migrating toward wintering areas. There 
are no density estimates for belugas (or other marine mammals) during 
the darker months of October and November. The NSB further suggests 
allowing AES to conduct surveys until late October.
    Response: AES will complete its shallow hazard and site clearance

[[Page 46784]]

surveys by September 25, as stated in this document.

Subsistence Uses

    Comment 32: NVPH states that NMFS did not present a preliminary 
determination that AES' shallow hazard surveys would not have an 
unmitigable adverse impact on the availability of affected marine 
mammal populations to subsistence hunters in coastal villages of the 
Chukchi Sea in the FR Notice of Proposed IHA. NVPH further states that 
NMFS failed its basic duty under the MMPA and its regulations to make a 
proposed determination available to the public to scrutinize and 
comment on. NVPH requests that NMFS issue another Federal Register 
notice to set forth the full scope of its required proposed findings 
and afford an opportunity for the public to comment on the adequacy of 
NMFS' assessment of the adverse effect of AES' shallow hazard surveys 
on the availability of seals and whales for subsistence uses.
    Response: NMFS does not agree with NVPH's statement. A detailed 
analysis on the subsistence harvest of marine mammals by Alaskan 
natives in and around the Chukchi Sea was provided in the FR Notice of 
Proposed IHA. NMFS also understands that as part of the application for 
the IHA, AES has developed a Plan of Cooperation (POC) with the Native 
communities. The POC specifies measures AES would take to minimize 
adverse effects on marine mammals where proposed activities may affect 
the availability of a species or stock of marine mammals for Arctic 
subsistence uses or near a traditional subsistence hunting area. In 
addition, AES has conducted POC meetings for its seismic operations in 
the Chukchi Sea in Barrow, Wainwright, Point Lay, and Point Hope, and 
with the Alaska Eskimo Whaling Commission (AEWC). AES also indicated to 
NMFS that a Conflict Avoidance Agreement would be signed with the AEWC 
prior to its proposed seismic activities in the Chukchi Sea. 
Furthermore, NMFS has preliminarily determined that the impact of 
conducting the shallow hazard and site clearance surveys in the Chukchi 
Sea may result, at worst, in a temporary modification in behavior of 
small numbers of marine mammals. Therefore, although NMFS did not 
specifically include its preliminary determination that the proposed 
shallow hazard and site clearance surveys by AES would have an 
unmitigable adverse impact on the availability of affected marine 
mammal populations to subsistence hunters in coastal villages of the 
Chukchi Sea, the analysis provided in the FR Notice of Proposed IHA 
supports such a determination.
    NMFS also does not believe that NVPH's request of issuing another 
Federal Register notice is warranted. The FR Notice of Proposed IHA 
provided a 30-day comment period and plenty opportunity for the public 
to comment on AES' proposed shallow hazard and site clearance surveys 
in the Chukchi Sea and NMFS preliminary determination to issue an IHA 
to AES for the said proposed activity.
    Comment 33: NVPH questions whether NMFS's assessment of the impacts 
to subsistence was based on the ``best available scientific evidence'' 
and whether NMFS has made any effort to discern whether seismic 
surveying activities in the Chukchi Sea in 2006 or 2007 had an adverse 
impact on the availability of any or all seal and whale species for 
subsistence uses.
    Response: In making its final determination of whether the proposed 
shallow hazard and site clearance surveys would have unmitigable 
impacts to subsistence use of marine mammal populations in the affected 
area, NMFS relies upon the best available scientific information to 
make its MMPA determinations. In this case, NMFS has reviewed the 90-
day marine mammal monitoring and mitigation reports for the 2006 and 
2007 open water seismic survey and shallow hazard and site clearance 
survey conducted by Shell Offshore, Inc. (SOI), ConocoPhillips Alaska, 
Inc., and GXTechnology in 2006 and by SOI in 2007 (Ireland et al., 
2007a; 2007b; Patterson et al., 2007; Funk et al., 2007; 2008). These 
monitoring reports point out that the potential impacts to marine 
mammals as a result from the 2006 and 2007 Arctic seismic activities 
were negligible. In addition, actual take of marine mammals by Level B 
harassment was generally lower than expected due to the implementation 
of monitoring and mitigation measures. No marine mammals were observed 
to have suffered injuries or death as a result of the seismic surveys 
and none were suspected. In addition, information presented by the oil 
and gas industry and independent researchers who conducted marine 
mammal monitoring at the 2007 and 2008 Arctic Open Water Scientific 
Meetings was also taken into consideration.
    Comment 34: NVPH states that NMFS failed to provide the substantive 
analysis to support any meaningful finding regarding the possible 
effect of AES' activities on the availability of beluga whales, seals, 
and bowhead whales for subsistence uses by coastal communities along 
the Chukchi Sea or the effectiveness of mitigation measures to 
eliminate such impacts. The NVPH further states that the Chukchi Sea 
and the adjoining coast existed as a relatively pristine ocean 
environment, free of industrial operations that would disturb bowhead 
and beluga whales and seals with their availability for subsistence 
uses. Therefore, NVPH states that even a slight interference with the 
availability of these species to communities on the Chukchi Sea would 
constitute an unmitigable adverse impact to their overall availability 
for subsistence uses.
    Response: NMFS does not agree with NVPH's statement. The FR Notice 
of Proposed IHA provided a detailed analysis regarding the possible 
effect of seismic surveys and underwater sound on marine mammals in the 
planned action area. This analysis prompted NMFS to make a 
preliminarily determination that the impact of conducting the shallow 
hazard and site clearance surveys in Chukchi Sea may result, at worst, 
in a temporary modification in behavior of small numbers of marine 
mammals.
    NMFS agrees that the Chukchi Sea and the adjoining coast existed as 
a relatively pristine ocean environment that was free of industrial 
operations, however, NMFS does not agree with NVPH's assessment that 
within this environment, a slight interference with the availability of 
these species to communities on the Chukchi Sea would constitute an 
unmitigable adverse impact for subsistence uses of these species. The 
proposed shallow hazard and site clearance surveys proposed by AES 
would only occur in a small area within the much larger Chukchi Sea 
basin for a brief period of 60 days. Furthermore, mitigation and 
monitoring measures required for the seismic activities would reduce 
all potential impacts to negligible levels to marine mammals and their 
habitat. In addition, AES will be working with Native communities in 
the affected region to ensure that seismic operations do not result in 
an unmitigable adverse impact on the availability of marine mammals to 
subsistence uses by the Native communities in and around the Chukchi 
Sea.
    Comment 35: The CBD and NSB 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. The NSB is concerned about 
impacts to subsistence hunts of marine mammals early in the summer. The 
NSB points out that the beluga hunt at Point Lay typically occurs 
between June 20

[[Page 46785]]

and July 10. 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, the CBD does 
not think that NMFS can lawfully make the findings required under the 
MMPA for approving AES' proposed IHA.
    Response: NMFS does not agree with CBD and NSB's statement. The AES 
shallow hazard and site clearance survey will not start after July 15, 
after the spring subsistence hunt of marine mammals. NMFS believes that 
the concerns expressed by subsistence hunters and their representatives 
have been addressed by NMFS in this FR Notice and other supporting 
documents prepared or relied upon by NMFS in issuing the AES IHA.
    Comment 36: The AEWC states that under current Federal rules, 
protections for the subsistence uses are little more than an after-
thought in Federal regulation, since they do not become effectively 
relevant until after exploration or development permits are issued. 
When these protections do come into play, at the point of IHA or LOA 
review, companies already have been allowed to address, substantively, 
mitigation or risk-reduction measures for likely impacts to the 
resources and lives of Alaskan natives. In addition, the AEWC states 
that Federal law do not require consultation with the native coastal 
communities until after offshore exploration and development plans have 
been finalized, permitted, and authorized. Then at the point at which 
these requirements do come into play, Federal agencies, including NMFS, 
are reluctant to give teeth to the very minimal protections articulated 
in the MMPA.
    Response: NMFS does not agree with the AEWC's statement. Under 
sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.), an 
IHA or LOA would be granted to U.S. citizens who engage in a specified 
activity (other than commercial fishing) within a specified 
geographical region if NMFS finds that the taking of marine mammals 
will have a negligible impact on the species or stock(s) and will not 
have an unmitigable adverse impact on the availability of the species 
or stock(s) for certain subsistence uses, and if the permissible 
methods of taking and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth. In other words, 
no marine mammal take authorizations may be issued if NMFS has reason 
to believe that the proposed exploration or development activities 
would not have an unmitigable adverse impact on the availability of 
marine mammal species or stock(s) for Alaskan native subsistence uses. 
Although Federal laws do not require consultation with the native 
coastal communities until after offshore exploration and development 
plans have been finalized, permitted, and authorized, pre-permitting 
consultations between oil and gas industries and the Alaskan coastal 
native communities are considered by NMFS when the agency makes a 
determination whether such activities would have an unmitigable adverse 
impact on the availability of marine mammal species or stock(s) for 
subsistence uses. For the proposed shallow hazard and site clearance 
survey, AES has conducted POC meetings for its seismic operations in 
the Chukchi Sea in Barrow, Wainwright, Point Lay, and Point Hope, and 
with the Alaska Eskimo Whaling Commission. AES also indicated to NMFS 
that a CAA would be signed with the AEWC prior to its proposed seismic 
activities in the Chukchi Sea.
    Comment 37: The AEWC notes that NMFS and the AEWC share management 
responsibility for bowhead whales and for the bowhead whale subsistence 
hunt through the NOAA-AEWC Cooperative Agreement. The AEWC asserts that 
Alaska Native citizens who are part of the Agreement should be provided 
an opportunity to consult directly on all proposed actions affecting 
bowhead whales, rather than mere notice that NMFS has made a decision 
concerning the issuance or proposed issuance of authorizations to take 
marine mammals.
    Response: There are numerous opportunities, including the 
Cooperative Agreement, in which Alaska Native citizens can play a role 
in matters affecting bowhead whales. These include, but are not limited 
to, the MMPA's requirement that proposed notices of IHAs be published 
in the Federal Register for a 30-day comment period; the requirement in 
NMFS' regulations that oil and gas companies seeking take 
authorizations consult directly with Alaska Native communities to 
address subsistence use issues (i.e., development and submission of a 
Plan of Cooperation); the sharing of information between applicants and 
Alaska Native citizens; and annual stakeholder meetings in Alaska to 
discuss oil and gas development (i.e., open-water meetings).
    Comment 38: NVPH states that NMFS failed to discuss a mandatory 
limit on the number of concurrent seismic and/or shallow hazard surveys 
in the Chukchi Sea. NVPH requests NMFS to prohibit the simultaneous 
operation of multiple vessels within the Chukchi Sea during the fall 
bowhead migration. NVPH further requests that NMFS require that no two 
vessels operate within 100 km (62 mi) of one another, because given the 
large size of the 120 dB zone, closer simultaneous operation would pose 
a real risk of disrupting the bowhead whale migration.
    Response: NMFS does not agree with NVPH's statement and request. 
First, the MMS 2006 PEA, which NMFS incorporated into its 2008 SEA, 
provided a thorough analysis on the maximum number of eight seismic 
activities that could occur in the Chukchi and Beaufort Seas. The 
analysis lead NMFS and MMS to conclude that up to a maximum of eight 
seismic surveys would not result in significant impacts to the quality 
of the human environment. In addition, NMFS' 2008 SEA, which analyzed 
the effect of multiple seismic surveys also lead NMFS to conclude that 
the AES survey would not result in a significant impacts.
    NVPH has not provided NMFS with any data to support its argument 
that multiple seismic vessels should not be permitted in the Chukchi 
Sea or that no more than 2 vessels be allowed to operate within 100 km 
(62 mi) of one another. As mentioned above, NMFS and MMS analyzed the 
environmental effects of conducting multiple seismic surveys in both 
the Beaufort and Chukchi Seas. NMFS and MMS evaluated each seismic 
permit under the applicable NEPA document (i.e., the 2006 PEA, 2007 SEA 
and 2008 SEA) to determine whether the action would result in 
significant effects. In AES' case, NMFS has determined that the shallow 
hazard and site clearance surveys would not result in significant 
effects to the quality of the human environment. The 100 km (62 mi) 
separating distance for the 120 dB zone between vessels is also not 
scientifically supportable. The distance where the received level 
reaches 120 dB re 1 microPa is dependent upon the source level and 
oceanographic conditions. For the same oceanographic condition, the

[[Page 46786]]

higher the source level, the longer the distance where the received 
level would reach 120 dB. Therefore, NMFS considers that the 100 km (62 
mi) separation distance is arbitrary and baseless.

Mitigation and Monitoring

    Comment 39: Dr. Bain questions about the effectiveness of marine 
mammal monitoring with only two MMOs on duty full time. Citing Forney 
and Barlow (1998) and Dahlheim and Towell (1994), Dr. Bain states that 
a common work schedule where consistent effort is required would be 40 
minutes on, 40 minutes off, 40 minutes on, two hours off, three times a 
day. Dr. Bain suggests that an observation team of 12 MMOs would be 
required to cover a 24-hour period. Dr. Bain further states that the 
probability of detecting marine mammals would drop with increased 
distance from the vessel.
    Response: NMFS does not agree with Dr. Bain's assessment and 
suggestions regarding MMOs and marine mammal monitoring. NMFS reviewed 
the references (Dahlheim and Towell, 1994; Forney and Barlow, 1998) 
provided by Dr. Bain, and did not find any type of work schedules 
described. Unlike observers during marine mammal population surveys who 
are required to search the entire field for any marine mammals, the 
primary responsibility for MMOs is to monitor the safety zones, which 
in this case are 185 m (607 ft) radius for the 180-dB isopleths and 40 
m (131 m) radius for the 190-dB isopleths, and to ensure that proper 
mitigation measures (power-down or shut-down acoustic sources) are 
implemented if a marine mammal enters or is sighted within these safety 
zones. NMFS agrees that the detection probability of a marine mammal 
drops with increased distance from the ship. However, the occurrence of 
marine mammals outside the safety zones is not a big concern for marine 
mammal monitoring during the proposed seismic activity because it is 
presumed these animals would not be within a zone that could result in 
injury. In addition, all MMOs hired for the proposed seismic surveys 
must be NMFS-approved observers who are qualified to perform the 
required monitoring tasks.
    Comment 40: Dr. Bain is concerned that many species that are 
capable of diving for more than 30 minutes could be missed during the 
monitoring.
    Response: NMFS agrees with Dr. Bain that for deep diving marine 
mammals it pose a challenge for monitoring. However, within the 
proposed seismic survey area, there are no marine mammals that normally 
dive for more than 30 minutes. However, in the event that a marine 
would be missed during the initial pre-survey monitoring, ramp-up 
procedures will be followed when an acoustic source begin to operate, 
so the undetected animal(s) would have an opportunity to detect the 
sound as it increases gradually and move away from the source. Please 
refer to Monitoring and Mitigation Measures section below for a 
detailed description.
    Comment 41: NVPH is concerned that NMFS did not discuss the option 
of requiring AES to power down its airguns and other sound sources when 
aggregations of feeding, resting or socializing bowhead whales or gray 
whales are located within the 160 dB isopleths, and that NMFS fails to 
discuss the option of requiring AES to monitor the 120 dB isopleths for 
bowhead cow-calf pairs and to require AES to power down its sound 
sources when four or more cow-calf pairs are observed to be exposed to 
noises at or above 120 dB. NVPH requests NMFS to have both of these 
mitigation measures. Citing Richardson's observation, NVPH further 
states that nearly all bowhead whales avoid seismic airguns at received 
levels as low as 107 dB, and requests NMFS to impose a safety zone for 
bowhead cow-calf pairs exposed to 107 dB or more. In addition, as NVPH 
observes that it would be impossible to monitor such a large area be 
ship-based observation, NVPH requests that such monitoring be conducted 
by aerial observation together with ship-based observers, for both of 
these safety zones.
    Response: In its final determination and the IHA issued to AES, 
NMFS requires AES to establish a 160-dB safety zone whenever an 
aggregation of 12 or more bowhead whales or gray whales are observed. 
If an aggregation of 12 or more bowhead or gray whales is observed 
within the 160-dB safety zone around the seismic activity, the seismic 
operation will not commence, or will shut down, until two consecutive 
vessel surveys indicate they are no longer present within the 160-dB 
safety zone of seismic-surveying operations.
    However, NMFS will not impose a requirement to conduct aerial 
monitoring of the 120-dB safety zone for the occurrence of four ore 
more cow-calf pairs in the Chukchi Sea because it is not practicable. 
First, the 120-dB safety zone would require a safety zone of 20 km (12 
mi) in radius, which is beyond the range for visual monitoring. The 
120-dB ensonified zone is also too large to be monitored by chase 
boats. Second, aerial surveys are not required in the Chukchi Sea 
because they have currently been determined to be impracticable due to 
lack of adequate landing facilities, the prevalence of fog and other 
inclement weather in that area, thereby resulting in safety concerns. 
Third, the proposed AES shallow hazard and site clearance would be 
completed by September 25, before the large number of bowhead whales 
migrate pass the Chukchi Sea.
    As far as the NVPH's statement that nearly all bowhead whales avoid 
seismic airguns at received levels as low as 107 dB, NMFS is not able 
verify NVPH's assessment because NVPH did not provide a reference to 
support its statement. A comprehensive review by Southall et al. (2007) 
on the potential acoustic impacts to low-frequency cetaceans (bowhead 
and other large whales) does not list any reference that shows these 
animals react to received levels under 110 dB re 1 microPa, regardless 
of severity. Therefore, NMFS does not believe bowhead whales exposed to 
107 dB would be taken by Level B behavioral harassment, and that 
imposing a safety zone of 107 dB is not appropriate.
    Comment 42: NVPH states that NMFS failed to provide for peer review 
of AES' proposed monitoring plans. It further states that the 
presentation provided by AES at the 2008 Open Water Scientific Meeting 
only gave very limited information and was unable to respond to even 
the most basic questions raised by attendees. NVPH requests NMFS to 
reject any suggestion that the meeting satisfied the peer review 
requirement. NVPH states that 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 organizations, such as the National Academy of 
Sciences, would take at least a year to complete and would likely 
provide for an inflexible monitoring plan (e.g., any modifications 
would require reconvening the Committee). 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 FWS. In accordance with the 
MMPA, the Marine Mammal Commission's Committee of Scientific Advisors 
reviews all IHA applications, including the monitoring plans. Second, 
monitoring plans and the results of previous monitoring measures are 
reviewed once or twice annually at public meetings held with the 
industry, the AEWC, the NSB, Federal agencies

[[Page 46787]]

and the public. AES' 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 April 28, 2008 (73 
FR 22922) and May 28, 2008. NMFS believes that it has met the 
requirements of section 101(a)(5)(D) of the MMPA.
    Comment 43: The CBD, NSB, Dr. Bain, and Dr. Steiner state that 
during night-time and poor visibility condition, AES proposes 
essentially no limitations on operations, even though the likelihood of 
observers seeing marine mammals in such conditions is very low. The CBD 
and Dr. Steiner recommend prohibiting seismic surveying when conditions 
prevent observers from detecting all marine mammals in the safety zone. 
One private citizen requests NMFS to clarify whether seismic sources 
are to be restarted in low visibility conditions.
    Response: The IHA issued to AES does not allow the start up of 
acoustic sources when the entire safety zones cannot be adequately 
monitored. However, as stated in the FR Notice of Proposed IHA, once 
the safety zones are visually established and that pre-survey 
monitoring has concluded that there is no marine mammals within the 
safety zones, seismic surveys can commence and continue into low 
visibility conditions. However, if for any reasons the seismic sources 
are stopped during low visibility conditions, they are not to be 
restarted until the conditions are suitable for the marine mammal 
visual monitoring so that the safety zones can be reestablished. 
Nevertheless, ramping up of airguns and other seismic equipment during 
under normal visual conditions is expected to keep marine mammals from 
entering the established safety zones. Please refer to Monitoring and 
Mitigation Measures section below for a detailed description.
    Comment 44: The CBD and NSB state that in its treatment of passive 
acoustic monitoring (PAM), NMFS and AES are also deficient. While past 
IHAs have required PAM, this IHA completely ignores even discussing the 
possibility of using such monitoring.
    Response: NMFS disagrees. The MMPA has not established standards 
for monitoring requirements. The monitoring requirements proposed are 
to ensure that the taking will have a negligible impact on the species 
or stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses. 
Monitoring measures are also used to reduce the level of takes to the 
lowest level practicable due to implementation of the mitigation 
measures.
    Monitoring measures for different projects are proposed on a case-
by-case basis, and there is no ``one size fits all'' type of monitoring 
protocol. For the proposed shallow hazard and site clearance survey in 
the Chukchi Sea, the radius of the safety zone (185 m, or 607 ft) based 
on the 180 db re: 1 microPa isopleths is too small to allow accurate 
and effective passive?? acoustic monitoring. As the Joint Nature 
Conservation Committee (JNCC, 2004) stated that in practice the 
exclusion zone (safety zone) needs to be more than 500 m (1,640 ft) to 
allow for accurate passive acoustic monitoring (PAM). JNCC also noted 
that in many cases PAM is not as accurate as visual observation when 
determining range. NMFS believes that in the subject seismic survey 
projects, where the safety zone is as small as 185 m (607 ft), passive 
acoustic monitoring is not warranted. The presence of additional 
vessels for deploying PAM would only introduce more noise to the small 
area where the proposed projects are to occur.

NEPA

    Comment 45: NVPH, CBD, and the NSB state that NMFS must prepare an 
Environmental Impact Statement (EIS) to evaluate AES' shallow hazard 
surveys, together with the other seismic and shallow hazard surveying 
activity proposed for the summer of 2008 in the Beaufort and Chukchi 
Seas.
    Response: NMFS prepared a Final SEA to analyze further the effects 
of AES' (and other companies) proposed open-water shallow hazard and 
site clearance survey activities for the 2008 season. NMFS has 
incorporated by reference the analyses contained in MMS 2006 Final PEA 
for Arctic OCS Seismic Surveys in the Beaufort and Chukchi Seas and has 
also relied in part on analyses contained in the MMS 2007 FEIS for the 
Chukchi Sea Lease Sale 193, the MMS 2003 FEIS for multiple lease sales, 
and the MMS 2007 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 Arctic open water season. Although AES' proposed activity 
for this season was not explicitly identified in the 2006 PEA, the PEA 
did contemplate that future seismic activity, such as AES' could occur. 
NMFS believes the range of alternatives and environmental effects 
considered in the MMS 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 our review and analysis, NMFS has determined that it was not 
necessary to prepare and issue an EIS for the issuance of an IHA to AES 
in 2008 for seismic activity in the Chukchi Sea but that preparation of 
an SEA and issuance of a Finding of No Significant Impact (FONSI) were 
sufficient under NEPA.
    Comment 46: The NSB and CBD state that NMFS appears to rely on the 
NEPA analysis in the DPEIS in clear violation of NEPA law. They state 
that NEPA requires agencies to prepare a draft EIS, consider public and 
other agency comments, respond to these comments in its final EIS, and 
wait 60 days before issuing a final decision. The CBD further states 
that before the record of decision has been issued on the final PEIS, 
NMFS cannot authorize AES' proposed seismic surveys because the purpose 
of the PEIS process is to consider seismic surveys in the Chukchi and 
Beaufort Seas for the years 2008 and beyond. The CBD states that 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).
    Response: See Response to Comment 44 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 AES' 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 47: NVPH states that the MMS 2006 PEA is flawed since it 
understates the risk of significant impacts to bowhead whales, and

[[Page 46788]]

therefore, it is inappropriate for NMFS to rely on that document. NVPH 
states that the 2006 PEA assumed the source vessels would ensonify much 
smaller zones than those which have been subsequently measured in the 
field. NVPH states that 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, NVPH requests NMFS to complete the PEIS that it began in 
2006 to evaluate the potentially significant impacts of such 
activities.
    Response: NMFS does not agree with NVPH's statement. First, the 
subject 2006 PEA was written by MMS, not NMFS. However, NMFS was a 
cooperating agency under NEPA in its preparation. Second, as noted in 
your cited part in the 2006 PEA, 20 km (12.4 mi) was used for 
illustrative purposes in an exercise to estimate impact of 4 seismic 
vessels operating within 24 km (15 mi) of each other. To do so, MMS 
created a box (that was moveable along the Beaufort or Chukchi 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. Although NVPH states that propagation 
actually measured in 2006 and 2007 showed that the impacts of a single 
3D seismic survey are two to three times as large as NMFS anticipated, 
NVPH failed to provide any data to support this statement. In fact, the 
marine mammal monitoring reports on the 2006 and 2007 open water 
seismic surveys clearly showed that at 20 km (12.4 mi) the received 
levels from large airgun arrays used in 3D seismic surveys fall between 
140 and 160 dB re 1 microPa (Ireland et al., 2007a; 2007b; Patterson et 
al., 2007; Funk et al., 2007; 2008), which is below NMFS current noise 
exposure standard for Level B behavioral harassment. 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.
    Comment 48: NVPH states that the MMS 2006 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 AES' surveys but with the modifications to the safety 
zones discussed above.
    Response: NMFS does not agree with NVPH's statement. Although the 
MMS 2006 PEA did not explicitly provide site-specific analysis on the 
proposed AES shallow hazard and site clearance surveys, NMFS SEA 
prepared for the 2008 open-water season described its specific location 
and time of operation. As in the PEA, NMFS' 2008 SEA has described 
additional mitigation measures such as imposing the 160 dB safety zone 
for seismic activities in the Chukchi Sea when an aggregation of 12 or 
more bowhead or gray whales is sighted. This mitigation measure is 
required in the IHA issued to AES. Regarding imposing the 120-dB safety 
zone, it would pose safety and practical concerns for marine mammal 
monitoring in the Chukchi Sea. Therefore, a safety zone based on 
received level of 120 dB re 1 microPa will not imposed in the Chukchi 
Sea as it has been determined to be impracticable under the MMPA.
    Comment 49: The NVPH and NSB state that the scope of the MMS 2006 
PEA is explicitly limited to activities that occur during 2006, and 
that those seismic survey activities have already occurred, as well as 
an additional season worth of activities in 2007. NVPH states that 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, NVPH 
states that 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. NVPH states that 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 does not agree with the NVPH and NSB's statement, as 
failed to provide any support for their position. The MMS 2006 PEA, in 
which NMFS was a cooperating agency, provided a thorough description 
and analysis on the affected environment, including ESA-listed and non-
ESA-listed species. Under the NEPA, there is no ``significance criteria 
for non-endangered'' species. The criteria for determining whether a 
proposed action would result in significant effects to the environment 
are contained in CEQ's regulations. NVPH's statement that MMS' such 
analysis ``would allow long-lasting impacts to populations, or in fact 
the entire Arctic ecosystem, that would nonetheless be deemed 
insignificant'' in a way supports the MMS 2006 PEA. In addition, NMFS 
has prepared and released to the public an SEA for the proposed 2008 
Arctic seismic surveys in the Chukchi and Beaufort Seas (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. Further, the SEA and FONSI considered 
the CEQ significance criteria (including the criteria developed by 
NMFS) to determine whether take of marine mammals incidental to AES' 
seismic survey would result in significant impacts to the human 
environment. NMFS believes that the agency has complied with the 
requirements of NEPA in its preparation of its NEPA documents.
    Comment 50: Oceana and Ocean Conservancy are concerned that oil and 
gas activities may have substantial negative effects on marine mammals 
and other Arctic species. Oceana and Ocean Conservancy further state 
that there has never been a comprehensive evaluation of the cumulative 
effects of seismic activities in the Arctic. Oceana and Ocean 
Conservancy request that in light of the dramatic effects of climate 
change in the Arctic, NMFS must not approve further seismic activities 
without such a comprehensive evaluation.
    Response: NMFS shares Oceana and Ocean Conservancy's concern that 
the increasing industrial activities, including oil and gas 
development, could have profound negative effects on marine mammals in 
the Arctic region. Nevertheless, NMFS believes that proactive efforts 
to conserve and protect marine mammals and other Arctic species, such 
as NMFS' initiation of

[[Page 46789]]

status reviews of ice seals and the recent FWS' ESA-listing of polar 
bears, combined with prudent natural resources management and 
regulations on industrial activities by Federal Agencies would reduce 
these adverse impacts to biologically non-significant or negligible 
levels. In addition, monitoring and mitigation measures required for 
certain industrial activities would further reduce and minimize such 
negative effects to marine mammal species and stocks.. Long term 
research and monitoring results on ice seals in the Alaska's North 
Slope have shown that effects of oil and gas development on local 
distribution of seals and seal lairs are no more than slight, and are 
small relative to the effects of natural environmental factors (Moulton 
et al., 2005; Williams et al., 2006).
    NMFS does not agree with Ocean and Ocean Conservancy's statement 
that there has never been a comprehensive evaluation of the cumulative 
effects of seismic activities in the Arctic. The MMS 2006 PEA, NMFS 
2007 SEA, MMS 2007 draft PEIS, and NMFS 2008 SEA for the proposed 
issuance of five seismic survey and shallow hazard and site clearance 
survey activities for the 2008 open water season all provide 
comprehensive evaluation of the cumulative effects of seismic 
activities in the Arctic.
    Comment 51: NSB and CBD are both concerned about cumulative impacts 
from multiple operations. AES' 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; SOI IHA for Beaufort Sea exploratory 
drilling; CPAI IHA for Beaufort Sea; SOI IHA for Beaufort Sea; two 
proposed IHAs for Chukchi Sea and two proposed for the Beaufort Sea; 
and FWS 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. 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: 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, NMFS does 
not require authorizations under section 101(a)(5) of the MMPA for 
normal shipping or transit.
    Comment 52: According to CBD, another factor causing NMFS' 
``negligible impact'' findings to be suspect is the fact that the 
Chukchi 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-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.

Endangered Species Act

    Comment 53: The CBD states that the proposed IHA will affect, at a 
minimum, four endangered species, the bowhead, humpback and fin whales, 
and the polar bear. As a consequence, NMFS must engage in consultation 
under Section 7 of the ESA prior to issuing the IHA. Previous recent 
biological opinions for industrial activities in the Arctic (e.g., the 
2006 Arctic Regional Biological

[[Page 46790]]

Opinion (ARBO)) have suffered from inadequate descriptions of the 
proposed action, inadequate descriptions of the status of the species, 
inadequate descriptions of the environmental baseline, inadequate 
descriptions of the effects of the action, inadequate analysis of 
cumulative effects, and inadequate descriptions and analysis of 
proposed mitigation. The CBD hopes NMFS performs the full analysis 
required by law and avoids these problems in its consultation for the 
proposed IHA.
    Response: 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, 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 
bowhead, humpback, and fin whales. Regarding the polar bear, MMS has 
contacted the USFWS about conducting a section 7 consultation.
    Comment 54: The CBD states that 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.'' The CBD states 
that AES' proposed activities violate the MMPA and NEPA and therefore 
are ``not otherwise lawful.'' The CBD concludes that any take 
authorization for listed marine mammals would, therefore, violate the 
ESA, as well as these other statutes.
    Response: NMFS does not agree with the CBD statement. 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 AES while it is conducting activities permitted legally 
under MMS' jurisdiction.

Other Comments

    Comment 55: The CGWC states that gray whale population estimate was 
based on outdated data, and that there is no comprehensive assessment 
in the 2008 SAR. The CGWC points out that recent research by Professor 
Stephen Palumbi of Stanford University suggests the original gray whale 
population numbered approximately 118,000, nearly 5 times that of 
previous estimates.
    Response: Although the population estimates of several marine 
mammal species or stocks used in this document may not be up to date, 
these are the best available scientific information NMFS considered. In 
terms of gray whale population estimate, NMFS still believes that using 
the mean of the 2000/01 and 2001/02 abundance estimates (not 
significantly different) of 18,813 is the best estimate. As long as the 
cited Palumbi research (Alter et al., 2007) on historical gray whale 
population is concerned, it is irrelevant to the issuance of the IHA. 
Alter et al.'s (2007) research hypothesized that the decline of gray 
whale population from between 76,000 and 118,000 (average estimate at 
96,000) occurred over the past 1,100 - 1,600 years, much before the 
western whaling began in the 19th century.

Description of Marine Mammals in the Activity Area

    In general, the marine mammal species under NMFS' management 
authority that occur in or near the proposed survey area within the 
Chukchi Sea are the bowhead (Balaena mysticetus), gray (Eschrichtius 
robustus), humpback (Megaptera novaeangliae), fin (Balaenoptera 
physalus), minke (B. acutorostrata), beluga (Delphinapterus leucas), 
and killer whales (Orcinus orca); harbor porpoises (Phocoena phocoena); 
and the bearded (Erignathus barbatus), ringed (Phoca hispida), spotted 
(P. largha), and ribbon seals (P. fasciata). Among these species, the 
bowhead, humpback, and fin whales are listed as ``Endangered'' under 
the Endangered Species Act (ESA).
    A detailed description of the biology, population estimates, and 
distribution and abundance of these species is provided in the AES' IHA 
application. Additional information regarding the stock assessments of 
these species is in NMFS Alaska Marine Mammal Stock Assessment Report 
(Angliss and Outlaw, 2007), and can also be assessed via the following 
URL link: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2006.pdf. Additional 
information on those species that are under NMFS' management authority 
within or near the proposed survey areas is described in the FR Notice 
of Proposed IHA and is not repeated here.

Potential Effects on Marine Mammals

    Operating a variety of acoustic equipment such as side-scan sonars, 
echo-sounders, bottom profiling systems, and airguns for seafloor 
imagery, bathymetry, and seismic profiling has the potential for 
adverse affects on marine mammals.

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, at least in theory, temporary or permanent hearing 
impairment, or non-auditory physical or physiological effects 
(Richardson et al., 1995)
     The potential effects of airguns discussed below are presented 
without consideration of the mitigation measures that AES has presented 
and that will be required by NMFS. When these measures are taken into 
account, it is unlikely that this project would result in temporary, or 
especially, permanent hearing impairment or any significant non-
auditory physical or physiological effects.
(1) Tolerance
    Numerous studies have shown that pulsed sounds from airguns are 
often readily detectable in the water at distances of many kilometers. 
Studies have also shown that marine mammals at distances more than a 
few kilometers from operating seismic vessels often show no apparent 
response (tolerance). That is often true even in cases when the pulsed 
sounds must be readily audible to the animals based on measured 
received levels and the hearing sensitivity of that mammal group. 
Although various baleen whales, toothed whales, and (less frequently) 
pinnipeds have been shown to react behaviorally to airgun pulses under 
some conditions, at other times mammals of all three types have shown 
no overt reactions. In general, pinnipeds, and small odontocetes seem 
to be more tolerant of exposure to airgun pulses than are baleen 
whales.
(2) Masking
    Masking effects of pulsed sounds (even from large arrays of 
airguns) on marine mammal calls and other natural sounds are expected 
to be limited,

[[Page 46791]]

although there are very few specific data of relevance. Some whales are 
known to continue calling in the presence of seismic pulses. Their 
calls can be heard between the seismic pulses (e.g., Richardson et al., 
1986; McDonald et al., 1995; Greene et al., 1999; Nieukirk et al., 
2004). Although there has been one report that sperm whales cease 
calling when exposed to pulses from a very distant seismic ship (Bowles 
et al., 1994), a more recent study reports that sperm whales off 
northern Norway continued calling in the presence of seismic pulses 
(Madsen et al., 2002). That has also been shown during recent work in 
the Gulf of Mexico (Tyack et al., 2003; Smultea et al., 2004). Masking 
effects of seismic pulses are expected to be negligible in the case of 
the smaller odontocete cetaceans, given the intermittent nature of 
seismic pulses. Dolphins and porpoises commonly are heard calling while 
airguns are operating (e.g., Gordon et al., 2004; Smultea et al., 2004; 
Holst et al., 2005a; 2005b). Also, the sounds important to small 
odontocetes are predominantly at much higher frequencies than are 
airgun sounds.
(3) Disturbance Reactions
    Disturbance includes a variety of effects, including subtle changes 
in behavior, more conspicuous changes in activities, and displacement.
    Reactions to sound, if any, depend on species, state of maturity, 
experience, current activity, reproductive state, time of day, and many 
other factors. If a marine mammal does react briefly to an underwater 
sound by slightly changing its behavior or moving a small distance, the 
impacts of the change are unlikely to be biologically significant to 
the individual, let alone the stock or the species as a whole. However, 
if a sound source displaces marine mammals from an important feeding or 
breeding area for a prolonged period, impacts on the animals could be 
significant.
(4) Hearing Impairment and Other Physical Effects
    Temporary or permanent hearing impairment is a possibility when 
marine mammals are exposed to very strong sounds, but there has been no 
specific documentation of this for marine mammals exposed to sequences 
of airgun pulses. NMFS advises against exposing cetaceans and pinnipeds 
to impulsive sounds above 180 and 190 dB re 1 microPa (rms), 
respectively (NMFS, 2000). Those thresholds have been used in defining 
the safety (shut down) radii planned for the proposed seismic surveys. 
Although those thresholds were established before there were any data 
on the minimum received levels of sounds necessary to cause temporary 
auditory impairment in marine mammals, they are considered to be 
conservative.
    Several aspects of the planned monitoring and mitigation measures 
for this project are designed to detect marine mammals occurring near 
the airguns to avoid exposing them to sound pulses that might, at least 
in theory, cause hearing impairment (see Mitigation and Monitoring 
section below). In addition, many cetaceans are likely to show some 
avoidance of the area with high received levels of airgun sound. In 
those cases, the avoidance responses of the animals themselves will 
reduce or (most likely) avoid any possibility of hearing impairment.
    Non-auditory physical effects may also occur in marine mammals 
exposed to strong underwater pulsed sound. Possible types of non-
auditory physiological effects or injuries that theoretically might 
occur in mammals close to a strong sound source include stress, 
neurological effects, bubble formation, and other types of organ or 
tissue damage. It is possible that some marine mammal species (i.e., 
beaked whales) may be especially susceptible to injury and/or stranding 
when exposed to strong pulsed sounds. However, there is no definitive 
evidence that any of these effects occur even for marine mammals in 
close proximity to large arrays of airguns. It is unlikely that any 
effects of these types would occur during the proposed project given 
the brief duration of exposure of any given mammal, and the planned 
monitoring and mitigation measures (see below).
(5) Strandings and Mortality
    Marine mammals close to underwater detonations of high explosive 
can be killed or severely injured, and the auditory organs are 
especially susceptible to injury (Ketten et al., 1993; Ketten, 1995). 
Airgun pulses are less energetic and have slower rise times, and there 
is no evidence that they can cause serious injury, death, or stranding 
even in the case of large airgun arrays.
    Nonetheless, the airgun array proposed to be used in the proposed 
site clearance surveys in Chukchi Sea is small in volume (40 cu inches) 
and the source level is expected at 196 dB re 1 mircoPa (peak), which 
is approximately 190 dB re 1 microPa (rms). The 160, 170, and 180 dB re 
1 microPa (rms) radii, in the beam below the transducer, would be 32 m 
(104 ft), 10 m (33 ft), and 3.2 m (10 ft), respectively, for the 40-cu-
inch airgun array, assuming spherical spreading.

Possible Effects of Bathymetry Echo Sounder Signals

    Two types of bathymetry echo sounders are planned to be used for 
the proposed surveys. The Odom Hydrotrac Digital Echo Sounder is a 
single beam echo sounder that emits a single pulse of sound directly 
below the ship along the vessel trackline and provides a continuous 
recording of water depth along the survey track. The second sonar is a 
Reson Seabat 8101 Multibeam Echo Sounder, which consists of a 
transducer array that emits a swath of sound. The seafloor coverage 
swath of the multibeam sonar is water depth dependent, but is usually 
equal to two to four times the water depth. Nonetheless both echo 
sounders produce acoustic signals above 200 kHz which is below any 
marine mammal species' upper hearing threshold, therefore, NMFS does 
not believe that there will be any effects on marine mammals as a 
result from operating these sonars.

Possible Effects of Sub-bottom Profiler Signals

    A high resolution subbottom profiler (GeoAcoustics GeoPulse sub-
bottom profiling system or GeoAcoustics GeoChirp II sub-bottom 
profiling system) and an intermedia frequency seismic profiling system 
(``boomer'') are planned to be used for the proposed surveys.
    The frequency range for these high resolution subbottom profilers 
are 3.5 to 5 kHz for the GeoPulse and 500 Hz to 13 kHz for the GeoChirp 
II. Either subbottom profiler has a source level at approximately 214 
dB re 1 microPa-m (rms). The 160, 170, 180, and 190 dB re 1 microPa 
(rms) radii, in the beam below the transducer, would be 501 m (1,644 
ft), 158 m (520 ft), 50 m (164 ft), and 16 m (52 ft), respectively, for 
either subbottom profiler, assuming spherical spreading.
    The Applied Acoustics Model AA300 intermediate frequency seismic 
profiler (``boomer'') has a maximum energy input of 350 J per shot, 
though the maximum energy would be used in the surveys is 300 J. The 
pulse length ranges from 150 msec to 400 msec with a reverberation of 
less than 1/10 of the initial pulse. The peak in the source level beam 
reaches 218 dB re 1 microPa-m (or 209 dB re 1 microPa-m (rms)) at 300 J 
with a frequency range of 500 Hz to 300 kHz. The 160, 170, 180, and 190 
dB re 1 microPa (rms) radii, in the beam below the transducer, would be 
282 m (925 ft), 89 m (292 ft), 28 m (92 ft), and 9 m (29 ft), 
respectively, assuming spherical spreading.

[[Page 46792]]

    The corresponding distances for an animal in the horizontal 
direction of these transducers would be much smaller due to the direct 
downward beam pattern of the subbottom profilers. Therefore, the 
horizontal received levels of 180 and 190 dB re 1 microPa (rms) would 
be within much smaller radii than 50 m (164 ft) and 16 m (52 ft) when 
using the GeoAcoustics subbottom profilers, which have the highest 
downward source level, respectively. In addition, the pulse duration of 
these subbottom profilers is extremely short, in the order of tens to 
hundreds of msec, and the survey is constantly moving. Therefore, for a 
marine mammal to receive prolonged exposure, the animal has to stay in 
a very small zone of ensonification and keep with the vessel's speed, 
which is very unlikely.

Possible Effects of Side-Scan Sonar Signals for Seafloor Imagery

    One of the two types of side-scan sonars is planed to be used for 
the proposed shallow hazard and site clearance surveys for seafloor 
imagery. The EdgeTech 4200 dual-frequency side scan sonar operates at 
120 kHz up to 410 kHz, with source level reaching 210 dB re 1 microPa-m 
(rms). The 160, 170, 180, and 190 dB re 1 microPa (rms) radii, in the 
beam below the transducer, would be 316 m (1,037 ft), 100 m (328 ft), 
32 m (104 ft), and 10 m (33 ft), respectively, assuming spherical 
spreading.
    The Klein System 3000 dual-frequency digital side-scan sonar emits 
pulses between 25 msec and 400 msec. The peak in the 132 kHz source 
level beam reaches 234 dB re 1 microPa-m (or 225 dB re 1 microPa-m 
(rms)). The peak in the 445 kHz source level beam reaches 242 dB re 1 
microPa-m. The 445 kHz frequency band is outside any marine mammal 
species' hearing range, therefore, there would be no effect to marine 
mammals when this frequency is chosen. The 160, 170, 180, and 190 dB re 
1 microPa (rms) radii, in the beam below the transducer, would be 1,778 
m (5,834 ft), 562 m (1,844 ft), 178 m (583 ft), and 56 m (184 ft), 
respectively, assuming spherical spreading.
    Nonetheless, these side scan sonars operate in an extremely high 
frequency range (over 120 kHz) relative to marine mammal hearing 
(Richardson et al., 1995; Southall et al., 2007). The frequency range 
from these side scan sonars is beyond the hearing range of mysticetes 
(baleen whales) and pinnipeds. Therefore, these sonars are not expected 
to affect bowhead, gray, humpback, fin, and minke whales and pinniped 
species in the proposed project area. The frequency range from these 
side scan sonars falls within the upper end of odontocete (toothed 
whale) hearing spectrum (Richardson et al., 1995), which means that 
they are not perceived as loud acoustic signals with frequencies below 
120 kHz by these animals. Therefore, these animals would not react to 
the sound in a biologically significant way. Further, in addition to 
spreading loss for acoustic propagation in the water column, high 
frequency acoustic energies are more quickly absorbed through the water 
column than sounds with lower frequencies (Urick, 1983). Therefore, 
NMFS believes that the potential effects from side scan sonar to marine 
mammals are negligible.

Numbers of Marine Mammals Estimated to be Taken

    All anticipated takes would be takes by Level B harassment, 
involving temporary changes in behavior. The proposed mitigation 
measures to be applied would prevent the possibility of injurious 
takes.
    The methods to estimate take by harassment and present estimates of 
the numbers of marine mammals that might be affected during the 
proposed seismic surveys in the Chukchi Sea are described below. The 
density estimates for cetaceans covered under this IHA area based on 
the estimates developed by LGL (2006) for the GXT IHA and used here for 
consistency. However, density estimates for these species were not 
separated by summer and fall. Rather, in a conservative approach, the 
higher of the two estimates was selected for use in the analysis. 
Density estimates on summering bowhead, gray, and beluga whales in the 
Beaufort and Chukchi seas are based on the data from Moore et al. 
(2000). Density estimates on ringed and bearded in the Chukchi Sea are 
based on Bengtson et al. (2005). Since the Bengtson et al. (2005) 
surveys were focused mainly on the coastal zone within 37 km (23 mi) of 
the shoreline, some adjustments were made to reflect the animals' 
density in offshore waters where the site clearance surveys are 
proposed. Ringed seals were relatively common in nearshore fast ice and 
pack ice, with lower densities in offshore pack ice; while bearded 
seals were generally more common in offshore pack ice, with the 
exception of high bearded seal numbers observed near the shore south of 
Kivalina. To make the adjustment, the average ringed seal density 
number (1.62 seals/km\2\) for the year 2000 was used, while the raw 
density number (0.18 seal/km\2\) for the offshore bearded seas was 
adopted. In addition, the seal density numbers represent the near-ice 
animal density, which are higher than open water densities where the 
site clearance surveys would be conducted. Therefore, the sale density 
numbers are overestimates because the survey method focused on animals 
on ice, not in water.
    Specifically, the average estimates of ``take'' were calculated by 
multiplying the expected average animal densities by the area of 
ensonification for the 160 dB re 1 microPa (rms) isopleth for all 
marine mammals. The area of ensonification was determined by 
multiplying the total proposed trackline (760 km or 410 nm) times 2 
(both sides of the trackline) times the distance to the 160-dB 
isopleth. The distance to the 160-dB isopleth was estimated as 
approximately 4,000 m (13,123 ft) with a corresponding area of 
ensonification of 6,080 km\2\ (1,773 nm\2\).
    Based on the calculation, it is estimated that up to approximately 
7 bowhead, 11 gray, and 21 beluga whales, 9,850 ringed and 1,094 
bearded seals would be affected by Level B behavioral harassment as a 
result of the proposed shallow hazard and site clearance surveys. These 
take numbers represent 0.06, 0.06, and 0.6 percent of the western 
Arctic stock of bowhead, eastern North Pacific stock of gray, and 
eastern Chukchi stock of Beluga whales, respectively; and 3.96 and 
0.438 percent of the Alaska stocks of ringed and bearded seal 
populations within the Chukchi Sea, respectively. These numbers are 
small relative to the respective species' stock size.
    In addition, a numbers of humpback, fin, minke, and killer whales, 
harbor porpoises, and spotted and ribbon seals could also be affected 
by Level B behavioral harassment as a result of the proposed marine 
surveys in the Chukchi Sea. However, since the occurrence of these 
marine mammals is very rare within the proposed project area in the 
Chukchi Sea, take numbers cannot be estimated. Nonetheless, NMFS 
believes their take numbers would be much lower as compared to those 
marine mammals whose take numbers were calculated.
    Potential Impacts to Subsistence Harvest of Marine Mammals
    Subsistence hunting and fishing is historically, and continues to 
be, an essential aspect of Native life, especially in rural coastal 
villages. The Inupiat participate in subsistence hunting and fishing 
activities in and around the Chukchi Sea.
    Alaska Natives, including the Inupiat, legally hunt several species 
of marine mammals. Communities that participate in subsistence 
activities potentially affected by seismic surveys within Lease Sale 
193 are Point Hope, Point Lay,

[[Page 46793]]

Wainwright, and Barrow. Marine animals used for subsistence in the 
proposed area include: bowhead whales, beluga whales, ringed seals, 
spotted seals, bearded seals, Pacific walrus, and polar bears. Humpback 
whales are not typically found within the proposed project area of 
Lease Sale 193. However, during the summer of 2007, both humpback and 
fin whales were observed or detected as far as the Beaufort Sea 
(Joling, 2007). In each village, there are key subsistence species. 
Hunts for these animals occur during different seasons throughout the 
year. Depending upon the village's success of the hunt for a certain 
species, another species may become a priority in order to provide 
enough nourishment to sustain the village.
    Point Hope residents subsistence hunt for bowhead and beluga 
whales, polar bears and walrus. Bowhead and beluga whales are hunted in 
the spring and early summer along the ice edge. Beluga whales may also 
be hunted later in the summer along the shore. Walrus are harvested in 
late spring and early summer, and polar bear are hunted from October to 
April (MMS, 2007). Seals are available from October through June, but 
are harvested primarily during the winter months, from November through 
March, due to the availability of other resources during the other 
periods of the year (MMS, 2007).
    With Point Lay situated near Kasegaluk Lagoon, the community's main 
subsistence focus is on beluga whales. Seals are available year-round, 
and polar bears and walruses are normally hunted in the winter. Hunters 
typically travel to Barrow, Wainwright, or Point Hope to participate in 
bowhead whale harvest, but there is interest in reestablishing a local 
Point Lay harvest.
    Wainwright residents subsist on both beluga and bowhead whales in 
the spring and early summer. During these two seasons the chances of 
landing a whale are higher than during other seasons. Seals are hunted 
by this community year-round and polar bears are hunted in the winter.
    Barrow residents' main subsistence focus is concentrated on 
biannual bowhead whale hunts. They hunt these whales during the spring 
and fall. Other animals, such as seals, walruses, and polar bears are 
hunted outside of the whaling season, but they are not the primary 
source of the subsistence harvest (URS Corporation, 2005).
    The seismic survey could affect subsistence uses particularly if 
bowhead or beluga whales are permanently deflected away from their 
migration path. In such a case, a permanent deflection could result in 
substantial impacts to Alaska Native communities who rely on these 
species for their subsistence harvest. However, mitigation measures 
will be put into place to minimize or avoid completely any adverse 
affects on all marine mammals. AES has proposed and NMFS will require 
that no seismic surveys would be conducted in areas where subsistence 
harvests would occur. Areas being used for subsistence hunting grounds 
would be avoided. Communication between the project vessels and land-
based Com and Call Centers would provide additional insight to current 
subsistence activities to further ensure that there will be no negative 
impacts on subsistence activities.
    As part of the application for the IHA, AES has developed a Plan of 
Cooperation (POC) with the Native communities. The POC specifies 
measures AES would take to minimize adverse effects on marine mammals 
where proposed activities may affect the availability of a species or 
stock of marine mammals for arctic subsistence uses or near a 
traditional subsistence hunting area. The POC has been distributed to 
the affected subsistence communities.
    AES has conducted POC meetings for its seismic operations in the 
Chukchi Sea in Barrow, Wainwright, Point Lay, and Point Hope, and with 
the Alaska Eskimo Whaling Commission. Additional meetings will be held 
with the Alaska Ice Seal Committee, Alaska Beluga Committee, Eskimo 
Walrus Commission, and Alaska Nanuq Commission prior to operations. At 
these meetings, AES will present its program and discuss local concerns 
regarding subsistence activities.

Potential Impacts on Habitat

    The proposed site clearance surveys would not result in any 
permanent impact on habitats used by marine mammals, or to the food 
sources they use. The main impact issue associated with the proposed 
activity would be temporarily elevated noise levels and the associated 
direct effects on marine mammals, as discussed above.

Monitoring and Mitigation Measures

Monitoring

    In order to further reduce and minimize the potential impacts to 
marine mammals from the proposed site clearance surveys, NMFS proposes 
the following monitoring and mitigation measures to be implemented for 
the proposed project in Chukchi Sea.
(1) Proposed Safety Zones
    Based on a 214 dB re 1 microPa-m source sound for the GeoChirp II, 
the loudest acoustic equipment with sound in the sensitive hearing 
ranges of marine mammals, and a conservative acoustic modeling approach 
between spherical and cylindrical (i.e., ``15 Log R'') to estimate 
sound propagation loss, the calculated distance to the 180 dB isopleth 
is approximately 185 m (607 ft), and the distance to the 190 dB 
isopleth is about 40 m (131 ft). Because these values are based on 
calculation instead of field measurement during actual operations, NMFS 
proposes, as a precautionary measure, safety radii of 250 m (820 ft) 
for cetaceans and 75 m (246 ft) for pinnipeds.
    In addition, a 160-dB vessel monitoring zone for bowhead and gray 
whales shall be established and monitored during all seismic surveys. 
Whenever an aggregation of 12 or more bowhead whales or gray whales are 
observed during a vessel monitoring program within the 160-dB safety 
zone around the seismic activity, the seismic operation will not 
commence, or will shut down, until two consecutive surveys indicate 
they are no longer present within the 160-dB safety zone of seismic-
surveying operations. The radius of 160-dB isopleth based on modeling 
is 4,000 m (13,123 ft).
    Before the commencement of the shallow hazard and site clearance 
survey, AES is required to conduct empirical measurements of acoustic 
sources to be used in the seismic survey and verify the radii of the 
modeled safety zones at 160, 170, 180, and 190 dB re 1 microPa (rms).
(2) Vessel-based Visual Monitoring
    Marine mammal monitoring during the site clearance surveys would be 
conducted by qualified, NMFS-approved marine mammal observers (MMOs). 
Vessel-based MMOs would be on board the seismic source vessel to ensure 
that no marine mammals would enter the relevant safety radii of 180 and 
190-dB isopleths while noise-generating equipment is operating.
    For monitoring of the larger 160-dB safety zone, a chase vessel 
would be used for monitoring.
(3) Communication between Vessel and Shore
    Communication of vessel operations and transit would occur in 
accordance with protocols set forth by the Com and Call Centers 
proposed to be operated in Barrow, Point Hope, and Point Lay. This 
would further enable vessel operators to be aware of marine mammals and 
subsistence activity in the area.

[[Page 46794]]

Mitigation

    Proposed mitigation measures include (1) vessel speed or course 
alteration, provided that doing so will not compromise operational 
safety requirements, (2) acoustic equipment shut down, and (3) acoustic 
source ramp up.
(1) Speed or Course Alteration
    If a marine mammal is detected outside the relevant safety zone but 
appears likely to enter it based on relative movement of the vessel and 
the animal, then if safety and survey objectives allow, the vessel 
speed and/or course would be adjusted to minimize the likelihood of the 
animal entering the safety zone.
 Shut down Procedures
    If a marine mammal is detected within, or appears likely to enter, 
the relevant safety zone of the array in use, and if vessel course and/
or speed changes are impractical or will not be effective to prevent 
the animal from entering the safety zone, then the acoustic sources 
that relate to the seismic surveys would be shut down.
    Following a shut down, acoustic equipment would not be turned on 
until the marine mammal is outside the safety zone. The animal would be 
considered to have cleared the safety zone if it (1) is visually 
observed to have left the 250-m or 75-m safety zone, for a cetacean or 
a pinniped species, respectively; or (2) has not been seen within the 
relevant safety zone for 15 minutes in the case of odontocetes and 
pinnipeds, and for 30 minutes in the case of mysticetes. For the 
aggregation of bowhead or gray whales, the seismic equipment will not 
be turned on until the aggregation has left the 4,000-m safety zone or 
the animals forming the aggregation are reduced to fewer than 12 
bowhead or gray whales.
    Following a shut down and subsequent animal departure as above, the 
acoustic sources may be turned on to resume operations following ramp-
up procedures described below.
(3) Ramp-up Procedures
    A ramp-up procedure will be followed when the acoustic sources 
begin operating after a specified period without operations. It is 
proposed that, for the present survey, this period would be 30 min. 
Ramp up would begin with the power on of the smallest acoustic 
equipment for the survey at its lowest power output. The power output 
would be gradually turned up and other acoustic sources would be added 
in a way such that the source level would increase in steps not 
exceeding 6 dB per 5-min period. During ramp-up, the MMOs would monitor 
the safety zone, and if marine mammals are sighted, decisions about 
course/speed changes and/or shutdown would be implemented as though the 
acoustic equipment is operating at full power.
(4) Poor Visibility Conditions
    AES plans to conduct 24-hr operations. The proposed provisions 
associated with operations at night or in periods of poor visibility 
include:
    (1) During any nighttime operations, if the entire 180-dB safety 
radius is visible using vessel lights and/or night vision devices, then 
start of a ramp-up procedure after a complete shutdown of the airgun 
array may occur following a 30-min period of observation without 
sighting marine mammals in the safety zone.
    (2) If during foggy conditions or darkness (which may be 
encountered starting in late August), the full 180-dB safety zone is 
not visible, the airguns cannot be ramped-up if the seismic source is 
in a full shutdown mode.
    (3) If one or more airguns has been operational before nightfall or 
before the onset of foggy conditions, they can remain operational 
throughout the night or foggy conditions. In this case, ramp-up 
procedures can be initiated, even though the entire safety radius may 
not be visible, on the assumption that marine mammals will be alerted 
by the sounds from the single airgun and have moved away.
Data Collection and Reporting
    MMOs would record data to estimate the numbers of marine mammals 
present and to document apparent disturbance reactions or lack thereof. 
Data would be used to estimate numbers of animals potentially ``taken'' 
by harassment. They would also provide information needed to order a 
shut down of acoustic equipment when marine mammals are within or 
entering the safety zone.
    When a sighting is made, the following information about the 
sighting would be recorded:
    (1) Species, group size, age/size/sex categories (if determinable), 
behavior when first sighted and after initial sighting, heading (if 
consistent), bearing and distance from seismic vessel, and apparent 
reaction to the acoustic sources or vessel.
    (2) Time, location relative to the acoustic sources, heading, 
speed, activity of the vessel (including whether and the level at which 
acoustic sources are operating), sea state, visibility, and sun glare.
    The data listed under (2) would also be recorded at the start and 
end of each observation watch, and during a watch whenever there is a 
change in one or more of the variables.
    A final report will be submitted to NMFS within 90 days after the 
end of the shallow hazard and site clearance surveys. The report will 
describe the operations that were conducted and sightings of marine 
mammals near the operations. The report also will provide full 
documentation of methods, results, and interpretation pertaining to all 
monitoring. The report will summarize the dates and locations of 
seismic operations, and all marine mammal sightings (dates, times, 
locations, activities, associated seismic survey activities), and the 
amount and nature of potential take of marine mammals by harassment or 
in other ways.

Endangered Species Act

    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 bowhead whales.

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

[[Page 46795]]

mammals while conducting those surveys.
    On March 30, 2007 (72 FR 15135), the Environmental Protection 
Agency (EPA) noted the availability for comment of the NMFS/MMS DPEIS. 
Based upon several verbal and written requests to NMFS for additional 
time to review the DPEIS, EPA has twice announced an extension of the 
comment period until July 30, 2007 (72 FR 28044, May 18, 2007; 72 FR 
38576, July 13, 2007). Because NMFS has been unable to complete the 
PEIS, it was determined that the 2006 PEA would need to be updated in 
order to meet NMFS' NEPA requirement. This approach was warranted as it 
was reviewing five proposed Arctic seismic survey IHAs for 2008, well 
within the scope of the PEA's eight consecutive seismic surveys. To 
update the 2006 Final PEA, NMFS prepared a SEA which incorporates by 
reference the 2006 Final PEA and other related documents.

Determination

    Based on the preceding information, and provided that the 
mitigation and monitoring are incorporated, NMFS has determined that 
the impact of conducting the shallow hazard and site clearance surveys 
in Chukchi Sea may result, at worst, in a temporary modification in 
behavior of small numbers of certain species of marine mammals. While 
behavioral and avoidance reactions may be made by these species in 
response to the resultant noise from the airguns, side-scan sonars, 
seismic profilers, and other acoustic equipment, these behavioral 
changes are expected to have a negligible impact on the affected 
species and stocks of marine mammals. In addition, NMFS has determined 
that the AES' shallow hazard and site clearance survey would have no 
unmitigable adverse impact to the subsistence use of marine mammal 
species and/or stocks.
    While the number of potential incidental harassment takes will 
depend on the distribution and abundance of marine mammals in the area 
of site clearance operations, the number of potential harassment 
takings is estimated to be relatively small in light of the population 
or stock size. NMFS anticipates the actual take of individuals to be 
lower than the numbers presented in the analysis because those numbers 
do not reflect either the implementation of the mitigation measures or 
the fact that some animals will avoid the sound at levels lower than 
those expected to result in harassment.
    In addition, no take by death and/or injury is anticipated, and the 
potential for temporary or permanent hearing impairment will be avoided 
through the incorporation of the required mitigation measures described 
in this document. This determination is supported by (1) the likelihood 
that, given sufficient notice through slow ship speed and ramp-up of 
the acoustic equipment, marine mammals are expected to move away from a 
noise source that it is annoying prior to its becoming potentially 
injurious; (2) TTS is unlikely to occur, especially in odontocetes, 
until levels much above 180 dB re 1 microPa (rms) are reached; and (3) 
the fact that injurious levels of sound are only likely if an animal is 
very close to the vessel.

Authorization

    As a result of these determinations, NMFS has issued an IHA to AES 
for conducting a shallow hazard and site clearance survey in the 
Chukchi 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. E8-18199 Filed 8-8-08; 8:45 am]
BILLING CODE 3510-22-S