[Federal Register Volume 73, Number 216 (Thursday, November 6, 2008)]
[Notices]
[Pages 66106-66142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26269]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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Taking Marine Mammals Incidental to Specified Activities; Seismic 
Surveys in the Beaufort and Chukchi Seas; Notice

  Federal Register / Vol. 73, No. 216 / Thursday, November 6, 2008 / 
Notices  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD76


Taking Marine Mammals Incidental to Specified Activities; Seismic 
Surveys in the Beaufort and Chukchi Seas

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

ACTION: Notice of Issuance of an Incidental Harassment Authorization.

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SUMMARY: In accordance with regulations implementing the Marine Mammal 
Protection Act (MMPA) as amended, notification is hereby given that an 
Incidental Harassment Authorization (IHA) to take small numbers of 
marine mammals, by harassment, incidental to conducting a marine 
geophysical program, including deep seismic surveys, on oil and gas 
lease blocks located on Outer Continental Shelf (OCS) waters in the 
mid- and eastern-Beaufort Sea and in the Northern Chukchi Sea has been 
issued to Shell Offshore, Inc. (SOI) and WesternGeco.

DATES: Effective from August 19, 2008 through August 18, 2009.

ADDRESSES: SOI's IHA application and the IHA are available by writing 
to Mr. 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. A copy 
of the application (containing a list of the references used in this 
document), the 2008 Supplemental Environmental Assessment (S-EA) and 
related documents may be obtained by writing to this address or by 
telephoning the contact listed here and are also available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha. Documents cited in 
this document, that are not available through standard public library 
access methods, may be viewed, by appointment, during regular business 
hours at the address provided here.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of 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.
    An 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 subsistence uses and 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 October 16, 2007, NMFS received an application from SOI for the 
taking, by harassment, of several species of marine mammals incidental 
to conducting a marine seismic survey program during the open water 
season between August 1, 2008, and July 31, 2009 (referred to in this 
document as 2008/2009). SOI proposed to conduct a variety of programs 
in the Chukchi and Beaufort Seas during the 2008/2009 open water 
seasons, including a: (1) Chukchi Sea deep 3-D seismic survey; (2) 
Beaufort Sea deep 3-D seismic survey; and (3) Beaufort Sea marine 
surveys, which includes three activities: (a) site clearance and 
shallow hazards surveys; (b) an ice-gouge survey; and (c) a strudel 
scour survey.
    The deep seismic survey components of the program will be conducted 
from WesternGeco's vessel, the M/V Gilavar. Detailed specifications on 
this seismic survey vessel are provided in Attachment A of SOI's IHA 
application. These specifications include: (1) complete descriptions of 
the number and lengths of the streamers which form the hydrophone 
arrays; (2) airgun size and sound propagation properties; and (3) 
additional detailed data on the M/V Gilavar's characteristics. In 
summary, the M/V Gilavar will tow two source arrays, comprising three 
identical subarrays each, which will be fired alternately as the ship 
progresses downline in the survey area. The M/V Gilavar will tow up to 
6 streamer cables up to 5.4 kilometers (km)(3.4 mi) long. With this 
configuration each pass of the M/V Gilavar can record 12 subsurface 
lines spanning a swath of up to 360 meters (1181 ft). The seismic 
acquisition vessel will be supported by the M/V Gulf Provider, or a 
similar vessel. The M/V Gulf Provider will serve as a crew change, 
resupply, fueling support of acoustic and marine mammal monitoring, and 
seismic chase vessel. It will not deploy seismic acquisition gear.
    As SOI's 2007 IHA for open water seismic activities in the Chukchi 
and Beaufort Seas was valid until August 1, 2008 (subsequently amended 
to run through August 18, 2008), this IHA request is intended, 
therefore, for the open water seasons between August 19, 2008 through 
August 18, 2009.
    As marine mammals may be affected by seismic and vessel noise, SOI 
has requested an authorization under section 101(a)(5)(D) of the MMPA 
to take marine mammals by Level B harassment while conducting seismic 
surveys and related activities.

Plan for Seismic Operations

    In its application, SOI noted that it plans for the M/V Gilavar to 
be in the Chukchi Sea to begin seismic acquisition data on or after 
July 20, 2008, move to the Beaufort Sea in mid-August through late 
October, and conclude work in the Chukchi Sea around November 15, 2008. 
SOI later modified its plan to delay moving into the Beaufort Sea until 
early September and not start seismic operations until the conclusion 
of the fall bowhead whale subsistence harvest ends. For

[[Page 66107]]

purposes of the MMPA, the Chukchi and Beaufort seas meet the definition 
of a ``specific geographic region'' as defined under the Act, as they 
can be considered to have similar biogeographic characteristics. In 
addition, the areas in which SOI proposes to conduct their activities 
(e.g., LS 193 in the Chukchi Sea; Sivulluq in the Beaufort Sea) are 
well defined geographic regions. As proposed by SOI, the 2008 seismic 
survey effort will have approximately 100 days of active data 
acquisition (excluding downtime due to weather and other unforeseen 
delays). Around September 1\st\, SOI's seismic and associated vessels 
will transit to the Beaufort Sea to conduct seismic operations for part 
of this 100-day period. A commencement date of July 20th for starting 
seismic in the Chukchi Sea was designed to ensure that there would be 
no conflict with the spring bowhead whale migration and subsistence 
hunts conducted by Barrow, Pt. Hope, Pt. Lay, or Wainwright or the 
beluga subsistence hunt conducted by the village of Pt. Lay in early 
July. The approximate area of SOI's Chukchi Sea and Beaufort Sea 
seismic survey operations are shown in Figures 1 and 2 in SOI's IHA 
application, respectively.

3-D Deep Seismic Surveys

Chukchi Sea 3-D Deep Seismic Surveys
    SOI and its geophysical (seismic) contractor, WesternGeco, are 
conducting a marine geophysical (deep 3-D seismic) survey program 
during the open water season on various Minerals Management Service's 
(MMS) Outer Continental Shelf (OCS) lease blocks in the northern 
Chukchi Sea (see Figure 1 in SOI's IHA application). The Chukchi Sea 3-
D Deep Seismic survey will be conducted on leases obtained under Lease 
Sale (LS) 193. The exact locations where operations will occur within 
that sale area were not known at the time of SOI's IHA application, but 
NMFS presumes they will take place on lease blocks obtained as a result 
of the sale. However, in general SOI notes that the seismic data 
acquisition will occur at least 25 mi (40 km) offshore of the coast and 
in waters with depths averaging about 40 m (131 ft).
    The deep 3-D seismic survey will be conducted from WesternGeco's 
vessel M/V Gilavar, described previously. Two ``chase boats'' will 
accompany the seismic vessel. These two chase boats will provide the 
following functions: (1) re-supply, (2) marine mammal monitoring, (3) 
ice scouting, and (4) general support for the M/V Gilavar. The chase 
boat vessels for use in 2008 are the M/V Theresa Marie and the M/V 
Torsvik. These vessels will not deploy any seismic gear. In addition, a 
crew change vessel, the M/V Gulf Provider or similar vessel and a 
landing craft, such as the M/V Maxime or similar vessel, will support 
the M/V Gilavar, and the two chase boats in the Chukchi Sea. The crew 
change vessel will be used to move personnel and supplies from the 
seismic vessel, and two chase boats to the nearshore areas. In turn, 
the landing craft will move personnel and supplies from the crew change 
vessel, when it is located in nearshore areas, to the beach (most 
likely this will be at Barrow). Lastly, the Marine Mammal Monitoring 
and Mitigation Program (4MP) will have a separate vessel for the 2008 
4MP Program. The landing craft also will be used to move personnel and 
equipment from the 4MP vessel to the near shore areas.
Beaufort Sea Deep 3-D Seismic Surveys
    The same seismic vessel (M/V Gilavar), seismic equipment, and chase 
boats that are described for the Chukchi Sea Deep 3-D Seismic survey, 
will be used to conduct deep 3-D seismic surveys in the central and 
eastern Beaufort Sea (see Figure 2 in SOI's IHA application). The focus 
of this activity will be on SOI's existing leases, but some activity in 
the Beaufort Sea may occur outside of SOI's existing leases. The 
landing craft, which will be used to move personnel and supplies from 
vessels in the near shore to docking sites will most likely use West 
Dock, or Oliktok Dock. Smaller vessels such as the Alaska Clean Seas 
(ACS) bay boats, or similar vessels, may be used to assist in the 
movement of people and supplies and support of the 4MP in the Beaufort 
Sea. The specific geographic region for SOI's deep seismic program in 
the Beaufort Sea will be in OCS waters including SOI leases beginning 
east of the Colville River delta to west of the village of Kaktovik 
(see Figure 2 in SOI's application). According to SOI's IHA 
application, the Beaufort Sea program is planned to occur for a maximum 
of 60 days (excluding downtime due to weather and unforeseen delays) 
during open-water from mid-August to the end of October; however, 
recent communications with SOI indicates that the Beaufort Sea seismic 
program will not start until September 2008. This timing of activities 
in the fall will avoid any conflict with the Beaufort Sea bowhead whale 
subsistence hunt conducted by the Beaufort Sea villages, because it is 
anticipated that the fall bowhead whale hunt will have ended by that 
time.
Description of Marine 3-D Seismic Data Acquisition
    In the seismic method, reflected sound energy produces graphic 
images of seafloor and sub-seafloor features. The seismic system 
consists of sources and detectors, the positions of which must be 
accurately measured at all times. The sound signal comes from arrays of 
towed energy sources. These energy sources store compressed air which 
is released on command from the towing vessel. The released air forms a 
bubble which expands and contracts in a predictable fashion, emitting 
sound waves as it does so. Individual sources are configured into 
arrays. These arrays have an output signal, which is more desirable 
than that of a single bubble, and also serve to focus the sound output 
primarily in the downward direction, which is useful for the seismic 
method. This array effect also minimizes the sound emitted in the 
horizontal direction.
    The downward propagating sound travels to the seafloor and into the 
geologic strata below the seafloor. Changes in the acoustic properties 
between the various rock layers result in a portion of the sound being 
reflected back toward the surface at each layer. This reflected energy 
is received by detectors called hydrophones, which are housed within 
submerged streamer cables which are towed behind the seismic vessel. 
Data from these hydrophones are recorded to produce seismic records or 
profiles. Seismic profiles often resemble geologic cross- sections 
along the course traveled by the survey vessel.
Description of WesternGeco's Air-Gun Array
    In 2008, SOI used WesternGeco's 3147-in\3\ Bolt-Gun Array for its 
3-D seismic survey operations in the Chukchi and Beaufort Seas. 
WesternGeco's source arrays are composed of 3 identically tuned Bolt-
gun sub-arrays operating at an air pressure of 2,000 psi. In general, 
the signature produced by an array composed of multiple sub-arrays has 
the same shape as that produced by a single sub-array while the overall 
acoustic output of the array is determined by the number of sub-arrays 
employed.
    The airgun arrangement for each of the three 1049-in\3\ sub-array 
is detailed in SOI's application. As indicated in the application's 
diagram, each sub-array is composed of six tuning elements; two 2-
airgun clusters and four single airguns. The standard configuration of 
a source array for 3-D surveys consists of one or more 1049-in\3\ sub-
arrays. When

[[Page 66108]]

more than one sub-array is used, as here, the strings are lined up 
parallel to each other with either 8 m or 10 m (26 or 33 ft) cross-line 
separation between them. This separation was chosen so as to minimize 
the areal dimensions of the array in order to approximate point source 
radiation characteristics for frequencies in the nominal seismic 
processing band. For the 3147-in\3\ array the overall dimensions of the 
array are 15 m (49 ft) long by 16-m (52.5-ft) wide.
Characteristics of Airgun Pulses
    A discussion of the characteristics of airgun pulses was provided 
in several previous Federal Register documents (see 69 FR 31792 (June 
7, 2004) or 69 FR 34996 (June 23, 2004)) and is not repeated here. 
Additional information can be found in the NMFS/MMS Draft PEIS (see 
ADDRESSES). Reviewers are encouraged to read these earlier documents 
for additional background information.

Marine Surveys

    Marine surveys (shallow hazards and other activities) were 
conducted by SOI in the Beaufort Sea in 2008. Acoustic systems similar 
to the ones being used by SOI during its marine surveys have been 
described by NMFS previously (see 66 FR 40996 (August 6, 2001), 70 FR 
13466 (March 21, 2005)). NMFS encourages readers to refer to these 
documents for additional information on these systems. A summary of 
SOI's marine survey activities is described next.
Beaufort Sea Marine Surveys
    SOI conducted three marine survey activities in 2008 in the U.S. 
Beaufort Sea: (1) Site Clearance and Shallow Hazards (2) Ice Gouge 
Surveys, and (3) Strudel Scour Surveys. Marine surveys for site 
clearance and shallow hazards, ice gouge, or strudel scour in the 
Beaufort Sea was accomplished by the M/V Henry Christofferson. No other 
vessels, such as chase boats, were necessary to accomplish this marine 
survey work. Any necessary crew changes or 4MP coordinated activities 
under this activity utilized the same crew change, landing craft, or 
4MP vessel mentioned under the Beaufort Sea Deep 3-D Seismic survey.
Site Clearance and Shallow Hazards
    Marine surveys include site clearance and shallow hazards surveys 
of potential exploratory drilling locations. These surveys gather data 
on: (1) bathymetry, (2) seabed topography and other seabed 
characteristics (e.g., boulder patches), (3) potential geohazards 
(e.g., shallow faults and shallow gas zones), and (4) the presence of 
any archeological features (e.g., shipwrecks).
    The focus of this activity was on SOI's existing leases in the 
central and eastern Beaufort Sea, but some activity may have occurred 
outside of SOI's existing leases. Actual locations of site clearance 
and shallow hazard surveys occurred within the area outlined in Figure 
2 of SOI's IHA application.
    The M/V Henry Christofferson was used by SOI for the site clearance 
and shallow hazards surveys. This vessel is a diesel-powered tug as 
described in Attachment A to SOI's IHA application. The following 
acoustic instrumentation was used for this work. This is the same 
equipment that was used on the M/V Henry Christofferson during 2007:
    (1) Dual frequency subbottom profiler Datasonics CAP6000 Chirp II 
(2 to7 kiloHertz [kHz] or 8 to 23 kHz) or similar;
    (2) Medium penetration subbottom profiler, Datasonics SPR-1200 
Bubble Pulser (400 (hertz [Hz]) or similar;
    (3) High resolution multi-channel 2D system, 20 cubic inches 
(in\3\) (2 by 10 in\3\) gun array (0 to 150 Hz) or similar;
    (4) Multi-beam bathymetric sonar, Seabat 8101 (240 Hz); or similar; 
and
    (5) Side-scan sonar system, Datasonics SIS-1500 (190 to 210 kHz) or 
similar.
Ice Gouge Survey
    Ice gouge surveys are a type of marine survey to determine the 
depth and distribution of ice gouges in the sea bed. Ice gouge is 
created by ice keels which project from the bottom of moving ice that 
gouge into seafloor sediment. Remnant ice gouge features are mapped to 
aid in predicting the prospect of, orientation, depth, and frequency of 
future ice gouge. These surveys focused on the potential, prospective 
pipeline corridor between the Sivulliq Prospect in Camden Bay and the 
nearshore Point Thomson area. The Sivulliq area was surveyed to gather 
geotechnical and seafloor hazard information as well as data on ice 
gouges.
    SOI used the acoustic instrumentation described previously in this 
document, namely multi-beam bathymetric sonar, side scan sonar and 
subbottom profiling. The locations of the ice gouge surveys occurred 
within the area outlined in Figure 2 of SOI's IHA application.
Strudel Scour Survey
    During the early melt on the North Slope, the rivers begin to flow 
and discharge water over the coastal sea ice near the river deltas. 
That water rushes down holes in the ice (``strudels'') and scours the 
seafloor. These eroded areas are called ``strudel scours''. Information 
on these features is required for prospective pipeline planning. Two 
activities are required to gather this information.
    First, an aerial survey is conducted via helicopter overflights 
during the melt to locate the strudels; and strudel scour marine 
surveys to gather bathymetric data. The overflights investigate 
possible sources of overflood water and will survey local streams that 
discharge in the vicinity of Point Thomson including the Staines River, 
which discharges to the east into Flaxman Lagoon and the Canning River, 
which discharges to the east directly into the Beaufort Sea.
    Second, areas that have strudel scour identified during the aerial 
survey were surveyed with a marine vessel after the breakup of 
nearshore ice. This operation was conducted in the shallow water areas 
near the coast in the vicinity of Point Thomson. The diesel-powered M/V 
Anika Marie used the following equipment to conduct this work:
    (1) Multi-beam bathymetric sonar, Seabat 8101 (240 Hz); or similar 
sonar; and
    (2) Side-scan sonar system, Datasonics SIS-1500 (190 to 210 kHz) or 
similar sonar.
    The multi-beam bathymetric sonar and the side-scan sonar systems 
both operate at frequencies greater than 180 kHz, the highest frequency 
considered by knowledgeable marine mammal biologists to be of possible 
influence to marine mammals. Because no taking of marine mammals will 
occur from this equipment, no measurements of those two sources are 
planned by SOI, and no exclusion zones for seals or whales would be 
established during operation of those two sources. The acoustic 
instrumentation used on the seismic vessels are described in SOI's IHA 
application.
Chukchi Sea Marine Surveys
    Marine surveys planned for the Chukchi Sea were to include site 
clearance and shallow hazards surveys of potential exploratory drilling 
locations as required by MMS regulations. These surveys were to gather 
data on: (1) bathymetry, (2) seabed topography and other seabed 
characteristics (e.g., boulder patches), (3) potential geohazards 
(e.g., shallow faults and shallow gas zones), and (4) the presence of 
any archeological features (e.g., shipwrecks). Marine surveys for site 
clearance and shallow hazards can be accomplished by one vessel with 
acoustic sources.
    The Chukchi Sea marine surveys were to be conducted on leases 
acquired in

[[Page 66109]]

OCS LS 193. Site clearance surveys are confined to small specific areas 
within OCS blocks. Site clearance and shallow hazard survey locations 
were planned to occur within the general area outlined in Figure 1 in 
SOI's IHA application. However, due to vessel contract issues in the 
earlier part of the season and an ongoing bowhead whale subsistence 
hunt in the Chukchi Sea in the fall, this work was not conducted in 
2008.

Additional Information

    A detailed description of SOI's work during the open-water seasons 
of 2008/2009 is contained in SOI's application (see ADDRESSES). Also, a 
description of SOI's data acquisition program for the 2008/2009 season, 
and WesternGeco's air-gun array to be employed during 2008/2009 has 
been provided in previous IHA notices on SOI's seismic program (see 71 
FR 26055, May 3, 2006; 71 FR 50027, August 24, 2006), and is not 
repeated here.

Comments and Responses

    A notice of receipt of SOI's MMPA application and NMFS' proposal to 
issue an IHA to SOI was published in the Federal Register on June 25, 
2008 (73 FR 36044). That notice described, in detail, SOI's seismic 
survey activity, the marine mammal species that may be affected by the 
activity, and the anticipated effects on marine mammals. During the 30-
day public comment period on SOI's application, comments were received 
from the Marine Mammal Commission (Commission), EarthJustice (on behalf 
of themselves, the Center for Biological Diversity, Northern Alaska 
Environmental Center, The Wilderness Society, Sierra Club, Pacific 
Environment, Resisting Environmental Destruction on Indigenous Lands, 
Alaska Wilderness League, the Natural Resources Defense Council, and 
Native Village of Point Hope), the Alaska Eskimo Whaling Commission 
(AEWC), the North Slope Borough (NSB), and Oceana. The AEWC submitted 
comments on the Conflict Avoidance Agreement (CAA), which are addressed 
in this notice, but also submitted comments in regard to Alternative 9 
in NMFS/MMS' 2007 Draft Programmatic EIS for Arctic Ocean Seismic 
Surveys. As the Final Programmatic EIS remains under development and as 
the comment period on that document closed in late 2007, NMFS will 
restrict its response to that part of the letter concerning the CAA. 
Additional responses to concerns raised by the public during public 
comments can be found at 73 FR 40512 (July 15, 2008) for BP Exploration 
(Alaska), Inc. in the Beaufort Sea, 73 FR 45969 (August 7, 2008) for 
PGS Onshore, Inc. in the Beaufort Sea; at 73 FR 46774 (August 11, 2008) 
for ASRC Energy Services, Inc. (AES) in the Chukchi Sea; and at 73 
49421 (August 21, 2008) for ConocoPhillips, Inc. in the Chukchi Sea.

Activity Concerns

    Comment 1: The NSB notes that AES has applied for an IHA for site 
clearance and shallow hazards surveys in the Chukchi Sea. AES surveys 
will be conducted for Shell. How do Shell's proposed marine surveys 
relate to AES? Are both organizations applying for IHAs for the same 
work? If so, this creates a tremendous amount of unnecessary 
duplicative work.
    Response: At the time of its IHA application, AES planned to 
conduct shallow hazard work in the Chukchi Sea on behalf of several 
clients who had obtained leases as a result of Lease Sale 193. One of 
those clients was SOI. However, the Chukchi Sea shallow hazards survey 
work for SOI was not conducted this year. NMFS continues to encourage 
the offshore oil industry to combine seismic/shallow hazard survey 
efforts onto one or two vessels whenever possible to reduce potential 
noise impacts on marine mammals. Subsequent to NMFS processing IHA 
applications for SOI and other companies, SOI determined that in order 
to ensure that their proposed shallow hazard survey in the Chukchi Sea 
was conducted this year, it proposed to move a vessel stationed in the 
Beaufort Sea into the Chukchi Sea to conduct this work, if the AES was 
unable to do this work. NMFS believes that, while there was duplication 
this year, if, in future years, these operations can be combined onto a 
single vessel, those efforts would be beneficial to marine mammals.

MMPA Concerns

    Comment 2: EarthJustice and the NSB state that because the proposed 
seismic activity carries the real potential to cause injury or death to 
marine mammals, neither an IHA, nor an LOA (because NMFS has not 
promulgated regulations for mortality by seismic activities) can be 
issued for SOI's proposed seismic survey activities.
    Response: Section 101(a)(5)(D) of the MMPA authorizes Level A 
(injury) harassment and Level B (behavioral) harassment takes. While 
NMFS' regulations indicate that a LOA must be issued if there is a 
potential for serious injury or mortality, NMFS does not believe that 
SOI's seismic surveys require issuance of a LOA. As explained 
throughout NMFS' proposed IHA Federal Register Notice (73 FR 36044, 
June 25, 2008) and this Federal Register Notice, it is highly unlikely 
that marine mammals would be exposed to sound pressure levels (SPLs) 
that could result in serious injury or mortality. The best scientific 
information indicates that an auditory injury is unlikely to occur as 
apparently sounds need to be significantly greater than 180 dB for 
injury to occur (Southall et al., 2007).
    NMFS has determined that exposure to several seismic pulses at 
received levels near 200-205 dB (rms) might result in slight temporary 
threshold shift (TTS) in hearing in a small odontocete, assuming the 
TTS threshold is a function of the total received pulse energy. Seismic 
pulses with received levels of 200-205 dB or more are usually 
restricted to a radius of no more than 200 m (656 ft) around a seismic 
vessel operating a large array of airguns. To understand this better, 
one must recognize that (1) the 180-dB zone is approximately 2500 m 
(8202 ft) beam-fire and 210 m (689 ft) for/end fire direction (Tables 
3, 4 in MacGillivray et al. (2007)). The seismic airgun array is 
approximately 490 m (1608 ft) off the stern of the M/V Gilavar. Each of 
the Gilavar's two airgun arrays is 15 m (49 ft) long and 16 m (52.5 ft) 
wide. The hydrophone cable array is approximately 500 m (1640 ft) wide 
and 4200 m (2.6 mi) active length. In addition, the M/V Gilavar is 
approximately 85 m (279 ft) long, 18 m (59 ft) wide. Therefore, NMFS 
believes that in order for a marine mammal to incur an auditory injury, 
it would be necessary for the marine mammal to be undeterred by 
seismic, ship, or hydrophone (turbulence) noises, and not be sighted by 
Marine Mammal Observers (MMOs) within this area. NMFS believes it is 
highly unlikely that marine mammals would intentionally enter into the 
turbulent area behind a moving vessel between the vessel, the seismic 
airgun array and the hydrophone array with supporting cables, wires and 
separators (although bottlenose dolphins have been reported on occasion 
by MMOs to approach and rub against the outside streamers). As a 
result, no marine mammals would likely incur either TTS or PTS, simply 
because they are likely to avoid the area directly behind the vessel. 
Furthermore, the dimensions of the ship also tends to preclude marine 
mammal entry into the area immediately ahead of the airguns. 
Essentially, bridge-stationed MMOs need to see only about 157 m (515 
ft) abeam (to the side) of the vessel in order to ensure that no marine 
mammals enter the 200-m (656-ft) area for potential Level B harassment 
(TTS) zone

[[Page 66110]]

(presuming that 205 dB rms is about 200 m (656 ft) from the array). It 
is highly likely that MMOs would be able to detect marine mammals 
approaching this area and order a power-down or shut-down of the 
seismic array.
    Moreover, Smultea and Holst (2003) and Holst (2004) report on two 
tests of the effectiveness of monitoring using night-vision devices 
(NVDs). Results of those tests indicated that the Night Quest NQ220 NVD 
is effective at least to 150 to 200 m (492 to 656 ft) away under 
certain conditions, but not at distances greater than 200 m (656 ft). 
However, it is in this smaller 200-m zone, where the received level is 
well above 180 dB, where the detection of any marine mammals that are 
present would be of particular importance. This zone for potential TTS 
and PTS is therefore sufficiently within the range of the NVDs to allow 
detection of marine mammals within the area of potential TTS during 
night-time seismic operations.
    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 was in full compliance with the MMPA when it issued an IHA to SOI 
for the 2008/2009 seismic survey program.
    Comment 3: The NSB states that the activities proposed by SOI are 
not sufficiently described in either the Federal Register Notice or 
SOI's IHA application. Stating the dates and durations of activities in 
uncertain terms also makes it impossible for NMFS to assess whether 
SOI's activities will interfere with the subsistence hunting seasons. 
Because SOI has not sufficiently specified the geographic location, 
date, and duration of activities, NMFS cannot lawfully issue the IHA.
    Response: NMFS disagrees with the statement. In regard to dates of 
SOI's seismic survey activities, SOI made clear in its IHA application 
that the ``dates and duration of the activity'' is for a one-year 
period during the open water period of 2008 and 2009. This statement 
meets the requirements of the MMPA. As a result of discussions with 
SOI, the NSB and the AEWC are aware that because of measures taken to 
protect the spring whale harvests in the Chukchi Sea, the start of 
seismic surveys cannot begin prior to July 20th in the Chukchi Sea and 
cannot move into the Beaufort Sea before ice conditions allow (around 
mid August). However, in regards to 2008, SOI has stated to the NSB 
that they will leave the Chukchi Sea on September 1st (as required by 
the CAA) and will not start shooting 3D seismic in the Beaufort Sea 
until the bowhead whale subsistence hunt at Kaktovik and Nuiqsut ends. 
SOI planned to return to the Chukchi Sea after about 20 days of 
shooting seismic or when weather conditions curtail seismic surveys in 
the Beaufort Sea, whichever is earlier. However, it was unable to 
collect seismic data and ended its 2008 seismic season on or about 
October 15, 2008.
    In regards to the requirement that the activity area be specified, 
NMFS defines ``specified geographical region'' as ``an area within 
which a specified activity is conducted and which has certain 
biogeographic characteristics'' (50 CFR 216.103). In regard to how 
specific one must be to define a ``specific geographic region'' within 
which the activity would take place, House Report 97-228 states:
    The specified geographic region should not be larger than is 
necessary to accomplish the specified activity, and should be drawn 
in such a way that the effects on marine mammals in the region are 
substantially the same. Thus, for example, it would be inappropriate 
to identify the entire Pacific coast of the North American continent 
as a specified geographic region, but it may be appropriate to 
identify particular segments of that coast having similar 
characteristics, both biological and otherwise, as specified 
geographical regions.
    NMFS believes that the U.S. Beaufort and Chukchi Seas meet 
Congressional intent and NMFS' definition because these two regions 
have similar geographic, physiographic (e.g., topography, temperature, 
sea ice), biologic (e.g., marine fauna (fish and marine mammals)), and 
sociocultural characteristics. Therefore, NMFS believes that SOI's 
description of the activity and the locations for conducting seismic 
surveys meet the requirements of the MMPA. Within the Chukchi Sea, SOI 
intends to conduct seismic activity within those areas contained in 
Lease Sale 193 area that were awarded to it by the MMS (shown in Figure 
1 in SOI's IHA application). These areas were awarded after SOI 
submitted its IHA application, so they were unknown to SOI at the time 
of its IHA application. Regardless, the general Lease Sale 193 area 
more than meets the definition of ``specific geographic region'' as 
defined by NMFS. Also, more specific locations may be considered 
proprietary, depending upon whether the location is a potential future 
lease area. In the Beaufort Sea, the areas of seismic operations are 
shown in Figure 2 in SOI's IHA application. These are fairly specific 
regions and, therefore, NMFS believes that SOI has provided a well 
defined area within which certain biogeographic characteristics occur 
in compliance with the MMPA and Congressional intent.
    Comment 4: The AEWC states that the MMPA does not guarantee a 
company a 12-month term when it applies for an IHA. If a company seeks 
authorization to operate for longer than a single season, it should be 
required to apply for an LOA for the term of years it wishes to work.
    Response: Section 101(a)(5)(D)(i) of the MMPA states that: ``Upon 
request therefor by citizens of the United States who engage in a 
specified activity (other than commercial fishing) within a specific 
geographic region, the Secretary shall authorize, for periods of not 
more than 1 year, subject to such conditions as the Secretary may 
specify, the incidental, but not intentional, 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....''
    As noted, the MMPA does not limit the issuance of an IHA to a 
single open water season (~July 20 to ~November 15 in the U.S. Beaufort 
and Chukchi Seas), a period of less than 4 months, and even less 
available time if an applicant's activity is located in an area subject 
to area closure due to native subsistence hunting. Moreover, an IHA 
that is effective over the course of two open water seasons does not 
necessarily result in an IHA that exceeds 1 year. For example, in the 
current case, SOI's IHA spans the course of two seismic seasons, but 
expires in the middle of the 2009 open water season. Provided the IHA 
application includes an analysis of the specified activities during the 
timeframe proposed by the applicant, NMFS will consider issuing an IHA 
that extends into a portion of the following year. NMFS agrees that, if 
industry wants a multi-year LOA for a period of 2 or even 3 years, it 
can apply under section 101(a)(5)(A) of the MMPA.
    Comment 5: The NSB and EarthJustice are concerned that NMFS has not 
made separate findings for both small numbers and negligible impact. 
EarthJustice states that not withstanding the unlawful regulation, the 
proposed IHA fails to support a non-arbitrary finding that only ``small 
numbers'' of

[[Page 66111]]

marine mammals will be harassed by SOI's planned activities. The NSB 
states a similar concern.
    Response: NMFS believes that the small numbers requirement of the 
MMPA has been satisfied. The species most likely to be harassed during 
seismic surveys in the Arctic Ocean area is the ringed seal, with a 
total ``best estimate'' of 13,256 animals being ``exposed'' to sound 
levels of 160 dB or greater (6,951 animals in the Chukchi Sea and 6,305 
animals in the Beaufort Sea)(see Table 1). This does not mean that this 
is the number of ringed seals that will be ``taken'' by Level B 
harassment, it is simply the best estimate of the number of animals 
that potentially could have a behavioral modification due to the noise 
(for example Moulton and Lawson (2002) indicate that most pinnipeds 
exposed to seismic sounds lower than 170 dB do not visibly react to 
that sound; pinnipeds are not likely to react to seismic sounds unless 
they are greater than 170 dB re 1 microPa (rms)). In addition, these 
estimates are calculated based upon line miles of survey effort, animal 
density and the calculated zone of influence (ZOI). While this 
methodology is valid for seismic surveys that transect long distances, 
for bostrophodontical surveys that is, remain within a relatively small 
area, transiting back and forth while shooting seismic, the numbers 
tend to be highly inflated. As a result, NMFS believes that these 
exposure estimates are conservative and may actually affect much fewer 
animals.
    Although it might be argued that the estimated number of ringed 
seals behaviorally harassed is not small in absolute numbers, the 
number of exposures is relatively small, representing approximately 5 
percent of the regional stock size of that species (249,000) if each 
``exposure'' at 160 dB represents an individual ringed seal that has 
reacted to that sound.
    For beluga and bowhead whales, the estimated number of sound 
exposures during SOI's seismic surveys in the Arctic will be 297 beluga 
(63 in the Chukchi Sea, 234 in the Beaufort Sea) and 1,540 bowheads (9 
in the Chukchi Sea and 1,531 in the Beaufort Sea). The Level B 
harassment ``take'' estimate represents less than 1 percent of the 
combined Beaufort and Chukchi Seas beluga stock size of 42,968 (39,258 
in the Beaufort Sea; 3,710 in the Chukchi Sea), a relatively small 
number. For bowhead whales, this Level B harassment ``take'' estimate 
represents between 12 percent (based on 13,326 bowheads which assumes a 
3.4 percent annual population growth rate from the 2001 estimate) and 
14 percent of the Bering-Chukchi-Beaufort Seas bowhead population 
(based on the 2001 population estimate of 10,545 animals). While these 
exposure numbers represent a sizeable portion of their respective 
population sizes, NMFS believes that the estimated number of exposures 
by bowheads and belugas greatly overestimate actual takings for the 
following reasons: (1) The proposed seismic activities would occur 
early and late in the year in the Chukchi Sea when bowheads are fewer 
in number as they are concentrated in the Canadian Beaufort Sea at 
those times; (2) bowheads and belugas may be absent or widely 
distributed and likely occur in fairly low numbers within the seismic 
activity area in the Chukchi Sea; (3) seismic surveys are not 
authorized in the Beaufort Sea during that portion of the bowhead 
whale's westward migration that occurs during the subsistence harvest 
of bowheads; and (4) SOI will continue late-fall seismic surveys in the 
Chukchi Sea after most bowheads are presumed to have migrated through 
the area heading towards the Russian coast or Bering Straits. As a 
result, NMFS has determined it is very likely that even fewer numbers 
of bowhead whales will be taken than originally estimated (12-14 
percent), thereby resulting in a smaller percentage of the stock size 
being exposed to SOI's activities. Therefore, NMFS believes that the 
number of bowhead whales that may be exposed to sounds at or greater 
than 160 dB re 1 microPa (rms) would be small.
    Based on the fact that only small numbers of each species or stock 
will possibly be impacted and mitigation and monitoring measures will 
reduce the number of animals likely to be exposed to seismic pulses and 
therefore avoid injury and mortality, NMFS finds that SOI's seismic 
surveys in the Chukchi and Beaufort Seas will have a negligible impact 
on the affected marine mammal species or stocks.
    Comment 6: The Commission recommends that, before issuing an IHA, 
NMFS conduct a more extensive analysis of the potential effects of 
SOI's proposed operations that considers (1) the direct effects of the 
proposed operations; (2) the potential or likely effects of other 
currently authorized and proposed oil and gas activities, climate 
change, and additional anthropogenic risk factors (e.g., industrial 
operations); and (3) possible cumulative effects of all of these 
activities over time.
    Response: NMFS is required to base its determinations under section 
101(a)(5)(D) of the MMPA on the best scientific information available. 
Provided NMFS can make a reasonable determination that the taking by 
the IHA applicant's activity will result in no more than a small number 
of marine mammals taken, have a negligible impact on affected marine 
mammal species/stocks, and will not have an unmitigable adverse impact 
on subsistence uses of marine mammals, the MMPA directs the Secretary 
to issue the IHA. There is no provision in the MMPA to delay issuance 
of the IHA in order to conduct additional analyses provided those 
determinations can be made.
    In that regard, NMFS believes that MMS addressed the Commission's 
concerns in its 2006 Final Programmatic Environmental Assessment (Final 
PEA) for Arctic Ocean Seismic Activities. This Final PEA contained 
analyses of the above mentioned potential impacts on marine mammals by 
the offshore oil and gas seismic exploration. The analyses contained in 
that document have been updated where necessary by NMFS' 2008 Final 
Supplemental EA (SEA) for Arctic Seismic Surveys. That document, NMFS' 
2008 SEA, and other supporting documents used the best information 
available for this analysis. As NMFS recognizes that there is a lack of 
information on certain aspects of the marine mammals in Arctic waters 
and the potential impacts on marine mammal species and stocks from 
offshore oil exploration, SOI and other offshore companies have 
developed and implemented a monitoring program to address data gaps.
    Comment 7: The NSB states that in Shell's IHA application and 
NMFS's Federal Register notice, the level of 160 dB is emphasized. 
Shell estimates how many marine mammals they will take through seismic 
activities only at industrial sound levels down to 160 dB. There is 
clear evidence that bowhead whales respond to industrial sound level 
much lower than 160 dB (Miller et al., 1999; Richardson, 2007; etc.). 
It is not clear why Shell and NMFS promote 160 dB and appear to ignore 
or de-emphasize the impact of industrial sounds a much lower levels 
than 160 dB. With regard to bowhead whales, ``NMFS believes that it 
cannot scientifically support adopting any single sound pressure level 
value below 160 dB.'' It appears NMFS needs ``conclusive'' evidence of 
harm before it will find more than a negligible impact from Shell's 
activity. In effect, this leads to a determination that largely ignores 
clear evidence that bowhead whales respond to industrial sound level 
much lower than 160 dB (Miller et al., 1999; Richardson 2007; etc.). 
NMFS must consider impacts from the much quieter

[[Page 66112]]

(i.e. lower than 160 dB) industrial sounds in the discussion, analysis, 
conclusions, and decisions surrounding Shell's IHA application.
    NMFS must also consider the views of the International Whaling 
Commission (IWC) scientific committee, which felt strongly that the 
lack of deflection by feeding whales in Camden Bay (during Shell 
seismic) likely shows that whales will tolerate and expose themselves 
to potentially harmful levels of sound when needing to perform a 
biologically vital activity, such as feeding (mating, giving birth, 
etc.). Requiring ``conclusive'' evidence of harm is not the standard, 
and a negligible impact finding influenced by such an unlawful standard 
will not pass muster. Overall, NMFS' determination that only ``small 
numbers'' of marine mammals will be affected by Shell's activities, and 
that only a ``negligible impact'' will occur, is not supported by 
science nor by anything in the IHA application or notice.
    Response: NMFS considers a take to occur when there is a 
significant behavioral response on the part of an animal, not when 
there is some minor reaction to a sound such as a pinniped lifting its 
head in response to a sound, or a whale shortening its surface interval 
by a few seconds or minutes (this is different however, than the 
significant dive profile changes noted by beaked whales in response to 
some high-intensity military sonars). For bowhead whales, when these 
species deflect in a manner that is not detectable by MMOs, but only 
after computer analysis, NMFS does not believe that this results in a 
significant behavioral effect on the animal (although it may have a 
significant effect on subsistence uses of that species if that 
deflection is not mitigated). Discussion on potential bowhead whale 
impacts are addressed later in this document.
    Comment 8: EarthJustice believes that the MMPA requires NMFS to 
find that the specified activities covered by the IHA ``will not have 
an unmitigable adverse impact on the availability of [marine mammal 
populations] for taking for subsistence uses....'' NMFS must ensure 
that Shell's activities do not reduce the availability of any affected 
population or species to a level insufficient to meet subsistence 
needs. Moreover, in making this determination, NMFS must factor in 
ongoing authorized activities that may also affect the availability of 
subsistence resources, and measure the effect of Shell's activities 
against the baseline of the effects of other activities on subsistence 
activities (see 54 Fed Reg. 40,338 at 40,342 (1989)).
    Response: NMFS has defined unmitigable adverse impact as an impact 
resulting from the specified activity: (1) that is likely to reduce the 
availability of the species to a level insufficient for a harvest to 
meet subsistence needs by: (i) causing the marine mammals to abandon or 
avoid hunting areas; (ii) directly displacing subsistence users; or 
(iii) placing physical barriers between the marine mammals and the 
subsistence hunters; and (2) that cannot be sufficiently mitigated by 
other measures to increase the availability of marine mammals to allow 
subsistence needs to be met (50 CFR 216.103). NMFS has determined that, 
provided the mitigation and monitoring measures outlined herein and in 
the IHA are implemented, there will not be an unmitigable adverse 
impact on the availability of such species or stocks for taking for 
subsistence uses. This determination is supported by having the 2008 
CAA signed by all but one offshore oil company and by the AEWC and the 
Whaling Captains' Association members.
    With respect to the cumulative impact assessment referenced in the 
cited Federal Register final rule, NMFS notes that the discussion in 
that document pertains to authorizations under section 101(a)(5)(A) of 
the MMPA, not section 101(a)(5)(D) of the MMPA. In the preamble to that 
joint-agency final rule, NMFS and the U.S. Fish and Wildlife Service 
were focusing on the potential for serious injury and mortality (as 
noted by the use of the word ``removal''), not simply incidental 
harassment. Provisions for issuing authorizations under section 
101(a)(5)(D) were not promulgated until 1991 (see 61 FR 15884, April 
10, 1996). NMFS addresses impacts on subsistence uses of marine mammals 
later in this document.

Marine Mammal Biology Concerns

    Comment 9: The NSB (citing pages 23-24 in SOI's IHA application) 
notes that Shell and NMFS do not do an adequate job of describing the 
uncertainty surrounding the distribution, abundance and habitat use of 
marine mammals in the Chukchi Sea. There are few estimates of 
population size or habitat use of marine mammals. There are some data 
available from 15 to 20 years (or older) ago, but few recent data. This 
lack of recent data and uncertainty must be acknowledged by NMFS and 
integrated into the mitigation and monitoring measures because a great 
deal has changed in the Arctic environment in the past 15 to 20 years. 
Global warming has caused the sea ice thickness, extent and timing to 
decrease markedly. Changes in sea ice have likely caused substantial 
changes in marine mammal use of the Chukchi and Beaufort seas. For 
example, it is likely that an increased number of gray whales are using 
the Chukchi and western Beaufort seas than occurred 20 years ago. The 
uncertainty in the information must be considered to avoid negative 
impacts to marine mammal populations or the subsistence harvest of 
marine mammals.
    Response: The uncertainty of the data was addressed in significant 
detail in MMS' 2006 Final PEA prepared under NEPA, and incorporated by 
reference in NMFS' 2008 SEA. However, as demonstrated in Table 1 later 
in this Federal Register document, even using the maximum density for 
gray whales, approximately 734 gray whales might be exposed to seismic 
sounds by SOI's activity. With a population estimate for the eastern 
North Pacific population of gray whales at 18,813 (Table 4-1), 
approximately 4 percent of the gray whale stock might be affected by a 
relatively short-term behavioral modification. Considering that almost 
100 percent of this stock migrates through the coastal waters of the 
Southern California Bight twice a year, where heavy shipping, 
recreational boating and industrial activity traffic create a 
significant noise signature, without apparent long-term effect to the 
stock (however, some gray whales have diverted their migration offshore 
outside the Channel Islands to avoid this area), NMFS believes that the 
relatively short-term impact of seismic noise on only 4 percent of the 
population will have a negligible impact. NMFS notes that the 
mitigation and monitoring mentioned by the commenter was reviewed by 
the commenter and, as they did not recommend alternative mitigation or 
monitoring to address their concern, NMFS is unsure what measures they 
suggest industry undertake. However, the IHA issued to SOI requires 
vessel surveys to ensure that large groups of gray whales (and bowhead 
whales) are not being significantly impacted.
    Comment 10: The NSB states that the estimated takes for beluga and 
gray whales are likely low. Two stocks, numbering more than 40,000 
animals, of belugas migrate through the Chukchi Sea. It is likely that 
more than 1200 animals will be exposed to sounds greater than 160 dB. 
Recent satellite tracking data for gray whales (Bruce Mate, pers. 
comm.) suggests that perhaps half of the population uses the northern 
Chukchi Sea for foraging.

[[Page 66113]]

Depending on the location of the seismic operations, more than 734 gray 
whales will likely be harassed. The spotted seal estimate is also 
likely low. There are thousands of spotted seals that use the northern 
Chukchi Sea during late July and August, including offshore areas. It 
is likely that many more than 804 spotted seals will be harassed by 
Shell's seismic activities.
    Response: SOI used marine mammal density information obtained in 
2006 and 2007 by vessel and aerial surveys to supplement published 
information (e.g., Stock Assessment Reports (SARs) in order to 
calculate noise ``exposure'' estimates. As a result, NMFS believes that 
this information is the best information available. In regard to gray 
whales, NMFS would welcome receipt of this information once it is 
published.
    Comment 11: EarthJustice states that NMFS has no idea of the actual 
population status of several of the species subject to the proposed 
IHA. For example, in the most recent SARs (Stock Assessment Reports) 
prepared pursuant to the MMPA, NMFS acknowledges it has no accurate 
information on the status of spotted seals, bearded seals, and ringed 
seals. See 2006 Alaska SAR at 42 and 43. Without this data, NMFS cannot 
make a rational ``negligible impact'' finding. This is particularly so 
given there is real reason to be concerned about the status of these 
populations. Such concerns were raised in a recent letter to NMFS from 
the Marine Mammal Commission following the Commission's 2005 annual 
meeting in Anchorage, Alaska. With respect to these species, the 
Commission cautioned against assuming a stable population. Because the 
status of the spotted seals, ringed seals, bearded seals and other 
stocks is unknown, NMFS cannot conclude that surveys which will harass 
untold numbers of individuals of each species will have no more than a 
``negligible effect'' on the stocks.
    Response: As required by the MMPA implementing regulations at 50 
CFR 216.102(a), NMFS has used the best scientific information available 
in making its determinations required
    under the MMPA. While recent stock assessments are lacking for 
several species of ice seals, for reasons stated elsewhere in this 
Federal Register Notice, no ice seals are expected to be killed or 
seriously injured as a result of SOI's seismic and shallow hazards 
survey work and the number of takings by Level B behavioral harassments 
will be small relative to the best estimate of population size. 
Therefore, NMFS believes that SOI's activity would not result in a 
decrease in population sizes of any of the ice seal species. As a 
result of our analysis, NMFS believes that the proposed 3D and shallow 
hazard surveys by SOI is not expected to have adverse impacts on ice 
seals.
    It is expected that approximately 13,256 ringed, 592 bearded seals, 
422 spotted seals and 2 ribbon seals would be affected by Level B 
behavioral harassment as a result of the proposed combined 3D seismic 
and shallow hazard and site clearance surveys in the Chukchi and 
Beaufort Seas. No serious injury or mortality is expected, so this 
activity is not expected to affect population numbers, or the ability 
of these species to increase in abundance. For ringed, bearded and 
spotted seals these takes by Level B harassments represent less than 6 
percent each, of the Alaska stocks of these species. Although 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.
    Comment 12: The NSB states that additional information is needed 
about fin, minke and humpback whales. All three of these species occur 
in the Chukchi or Beaufort Seas. Acoustic and visual surveys in the 
past have documented these species. NMFS' National Marine Mammal 
Laboratory has been conducting surveys in the Chukchi Sea in late June/
early July 2008. They have already seen a fin whale in the Chukchi Sea 
where the animal might be exposed to seismic sounds. Shell and NMFS 
must evaluate impacts to these marine mammals.
    Response: SOI and NMFS recognized that humpback, fin and minke 
whale presence is possible in the waters off northern Alaska. As a 
result, SOI requested take of these species incidental to conducting 
offshore seismic and shallow-hazard surveys in these waters and NMFS 
evaluated the potential impacts of seismic operation on these species. 
However, the relatively few animals sighted supports SOI's estimate of 
the small number of animals of these species potentially affected by 
SOI's seismic surveys.
    Comment 13: The NSB states that many of the estimates in Table 4-1 
are outdated or are unreliable (i.e., estimates for belugas and all 
pinnipeds).
    Response: The SOI IHA application provides information (including 
data limitations) and references for its estimates of marine mammal 
abundance. As the NSB has not provided information contrary to the data 
provided by SOI and NMFS does not have information that these estimates 
are not reliable, NMFS considers this data to be the best available.
    Comment 14: The NSB states that the IHA application (p.15) suggests 
that belugas do not occur in the central Beaufort Sea during the 
summer. This is not accurate. Belugas are rarely seen in nearshore 
areas of the central Beaufort Sea in summer. However, the eastern 
Chukchi Sea stock uses the shelf break of the central Beaufort Sea 
during summer. Thus, vessel traffic or sounds propagating from Shell's 
activities could harass belugas during the summer.
    Response: NMFS does not agree that SOI's IHA application suggests 
that belugas do not occur in the central Beaufort Sea in the summer. As 
stated in SOI's IHA application, a large portion of the Beaufort Sea 
seasonal population spend most of the summer in offshore waters of the 
eastern Beaufort Sea and Amundsen Gulf (Davis and Evans, 1982; Harwood 
et al.,1996). Belugas are rarely seen in the central Alaskan Beaufort 
Sea during the summer. During late summer and autumn, most belugas 
migrate far offshore near the pack ice front (Hazard, 1988; Clarke et 
al., 1993; Miller et al., 1998) and may select deeper slope water 
independent of ice cover (Moore et al., 2000). Small numbers of belugas 
are sometimes observed near the north coast of Alaska during the 
westward migration in late summer and autumn (Johnson, 1979), but the 
main fall migration corridor of beluga whales is greater than 100 km 
(62 miles) north of the coast. Aerial- and vessel-based seismic 
monitoring programs conducted in the central Alaskan Beaufort Sea from 
1996 through 2001 observed only a few beluga whales migrating along or 
near the coast (LGL and Greeneridge, 1996; et al. 1998, 1999). The vast 
majority of belugas seen during those projects were far offshore. 
However, NMFS notes that these statements do not affect the calculation 
of Level B incidental harassment, which are partially based on density 
estimates obtained by MMOs in 2006.
    Comment 15: The NSB states that Shell's IHA application suggests 
that harbor porpoises will not occur in the areas they plan to conduct 
seismic surveys. This is not consistent with the information they 
provide in Table 6-1 (in SOI's IHA application). Harbor porpoises were 
the second most abundant cetacean seen during Shell's 2007 surveys in 
the Chukchi Sea.
    Response: Table 6-1 provides a population estimate of 47,356 (CV = 
0.223) (Angliss and Outlaw, 2005) for harbor porpoise in Bristol Bay in 
1998-1999. There is no information available that this stock moves to 
the Chukchi Sea

[[Page 66114]]

in summer, but a portion may do so. However, NMFS does not believe that 
this population size is relevant for estimating potential takes in the 
Chukchi Sea, as SOI estimates density of a species based on sightings 
during non-seismic survey operations. The most commonly recorded 
cetacean species in 2007 in the Chukchi Sea was the gray whale (32 
sightings), followed by harbor porpoise (10 sightings), bowhead whale 
(6 sightings), unidentified mysticete whale (6 sightings), unidentified 
whale (3 sightings), minke whale (3 sightings), humpback whale (2 
sightings), one killer whale and one unidentified odontocete whale 
(Table 3.4). Harbor porpoise densities contained in SOI's 2008 IHA 
application were estimated from seismic industry data collected during 
2006 activities in the Chukchi Sea, as 2007 data was not available at 
the time SOI submitted its 2007 IHA application. NMFS expects SOI will 
update its density and Level B harassment take levels in its 2009 IHA 
application.
    Comment 16: The NSB states that SOI's IHA application (Pg. 18) in 
regard to the spotted seal is not sufficient. For example, spotted 
seals also haul out in Dease Inlet. Shell references a study (Johnson 
et al., 1999) for information about how many spotted seals use the 
Colville River Delta. That study was not intended for specifically 
surveying spotted seals. These seals haul out based on tides and other 
environmental conditions not considered by Johnson et al. (1999). It is 
very feasible that many more seals, more than 20, use the Colville 
River Delta. Furthermore, based on satellite tracking data, spotted 
seals only use a haul out about 10 percent of the time (Lowry et al., 
1994). Thus, a sighting of 20 seals may actually represent about 200 
animals. Shell's activities in Harrison Bay will likely expose every 
spotted seal that uses the Colville River haul out to loud seismic 
sounds. Shell should be required by NMFS to collect data on spotted 
seals using surveys that are specifically designed for spotted seals.
    Response: NMFS does not believe that an IHA application needs to be 
a compendium of information on a species. NMFS and others recognize 
that an IHA application is only a single source of information. As 
noted in SOI's IHA application, a small number of spotted seal haul-
outs are documented in the central Beaufort Sea near the deltas of the 
Colville River and, previously, the Sagavanirktok River. Historically, 
these sites supported as many as 400 to 600 spotted seals, but in 
recent times less than 20 seals have been seen at any one site (Johnson 
et al., 1999). Previous studies from 1996 to 2001 indicate that few 
spotted seals (a few tens) utilize the central Alaskan Beaufort Sea 
(Moulton and Lawson, 2002; Treacy, 2002a, b) very few, if any, 
occurring in the eastern portion of the Beaufort Sea.
    Moreover, in 2008, SOI is focusing its seismic and shallow hazards 
activities in areas significantly east of Harrison Bay. As a result, it 
is unlikely that this haul-out will be significantly affected. As the 
spotted seals from the Colville River Delta move into the area(s) of 
planned seismic activities, the potential Level B harassment take is 
calculated as they will become part of the overall density calculation 
discussed on page 25. NMFS addresses the suggested research on spotted 
seals later in this document.

Marine Mammal Impact Concerns

    Comment 17: EarthJustice notes that the monitoring records from 
seismic surveys conducted in 2006 and 2007 establish that, despite the 
exclusion zones, scores of marine mammals were exposed to seismic 
pulses loud enough to potentially cause permanent hearing loss.
    Response: First, as described previously in this document, auditory 
injury is unlikely to occur unless the animal was significantly closer 
to the seismic airguns than the distance to the 180 dB (cetaceans) or 
190 dB (pinnipeds) zone. Second, NMFS believes that EarthJustice has 
misinterpreted the findings of the 2006 CPAI and SOI monitoring 
reports. When all data are considered, sighting rates are greater for 
all marine mammal groups during non-seismic than seismic periods. This 
is largely due to the high sighting rates from the chase vessel which 
were all considered to be unaffected by seismic activities. An overall 
higher sighting rate for all marine mammal groups during non-seismic 
periods compared to periods of seismic is expected if one presumes that 
marine mammals will deflect from the airgun array noise and therefore, 
not be within detection range from either the seismic or support 
vessel(s).
    Comment 18: The NSB states that available data show that bowheads 
show avoidance at sounds much lower than 160 dB contrary to Shell's 
statement that bowheads will show disturbance only if they receive 
airgun sounds at levels >160 dB. How can NMFS justify using sound 
levels only down to 160 dB? As mentioned above, there are many data 
that show that bowheads react to much lower levels of industrial sounds 
than 160 dB. Miller et al. (1999) showed that bowheads were excluded 
from a 20-km (12.4-mi) area around active seismic operations. The 
approximate received sound level at this distance was approximately 120 
dB. Exclusion from a 20-km (or sim;120 dB) zone around active seismic 
is substantial harassment. Therefore, NMFS must require that estimated 
takes of bowhead whales be calculated down to at least the 120-dB 
level.
    Response: First, the best information available to date for 
reactions by bowhead whales to noise, such as seismic, is based on the 
results from the 1998 aerial survey (as supplemented by data from 
earlier years) as reported in Miller et al. (1999). In 1998, bowhead 
whales below the water surface at a distance of 20 km (12.4 mi) from an 
airgun array received pulses of about 117 135 dB re 1 microPa rms, 
depending upon propagation. Corresponding levels at 30 km (18.6 mi) 
were about 107-126 dB re 1 microParms. Miller et al. (1999) surmise 
that deflection may have begun about 35 km (21.7 mi) to the east of the 
seismic operations, but did not provide SPL measurements to that 
distance, and noted that sound propagation has not been studied as 
extensively eastward in the alongshore direction, as it has northward, 
in the offshore direction. Therefore, while this single year of data 
analysis indicates that bowhead whales may make minor deflections in 
swimming direction at a distance of 30-35 km (18.6-21.7 mi), there is 
no indication that the SPL where deflection first begins is at 120 dB, 
it could be at another SPL lower or higher than 120 dB. Miller et al. 
(1999) also note that the received levels at 20-30 km (12.4-18.6 mi) 
were considerably lower in 1998 than have previously been shown to 
elicit avoidance in bowheads exposed to seismic pulses. However, the 
seismic airgun array used in 1998 was larger than the ones used in 1996 
and 1997. Therefore, NMFS believes that it cannot scientifically 
support adopting any single SPL value below 160 dB and apply it across 
the board for all species and in all circumstances.
    Second, it should be pointed out that these minor course changes 
are during migration and, as indicated in MMS' 2006 Final PEA, have not 
been seen at other times of the year and during other activities.
    Third, as we have stated previously, NMFS does not believe that 
minor course corrections during a migration across the Beaufort Sea 
rises to a level of being a significant behavioral response as 
explained previously. To show the contextual nature of this minor 
behavioral modification, recent monitoring studies of Canadian seismic 
operations indicate that when, not

[[Page 66115]]

migrating, but involved in feeding, bowhead whales do not move away 
from a noise source at an SPL of 160 dB. Therefore, while bowheads may 
avoid an area of 20 km (12.4 mi) around a noise source, when that 
determination requires a post-survey computer analysis to find that 
bowheads have made a 1 or 2 degree course change, NMFS believes that 
does not rise to a level of a ``take.'' NMFS therefore continues to 
estimate ``takings'' under the MMPA from impulse noises, such as 
seismic, as being at a distance of 160 dB (re 1 microPa). However, NMFS 
needs to point out that while this might not be a ``taking'' in the 
sense that there is not a significant behavioral response by the 
bowheads, that minor course deflection by bowheads can have a 
significant impact on the subsistence uses of bowheads. As a result, 
NMFS still requires mitigation measures to ensure that the activity 
does not have an unmitigable adverse impact on subsistence uses of 
bowheads.
    Comment 19: The NSB states that it is not clear how Shell estimated 
how many bowheads would be taken at the 120-dB level. Sound from the 
seismic surveys attenuates to 160 dB at about 8 km (5 mi) and to the 
120 dB level at approximately 60 km (37.3 mi) or greater. Even though 
the area ensonified to 120 dB is much larger than the 160 dB area, the 
number of takes of bowheads has only doubled. This does not make sense. 
Additional information is needed as to how Shell calculated how many 
bowheads, especially migrating bowheads, will be exposed to industrial 
sounds down to 120 dB.
    Response: Bowhead whale exposure estimates were not calculated 
using the density x area method as these animals are expected to be 
migrating and detailed information on their migration is available 
allowing more precise estimates to be made for this species than for 
other marine mammal species in the Beaufort and Chukchi Seas. Thus, the 
assumption that the number of bowhead whales exposed at the 120-dB 
level would be proportional to the larger area exposed to that level is 
not correct. The number of bowheads estimated to be exposed to seismic 
sounds at or above 120 dB was estimated in the same manner as described 
in the IHA application for the 160 dB level. That is, the proportion of 
the bowhead population expected to pass within each depth bin during 
the planned 14 days of survey activity was multiplied by the proportion 
of each depth bin that was expected to be exposed to seismic sounds at 
or above 120 dB.
    Comment 20: The NSB asserts that the estimated take for bowhead 
whales in the Beaufort Sea is also an underestimate. The ensonified 
zone around seismic operations, down to 120 dB, has the potential to 
deflect and harass perhaps the majority of bowhead whales that migrate 
through the Beaufort Sea. Estimating a take of only 1582 is too low. It 
is likely that many thousands of bowheads will be deflected from 
Shell's seismic operations. It is likely that many thousands of 
bowheads will also be deflected due to Shell's planned drilling 
operations in the Camden Bay of the Beaufort Sea (if it is allowed to 
proceed). Given these two large projects, a large percentage of the 
bowhead population will be harassed during the summer/autumn of 2009. 
The potential for population-level effects exists, especially if many 
bowheads miss feeding opportunities and expend more energy because they 
are deflected.
    Response: First, please see previous responses in regard to bowhead 
whales not having a significant behavioral response at levels below 160 
dB. Second, NMFS is required by the MMPA to make the determinations 
required under section 101(a)(5)(D) of the MMPA, independent of other 
activities. Third, SOI cancelled its 2008 drilling program in the 
Beaufort Sea and the IHA issued to SOI on August 19, 2008, for seismic 
and shallow hazard surveys will expire on August 18, 2009, prior to the 
fall migratory period of the Beaufort Sea bowhead whales. Fourth, in 
the Beaufort Sea, mitigation measures required under SOI's IHA prohibit 
seismic surveys from operating within areas where 12 or more bowhead or 
gray whales are detected or operating during the fall bowhead 
subsistence hunt.
    In conclusion, as the NSB has not provided specific information 
contradicting the data and information provided by SOI, NMFS believes 
that the numbers of bowhead whales being exposed to seismic sounds is 
based on the best scientific information as provided in SOI's IHA 
application.
    Comment 21: The NSB notes that Shell states that, ''...impacts 
would be temporary and short term displacement of seals and whales from 
within ensonified zones.'' This conclusion is not supported by data. 
Impacts to seals and belugas are unknown. Further, duration of impacts 
to bowhead whales are unknown. There are not sufficient data to 
evaluate the duration of impacts to marine mammals or the biological 
significance of these impacts. NMFS should require Shell to 
specifically investigate impacts from seismic to beluga whales, the 
duration of impacts to all marine mammals and the biological 
significance of these impacts.
    Response: To date, there have not been any reported large scale 
impacts attributable to offshore oil and gas development in the Arctic. 
NMFS would expect that villagers who hunt and fish in the offshore 
waters would notice changes in marine life. In regard to study of the 
beluga whale, SOI's monitoring program for assessing impacts to marine 
mammals by offshore industry activities is developed through input from 
the AEWC, the NSB, and the public. The 2008 monitoring program is 
discussed later in this document.
    Comment 22: The NSB states that SOI's IHA application indicates 
that Richardson et al. (1999) showed that bowheads returned to original 
migratory path shortly after being deflected because of seismic sounds. 
The statement is false. Richardson et al. (1999) were not able to 
investigate the duration of effects to bowhead whales from seismic 
sounds. One of the goals of the monitoring plan is to investigate the 
duration of deflection. The statement that bowheads are only deflected 
for a short period of time is not supported by data and should be 
disregarded by NMFS and decision makers in this section of Shell's 
application as well as other sections.
    Response: NMFS agrees that the reference does not support the 
statement and has not been considered in making our statutory 
determinations.
    Comment 23: The NSB states that during the period of seismic 
acquisition, some species may be dispersed (as claimed by Shell) while 
other species may not be dispersed. Bowheads will not be dispersed 
during migration. Belugas are not dispersed during migration, and seem 
to be aggregated along the shelf break during the summer. Spotted seals 
aggregate at haulout areas along the Chukchi and Beaufort seas coasts. 
Thus, the conclusion that there will be few impacts to marine mammals 
is not supported by data. NMFS must require extensive mitigation and 
monitoring of Shell if they allow Shell to incidentally take marine 
mammals. Shell must collect data that can be used to evaluate impacts 
to marine mammals. Further, NMFS must ensure that Shell is complying 
with mitigation measures.
    Response: The statement by SOI is that ``During the period of 
seismic acquisition (mid-July through mid-November), most marine 
mammals would be dispersed throughout the area.'' The document goes on 
to provide species specific information (where available) to allow 
estimates of Level B harassment.
    SOI's mitigation and monitoring program was reviewed by the public

[[Page 66116]]

during the public comment period on SOI's IHA application and during 
the Open Water Meeting held in Anchorage, AK in April, 2008. The NSB 
was an active participant in critiquing those plans and providing 
valuable information to SOI and others for improvements in its design. 
Finally, NMFS has no reason to believe that SOI would not carry out the 
mitigation and monitoring requirements stated in its IHA and in its 
submitted monitoring plan.
    Comment 24: The NSB notes that Shell states, `` impacts would be 
temporary and short term displacement of seals and whales from within 
ensonified zones .'' This conclusion is not supported by data. Impacts 
to seals and belugas are unknown. Further, duration of impacts to 
bowhead whales are unknown. There are not sufficient data to evaluate 
the duration of impacts to marine mammals or the biological 
significance of these impacts. NMFS should require Shell to 
specifically investigate impacts from seismic to beluga whales, the 
duration of impacts to all marine mammals and the biological 
significance of these impacts.
    Response: NMFS agrees that there is some uncertainty on the current 
status of some marine mammal species in the Beaufort and Chukchi Seas 
and on impacts on marine mammals from seismic surveys. NMFS is 
currently proposing to conduct new population assessments for Arctic 
pinniped species and current information is available on-line through 
its SARS program. In regard to impacts, there is no indication that 
seismic survey activities are having a long-term impact on marine 
mammals. For example, apparently, bowhead whales continued to increase 
in abundance during periods of intense seismic in the Chukchi Sea in 
the 1980s (Raftery et al., 1995; Angliss and Outlaw, 2007), even 
without implementation of current mitigation requirements. As a result, 
NMFS believes that seismic survey noise in the Arctic will have no more 
than a short-term effect on marine mammals in the Beaufort and Chukchi 
Seas.
    In regards to impacts on beluga whales, impact assessments on 
marine mammal species from offshore seismic activities have been 
ongoing since 2006 through the industry's 4MP. NMFS along with the 
AEWC, the NSB, oil exploration companies and others have developed an 
off-seismic vessel monitoring program to help address the potential 
impact of seismic activities on marine mammals and subsistence uses of 
marine mammals. This program is described later in this document (see 
Joint Industry Studies Program). If the NSB wishes to set al.ernative 
priorities for this impact assessment program, it should make that 
concern known to NMFS and SOI as soon as possible.
    Comment 25: The NSB states that NMFS refers to Shell's estimates as 
being inflated due to accounting for multiple exposures to one animal. 
While this may show inflation in the number of the animals affected, it 
understates the number of animals that may suffer more prolonged or 
serious injury due to multiple exposures to anthropogenic sounds. NMFS 
recognizes that for pinnipeds, exposure to several seismic pulses may 
cause temporary threshold shift (TTS) (temporary hearing loss) at 
somewhat lower received levels than would be required for a single 
seismic pulse to cause TTS. Relationships between TTS and PTS 
(permanent threshold shift) have not been studied in marine mammals, 
but repeated exposure to seismic pulses may result in hearing damage 
that could lead to PTS. NMFS has previously recognized that permanent 
hearing loss (also known as PTS) is considered a serious injury to 
marine mammals, and has explained that ``if [an] acoustic source at its 
maximum level had the potential to cause PTS in a marine mammal's 
hearing ability, that activity would be considered capable of causing 
serious injury to a marine mammal and would therefore not be 
appropriate for an incidental harassment authorization.'' If NMFS 
argues that take estimates are inflated due to accounting for multiple 
exposures, NMFS must also examine the possibility that those multiple 
exposures will cause PTS in marine mammals. If this is a possibility, 
an IHA cannot be issued.
    Response: As explained in detail elsewhere in this Federal Register 
notice, marine mammals will need to be significantly closer to the 
seismic source and be exposed to sound pressure levels greater than 180 
dB to be injured or killed by the seismic airgun array. For large 
airgun arrays, this distance may be within 200 m (656 ft) of the 
vessel. In order for a marine mammal to receive multiple exposures (and 
thereby incur PTS), the animal would (1) need to be close to the vessel 
and not detected during that period of multiple exposure, (2) be 
swimming in approximately the same direction and speed as the vessel, 
and (3) not be deflected away from the vessel as a result of the noise 
from the seismic array. Preliminary model simulations for seismic 
surveys in the Gulf of Mexico, indicate that marine mammals are 
unlikely to incur single or multiple exposure levels that could result 
in PTS, as the seismic vessel would be moving at about 4-5 knots, while 
the marine mammals would not likely be moving within the zone of 
potential auditory injury in the same direction and speed as the 
vessel, especially for those marine mammals that take measures to avoid 
areas of seismic noise. .
    Comment 26: EarthJustice states that they referenced the scientific 
literature linking seismic surveys with marine mammal stranding events 
in its comments to MMS on the Draft PEA. NMFS' failure to address these 
studies, and the threat of serious injury or mortality to marine 
mammals from seismic surveys renders NMFS' conclusionary determination 
that serious injury or morality will not occur from SOI's activities 
arbitrary and capricious.
    Response: The MMS briefly addressed the humpback whale stranding in 
Brazil on page 127 in the Final PEA. Marine mammal strandings are also 
discussed in the NMFS/MMS Draft PEIS. Detailed response to the cited 
strandings have been provided in several previous IHA issuances for 
seismic surveys (see for example: 69 FR 74905 (December 14, 2004), 71 
FR 49418 (August 23, 2006), 71 FR 50027 (August 24, 2006), 73 FR 45969 
(August 7, 2008), and 73 FR 46774 (August 11, 2008). The statement here 
by EarthJustice simply repeats the information it has provided in the 
past regarding these strandings to which NMFS has responded (as here). 
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 18 nm (33 km) at 1430 hrs. At 
1300 hrs, the seismic vessel was located 25 nm (46 km) 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 18 nm (33 km). No physical evidence for a link between the seismic 
survey and the stranding was obtained. In addition, Taylor et al.

[[Page 66117]]

(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 to beaked whales to strand is a matter 
of considerable debate (see Cox et al., 2004). 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 8 humpback 
whales (7 off the Bahia or Espirito Santo States and 1 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, marine mammal strandings do not appear to be related to 
seismic survey work the Arctic Ocean. Moreover, NMFS notes that in the 
Beaufort Sea, aerial surveys have been conducted by MMS and industry 
during periods of industrial activity (and by MMS during times with no 
activity). No strandings or marine mammals in distress have been 
observed during these surveys, that appear to be related to seismic 
survey activity, and none have been reported by NSB inhabitants 
(although dead marine mammals are occasionally sighted). 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 Shell to ramp-up the seismic array to avoid a startle effect, 
strandings, similar to what was observed in the Bahamas in 2000, are 
unlikely to occur in the Arctic Ocean. In conclusion, NMFS does not 
expect any marine mammals will incur serious injury or mortality as a 
result of Arctic Ocean seismic surveys in 2008/2009.
    Comment 27: EarthJustice mentions a recent stranding of a large 
number of melon-headed whales in an area off Madagascar where seismic 
surveys were being conducted.
    Response: Information available to NMFS at this time indicates that 
the seismic airguns were not active around the time of the stranding. 
Scientists continue to investigate this stranding and a determination 
of cause is expected early in 2009.
    Comment 28: EarthJustice states that NMFS's assertion that there is 
no evidence that marine mammal strandings in the Arctic that are 
related to seismic surveys only reflects the fact that efforts have not 
been made to determine the cause of such strandings.
    Response: NMFS maintains a nationwide marine mammal stranding 
database. While a small number of Arctic marine mammal species may have 
stranded within various parts of their range, there are no records of 
strandings in the northern Chukchi and Beaufort Seas attributable to 
offshore seismic and/or shallow hazard surveys.
    Comment 29: The NSB states that while Shell's IHA application and 
NMFS' Federal Register notice mention the various transit routes 
through U.S. waters in the Bering, Chukchi and Beaufort Seas that the 
numerous vessels associated with Shell's seismic surveys will take, 
there is no discussion nor analysis of the take that will occur from 
these vessels along the way. Shell needs to adequately specify the 
activities and impacts of these vessels.
    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. NMFS 
believes that normal shipping and transit operations do not rise to a 
level requiring an authorization under the MMPA, unless they are 
conducting an activity that has noise levels significantly greater than 
normal shipping, such as towing oil rigs or heavy ice breaking, or 
operations during the spring or fall bowhead subsistence whaling 
season. To require IHAs for standard shipping would require NMFS to 
seek IHA applications from activities, such as barge companies 
supplying North Slope villages and shoreside facilities. This would 
also potentially affect NMFS' ability to review activities that have a 
potential to cause harm to marine mammal species or population stocks.

Fish and Zooplankton Concerns

    Comment 30: The NSB is concerned about the potential impacts of 
SOI's seismic survey to the food sources of marine mammals (fish and 
zooplankton). Additional information is needed about impacts from 
seismic surveys to marine mammal prey and the resulting impacts to the 
marine mammals themselves. The NSB recommends an effort be made to 
monitor potential fish death behind the seismic boat by using some type 
of net to sample for these casualties.
    Response: NMFS does not expect the proposed action to have a 
substantial impact on biodiversity or ecosystem function within the 
affected area. The potential for the SOI's activity to affect ecosystem 
features and biodiversity components, including fish and invertebrates, 
is fully analyzed in MMS'2006 Final PEA and incorporated by reference 
into the NMFS' 2008 SEA. MMS/NMFS' evaluation in the 2006 Final PEA 
indicates that any direct, indirect, or cumulative effects of the 
action would not result in a substantial impact on biodiversity or 
ecosystem function. In particular, the potential for effects to these 
resources are considered in the Final PEA with regard to the potential 
effects on biological diversity and ecosystem functions in the Beaufort 
and Chukchi Seas that may serve as essential components of marine 
mammal habitat. Most of the potential effects on marine mammal food 
sources (fish and invertebrates) are considered to be short term and 
unlikely to rise to a level that may affect normal ecosystem function 
or predator/prey relationships; therefore, NMFS believes that there 
will not be a substantial impact on marine life biodiversity or on the 
normal function of the nearshore or offshore Beaufort Sea ecosystems.
    During the seismic survey, only a small fraction of the available 
habitat would be ensonified at any given time. Disturbance to fish 
species would be short term, and fish would return to their pre-
disturbance behavior once the seismic activity in a specific area 
ceases. Thus, the proposed survey would have little, if any, impact on 
the ability of marine mammals to feed in the area where seismic work is 
conducted.
    Some mysticetes, including bowhead whales, feed on concentrations 
of zooplankton. Some feeding bowhead whales may occur in the Alaskan 
Beaufort Sea in July and August, and others feed intermittently during 
their westward migration in September and October (Richardson and 
Thomson

[[Page 66118]]

[eds.], 2002; Lowry et al., 2004). A reaction by zooplankton to a 
seismic impulse would only be relevant to whales if it caused 
concentrations of zooplankton to scatter. Pressure changes of 
sufficient magnitude to cause that type of reaction would probably 
occur only very close to the acoustic source, if any would occur at 
all. Impacts on zooplankton behavior are predicted to be negligible, 
and that would translate into negligible impacts on availability of 
mysticete prey. Therefore, no impacts to mysticete feeding are 
anticipated.
    Little mortality to fish and/or invertebrates is anticipated. The 
proposed Chukchi and Beaufort seas seismic survey are predicted to have 
negligible to low physical effects on the various life stages of fish 
and invertebrates. Though these effects do not require authorization 
under an IHA, the effects on these features were considered by NMFS 
with respect to consideration of effects to marine mammals and their 
habitats, and NMFS finds that these effects from the survey itself on 
fish and invertebrates are not anticipated to have a substantial effect 
on biodiversity and/or ecosystem function within the survey area.

Subsistence Concerns

    Comment 31: The Commission recommends that the issuance of the 
requested IHA be contingent upon NMFS establishing specific mitigation 
measures for bowhead and beluga whales that will ensure that the 
proposed activities do not affect the subject species in ways that will 
make them less available to subsistence hunters. Such measures should 
reflect the provisions of any CAA as well as meeting the requirements 
of the MMPA.
    Response: NMFS has required SOI, through the IHA, to implement 
mitigation measures for conducting seismic surveys that are designed to 
avoid, to the greatest extent practicable, impacts on coastal marine 
mammals and thereby, meet the needs of those subsistence communities 
that depend upon these mammals for sustenance and cultural 
cohesiveness. For the 2008 season, these mitigation measures are 
similar to those contained in the CAA signed by SOI on July 21, 2008 
(and subsequently amended by SOI and the AEWC), and include a 
prohibition on shooting seismic before July 20, 2008, in the Chukchi 
Sea; black out areas during the subsistence hunt for bowhead whales; 
coastal stand-off distances for seismic and vessel transiting 
activities; coastal community communication stations; and emergency 
assistance to whalers, among other measures.
    Comment 32: The AEWC notes that SOI signed the 2008 CAA on July 21, 
2008, with minor modifications set forth in the addendum to the CAA. To 
help mitigate the impacts of offshore geophysical operations on marine 
mammals and subsistence hunting, the whaling captains of the AEWC have 
agreed to an understanding and put into the CAA that only two 
geophysical operations will occur at any one time in either the 
Beaufort or the Chukchi Seas. The industry participants conducting 
geophysical operations agree to coordinate the timing and location of 
such operations so as to reduce, by the greatest extent reasonably 
possible, the level of noise energy entering the water from such 
operations at any given time and at any given location. The AEWC points 
out that this does not limit the number of geophysical operations that 
may be permitted, planned or conducted in a single season, only on the 
number of active geophysical operations being conducted simultaneously.
    Response: While NMFS agrees that limiting the number of geophysical 
operations in either the Chukchi or Beaufort Seas would reduce impacts 
on marine mammals, this condition is unnecessary for a determination on 
whether there will be an unmitigable adverse impact on subsistence uses 
of marine mammals because SOI's geophysical operations will not occur 
during the spring and fall bowhead whale subsistence hunt, and 
additional mitigation measures have been imposed to ensure that coastal 
subsistence hunters are not affected.
    NMFS understands that, under the terms of an OCS lease, the lessee 
is required to make progress on exploration and development on its 
leases in order to hold that lease beyond the initial lease term. 
Ancillary activities (such as seismic and shallow hazard surveys) are 
those activities conducted on a lease site to obtain data and 
information to meet MMS' regulations to explore and develop a lease. If 
a limit is placed by NMFS on the number of ancillary activities 
authorized for a planning area in a given year, NMFS may preclude the 
lessee from complying with MMS regulations to proceed in a timely 
manner on exploring or developing its OCS leases. Therefore, based on 
both practicability and that it is not necessary, NMFS has not adopted 
this suggested mitigation measure. However, NMFS encourages industry 
participants to work together to reduce seismic sounds in the Arctic 
Ocean through cooperative programs in data collection to reduce impacts 
on marine mammals.
    Comment 33: In light of increasing offshore oil and gas production 
(and exploration), the AEWC believes it is in the interest of all 
stakeholders for our federal government, especially NMFS, to continue 
to support the CAA process and its reliance on the AEWC's leadership in 
promoting sound management of offshore oil and gas development.
    Response: NMFS believes that the CAA is a means to ensure that 
there is not an unmitigable adverse impact on the availability of 
species or stocks of marine mammals for taking for subsistence uses. 
However, the CAA is a document entered into between two entities 
(industry applicants and native community stakeholders). NMFS is 
neither a signatory to the CAA, nor does it play any formal role in the 
development of the CAA other than by requiring industry applicants to 
develop a Plan of Cooperation (POC) pursuant to 50 CFR 216.104(a)(12). 
Although NMFS has a limited role in this process, NMFS supports the 
continuation of the CAA process to help ensure that native subsistence 
harvests are successful.
    Comment 34: EarthJustice notes that NMFS fails to provide any 
meaningful assessment of the effectiveness of the vaguely identified 
mitigation measures. It does not appear that NMFS has made any effort 
to discern whether seismic surveying activities in the Chukchi or 
Beaufort Seas in 2006 or 2007 had an adverse impact on the availability 
of seal and whale species for subsistence uses. Before authorizing 
another year of surveys, NMFS must at least evaluate the effect of 
recent surveys, assess the effectiveness of mitigation measures used 
during those surveys, and make the results of such assessment available 
to the affected public.
    Response: The MMPA does not prohibit an activity from having an 
adverse impact on the availability of marine mammals for subsistence 
uses; rather, the MMPA requires NMFS to ensure the activity does not 
have an unmitigable adverse impact on the availability of such species 
or stocks for taking for subsistence uses. NMFS provided the definition 
for ``unmitigable adverse impact'' previously in this Federal Register 
document.
    Second, specific mitigation measures contained in the 2008 CAA 
relevant to mitigating impacts on subsistence hunting of marine mammals 
are required to be implemented, including a prohibition on vessel 
transits prior to July 1st, a prohibition on conducting seismic surveys 
in the Chukchi Sea prior to July 20th, an agreement by vessel operators 
for vessel transits to remain as far offshore as safe transit

[[Page 66119]]

allows; not creating new leads that might attract bowhead or beluga 
whales away from subsistence communities, blackout periods in the 
Beaufort and Chukchi Seas and coastal standoff distances for survey 
vessels and for transiting vessels to avoid impact potential 
subsistence harvests of coastal marine mammals. NMFS believes that 
implementation of all of these measure ensures that SOI's seismic 
survey program will not have an unmitigable adverse impact on 
subsistence uses of marine mammals. However, it should be recognized 
that mitigation measures designed to reduce impacts on subsistence uses 
of marine mammals are not quantifiable as no seismic survey activity 
occurs during these periods. As a result, NMFS must use alternative 
methods for assessing effectiveness. One way is to review annual marine 
mammal harvests and determine effectiveness.
    A second measure is more timely and that is through SOI's Com-
Centers established to ensure conflicts are at the lowest level 
practicable. NMFS notes that it has not received any direct 
communication, either during the public review period on the issuance 
of IHAs for 2008, through the Com Centers established to address 
subsistence use concerns, or independently from subsistence hunters, 
that document any significant impact that could potentially relate to 
SOI's 2006, 2007, or 2008 seismic program.
    Comment 35: EarthJustice states that NMFS has not analyzed the 
impacts of SOI's surveying activity against the background of the many 
seismic surveys planned for the Chukchi and Beaufort Seas in the summer 
of 2008, let al.ne provided adequate mitigation of the effects of this 
activity on subsistence activities.
    Response: Potential cumulative impacts on subsistence uses of 
marine mammals have been addressed in MMS' 2006 PEA and NMFS' 2008 SEA. 
The 2006 PEA addressed the potential impacts from 4 seismic survey 
activities in the Beaufort Sea and 4 seismic survey activities 
operating at the same time. The activity level in 2008 is less than the 
level analyzed in the 2006 PEA. As a result, NMFS believes that by 
requiring all participants in seismic/shallow hazard surveys in 2008 in 
the Chukchi and Beaufort Seas to conduct appropriate mitigation 
measures, such as vessel standoff distances from shore, limiting 
startup dates for seismic, and blackout areas during the bowhead whale 
subsistence hunt, NMFS believes that there will not be a unmitigable 
adverse impact on subsistence uses of marine mammals in 2008 by oil and 
gas surveys.
    Comment 36: EarthJustice notes that SOI proposes to mitigate 
impacts to subsistence activities via measures developed through a POC 
with the AEWC and a variety of meetings and consultations. There is no 
guarantee that these processes will result in enforceable limits that 
ensure SOI's activities will not have an unmitigable adverse impact on 
the availability of marine mammals for taking for subsistence purposes. 
As a result, NMFS has deferred its MMPA determination until after such 
a POC has been developed. The NSB notes that POC meetings consist of 
companies telling NSB communities what oil and gas activities will 
occur in the Beaufort and Chukchi Seas. There is little opportunity for 
detailed and meaningful dialogue and the POC is not appropriate for 
negotiating means to avoid conflicts between company activities and 
subsistence hunts.
    Response: First, it should be understood that the POC is not the 
same document as the CAA. While these are two different documents, the 
POC meetings will likely aide in developing the CAA. It should also be 
understood that the POC is required by NMFS regulations to be submitted 
as part of the industry's IHA application; so it is logical that NMFS' 
MMPA determinations would be made after submission of the POC. The POC 
is required by NMFS regulations in order to bring industry and the 
village residents together to discuss planned offshore activities and 
to identify potential problems. To be effective, NMFS and SOI believe 
the POC must be a dynamic document which will expand to incorporate the 
communications and consultation that will continue to occur throughout 
2008. Outcomes of POC meetings are included in quarterly updates 
attached to the POC and distributed to Federal, state, and local 
agencies as well as local stakeholder groups.
    In its Interim Rule for Arctic Activities (61 FR 1588, April 10, 
1996), NMFS clarified that if either a POC or information required by 
50 CFR 216.104(a)(12) is not submitted, and, if during the comment 
period, evidence is provided indicating that an adverse impact to 
subsistence needs will result from the activity, an authorization may 
be delayed in order to resolve this disagreement. The requirements for 
meeting this requirement are clearly stated in 50 CFR 216.104(12).
    In any event, SOI and the AEWC and Whaling Captains Associations 
signed a CAA in July 2008, which contains measures agreed to by the 
parties. Many of these subsistence-related measures (as they pertain to 
marine mammals and the related subsistence harvests) have been included 
in the IHA and are enforceable.
    Comment 37: EarthJustice claims that NMFS has failed its basic duty 
under the MMPA and its own regulations to make a proposed determination 
available to the public to scrutinize and comment on. Absent 
specification of the restrictions and mitigation measures that will 
result from these processes, NMFS cannot reasonably conclude that they 
will be effective, which it must in order to determine that they will 
eliminate the potential for substantial impacts to subsistence 
activities.
    Response: NMFS does not agree with the statement. NMFS published a 
notice of receipt of SOI's IHA application for conducting seismic and 
shallow hazard surveys in the Chukchi and Beaufort Seas in 2008/2009 on 
June 25, 2008 (73 FR 36044) and provided a 30-day public comment period 
on that application and NMFS' preliminary determinations that the 
proposed action would result in taking by harassment of small numbers 
of marine mammals of a species or population stock; (2) the harassment 
would have a negligible impact on affected marine mammal species or 
stocks; and (3) the harassment would not have an unmitigable adverse 
impact on the availability of such species or stocks for taking for 
subsistence uses. The preliminary determination in regard to 
subsistence uses of marine mammals was provided in this document, 
including statements on mitigation measures likely to be required to 
ensure that there will not be an unmitigable adverse impact on the 
availability of marine mammals for taking for subsistence uses, 
including dates of seismic operation to avoid spring and fall bowhead 
hunts and the application of procedures established in a CAA between 
the seismic operators and the AEWC and the Whaling Captains' 
Associations of Kaktovik, Nuiqsut, Barrow, Pt. Hope and Wainwright. The 
IHA application (and Federal Register notice) clearly noted that the 
times and locations of seismic and other noise producing sources are 
likely to be curtailed during times of active bowhead whale scouting 
and actual whaling activities within the traditional subsistence 
hunting areas of the potentially affected communities. Unless NMFS 
believes that the measures recommended by the applicant are 
insufficient to result in an unmitigable adverse impact to subsistence 
uses of marine mammals, it is not necessary to add additional 
mitigation measures.

[[Page 66120]]

Additional practicable mitigation measures can be added at the IHA 
stage either through comment on the proposed IHA notice, negotiations 
between industry and the communities, or final review by NMFS of its 
preliminary determination. There is no requirement in the MMPA to have 
its final determination, including mitigation measures subject to 
additional public review.
    Comment 38: EarthJustice states that ``Pursuant to the MMPA an IHA 
must prescribe ``means of effecting the least practicable impact . . . 
on the availability of [an affected species or stock] for subsistence 
uses . . . .'' NMFS fails to set forth its determination that the 
mitigation measures identified in the Federal Register notice will 
ensure the least practicable adverse impact on the availability of 
marine mammals to subsistence users. Because NMFS has failed to impose 
several practicable mitigation measures that would reduce potential 
impacts on the availability of marine mammals for subsistence uses, the 
agency has failed to satisfy the ``stringent standard'' imposed by 
Congress in the MMPA.
    Response: EarthJustice's citation was taken out of context. The 
complete statement reads: ``The authorization for such activity shall 
prescribe, where applicable-
    (I)permissible methods of taking by harassment pursuant to such 
activity, and other means of effecting the least practicable impact 
on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
taking for subsistence uses pursuant to subsection (b) of this 
section or section 1379 (f) of this title or pursuant to a 
cooperative agreement under section 1388 of this title.''
    In regards to reducing potential impacts on the availability of 
marine mammals for subsistence purposes, NMFS believes that the 
mitigation measures described in the Federal Register notice on SOI's 
IHA application, discussed previously in this document, and analyzed 
elsewhere in this Federal Register document meet the intent of this 
paragraph of the MMPA.
    Comment 39: EarthJustice states that NMFS has failed to impose 
mitigation measures that would reduce potential disturbance and 
biological impacts to essential subsistence resources such as bowhead 
whales, seals and beluga whales. For example, NMFS has failed to impose 
a mandatory 120-dB bowhead cow/calf pair monitoring zone for all of 
Shell's activities. NMFS should require such monitoring, at the least. 
NMFS can and should impose a safety zone for bowhead cow-calf pairs 
exposed to 107 dB or more. Similar measures should be taken with 
respect to beluga whales, which are also sensitive to sound over great 
distances, and can be found in large groups at certain times.
    Response: Section 101(a)(5)(D)(ii) states that: ``The authorization 
for such activity shall prescribe, where applicable-(I) permissible 
methods of taking by harassment pursuant to such activity, and other 
means of effecting the least practicable impact on such species or 
stock... .'' As discussed elsewhere in this Federal Register document, 
implementation of mitigation measures (e.g., shutdowns) such as to 107 
dB for bowhead cow/calf pairs, 120 dB for bowhead cow/calf pairs and 
beluga whales, and to an unstated dB level for seals, are neither 
practicable nor warranted. Safety zones to 107 dB would extend 
significant distances with little ability to monitor effectively 
without a fleet of aircraft and practical only when within safe flight 
distances from shore in the Beaufort Sea. Aircraft safety factors also 
prevent the use of aircraft in offshore waters of the Chukchi Sea where 
weather may prevent an aircraft from returning safely to land. Also, 
distances north of seismic vessel operations could not be observed 
without significant modifications to currently available aircraft due 
to flight (fuel) limitations and other safety factors that must be 
considered.
    Second, please see response to comment 18 previously in this 
document in regards to shutdowns for bowhead whale cow/calf paris 
within the 120-dB zone. As indicated in that response, while a single 
year of data analysis indicates that bowhead whales may make minor 
deflections in swimming direction at a distance of 30-35 km (18.6-21.7 
mi), there is no indication that the SPL where deflection first begins 
is at 120 dB, it could be at another SPL lower or higher than 120 dB. 
As a result, NMFS believes that it cannot scientifically support 
adopting any single SPL value below 160 dB and apply it across the 
board for all species and in all circumstances.
    Comment 40: EarthJustice states that another practicable mitigation 
measure that NMFS fails to discuss, let al.ne impose, is a mandatory 
limit on the number of concurrent seismic and/or shallow hazard surveys 
in the Chukchi and Beaufort Seas. At all times, but especially during 
the fall bowhead migration, NMFS should prohibit the simultaneous 
operations of multiple vessels within the Chukchi and Beaufort Seas. 
Moreover, it should require that no two vessels operate within 100 km 
(62 mi) of one another. Given the large size of the 120-dB zone, closer 
simultaneous operation would pose a real risk of disrupting the bowhead 
whale migration and the behaviors of beluga and gray whales.
    Response: EarthJustice has not provided NMFS with any data to 
support its argument that multiple seismic vessels should not be 
permitted in the Beaufort and Chukchi Seas or that no more than 2 
vessels be allowed to operate within 100 km (62 mi) of one another. In 
regard to limiting seismic and shallow hazard vessels to no more than 2 
vessels, please see response to comment 32. In regard to a 100-km (62-
mi) vessel separation distance, NMFS believes that the 100-km 
separation distance for the 120-dB zone between vessels is 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 conditions, the 
higher the source level, the longer the distance where the received 
level would reach 120 dB. Therefore, at this time, there is no basis 
upon which to limit effort to no more than 2 vessels within 100 km (62 
mi) of one another.
    Finally, the MMS 2006 Final PEA, which NMFS adopted in 2006 and 
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 SOI survey would not result 
in a significant impacts.
    Comment 41: The NSB asks how will SOI not impact the summer, open-
water beluga hunt in Wainwright and protect the subsistence hunts of 
other marine mammals in the Chukchi Sea?
    Response: Wainwright residents hunt beluga whales in the spring and 
early summer. While bowhead and beluga whale hunting is likely to have 
concluded by the time that seismic operations begin, NMFS recognizes 
that seismic noise and vessel traffic disturbance could have effects on 
this harvest. As a result, the IHA (and the CAA) contain time 
restrictions and coastal standoff distances for transiting vessels to 
avoid an unmitigable adverse impact on coastal subsistence hunts for 
marine mammals.

[[Page 66121]]

Cumulative Impact Concerns

    Comment 42: The NSB states that, cumulative impacts are largely 
ignored by the SOI IHA action, even though SOI's proposal is only one 
of numerous oil industry activities recently occurring, planned or on-
going in the U.S. portion of the Chukchi and Beaufort Seas. As stated 
previously, the cumulative impacts of all industrial activities must be 
factored into any negligible impact determination. NMFS has not done so 
for 2008, and, therefore, the proposed IHA should not be issued until a 
cumulative impact assessment is conducted.
    Response: Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the taking by the activity is taking small numbers 
of marine mammals, has a negligible impact on marine mammals, and does 
not result in an unmitigable adverse impact on the subsistence uses of 
those species and stocks. The MMPA does not instruct NMFS to make these 
determinations by taking into account other events (subsistence 
hunting, Arctic warming, and other human activities) or over time 
periods more than a year, if a request for take has been made under 
section 101(a)(5)(D) of the MMPA. Cumulative impact assessments have 
been addressed by MMS (and NMFS) in the 2006 Final PEA and NMFS in its 
2007 and 2008 Supplemental EAs. Because these documents are part of 
NMFS' Administrative Record on this matter, the information contained 
within them do not need to be repeated. Please refer to these documents 
for that assessment.
    The proposed monitoring plans were provided to the NSB and others 
for review and comment in October, 2007 and during the public review 
period for SOI's proposed IHA application. SOI's monitoring plans were 
also reviewed at the April, 2008 Open Water Meeting in Anchorage, AK. A 
critical component of those reviews was to ensure that the monitoring 
plans address the issue of cumulative impacts.

Mitigation and Monitoring Concerns

    Comment 43: EarthJustice contends that the MMPA authorizes NMFS to 
issue a small take authorization only if it can first find that it has 
required adequate monitoring of such taking and all methods and means 
of ensuring the least practicable impact have been adopted. The 
proposed IHA largely ignores this statutory requirement. While the 
proposed IHA lists various monitoring measures, it contains virtually 
nothing by way of mitigation measures. The specific deficiencies of the 
``standard'' MMS mitigation measures as outlined in the 2006 PEA are 
described in detail in our NEPA comments. The problems with the 
mitigation measures as explained for NEPA purposes are even more 
compelling with regard to the substantive standards of the MMPA. 
Because the MMPA explicitly requires that ``means effecting the least 
practicable impact'' on a species, stock or habitat be included, an IHA 
must explain why measures that would reduce the impact on a species 
were not chosen. Neither the proposed IHA, Shell's application, the 
2006 PEA, nor the 2007 DPEIS attempt to do this.
    Response: In the proposed IHA notice, NMFS describes those 
mitigation measures that SOI proposed to implement in 2008/2009. There 
is no requirement for NMFS to propose additional mitigation measures at 
that time as long as NMFS can make its preliminary determinations 
required under the MMPA that the taking will (1) have no more than a 
negligible impact on affected species and stocks of marine mammals; (2) 
be small relative to the stock or population size; and (3) not have an 
unmitigable adverse impact on the availability of such species or 
stocks for taking for subsistence uses. It is only at the time that it 
has completed its review of SOI's proposed activity (which may have 
been modified since the time of the application), the comments received 
during the public comment period, and any recent information on the 
activity, potential impacts on affected marine mammal stocks, and/or 
subsistence uses of marine mammals, that it will determine what 
mitigation measures are practicable to ensure that impacts are at the 
lowest level practicable. NMFS has conducted that review and analysis 
in this Federal Register document and has analyzes a variety of 
mitigation and monitoring measures in its 2008 SEA.
    Comment 44: EarthJustice notes that while NMFS has not performed 
any analysis of why additional mitigation measures are not 
``practicable,'' the proposed IHA contains information to suggest that 
many such measures are in fact practicable. For example, in 2006 NMFS 
required monitoring of a 120-dB safety zone for bowhead cow/calf pairs 
and large groups >12 individuals). The IHA and Federal Register notice 
are somewhat ambiguous as to whether the 120-dB safety zone will be 
required in the Chukchi Sea. NMFS should require Shell to employ the 
120-dB safety zone for all operations in both oceans, including shallow 
hazard and ice gouge surveys in the Beaufort Sea, to ensure the least 
practicable adverse impact on marine mammals.
    Response: In its final determination and the IHA issued to SOI, 
NMFS required SOI to establish a 160-dB safety zone whenever an 
aggregation of 12 or more bowhead whales or gray whales are observed, 
whether in the Chukchi or Beaufort Seas. 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 and shallow hazard operations 
will not commence, or will shut-down, until surveys indicate they are 
no longer present within the 160-dB safety zone of seismic-surveying 
operations. In addition, the IHA issued to SOI established a 120-dB 
seismic shut-down zone whenever 4 or more migrating bowhead whale cow/
calf pairs are within that safety zone in the Beaufort Sea. Seismic and 
shallow-hazard surveys cannot resume until two aerial surveys indicate 
that there are 3 or fewer migrating bowhead whale cow/calf pairs within 
that safety zone.
    However, NMFS has not imposed 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, NMFS determined that monitoring the 120-dB safety zone was not 
necessary in the Chukchi Sea because there would not be the level of 
effort by 3D seismic survey operations found in 2006. This provides 
cow/calf pairs with sufficient ability to move around the seismic 
source without significant effort. 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, potentially 
resulting in an inability to return to the airport of origin, thereby 
resulting in safety concerns.
    Comment 45: EarthJustice states that because the 120-dB safety zone 
is possible for aggregations of bowheads, means that such a zone is 
also possible for other marine mammals, such as belugas which are also 
subject to disturbance at similar levels. The failure to require such, 
or at least analyze it, violates the MMPA.
    Response: Implementing a safety/shutdown zone for marine mammal 
species, other than migrating bowhead whale cow/calf aggregations, is 
neither practicable, necessary, nor warranted. NMFS notes that 
EarthJustice has not provided information that it is necessary to 
implement such a mitigation measure. First, as noted elsewhere in this 
Federal Register document, the best

[[Page 66122]]

scientific information available indicates that the marine mammal 
species found in these waters will not have a significant behavioral 
response at SPLs as low as 120 dB (including non-migratory bowhead 
whales). Second, implementing a shutdown requirement at 120-dB for all 
marine mammal species would significantly reduce the ability of SOI to 
conduct seismic surveys without significant, and costly delays. This 
could result in SOI needing multiple years to acquire the data 
necessary for exploratory drilling. Third, for reasons discussed 
elsewhere in this Federal Register notice, a 120-dB safety zone has not 
been implemented for the Chukchi Sea for safety reasons. As a result, 
NMFS does not believe that implementing a shutdown requirement for all 
marine mammal species at 120 dB is warranted.
    Comment 46: EarthJustice believes that, because it is practicable, 
NMFS should also require Shell to suspend operations if BWASP (Bowhead 
Whale Aerial Survey Project) aerial surveys detect the requisite number 
of whales. In 2007, the BWASP surveys appear to have been more 
effective than Shell's surveys at detecting mother-calf pairs.
    Response: At this time, sightings from BWASP aerial surveys are 
posted within 1-2 days of the conclusion of each survey at http://www.afsc.noaa.gov/nmml/cetacean/bwasp/index.php and, therefore, while 
they are available for managers, the oil/gas industry, and the 
interested public on a near-real-time basis, it is not possible at this 
time to determine that this information is useable for mitigation 
purposes. Moreover, involving the BWASP project more directly in 
providing information on the numbers of cow/calf pairs within a certain 
distance of seismic activity is problematic at this time because the 
location of the seismic activity - and thus the 120-dB zone around the 
vessel - is often unknown to the BWASP aerial survey team. At other 
times the vessel location is considered proprietary and, therefore, not 
available for this purpose.
    Comment 47: EarthJustice and NSB note that with regard to night 
time and poor visibility conditions, Shell proposes essentially no 
limitations on operations, even though they acknowledge that the 
likelihood of observers seeing marine mammals in such conditions is 
low. The obvious solution, not analyzed by Shell or NMFS, is to simply 
prohibit seismic surveying when conditions prevent observers for 
detecting all marine mammals in the safety zone.
    Response: NMFS is required by section 101(a)(5)(D)of the MMPA to 
reduce impacts to the lowest level practicable. Elsewhere in this 
Federal Register notice, NMFS provides information that: (1) marine 
mammals would need to be within about 200 m (656 ft) of the airgun 
array in order to incur TTS (Level B harassment) and significantly 
closer in order to incur an auditory injury; (2) the hydrophone array 
and vessel precludes or discourages marine mammals from entering the 
area for potential injury, and (3) using NVDs during periods of 
darkness would allow detection of marine mammals on the surface to that 
distance.
    On the matter of practicability, NMFS has been informed by SOI that 
requiring a shutdown of the airgun arrays due to inclement weather or 
darkness in the Arctic would reduce overall effectiveness by about 40 
percent. Such a loss in efficiency could increase the potential for SOI 
and other companies to increase effort by bringing additional seismic 
vessels into the Beaufort and/or Chukchi Seas. As a result, 
implementation of this suggestion as a mitigation measure is considered 
by NMFS as not practicable for both economic and practical reasons.
    However, an alternative mitigation measure has been identified by 
NMFS and is being reviewed that could increase detection of marine 
mammals during darkness. Using a high-frequency marine mammal 
monitoring (HF/M3) sonar, similar to a model used by the U.S. Navy. The 
HF/M3 sonar is capable of detecting marine mammals out to about 2 km 
(1.1 mi), with up to 98 percent detection ability (depending upon 
animal size, distance from sonar and animal depth) (Ellison and Stein, 
1999) and has the capability to be ramped up to avoid injury to marine 
mammals (as it can detect the mammal prior to the HF/M3 sonar reaching 
levels of auditory injury). It should be noted that this sonar does not 
require a marine mammal to be vocalizing in order to be detected and 
has the capability of being ramped-up, ensuring that, once a marine 
mammal is detected within a 2-km (1.1 mi) radius, powering up the HF/M3 
ceases until the marine mammal is no longer detected within the 2-km 
zone. Once ramp-up of the HF/M3 is complete, seismic surveys can 
commence. During surveys, the HF/M3 would continue to monitor the area 
closest to the array where there is a higher potential for injury, if 
marine mammals were not either deflected by the seismic noise or 
detected by MMOs, passive acoustics or active acoustics. NMFS believes 
that utilizing the HF/M3 with ramp-up will result in fewer marine 
mammal harassments and prevent auditory injury as it is most effective 
close to the vessel where potential auditory injury may occur.
    Moreover, as stated in the Federal Register Notice of Proposed IHA, 
once the safety zones are visually established and pre-survey 
monitoring has concluded that there are 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 re-established. 
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 48: The NSB states that Shell's current application states 
that the safety zone for Deep Seismic activities in the Beaufort Sea 
will be 13.45 km (8.4 mi) from the sound source, and that the entire 
safety zone will be monitored by one on-duty MMO aboard the seismic 
vessel, and one MMO aboard a single chase vessel. Even with the aide of 
binoculars, night-vision equipment, and laser equipment (as Shell 
proposes), it is highly unlikely that two MMOs can monitor an entire 
13.45 km (8.4 mi) safety radius with more than limited effectiveness. 
It is unclear how NMFS can permit Shell to conduct seismic operations 
when industry is not capable of adequately monitoring safety zones 
which are designed to protect marine mammals from physical harm or 
death.
    Response: NMFS clarifies that the stated distance of 13.45 km (8.4 
mi) is the safety zone established to ensure that SPLs of 160 dB or 
greater do not affect 12 or more non-migratory bowhead or gray whales. 
All parties recognize that marine mammals will not be detected by MMOs 
onboard the M/V Gillavar at these distances. As a result, SOI is 
required to monitor this zone by chase (support) vessels in the 
Beaufort and Chukchi Seas, and may use aircraft in the Beaufort Sea. It 
should be recognized that the 160-dB monitoring program is designed to 
locate concentrations of marine mammals that may be feeding or 
conducting another biologically significant activity (and not 
migrating). As a result, they should be more easily detected by vessel 
and aircraft MMOs. However, as noted in this Federal Register notice, 
at 160 dB, marine mammals may, at worst, experience a

[[Page 66123]]

significant behavioral response to seismic noise. It is NMFS' intent 
here, that bowhead and gray whales not be harassed away from important 
habitat (even temporary habitat), not that they simply not be annoyed.
    Comment 49: The Commission recommends that NMFS require that the 
IHA require that operations be suspended immediately if a dead or 
seriously injured marine mammal is found in the vicinity of the 
operations and if that death or injury could be attributable to the 
applicant's activities. Any suspension should remain in place until 
NMFS has: (1) has reviewed the situation and determined that further 
deaths or serious injuries are unlikely to occur or (2) has issued 
regulations authorizing such takes under section 101(a)(5)(A) of the 
MMPA.
    Response: NMFS concurs with the Commission's recommendation and 
will require the immediate suspension of seismic activities if a dead 
or injured marine mammal has been sighted within an area where the 
Holder of the IHA deployed and utilized seismic airguns within the past 
24 hours.
    Comment 50: The Commission states that if NMFS chooses to proceed 
with issuance of the requested incidental harassment authorization 
absent a broader, longer term analysis, it should require the applicant 
to implement all practicable monitoring and mitigation measures to 
minimize behavioral disturbance and other possible adverse impacts to 
bowhead whales, beluga whales, and other marine mammal species with an 
emphasis on key areas known to be important for breeding, molting, and 
feeding.
    Response: NMFS agrees with the Commission's recommendation as it 
pertains to the monitoring and mitigation requirements. As described in 
this Federal Register document, NMFS believes that it has required, 
through the IHA issued to SOI on August 19, 2008, all practicable 
mitigation and monitoring measures that will result in the least 
practicable adverse impact on affected marine mammal species and stocks 
and not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence uses. In addition to 
standard mitigation measures, such as shutdowns for marine mammals 
within a 180/190-dB safety zone, and ramp-up of airguns to avoid 
potential injury or startle effect, the IHA requires (1) a 120-dB rms 
monitoring-safety zone for cow/calf pairs of bowhead whales in the 
Beaufort Sea; (2) a 160-dB rms monitoring-safety zone for aggregations 
of feeding whales in the Beaufort and Chukchi seas; (3) seismic shut-
down criteria to protect bowhead and gray whales when inside the 120-dB 
or 160-dB monitoring-safety zones; and (4) time, area and distance 
measures to ensure no unmitigable adverse impact on the availability of 
marine mammals for taking for subsistence uses.
    Comment 51: The Commission recommends that NMFS together with the 
applicant and other appropriate agencies and organizations, develop a 
broad based population monitoring and impact assessment program to 
assess whether these activities, in combination with other risk 
factors, are (1) individually or cumulatively having any significant 
adverse population level effects on marine mammals, or (2) having an 
unmitigable adverse effect on the availability of marine mammals for 
subsistence use by Alaska Natives. Expeditious development of such a 
monitoring program is important to ensure that scientists have the 
baseline information necessary to detect and possibly identify the 
causes of change over time. The Commission would welcome the 
opportunity to discuss with NMFS and interested parties how best to 
develop such a program (for example, through co-sponsorship of a 
workshop).
    Response: A detailed description of the monitoring program 
submitted by SOI was provided in SOI's application, cited in the 
Federal Register notice of the proposed IHA, and posted on the NMFS' 
IHA webpage. As a result of a dialogue on monitoring by scientists and 
stakeholders attending NMFS' public meetings in Anchorage in April 
2006, October 2006, April 2007, and April 2008, the industry has 
expanded its monitoring program in order to fulfill its 
responsibilities under the MMPA and to address concerns raised by 
potentially impacted North Slope communities. For the third year, SOI 
(and other industry participants) have included a far-field marine 
mammal monitoring component designed to provide baseline data on marine 
mammals for future operations planning. A description of this 
monitoring program is provided later in this document (see Joint 
Industry Program). Scientists are continuing discussions to ensure that 
the research effort obtains the best scientific information possible. 
NMFS would welcome the Commission's participation at these Open Water 
Meetings.
    Finally, it should be noted that this far field monitoring program 
follows the guidance of the Commission's recommended approach for 
monitoring seismic activities in the Arctic (Hofman and Swartz, 1991), 
that additional research might be warranted when impacts to marine 
mammals would not be detectable as a result of vessel observation 
programs.
    Comment 52: The Commission notes that NMFS is proposing to require 
additional mitigation and monitoring measures in 2008, as were included 
in the incidental harassment authorization issued to SOI in 2006 and 
2007. The Commission also notes that studies conducted as part of a 
joint industry studies program by the applicant during their 2006 and 
2007 seismic survey operations would continue during the proposed 2008 
seismic operations. These studies include aerial surveys of marine 
mammal distribution and abundance along the Chukchi Sea coastline, 
collection of data (using an acoustic net array) on the occurrence and 
distribution of beluga whales and on ambient noise levels near villages 
along the Chukchi Sea coast, and collection of data on the 
characteristics and propagation of sounds from offshore seismic and 
vessel based drilling operations that may have the potential to deflect 
bowhead whales from the migratory routes in the Beaufort Sea. The 
Commission supports these additional mitigation and monitoring measures 
and recommends that they be incorporated in the IHA, if issued.
    Response: NMFS appreciates the Commission's support for this multi-
year undertaking in the Arctic Ocean.
    Comment 53: The Commission recommends that known key areas, such as 
breeding, molting, and feeding areas receive an increased level of 
monitoring.
    Response: Breeding and molting areas for marine mammals are not 
well described, are likely widespread in the Arctic and, therefore, not 
easily monitored, and of questionable value for monitoring if seismic 
survey activities are not nearby. As a result, the monitoring program, 
agreed upon by participants at the 2008 Open Water Meeting in 
Anchorage, will focus on specific aspects for monitoring that are 
believed to be important, including migration and feeding concerns. For 
additional information, see the relevant discussion elsewhere in this 
document.
    Comment 54: EarthJustice believes that NMFS and Shell are also 
deficient in regards to passive acoustic monitoring. EarthJustice 
states that Shell apparently will deploy ``acoustic net arrays'' in the 
Beaufort and Chukchi Seas to monitor whale calls, ambient noise, and 
seismic sounds. While the data gathered may be useful, it is not 
properly termed a mitigation as there is no apparent plan to use the 
gathered information in real-time to monitor the presence of whales in 
or near the safety

[[Page 66124]]

zone. Additionally, the acoustic net array was apparently used by Shell 
in 2006 and 2007, yet none of the data presumably acquired from its use 
is mentioned by either Shell or NMFS in any of the documents associated 
with the current IHA. To merely collect monitoring data but not 
incorporate it into management decisions renders such decision-making 
arbitrary.
    Response: Both SOI's IHA application and NMFS' proposed IHA notice 
describe the Beaufort and Chukchi Seas passive acoustic monitoring 
(PAM) programs as part of the long-term industry monitoring program. As 
EarthJustice notes this PAM program is not a mitigation measure. The 
purpose of the monitoring program is described later in this document. 
The data collected from the net arrays in the Chukchi and Beaufort Sea 
will require several years of data collection to determine meaningful 
trends in potential bowhead whale displacement as a result of 
industrial sounds in these areas. At this time, NMFS does not believe 
this PAM system can be modified to provide real-time data and is not 
practicable nor necessary to employ similar near-real-time systems as 
marine mammal vocalizations do not provide information on the number of 
marine mammals in the area, but simply provide a cue to MMOs to marine 
mammal presence.
    Comment 55: EarthJustice recommends that NMFS require Shell to 
collect fecal samples to monitor stress and reproductive status to 
individual animals exposed to seismic surveys. This information can be 
used to determine whether stress from exposure to seismic surveys may 
lead to reproductive failure.
    Response: NMFS concurs that conducting research to monitor stress 
and reproduction in marine mammals can be a valuable tool for 
conservation, as indicated by similar studies on North Atlantic right 
whales. However, this type of research requires a Scientific Research 
Permit to be issued by NMFS under section 104 of the MMPA, unless the 
scat collection did not involve a close approach to a marine mammal. 
Currently, the NSB Department of Wildlife is collecting feces from 
harvested whales. Intended analyses include looking at stress and 
reproductive hormones. The NSB Wildlife Department does not have a 
permit to collect feces from live bowheads, although they do have a 
permit for biopsy sampling and satellite tagging. As the NSB Wildlife 
Department has archived fecal samples from harvested bowheads going 
back several years, there may be some merit to examining hormone levels 
in feces relative to the amount of industrial activity in the Beaufort 
Sea (although stress hormones cannot be analyzed from old material). 
NMFS believes this research should be discussed further at the 2009 
Open Water Meeting.

Reporting Concerns

    Comment 56: The Commission requests that NMFS provide information 
on whether and, if so, how many times activities were shut-down during 
the 2006 and 2007 operations within the 180-dB, 160-dB, and 120-dB 
safety and disturbance zones due to the presence of cetaceans.
    Response: For information regarding times for shutdowns by SOI in 
2006 and 2007, for ConocoPhillips in 2006 and for GX Technology in 
2006, NMFS recommends the Commission review the Comprehensive Report 
for the 2006 seismic survey program and the 90-day report for SOI's 
2007 seismic season which are available on line (see ADDRESSES).
    Comment 57: The NSB notes that in 2006, Shell and other oil and gas 
companies suggested that data collected in 2006 would be available to 
modify and improve future monitoring and mitigation efforts. These data 
were not analyzed fully and available until the end of 2007. Thus, 
these data were not available to adjust the monitoring program for 
2007. Results from 2008 must be available with sufficient time to 
review and revise results for the 2009 season. For this to occur, 
industry must have their draft reports completed by late March 2009. 
NMFS should set such a deadline for reporting. This report should 
include an assessment of cumulative effects from the multiple oil and 
gas operations and other human activities occurring in the Chukchi and 
Beaufort Seas.
    Response: Under NMFS regulations, previous IHAs, and the IHA issued 
to SOI on August 19, 2008, SOI is required to submit a report on 
seismic activities and a preliminary assessment on the impacts the 
activity may have had on marine mammals within 90 days of completion of 
the activity. SOI's 2007 draft 90-day report was provided to the NSB 
and others in late February, 2008. Moreover, the IHA also requires SOI 
to schedule a post-season review of their activities with Native 
communities no later than 90 days following the completion of 
geophysical activities in the Chukchi Sea. The intent of these meetings 
is to share preliminary results of geophysical activities, any 
potential impacts they may have had on marine mammals and to discuss 
any concerns residents may have concerning the fall 2008 Chukchi Sea 
operations.
    It is not realistic to believe, however, that a cumulative impact 
assessment would be available within 90 days of completion of SOI's 
activity and contained in the 90-day report. SOI's 2008 IHA (similar to 
the 2007 IHA) requires the final comprehensive report to be submitted 
to NMFS within 240 days of issuance of the IHA. This document is 
usually available prior to the spring open-water meeting. In 
conclusion, NMFS notes that, while the 2006 data was not totally 
available (one analysis was missing) to adjust the monitoring program 
for 2007, it and the 2007 Comprehensive Report were available were 
available prior to the April, 2008 Open Water Meeting and its review of 
SOI's 2007 mitigation and monitoring program and SOI's 2008 program.
    Comment 58: The NSB notes that in 2008, Shell commits to reporting 
measurements of the airgun array sounds ``as soon as possible'' after 
recovery of the equipment. In 2007, Shell committed to report this 
information within 72 hours after recovery. The NSB strongly recommends 
NMFS require the 72-hour turnaround time.
    Response: The 2007 and 2008 IHAs issued to SOI require SOI to 
submit to NMFS the sound source verification (SSV) test results, 
including the distances to the various radii within 5 days of 
completing the measurements. NMFS believes that this requirement is 
consistent with the CAA, which requires an SSV test to be conducted 
within 72 hours of initiating or having initiated operations in the 
Beaufort or Chukchi Seas. The IHA, therefore, provides SOI with only 
two days after completing the SSV to complete the analyses and submit 
the report to NMFS. NMFS does not believe this additional time for 
submitting the SSV results in adverse impacts on marine mammals as SOI 
will have already established preliminary marine mammal safety zones 
for the protection of marine mammals.

Research Concerns

    Comment 59: The NSB states that NMFS must require SOI to conduct 
studies on the impacts of seismic to important fish and invertebrate 
species.
    Response: In this Federal Register document, NMFS has determined 
that impacts to food sources for marine mammals are unlikely to result 
in more than a negligible impact on marine mammals. As a result, NMFS 
recommends that this research be added to the agenda at the 2009 Open 
Water

[[Page 66125]]

Meeting where this research can be discussed and prioritized in 
relation to the proposed monitoring being conducted on impacts on 
marine mammals, principally bowhead and beluga whales.
    Comment 60: The NSB states that Shell should be required by NMFS to 
collect data on spotted seals using surveys that are specifically 
designed for spotted seals.
    Response: Similar to the previous response, NMFS recommends that 
additional marine mammal assessment studies be on the agenda at the 
2009 Open Water Meeting where marine mammal assessments and monitoring 
impacts on marine mammals from industry activities can be discussed and 
prioritized in relation to the monitoring program proposed by SOI and 
other industry participants.

National Environmental Policy Act Concerns

    Comment 61: Oceana states that SOI's proposal, while very large in 
scope, is only one of numerous oil and gas activities proposed or 
ongoing in the Arctic, and it is well documented that these activities 
may have substantial negative effects on marine mammals and other 
Arctic species. Nonetheless, there has never been a comprehensive 
evaluation of the cumulative effects of seismic activities in the 
Arctic. Particularly in light of the dramatic effects of climate change 
in the Arctic, NMFS must not approve further seismic activities without 
such an evaluation.
    Response: NMFS believes that proactive efforts to conserve and 
protect marine mammals and other Arctic species, such as NMFS' 
initiation of 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 industrial activities that have a potential to take marine 
mammals further reduce and minimize 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 Oceana's statement that there has never 
been a comprehensive evaluation of the cumulative effects of seismic 
activities in the Arctic. The MMS 2006 PEA, the NMFS 2007 SEA, the 
NMFS/MMS 2007 draft PEIS, and the 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. For additional information, please see 
responses to comments on this subject previously in this document.
    Comment 62: EarthJustice states that NMFS indicates that it will 
rely on a supplemental EA (SEA) to satisfy its obligations under NEPA. 
The SEA has not yet been made available to the public. NMFS has 
repeatedly denied requests for a copy of the SEA, stating that the 
document is not yet complete and promising to post it to the public on 
its incidental take webpage when it is complete. The document is not 
presently posted on that webpage. Prior to issuing any IHAs, however, 
NMFS must make its SEA available for public review and comment. We 
hereby renew our request for the SEA and an opportunity to comment on 
it.
    Response: NMFS prepared and released to the public its Supplemental 
EA to the 2006 MMS PEA on this activity in early August, 2008. NMFS has 
fulfilled its obligations under NEPA by completing an SEA that 
describes proposed action of issuing IHAs to the seismic industry to 
conduct offshore seismic and shallow hazard surveys in the Beaufort and 
Chukchi Seas in 2008, the alternatives to that action, the potential 
impacts on the human environment (including cumulative impacts) by 
issuance of these IHAs and an analysis of the mitigation measures to 
reduce impacts on marine mammals and subsistence hunters to the 
greatest level practicable. Contrary to the statement by EarthJustice, 
Federal agencies are not required in every circumstance to make a draft 
Environmental Assessment available for public review and comment. NMFS 
provided the public with environmental information related to SOI's 
request for an IHA during the 30-day comment period on the proposed 
notice of issuance of SOI's IHA. Once the Supplemental EA was 
finalized, the document was posted on NMFS' website for public review. 
The 2008 SEA is available for downloading on its web-page (see 
ADDRESSES).
    Comment 63: EarthJustice states that NMFS has initiated the process 
of preparing an EIS analyzing the seismic surveying in the Arctic 
Ocean, and has produced a draft programmatic environmental impact 
statement. NMFS must complete a final EIS to evaluate Shell's surveys, 
together with the other seismic and shallow hazard surveying activity 
proposed for the summer of 2008 in the Beaufort and Chukchi Seas, 
before permitting such activities to go forward. It cannot continue to 
rely on and ``update'' the 2006 PEA with subsequent EAs in light of 
these potentially significant impacts. EarthJustice identifies in its 
comments (addressed elsewhere) the flaws with the analysis provided in 
the 2006 PEA that make it inappropriate for NMFS to continue to rely on 
that obsolete document and the comments submitted on the PEA that 
further recount the inadequacies of the PEA.
    Response: In 2008, NMFS prepared a Final SEA to analyze further the 
effects of SOI's (and other companies) proposed 3D deep and 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 Final EIS for the Chukchi Sea Lease Sale 193, the MMS 2003 
Final EIS for multiple lease sales, and the NMFS/MMS 2007 DPEIS.
    The MMS' 2006 Final 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 SOI's 
proposed activity for this season was not explicitly identified in the 
2006 PEA, the PEA did contemplate that future seismic activity, such as 
those by SOI and other companies 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 describes in summary, the results 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 an 
EIS for the issuance of an IHA to SOI in 2008 for 3D deep seismic and 
shallow hazard survey activities in the Beaufort and Chukchi Seas, but 
that preparation of an SEA and issuance of a Finding of No

[[Page 66126]]

Significant Impact (FONSI) were sufficient under NEPA.
    Comment 64: EarthJustice states that the analysis in the PEA 
understates the risk of significant impacts to bowhead whales and all 
marine mammals. It assumes that source vessels-both 3-D seismic and 
shallow hazard vessels-will ensonify much smaller zones than those 
which have been subsequently measured in the field. In practice, 
seismic airgun noise has propagated far greater distances than NMFS 
anticipated in the PEA, and thus th authorized activity presumably has 
displaced marine mammals from far more habitat, including important 
feeding and resting habitats, than NMFS's analysis in the PEA 
anticipated. Based on the propagation actually measured in 2006 and 
2007, the impacts of a single 3-D seismic survey are two to three times 
as large as NMFS anticipated, or more. The impacts of a single shallow 
hazard survey or ice gouge survey are comparable to the impacts NMFS 
anticipated from a single 2D or 3D seismic survey. Before authorizing 
further seismic surveying activity or shallow hazard surveys in the 
Arctic Ocean, NMFS must complete the programmatic EIS that it began in 
2006 to evaluate the potentially significant impacts of such 
activities.
    Response: 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. As noted 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 EarthJustice 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, EarthJustice has 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 65: EarthJustice states that the 2006 PEA fails to provide 
site-specific analysis. In 2006, in order to reduce the likelihood of 
significant impacts in the face of a lack of site-specific analysis, 
NMFS imposed 160-dB and 120-dB safety zones when authorizing surveys 
pursuant to the 2006 PEA. At a minimum, it must do the same for SOI's 
seismic surveys here.
    Response: NMFS does not agree with EarthJustice's comment. Although 
the MMS 2006 PEA did not explicitly provide site- specific analysis on 
the proposed SOI 3D deep seismic and shallow hazard and site clearance 
surveys, the NMFS SEA prepared for the 2008 open-water season described 
its specific location and time of all offshore seismic operations. As 
in MMS' 2006 PEA, NMFS' 2008 SEA has described additional mitigation 
measures such as imposing the 160-dB safety zone for seismic activities 
in the Beaufort and Chukchi Seas when an aggregation of 12 or more 
bowhead or gray whales is sighted and a 120-dB safety zone in the 
Beaufort Sea when 4 of more cow/calf pairs are sighted by aerial 
surveys. This mitigation measure is required in the IHA issued to SOI. 
Regarding imposing the 120-dB safety zone in the Chukchi Sea, NMFS has 
determined that it would pose safety and practical concerns for marine 
mammal monitoring. 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 66: EarthJustice states that the scope of the PEA is 
explicitly limited to activities that occurred during 2006. Those 
seismic survey activities have already occurred, as well as an 
additional season worth of activities in 2007. The PEA does not 
evaluate activities that will occur over a period of several years, 
though NMFS has continued to rely on it as if its scope were for a 
multi-year program of seismic surveys. In addition, the PEA uses 
arbitrary significance criteria for non-endangered marine mammals that 
would allow long-lasting impacts to populations, or in fact the entire 
Arctic ecosystem, that would nonetheless be deemed insignificant.
    Response: NMFS does not agree with the statement. In addition, 
EarthJustice has failed to provide any support for their statements. 
The MMS 2006 PEA, 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. EarthJustice's statement that such analysis ``would allow 
long-lasting impacts to populations, or in fact the entire Arctic 
ecosystem, that would nonetheless be deemed insignificant'' we would 
argue supports our adoption of MMS' 2006 Final 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 SOI's 
seismic and shallow hazard surveys 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 67: EarthJustice suggests that, as it has done with the 
bowhead whale in recent NEPA analyses of seismic surveys, in order to 
ensure that it takes a hard look at the potential significance of 
impacts to all marine mammals, NMFS should use PBR (potential 
biological removal) as the metric to measure significance for other 
species that will be affected. Thus, for humpback whales from the 
western North Pacific stock that may be affected by seismic and 
shallow-hazard or site-clearance surveys in the Chukchi and Beaufort 
Seas, an impact that affects the reproduction or survival of one 
humpback whale annually should be deemed a significant impact. The

[[Page 66127]]

scientifically indefensible significance criteria used in the PEA for 
all species other than bowhead whales are inappropriate for an 
evaluation of impacts from seismic surveys, as indicated by MMS's use 
of more defensible significance criteria based on potential biological 
removal for marine mammal populations affected by seismic surveys in 
the Gulf of Mexico.
    Response: MMS used the PBR concept in its 2004 PEA on ``Geological 
and Geophysical Exploration for Mineral Resources on the Gulf of Mexico 
Outer Continental Shelf'' to determine whether its action of issuing 
Geological and Geophysical permits was significant under NEPA. For all 
affected marine mammal species, MMS found that exposure to seismic 
operations in the Gulf of Mexico was not expected to result in any 
mortality or serious injury, thereby it would not result in exceeding 
the PBRs for affected marine mammal species. This was interpreted by 
MMS to mean that while the activity could be potentially adverse, it 
would not have a significant impact. As a result, MMS determined that 
it did not need to prepare an EIS. This use of PBR did not extend to an 
analysis the relationship between Level B behavioral harassment and 
PBR. It should be recognized that MMS and NMFS are preparing a Draft 
EIS on the Gulf of Mexico seismic survey industry (see 69 FR 67535, 
November 18, 2004). That Draft PEIS is expected to be released for 
public review in early in 2009. Also, it should be understood that PBR 
is used by NMFS to estimate the number of marine mammals (by species or 
stock) that can be removed by serious injury (any injury that can 
result in mortality (50 CFR 216.3)) or mortality by commercial 
fisheries, subsistence hunting, or other activities. Use of the PBR 
concept in the 2006 MMS Final PEA on Arctic Seismic, was conducted for 
purposes of making a determination of significance under NEPA, not for 
potential removals from the population. As serious injury and mortality 
are neither expected nor authorized for SOI's seismic surveys, the use 
of PBR is not warranted for determining take quotas for marine mammals.
    Comment 68: Commenters state that NMFS appears to rely on the NEPA 
analysis in the draft PEIS in clear violation of NEPA law. NEPA 
requires agencies to prepare a draft EIS, consider public and other 
agency comments, respond to these comments in its final EIS, and wait 
60 days before issuing a final decision. Before the record of decision 
has been issued on the final PEIS, NMFS cannot take any action on the 
proposed seismic surveys that would allow activities that adversely 
effect the environment. Here, the very purpose of the PEIS process is 
to consider open water seismic surveys in the Chukchi and Beaufort Seas 
for the years 2007 and beyond. NMFS cannot authorize such activities 
before the NEPA process is complete. NMFS may not avoid this 
requirement by completing only a supplemental EA this season. This is 
because the seismic activity has the potential to significantly impact 
marine resources and subsistence hunting, and therefore an EIS is 
required.
    Response: See previous responses on this concern. Contrary to the 
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 2007 Draft PEIS was not the underlying document to 
support NMFS' issuance of SOI's IHA. NMFS merely relied upon specific 
pieces of information and analyses contained in the Draft PEIS to 
assist in preparing the SEA. It is NMFS' intention that the Final 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 69: The NSB states that neither the 2006 PEA nor the Draft 
PEIS satisfy NMFS' NEPA obligation. First, the PEA explicitly limited 
its scope to the 2006 season. Additional seismic work cannot be 
authorized without further NEPA analysis of the cumulative impacts of 
increasing activity offshore in the Arctic Ocean. In addition, the 
proposed surveys threaten potentially significant impacts to the 
environment, and must be considered in a full EIS.
    Response: See responses to previous concerns regarding NMFS' 
implementation of NEPA.

Endangered Species Act Concerns

    Comment 70: EarthJustice and NSB state that the proposed IHA will 
affect, at a minimum, one endangered species, the bowhead whale. It 
will likely also affect endangered humpback and fin whales. 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., Northstar) have suffered 
from inadequate descriptions 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. NMFS has also failed 
to evaluate the effects of such activities on humpback and fin whales. 
EarthJustice expects NMFS will perform the full analysis required by 
law and avoids these problems in its consultation for the proposed IHA. 
Also, EarthJustice notes that the law is clear (citing Connor v. 
Burford, 848 F.2d 1441, 1453 (9th Cir. 1988) that the ESA requires the 
Biological Opinion (BiOp) to analyze the effect of the entire agency 
action. Given that SOI plans to conduct exploration drilling in the 
Beaufort Sea, any consultation on the IHA must cover these activities 
as well.
    Response: Under section 7 of the ESA, NMFS has completed 
consultation with the MMS on ``Oil and Gas Leasing and Exploration 
Activities in the U.S. Beaufort and Chukchi Seas, Alaska; and 
Authorization of Small Takes Under the Marine Mammal Protection Act.'' 
In a BiOp issued on July 17, 2008, NMFS concluded that the issuance of 
seismic survey permits by MMS and the small take authorization under 
the MMPA for seismic surveys are not likely to jeopardize the continued 
existence of the endangered fin, humpback, or bowhead whale. As no 
critical habitat has been designated for these species, none will be 
affected. The 2008 BiOp takes into consideration all oil and gas 
related activities that are reasonably likely to occur, including 
exploratory oil drilling activities. This BiOp does not include impacts 
from production activities, which are subject to a separate 
consultation.
    In addition, NMFS has issued an Incidental Take Statement under 
this BiOp for SOI's seismic survey activities which contains reasonable 
and prudent measures with implementing terms and conditions to minimize 
the effects of take of bowhead whales.
    Comment 71: EarthJustice states NMFS may authorize incidental take 
of bowhead whales 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 al. 
State and Federal legal requirements except for the prohibition against 
taking in section 9 of the ESA.'' As noted in its comment letter, 
EarthJustice believes that SOI's proposed activities violate the MMPA 
and NEPA and therefore are ``not otherwise lawful.'' Any take 
authorization for listed marine mammals would, therefore, violate the 
ESA, as well as these other statutes.
    Response: As noted in this Federal Register document, NMFS has made 
the

[[Page 66128]]

necessary determinations under the MMPA, the ESA, and NEPA regarding 
the incidental harassment of marine mammals by SOI while it is 
conducting activities permitted legally under MMS' jurisdiction.

Other Concerns

    Comment 72: EarthJustice, in a footnote requested that NMFS include 
in its administrative record for this permit, all material presented at 
the 2008 open water meeting, including power point presentations.
    Response: The administrative record for this IHA contains the draft 
report of the meeting, in addition to those documents that were 
provided to attendees at the meeting, principally the draft 2007 
Comprehensive JMP Report. Power point presentations remain the property 
of the presenters and were not provided to either NMFS, MMS or 
attendees. As a result, NMFS does not have copies of the presentations 
as part of its Administrative Record.

Description of Habitat and Marine Mammals Affected by the Activity

    A detailed description of the Beaufort and Chukchi Sea ecosystems 
and their associated marine mammal populations can be found in the 
NMFS/MMS Draft PEIS and the MMS Final Programmatic Environmental 
Assessment (Final PEA) on Seismic Surveys (see ADDRESSES for 
availability) and also in several other documents (e.g., MMS, 2007 
Final EIS for Chukchi Sea Planning Area: Oil and Gas Lease Sale 193 and 
Seismic Surveying Activities in the Chukchi Sea. MMS 2007-026).

Marine Mammals

    The Beaufort/Chukchi Seas support a diverse assemblage of marine 
mammals, including bowhead whales, gray whales, beluga whales, killer 
whales, harbor porpoise, ringed seals, spotted seals, bearded seals, 
walrus and polar bears. These latter two species are under the 
jurisdiction of the U.S. Fish and Wildlife Service (USFWS) and are not 
discussed further in this document. Descriptions of the biology and 
distribution of the marine mammal species under NMFS' jurisdiction can 
be found in SOI's IHA application, the 2007 NMFS/MMS Draft PEIS on 
Arctic Seismic Surveys, and the MMS 2006 Final PEA on Arctic Seismic 
Surveys. Information on these marine mammal species can also be found 
in NMFS SARS. The 2007 Alaska SARS document is available at: http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2007.pdf. Please refer to those 
documents for information on these species.

Potential Effects of Seismic Surveys on Marine Mammals

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

Effects of Seismic Survey Sounds on Marine Mammals

Behavioral Effects

    In its IHA application, SOI states that the only anticipated 
impacts to marine mammals associated with noise propagation from vessel 
movement and seismic airgun operations would be the temporary and short 
term displacement of whales and seals from within ensonified zones 
produced by such noise sources. Any impacts on the whale and seal 
populations of the Beaufort and Chukchi Seas activity areas are likely 
to be short-term and transitory arising from the temporary displacement 
of individuals or small groups from locations they may occupy at the 
times they are exposed to seismic sounds between the 160- to 190-dB 
received levels. In the case of bowhead whales however, that 
displacement might well take the form of a deflection of the swim paths 
of migrating bowheads away from (seaward of) received noise levels 
lower than 160 db (Richardson et al., 1999). Presently, it is not known 
at what distance after passing the seismic source that bowheads will 
return to their previous migration route. However, NMFS does not 
believe that this offshore deflection is biologically significant 
(although it might be significant for purposes of subsistence hunting, 
as discussed later) as the bowhead migration is believed to remain 
within the general bowhead whale migratory corridor in the U.S. 
Beaufort Sea, which varies annually based on environmental factors.
    SOI cites Richardson and Thomson [eds]. (2002) to support its 
contention that there is no conclusive evidence that exposure to sounds 
exceeding 160 dB have displaced bowheads from feeding activity. NMFS 
notes that, in 2006, observations conducted onboard a seismic vessel 
operating in the Canadian Beaufort Sea found that feeding bowhead 
whales were not observed to respond to seismic sounds at levels of 160 
dB or lower.
    Results from the 1996-1998 BP and Western Geophysical seismic 
monitoring programs in the Beaufort Sea indicate that most fall 
migrating

[[Page 66129]]

bowheads deflected seaward to avoid an area within about 20 km (12.4 
mi) of an active nearshore seismic operation, with the exception of a 
few closer sightings when there was an island or very shallow water 
between the seismic operations and the whales (Miller et al., 1998, 
1999). The available data, however, do not provide an unequivocal 
estimate of the distance (and received sound levels) at which 
approaching bowheads begin to deflect, but this may be on the order of 
35 km (21.7 mi). While Miller et al. (1999) surmise that deflection may 
have begun about 35 km to the east of the seismic operations, they did 
not provide SPL measurements to that distance, and noted that sound 
propagation has not been studied as extensively eastward in the 
alongshore direction, as it has northward, in the offshore direction. 
Therefore, while this single year of data analysis indicates that 
bowhead whales may make minor deflections in swimming direction at a 
distance of 30-35 km (18.6-21.7 mi), there is no indication that the 
SPL where deflection first begins is at 120 dB, it could be at another 
SPL lower or higher than 120 dB. Miller et al. (1999) also note that 
the received levels at 20-30 km (12.4-18.6 mi) were considerably lower 
in 1998 than have previously been shown to elicit avoidance in bowheads 
exposed to seismic pulses. However, the seismic airgun array used in 
1998 was larger than the ones used in 1996 and 1997.
    When the received levels of noise exceed some threshold, cetaceans 
will show behavioral disturbance reactions. The levels, frequencies, 
and types of noise that will elicit a response vary between and within 
species, individuals, locations, and seasons. Behavioral changes may be 
subtle alterations in surface, respiration, and dive cycles. More 
conspicuous responses include changes in activity or aerial displays, 
movement away from the sound source, or complete avoidance of the area. 
The reaction threshold and degree of response also are related to the 
activity of the animal at the time of the disturbance. Whales engaged 
in active behaviors, such as feeding, socializing, or mating, appear 
less likely than resting animals to show overt behavioral reactions, 
unless the disturbance is perceived as directly threatening.

Masking

    Although NMFS believes that some limited masking of low-frequency 
sounds (e.g., whale calls) is a possibility during seismic surveys, the 
intermittent nature of seismic source pulses (1 second in duration 
every 16 to 24 seconds (i.e., less than 7 percent duty cycle)) will 
limit the extent of masking. Bowhead whales are known to continue 
calling in the presence of seismic survey sounds, and their calls can 
be heard between seismic pulses (Greene et al., 1999, Richardson et 
al., 1986). Masking effects are expected to be absent in the case of 
belugas, given that sounds important to them are predominantly at much 
higher frequencies than are airgun sounds.

Injury and Mortality

    NMFS and SOI believe that there is no evidence that bowheads or 
other marine mammals exposed to seismic sounds in the Arctic have 
incurred an injury to their auditory mechanisms. While it is not 
positively known whether the hearing systems of marine mammals very 
close to an airgun would be at risk of temporary or permanent hearing 
impairment, Richardson et al. (1995) notes that TTS is a theoretical 
possibility for animals within a few hundred meters of the source. More 
recently, scientists have determined that the received level of a 
single seismic pulse might need to be ~210 dB re 1 microPa rms (~221-
226 dB pk-pk) in order to produce brief, mild TTS. Exposure to several 
seismic pulses at received levels near 200-205 dB (rms) might result in 
slight TTS in a small odontocete, assuming the TTS threshold is a 
function of the total received pulse energy. Seismic pulses with 
received levels of 200-205 dB or more are usually restricted to a 
radius of no more than 200 m (656 ft) around a seismic vessel operating 
a large array of airguns. For baleen whales, there are no data, direct 
or indirect, on levels or properties of sound that are required to 
induce TTS. However, according to SOI, there is a strong likelihood 
that baleen whales (i.e., bowheads, gray whales and humpback whales) 
would avoid the approaching airguns (or vessel) before being exposed to 
levels high enough for there to be any possibility of onset of TTS.
    For pinnipeds, information indicates that for single seismic 
impulses, sounds would need to be higher than 190 dB rms for TTS to 
occur while exposure to several seismic pulses indicates that some 
pinnipeds may incur TTS at somewhat lower received levels than do small 
odontocetes exposed for similar durations. This indicates to NMFS that 
the 190-dB safety zone (see Mitigation and Monitoring later in this 
document) provides a sufficient buffer to prevent PTS in pinnipeds.
    A marine mammal within a radius of <=100 m (<=328 ft) around a 
typical large array of operating airguns may be exposed to a few 
seismic pulses at received levels of [gteqt]205 dB, and possibly more 
pulses if the marine mammal moved with the seismic vessel. When PTS 
occurs, there is physical damage to the sound receptors in the ear. In 
some cases, there can be total or partial deafness, whereas in other 
cases, the animal has an impaired ability to hear sounds in specific 
frequency ranges. However, as scientists are reluctant to cause injury 
to a marine mammal, there is no specific evidence that exposure to 
pulses of airgun sound can cause PTS in any marine mammal, even with 
large arrays of airguns. Given the possibility that mammals close to an 
airgun array might incur TTS, there has been further speculation about 
the possibility that some individuals occurring very close to airguns 
might incur PTS. Single or occasional occurrences of mild TTS are not 
indicative of permanent auditory damage in terrestrial mammals.
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals, but are assumed to be similar to those in humans and 
other terrestrial mammals. Acousticians are in general agreement that a 
temporary shift in hearing threshold of up to 40 dB due to moderate 
exposure times is fully recoverable and does not involve tissue damage 
or cell loss. Liberman and Dodds (1987) state, ''... acute threshold 
shifts as large as 60 dB are routinely seen in ears in which the 
surface morphology of the stereocilia is perfectly normal.'' 
(Stereocilia are the sensory cells responsible for the sensation of 
hearing.). In the chinchilla, no cases of TTS involve the loss of 
stereocilia, but all cases of PTS do (Ahroon et al., 1996). Cell death 
clearly qualifies as Level A harassment (injury) under the MMPA. 
Because there is no cell death with modest (up to 40 dB) TTS, such 
losses of sensitivity constitute a temporary impairment but not an 
injury, further supporting NMFS' precautionary approach that 
establishment of seismic airgun shutdown at 180 dB for cetaceans and 
190 dB for pinnipeds, will prevent auditory injury to marine mammals by 
seismic airgun sounds.
    NMFS notes that planned monitoring and mitigation measures 
(described later in this document) have been designed to avoid sudden 
onsets of seismic pulses at full power, to detect marine mammals 
occurring near the array, and to avoid exposing them to sound pulses 
that have any possibility of causing hearing impairment. Moreover, NMFS 
does not expect that any marine mammals will be seriously injured or 
killed during SOI's seismic survey activities, even if some animals are 
not detected prior to

[[Page 66130]]

entering the 180-dB and 190-dB isopleths (safety zones) for cetaceans 
and pinnipeds, respectively. These criteria were set to approximate a 
level below where Level A harassment (i.e., defined as ``any act of 
pursuit, torment or annoyance which has the potential to injure a 
marine mammal or marine mammal stock in the wild'') from acoustic 
sources is believed to begin. Because, a decade or so ago, scientists 
did not have information on where PTS might occur in marine mammals, 
the High Energy Seismic Survey (HESS) workshop (HESS, 1997, 1999) set 
the level to prevent injury to marine mammals at 180 dB. NMFS concurred 
and determined that TTS, which is the mildest form of hearing 
impairment that can occur during exposure to a strong sound, may occur 
at these levels (180 dB for cetaceans, 190 dB for pinnipeds). When a 
marine mammal experiences TTS, the hearing threshold rises and a sound 
must be stronger in order to be heard. TTS can last from minutes or 
hours to (in cases of strong TTS) days. For sound exposures at or 
somewhat above the TTS threshold, hearing sensitivity recovers rapidly 
after exposure to the noise ends. Few data on sound levels and 
durations necessary to elicit mild TTS have been obtained for marine 
mammals, and none of the published data concern TTS elicited by 
exposure to multiple pulses of sound.

Strandings

    In numerous past IHA notices for seismic surveys, commenters have 
referenced two stranding events allegedly associated with seismic 
activities, one off Baja California and a second off Brazil. NMFS has 
addressed this concern several times and without new information, does 
not believe that this issue warrants further discussion. For 
information relevant to strandings of marine mammals, readers are 
encouraged to review NMFS' response to comments on this matter found in 
69 FR 74905 (December 14, 2004), 71 FR 43112 (July 31, 2006), 71 FR 
50027 (August 24, 2006), 71 FR 49418 (August 23, 2006), 73 FR 46774 
(August 11, 2008), and 73 FR 49421 (August 21, 2008). In addition, a 
June, 2008 stranding of 30-40 melon-headed whales (Peponocephala spp.), 
off Madagascar that appears to be associated with seismic surveys is 
currently under investigation. One preliminary report indicates that 
the stranding began prior to seismic surveys starting.
    It should be noted that marine mammal strandings recorded in the 
Beaufort and Chukchi seas do not appear to be related to seismic 
surveys. 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 SOI to ramp-up the seismic array to 
avoid a startle effect, strandings are unlikely to occur in the Arctic 
Ocean. As a result, NMFS does not expect any marine mammals will incur 
serious injury, mortality or strandings in the Arctic Ocean.

Migration and Feeding

    During the period of seismic acquisition in the Chukchi and 
Beaufort seas, most marine mammals are expected to be widely dispersed 
throughout the area. Bowhead whales are expected to be concentrated in 
the Canadian Beaufort Sea during much of this time, where they are not 
expected to be affected by SOI's seismic program. The peak of the 
bowhead whale migration through the Beaufort and Chukchi Seas typically 
occurs in late August through October, and efforts to reduce potential 
impacts during this time will be addressed with the actual start of the 
migration and through discussions with the affected whaling 
communities. In the Chukchi Sea, the timing of seismic activities will 
take place while the whales are widely distributed and would be 
expected to occur in very low numbers within the seismic activity area. 
If SOI or another company conducts seismic surveys in late September or 
October in the Beaufort or Chukchi Sea, bowheads may travel in 
proximity to the seismic survey activity areas and hear sounds from 
vessel traffic and seismic activities, of which some might be displaced 
by the planned activities.
    The reduction of potential impacts during the 2008 fall bowhead 
whale migratory period were addressed through discussions with the 
whaling communities (and will continue through the late fall and 
winter, 2008/2009 in preparation for the 2009 season). Starting around 
late August bowheads may travel in proximity to SOI's planned Beaufort 
Sea seismic activity areas and may hear sounds from vessel traffic and 
seismic activities, of which some might be displaced seaward by the 
planned activities. However, SOI believes that it has significantly 
reduced its period of seismic operations in the Beaufort Sea in 2008 by 
remaining in the Chukchi Sea until early-September, entering the 
Beaufort Sea only after the fall subsistence hunt has concluded and 
after a significant portion of the bowhead whales would have left the 
Canadian Beaufort Sea on their westward migration to the Chukchi Sea 
(SOI ended its seismic collection program in the Beaufort Sea on 
October 10, 2008).
    In addition, although there was apparently a period of concentrated 
feeding in the central Beaufort Sea in September 2007, feeding does not 
normally appear to be an important activity by bowheads migrating 
through the eastern and central part of the Alaskan Beaufort Sea or the 
Chukchi Sea in most years. Sightings of bowhead whales occur in the 
summer near Barrow (Moore and DeMaster, 2000), and there are 
suggestions that certain areas near Barrow are important feeding 
grounds. In addition, a few bowheads can be found in the Chukchi and 
Bering Seas during the summer and Rugh et al. (2003) suggests that this 
may be an expansion of the western Arctic stock, although more research 
is needed. In the absence of important feeding areas, the potential 
diversion of a small number of bowheads away from seismic activities is 
not expected to have any significant or long-term consequences for 
individual bowheads or their population.

Effects on Individual Arctic Ocean Marine Mammal Species

    In order to facilitate the reader's understanding of the knowledge 
of impacts of impulsive noise on the principal marine mammal species 
that are expected to be affected by SOI's seismic survey program, NMFS 
has previously provided a summary of potential impacts on the bowhead, 
gray, and beluga whales and the ringed, spotted, and bearded seals. 
This information can be found in the Federal Register (72 FR 31553, 
June 7, 2007). Information on impacts on marine mammals by seismic 
activities can also be found in SOI's IHA application.

Numbers of Marine Mammals Expected to Be Harassed by Seismic Survey 
Activities

    The methodology used by SOI to estimate incidental take by 
harassment by seismic and the numbers of marine mammals that might be 
affected during the seismic acquisition activity area in the Chukchi 
and Beaufort seas has been presented in SOI's 2008 IHA application.
    In its application, SOI provides estimates of the number of 
potential ``exposures'' to sound levels equal to or greater than 160 dB 
re 1 microPa (rms). NMFS clarifies here that, except possibly for 
bowhead whales, the number of potential exposures calculated by SOI 
does not necessarily mean that this is the actual number of Level B 
harassments that would occur. First, exposure estimates do not take

[[Page 66131]]

into account variability between species or within a species by 
activity, age or sex. What this means is that not all animals are 
expected to react at the same level as its conspecifics, and all 
species are not expected to react at the same level, as some species in 
the Arctic will respond to sounds differently, if at all, depending 
upon whether or not they have good hearing in the same frequency range 
as seismic. Second, NMFS believes that SOI's use of the maximum density 
estimates for its requested take authorization (see IHA application and 
references for details) is overly cautious as it tends to inflate 
harassment take estimates to an unreasonably high number and is not 
based on good empirical science. NMFS believes that these inflated 
numbers have been provided and used by SOI for its Level B harassment 
take request in an abundance of caution because they present a worst-
case estimate. NMFS, on the other hand prefers to use the average 
density estimate numbers provided in Tables 6-1 through 6-5 in SOI's 
IHA application as these are the more realistic and scientifically 
supportable estimates. NMFS notes, for example, that the most 
comprehensive survey data set on ringed and bearded seals from the 
central and eastern Beaufort Sea was conducted on offshore pack ice in 
late spring. Density estimates of ringed and bearded seals were based 
on counts of seals on the ice during this survey, not in open water 
where seismic surveys are conducted. Consequently, the density and 
potential take (exposure) numbers for seals in the Beaufort and Chukchi 
seas likely overestimate the number of seals that could be encountered 
and/or exposed to seismic airguns because only animals in the water 
near the survey area would be exposed to seismic and site clearance 
activity sound sources. Because seals would be more widely dispersed 
while in open water, NMFS presumes that animal densities would be less 
than when seals are concentrated on and near the ice. Compounding that 
error, SOI calculated the maximum density for seals as 4 times the 
average density, which NMFS does not believe is supported by the best 
available science.
    The estimates for marine mammal ``exposure'' are based on a 
consideration of the number of marine mammals that might be appreciably 
disturbed during approximately 7974 km (4955 mi) of full 3D seismic 
surveys and approximately 4294 km (2668 mi) of mitigation gun activity 
in the Chukchi Sea and by approximately 4784 km (2973 mi) of full 3D 
seismic surveys and approximately 2576 km (1600 mi) of mitigation gun 
(a single small airgun used when the airgun array is not active to 
alert marine mammals to the presence of the survey vessel) activity in 
the Beaufort Sea. In addition to the 3D seismic program, the shallow 
hazards surveys using a 2 10 in\3\ airgun array will be performed along 
approximately 1237 km (769 mi) in the Beaufort Sea and approximately 
432 km (268 mi) in the Chukchi Sea.
    NMFS further notes that the close spacing of neighboring tracklines 
within the planned 3D seismic survey areas results in a limited amount 
of total area of the Chukchi and Beaufort seas being exposed to sounds 
> 160 dB while much of the survey area is exposed repeatedly. This 
means that the number of non-migratory cetaceans and pinnipeds exposed 
to seismic sounds would be less than if the seismic vessel conducted 
straight line transects of the sea without turning and returning on a 
nearby, parallel track. However, these animals may be exposed several 
times before the seismic vessel moves to a new site. In that regard, 
NMFS notes that the methodology used by SOI in its ``exposure'' 
calculations is more valid for seismic surveys that transect long 
distances, for those surveys that ``mow the lawn'' (that is, remain 
within a relatively small area, transiting back and forth while 
shooting seismic). In such situations, the Level B harassment numbers 
tend to be highly inflated for non-migratory marine mammals, if each 
``exposure'' is calculated to be a different animal and not, as here, a 
relatively small number of animals residing in the area and being 
``exposed'' to seismic sounds several times during the season. As a 
result, NMFS believes that SOI's estimated number of individual 
exposures does not account for multiple exposures of the same animal 
(principally non-migratory pinnipeds) instead of single animal 
exposures as the survey conducts a number of parallel transects of the 
same area (sometimes called bostrophodontical surveys) and the fact 
that the mitigation procedures would serve to reduce exposures to 
affected marine mammals.
    As mentioned previously, 3D seismic airgun arrays are composed of 
identically tuned Bolt-gun sub-arrays operating at 2,000 psi. In 
general, the signature produced by an array composed of multiple sub-
arrays has the same shape as that produced by a single sub-array while 
the overall acoustic output of the array is determined by the number of 
sub-arrays employed. The gun arrangement for the 1,049 square inches 
(in2) sub-array is detailed below and is comprised of three subarrays 
comprising a total 3,147 in\3\ sound source. The anticipated radii of 
influence of the bathymetric sonars and pinger are less than those for 
the air gun configurations described in Attachment A in SOI's IHA 
application. It is assumed that, during simultaneous operations of 
those additional sound sources and the air gun(s), any marine mammals 
close enough to be affected by the sonars or pinger would already be 
affected by the air gun(s). In this event, SOI believes that marine 
mammals are not expected to exhibit more than short-term and 
inconsequential responses, and such responses have not been considered 
to constitute a ``taking.'' Therefore, potential taking estimates only 
include noise disturbance from the use of air guns. The specifications 
of the equipment, including site clearance activities, to be used and 
areas of ensonification are described more fully in SOI's IHA 
application (see Attachment B in SOI's IHA application).

Cetaceans

    For belugas and gray whales in both the Beaufort and Chukchi Seas 
and bowhead whales in the Chukchi Sea, Moore et al. (2000b and c) offer 
the most current data to estimate densities during summer. Density 
estimates for bowhead whales in the Beaufort Sea were updated by 
information provided by Miller et al. (2002).
    Tables 6-1 and 6-2 (Chukchi Sea) and Tables 6-3 and 6-4 (beluga and 
bowhead: Beaufort Sea) provide density estimates for the summer and 
fall, respectively. Table 6-5 provides a summary of the expected 
densities for cetaceans (other than bowheads and belugas) and pinnipeds 
during all seasons in the Beaufort Sea.
    The number of different individuals of each species potentially 
exposed to received levels >160 dB re 1 microPa (rms) within each 
survey region, time period, and habitat zone was estimated by 
multiplying the expected species density, by the anticipated area to be 
ensonified to the 160-dB level in the survey region, time period, and 
habitat zone to which that density applies.
    The numbers of ``exposures'' were then summed by SOI for each 
species across the survey regions, seasons, and habitat zones. Some of 
the animals estimated to be exposed, particularly migrating bowhead 
whales, might show avoidance reactions before being exposed to >160 dB 
re 1 microPa (rms). Thus, these calculations actually estimate the 
number of individuals potentially exposed to >160 dB that would occur 
if there were no avoidance of the area ensonified to that level.
    For the full-3D airgun array, the cross track distance is 2 x the 
160-dB radius

[[Page 66132]]

which was measured in 2007 as 8.1 km (5.0 mi) in the Chukchi Sea and 
13.4 km (8.3 mi) in the Beaufort Sea. The mitigation gun's 160-dB 
radius was measured in 2007 at 1370 m (4495 ft) in the Chukchi Sea and 
Beaufort seas. For shallow hazards surveys to be performed by the M/V 
Henry Christofferson, the 160-dB radius measured in 2007 was equal to 
621 m (2037 ft). Using these distances, SOI estimates that the area 
ensonified in the Chukchi Sea is approximately 15,000 km\2\ and 
approximately 10,100 km\2\ in the Beaufort Sea.
    The estimated numbers of potential marine mammal ``exposures'' by 
SOI's surveys are presented in Tables 6-6 for the summer/fall period in 
the Chukchi Sea, Table 6-7 for bowhead and beluga whales in the U.S. 
Beaufort Sea and in Table 6-8 for marine mammals (other than bowheads 
and belugas) in the Beaufort Sea (all tables are found in SOI's 2008 
IHA application). Table 1 in this document (Table 6-9 in the IHA 
application) summarizes these exposure estimates based on the 160-dB re 
1 microPa (rms) criteria for cetaceans exposed to impulse sounds (such 
as seismic).
    SOI's estimates show that the bowhead whale is the only endangered 
marine mammal expected to be exposed to noise levels [gteqt]160 dB 
unless, as expected during the fall migratory period, bowheads avoid 
the approaching survey vessel before the received levels reach 160 dB. 
Migrating bowheads are likely to take avoidance measures, though many 
of the bowheads engaged in other activities, particularly feeding and 
socializing, probably will not. SOI's estimate of the number of bowhead 
whales potentially exposed to [gteqt]160 dB is 1540 animals (9 in the 
Chukchi Sea and 1531 in the Beaufort Sea (see Table 1)). Two other 
endangered cetacean species that may be encountered in the northern 
Chukchi/western Beaufort Sea areas, the fin whale and humpback whale, 
are estimated by SOI to have two exposures each in the Chukchi Sea. 
However, NMFS believes that at least for the fin whale, no animals 
would be so exposed given their low ``average'' estimates of densities 
in the area.
    Most of the cetaceans exposed to seismic sounds with received 
levels [gteqt]160 dB would involve bowhead, gray, and beluga whales, 
and the harbor porpoise. Average estimates of the number of exposures 
of cetaceans by 3D seismic surveys (other than bowheads), in descending 
order, are beluga (298), gray whale (183), and harbor porpoise (58). 
The regional breakdown of these numbers is shown in Tables 6-6 to 6-8. 
Estimates for other species are lower (Table 6-9). These estimates are 
also provided in Table 1 in this Federal Register notice.

 TABLE 1. Summary of the Number of Potential Exposures of Marine Mammals to Received Sound Levels in the Water of ?160 dB During SOI's Proposed Seismic
   Program in the Chukchi Sea and Beaufort Sea, Alaska, July - November, 2008. Not all marine mammals will change their behavior when exposed to these
                            sound levels, although some might alter their behavior somewhat when levels are lower (see text).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Number of Individuals Exposed to Sound Levels [gteqt]160dB
                                 -----------------------------------------------------------------------------------------------------------------------
             Species                            Chukchi Sea                            Beaufort Sea                                Total
                                 -----------------------------------------------------------------------------------------------------------------------
                                         Avg.                Max.                Avg.                Max.                Avg.                Max.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontocetes
  Monodontidae
    Beluga                        63                  254                 234                 938                 298                 1192
    Narwhal                       0                   0                   0                   0                   0                   0
  Delphinidae
    Killer whale                  2                   6                   0                   0                   2                   6
  Phocoenidae
    Harbor porpoise               57                  227                 2                   6                   58                  234
Mysticetes
    Bowhead Whale \a\             9                   46                  1531                1536                1540                1582
    Fin whale                     2                   6                   0                   0                   2                   6
    Gray whale                    182                 727                 2                   6                   183                 734
    Humpback whale                2                   6                   0                   0                   2                   6
    Minke whale                   2                   6                   0                   0                   2                   6
                                 -----------------------------------------------------------------------------------------------------------------------
    Total Cetaceans               70                  281                 1533                1543                1603                1824
Pinnipeds
    Bearded seal                  270                 405                 322                 1286                592                 1691
    Ribbon seal                   2                   6                   0                   0                   2                   6
    Ringed seal                   6951                10827               6305                25221               13256               36047
    Spotted seal                  361                 562                 61                  243                 422                 804
                                 -----------------------------------------------------------------------------------------------------------------------
    Total Pinnipeds               5678                8836                6687                26750               12366               35586
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ See text for description of bowhead whale estimate for the Beaufort Sea

Pinnipeds

    Ringed, spotted, and bearded seals are all associated with sea ice, 
and most census methods used to determine density estimates for 
pinnipeds are associated with counting the number of seals hauled out 
on ice. Correction factors have been developed for most pinniped 
species that address biases associated with detectability and 
availability of a particular species. Although extensive surveys of 
ringed and bearded seals have been conducted in the Beaufort Sea, the 
majority of the surveys have been conducted over the landfast ice and 
few seal surveys have been conducted in open water. The most 
comprehensive survey data set on ringed seals (and bearded seal) from 
the central and eastern Beaufort Sea was conducted on offshore pack ice 
in late

[[Page 66133]]

spring (Kingsley, 1986). It is important to note that all activities 
will be conducted during the open-water season and density estimates 
used here were based on counts of seals on ice. Therefore, densities 
and potential take numbers will overestimate the numbers of seals that 
would likely be encountered and/or exposed because only the animals in 
the water would be exposed to the seismic and clearance activity sound 
sources.
    The ringed seal is the most widespread and abundant pinniped in 
ice-covered arctic waters and ringed seals are expected to account for 
the vast majority of marine mammals expected to be encountered, and 
hence exposed to airgun sounds with received levels [gteqt]160 dB re 1 
microPa (rms) during SOI's seismic survey. The average estimate is that 
13,256 ringed seals might be exposed to seismic sounds with received 
levels [gteqt]160 dB. Two additional pinniped species (other than the 
Pacific walrus) are expected to be encountered. They are the bearded 
seal (592 exposures), and the spotted seal (422 exposures)(see Table 1 
in this document or Table 6-9 in the IHA application). The ribbon seal 
is unlikely to be encountered during SOI's seismic surveys since their 
presence is considered rare within the proposed SOI's survey areas.

Potential Marine Mammal Disturbance At Less Than 160 dB Received Levels

    As mentioned previously, during autumn seismic surveys in the 
Beaufort Sea, migrating bowhead whales displayed avoidance (i.e., 
deflection) at distances out to 20-30 km (12-19 mi) and received sound 
levels of ~130 dB (rms) (Miller et al., 1999; Richardson et al., 1999). 
Therefore, it is possible that a larger number of bowhead whales than 
estimated above may be disturbed to some extent if reactions occur at 
[gteqt]130 dB (rms).
    However, these references note that bowhead whales below the water 
surface at a distance of 20 km (12.4 mi) from an airgun array received 
pulses of about 117-135 dB re 1 microPa rms, depending upon 
propagation. Corresponding levels at 30 km (18.6 mi) were about 107-126 
dB re 1 microParms. Miller et al. (1999) surmise that deflection may 
have begun about 35 km (21.7 mi) to the east of the seismic operations, 
but did not provide SPL measurements to that distance, and noted that 
sound propagation has not been studied as extensively eastward in the 
alongshore direction, as it has northward, in the offshore direction. 
Therefore, while this single year of data analysis indicates that 
bowhead whales may make minor deflections in swimming direction at a 
distance of 30-35 km (18.6-21.7 mi), there is no indication that the 
sound pressure level (SPL) where deflection first begins is at 120 dB- 
it could be at another SPL lower or higher than 120 dB. Miller et al. 
(1999) also note that the received levels at 20-30 km (12.4-18.6 mi) 
were considerably lower in 1998 than have previously been shown to 
elicit avoidance in bowheads exposed to seismic pulses. However, the 
seismic airgun array used in 1998 was larger than the ones used in 1996 
and 1997. Therefore, NMFS believes that it cannot scientifically 
support adopting any single SPL value below 160 dB and apply it across 
the board for all species and in all circumstances.
    Second, NMFS has noted in the past that minor course changes during 
migration are not considered a significant behavioral change and, as 
indicated in MMS' 2006 Final PEA, have not been seen at other times of 
the year and during other activities. To show the contextual nature of 
this minor behavioral modification, recent monitoring studies of 
Canadian seismic operations indicate that when not migrating but 
involved in feeding, bowhead whales do not move away from a noise 
source at an SPL of 160 dB. Therefore, while bowheads may avoid an area 
of 20 km (12.4 mi) around a noise source, when such a determination 
requires a post-survey computer analysis to find that bowheads have 
made slight course change, NMFS believes that this does not rise to a 
level considered to be a significant behavioral response on the part of 
the marine mammals or under the MMPA, a ``take.'' NMFS therefore 
continues to estimate ``takings'' under the MMPA from impulse noises, 
such as seismic, as being at a distance of 160 dB (re 1 microPa). NMFS 
needs to point out however, that while this might not be a ``taking'' 
in the sense that there is not a significant behavioral response by 
bowhead whales, a minor course deflection by bowheads can have a 
significant impact on the subsistence uses of bowheads. As a result, 
NMFS still requires mitigation measures to ensure that the activity 
does not have an unmitigable adverse impact on subsistence uses of 
bowheads.
    Finally, SOI did not conduct seismic operations in the Beaufort Sea 
during that part of the fall bowhead migration that occurs at the same 
time as the fall bowhead subsistence hunt. As a result, a proportion of 
the bowhead population was able to migrate past the Beaufort Sea 
seismic survey area without being exposed to any seismic sounds. 
Limiting operations during the fall bowhead whale migration is also 
meant to reduce any chance of conflicting with subsistence hunting and 
continues at least until hunting quotas have been filled by the coastal 
communities.

Potential Impact on Habitat

    SOI states that the seismic activities will not result in any 
permanent impact on habitats used by marine mammals, or to their prey 
sources. Seismic activities will mostly occur during the time of year 
when bowhead whales are widely distributed and would be expected to 
occur in very low numbers within the seismic activity area (mid- to 
late-July through September). Any effects would be temporary and of 
short duration at any one place. The primary potential impacts to 
marine mammals is associated with elevated sound levels from the 
airguns were discussed previously in this document.
    A broad discussion on the various types of potential effects of 
exposure to seismic on fish and invertebrates can be found in the NMFS/
MMS Draft PEIS for Arctic Seismic Surveys (see ADDRESSES).
    Mortality to fish, fish eggs and larvae from seismic energy sources 
would be expected within a few meters (0.5 to 3 m (1.6 to 9.8 ft)) from 
the seismic source. Direct mortality has been observed in cod and 
plaice within 48 hours that were subjected to seismic pulses two meters 
from the source (Matishov, 1992), however other studies did not report 
any fish kills from seismic source exposure (La Bella et al., 1996; 
IMG, 2002; Hassel et al., 2003). To date, fish mortalities associated 
with normal seismic operations are thought to be slight. Saetre and Ona 
(1996) modeled a worst-case mathematical approach on the effects of 
seismic energy on fish eggs and larvae, and concluded that mortality 
rates caused by exposure to seismic are so low compared to natural 
mortality that issues relating to stock recruitment should be regarded 
as insignificant.
    Limited studies on physiological effects on marine fish and 
invertebrates to acoustic stress have been conducted. No significant 
increases in physiological stress from seismic energy were detected for 
various fish, squid, and cuttlefish (McCauley et al., 2000) or in male 
snow crabs (Christian et al., 2003). Behavioral changes in fish 
associated with seismic exposures are expected to be minor at best. 
Because only a small portion of the available foraging habitat would be 
subjected to seismic pulses at a given time, fish would be expected to 
return to the area of disturbance anywhere from 15-30 minutes (McCauley 
et al., 2000) to several days (Engas et al., 1996).

[[Page 66134]]

    Available data indicates that mortality and behavioral changes do 
occur within very close range to the seismic source; however, the 
seismic acquisition activities in the Chukchi and Beaufort seas are 
predicted by SOI to have a negligible effect to the prey resource of 
the various life stages of fish and invertebrates available to marine 
mammals occurring during the project's duration. In addition, it is 
unlikely that bowheads, gray, or beluga whales will be excluded from 
any habitat.

Effects of Seismic Noise and Other Related Activities on Subsistence

    The disturbance and potential displacement of marine mammals by 
sounds from seismic activities are the principal concerns related to 
subsistence use within the Beaufort and Chukchi seas. The harvest of 
marine mammals (mainly bowhead whales, but also ringed and bearded 
seals) is central to the culture and subsistence economies of the 
coastal North Slope and Western Alaskan communities. In particular, if 
fall-migrating bowhead whales are displaced farther offshore by 
elevated noise levels, the harvest of these whales could be more 
difficult and dangerous for hunters. The impact would be that whaling 
crews would necessarily be forced to travel greater distances to 
intercept westward migrating whales thereby creating a safety hazard 
for whaling crews and/or limiting chances of successfully striking and 
landing bowheads. The harvest could also be affected if bowheads become 
more skittish when exposed to seismic noise. Hunters relate how bowhead 
whales also appear ``angry'' due to seismic noise, making whaling more 
dangerous.
    This potential impact on subsistence uses of marine mammals will be 
mitigated by application of the procedures established in the CAA 
signed by SOI and the AEWC and the Whaling Captains' Associations of 
Kaktovik, Nuiqsut, Barrow, Pt. Hope and Wainwright. The CAA resulted in 
a curtailment of the times and locations of seismic and other noise 
producing sources during times of active bowhead whale scouting and 
actual whaling activities within the traditional subsistence hunting 
areas of the potentially affected communities. (See Mitigation for 
Subsistence). SOI states that seismic survey activities will also be 
scheduled to avoid the traditional subsistence beluga hunt which 
annually occurs in July in the community of Pt. Lay. As a result, SOI 
believes that there should be no adverse impacts on the availability of 
whale species for subsistence uses.
    In the Chukchi Sea, SOI's seismic work should not have unmitigable 
adverse impacts on the availability of the whale species for 
subsistence uses. The whale species normally taken by Inupiat hunters 
are the bowhead and belugas. SOI's Chukchi Sea seismic operations did 
not begin until after July 20, 2008 by which time the majority of 
bowheads will have migrated to their summer feeding areas in Canada. 
Even if any bowheads remain in the northeastern Chukchi Sea after July 
20, they are not normally hunted after this date until the return 
migration occurs around late September when a fall hunt by Barrow 
whalers takes place. In recent years, bowhead whales have occasionally 
been taken in the fall by coastal villages along the Chukchi coast, but 
the total number of these animals has been small. Seismic operations 
for the Chukchi Sea seismic program have been timed and located so as 
to avoid any possible conflict with the Village of Barrow's fall 
whaling, and specific provisions governing the timing and location have 
been incorporated into the previously mentioned CAA
    Beluga whales may also be taken sporadically for subsistence needs 
by coastal villages, but traditionally are taken in small numbers very 
near the coast. However, SOI established ``communication stations'' in 
the villages to monitor impacts. Gray whales, which will be relatively 
abundant in the northern Chukchi Sea from spring through autumn are not 
taken by subsistence hunters.

POC and CAA

    Regulations at 50 CFR 216.104(a)(12) require IHA applicants for 
activities that take place in Arctic waters to provide a POC or 
information that identifies what measures have been taken and/or will 
be taken to minimize adverse effects on the availability of marine 
mammals for subsistence purposes. SOI has summarized concerns received 
during 2006 and 2007 into the 2007 POC, which was submitted during June 
2007 to Federal agencies as well as to subsistence stakeholders, and 
updated in July 2007 and earlier this year. SOI has carried this multi-
year POC forward to address its proposed 2008 activities. SOI has 
developed the POC to mitigate and avoid any unreasonable interference 
by SOI's planned activities on North Slope subsistence uses and 
resources. The POC is the result of numerous meetings and consultations 
between SOI, affected subsistence communities and stakeholders, and 
Federal agencies beginning in October 2006 (see Table 12-1 in SOI's IHA 
application for a list of meetings). The POC identifies and documents 
potential conflicts and associated measures that will be taken to 
minimize any adverse effects on the availability of marine mammals for 
subsistence use. To be effective, SOI believes the POC must be a 
dynamic document which will expand to incorporate the communications 
and consultation that will continue to occur throughout 2008. Outcomes 
of POC meetings are included in quarterly updates attached to the POC 
and distributed to Federal, state, and local agencies as well as local 
stakeholder groups.
    In regard to the CAA, the AEWC submitted a draft CAA to the 
industry earlier this spring and was signed by SOI on July 28, 2008. 
The 2008 CAA incorporated all appropriate measures and procedures 
regarding the timing and areas of the SOI's planned activities (e.g., 
times and places where seismic operations will be curtailed or moved in 
order to avoid potential conflicts with active subsistence whaling and 
sealing); a communications system between SOI's vessels and whaling and 
hunting crews (i.e., the communications center will be located in 
strategic areas); provision for marine mammal observers/Inupiat 
communicators aboard all project vessels; conflict resolution 
procedures; and provisions for rendering emergency assistance to 
subsistence hunting crews. If requested, post-season meetings will also 
be held to assess the effectiveness of a 2008 CAA between SOI, the 
AEWC, and the Whaling Captains Associations, to address how well 
conflicts (if any) were resolved; and to receive recommendations on any 
changes (if any) might be needed in the implementation of future CAAs. 
In addition, NMFS has included in SOI's IHA, those mitigation and 
monitoring measures contained in the CAA that it believes would ensure 
that SOI's activities will not have an unmitigable impact on 
subsistence uses of marine mammals.

Mitigation and Monitoring

    As part of its application, SOI has implemented a marine mammal 
mitigation and monitoring program (4MP) that will consist of monitoring 
and mitigation during SOI's seismic and shallow-hazard survey 
activities. Monitoring will provide information on the numbers of 
marine mammals potentially affected by these activities and permit real 
time mitigation to prevent injury of marine mammals by industrial 
sounds or activities. These goals will be accomplished by conducting 
vessel-, aerial-, and acoustic-monitoring programs to characterize the

[[Page 66135]]

sounds produced by the seismic airgun arrays and related equipment and 
to document the potential reactions of marine mammals in the area to 
those sounds and activities. Acoustic modeling will be used to predict 
the sound levels produced by the seismic and shallow hazards equipment 
in the U.S. Beaufort and Chukchi Seas. For SOI's seismic program, 
acoustic measurements will also be made to establish zones of influence 
(ZOIs) around the activities that will be monitored by observers. 
Aerial monitoring and reconnaissance of marine mammals and recordings 
of ambient sound levels, vocalizations of marine mammals, and received 
levels should they be detectable using bottom-founded acoustic 
recorders along the Beaufort Sea coast will be used to interpret the 
reactions of marine mammals exposed to the activities. The components 
of SOI's mitigation and monitoring programs are briefly described next. 
Additional information can be found in SOI's application.

Mitigation Measures

    As part of its IHA application, SOI submitted its proposed 
mitigation and monitoring program for SOI's seismic programs in the 
Chukchi and Beaufort seas for 2008/2009. SOI notes that the seismic 
exploration program incorporates both design features and operational 
procedures for minimizing potential impacts on cetaceans and pinnipeds 
and on subsistence hunts. Seismic survey design features include: (1) 
Timing and locating seismic activities to avoid interference with the 
annual fall bowhead whale hunts; (2) configuring the airgun arrays to 
maximize the proportion of energy that propagates downward and 
minimizes horizontal propagation; (3) limiting the size of the seismic 
energy source to only that required to meet the technical objectives of 
the seismic survey; and (4) conducting pre-season modeling and early 
season field assessments to establish and refine (as necessary) the 
appropriate 180-dB and 190-dB safety zones, and other radii relevant to 
behavioral disturbance.
    The potential disturbance of cetaceans and pinnipeds during seismic 
operations will be minimized further through the implementation of the 
following ship-based mitigation measures.
Safety and Disturbance Zones
    Safety radii for marine mammals around airgun arrays are 
customarily defined as the distances within which received pulse levels 
are greater than or equal to 180 dB re 1 microPa (rms) for cetaceans 
and greater than or equal to 190 dB re 1 microPa (rms) for pinnipeds. 
These safety criteria are based on an assumption that seismic pulses at 
lower received levels will not injure these animals or impair their 
hearing abilities, but that higher received levels might result in such 
effects. It should be understood that marine mammals inside these 
safety zones will not be seriously injured or killed as these zones 
were established prior to the current understanding that significantly 
higher levels of impulse sounds would be required before injury or 
mortality would occur.
    In addition, monitoring similar to that conducted in the Chukchi 
Sea in 2007 is required under SOI's 2008/2009 IHA in the Chukchi and 
the Beaufort Seas. SOI is required to use MMOs onboard the seismic 
vessel to monitor the 190- and 180-dB (rms) safety radii for pinnipeds 
and cetaceans, respectively, and to implement appropriate mitigation as 
discussed in the proceeding sections. SOI is also required to monitor 
the 160-dB (rms) marine mammal disturbance zone with MMOs onboard the 
chase vessels as was done in 2006 and 2007. There has also been concern 
that received pulse levels as low as 120 dB (rms) may have the 
potential to disturb some whales. In 2006 and 2007, there was a 
requirement in the IHAs issued to SOI by NMFS to implement special 
mitigation measures if specified numbers of bowhead cow/calf pairs 
might be exposed to seismic sounds greater than 120-dB rms or if large 
groups (greater than 12 individuals) of bowhead or gray whales might be 
exposed to sounds greater than or equal to 160 dB rms. In 2007, 
monitoring of the 120-dB (rms) zone was required in the Beaufort Sea 
after September 25. As SOI did not conduct seismic surveys in the 
Chukchi Sea between September 25\th\ and the time ice prevented 
additional work in the Beaufort Sea (around October 10th), NMFS 
determined that SOI will not need to monitor the 120-dB (rms) zone in 
the Chukchi Sea in 2008 as the bowhead whale cow/calf migration period 
will have been substantially completed by that time. However, even if 
SOI had intended to operate during the timeframe immediately after 
September 25\th\, monitoring to the 120 dB for cow/calf pairs would not 
be required because NMFS has also determined aerial monitoring to the 
120-dB isopleth in the Chukchi Sea was impracticable due to safety 
concerns.
    During the 2006 and 2007 seismic programs in the Chukchi and 
Beaufort Seas, SOI utilized a combination of pre-season modeling and 
early season sound source verification to establish safety zones for 
these sound level criteria. As the equipment being utilized in 2008 is 
the same as that used in the 2006 and 2007 field seasons, and the 
majority of locations where seismic data is to be acquired were modeled 
prior to the 2006 and 2007 seasons, SOI was authorized under the IHA to 
initially utilize the derived (measured) sound criterion distances from 
2006. In addition, any locations not modeled previously will be modeled 
prior to 2008 survey initiation and mitigation distances and safety 
zones adjusted up, if necessary following sound measurements at the new 
locations. Modeling of the sound propagation is based on the size and 
configuration of the airgun array and on available oceanographic data. 
An acoustics contractor will perform the direct measurements of the 
received levels of underwater sound versus distance and direction from 
the airgun arrays using calibrated hydrophones. The acoustic data were 
analyzed and incorporated within the time period specified in the IHA 
and CAA. The mitigation measures implemented in 2008/2009 include ramp-
ups, power-downs, and shut-downs as described next.
Ramp-Up
    A ramp-up of an airgun array provides a gradual increase in sound 
levels, and involves a step-wise increase in the number and total 
volume of airguns firing until the full volume is achieved. The purpose 
of a ramp-up (or ``soft start'') is to ``warn'' cetaceans and pinnipeds 
in the vicinity of the airguns and to provide time for them to leave 
the area and thus avoid any potential injury or impairment of their 
hearing abilities. During the 2008/2009 seismic program, SOI is 
required to ramp-up the airgun arrays slowly, at a rate no greater than 
6 dB/5 minute period. Full ramp-ups (i.e., from a cold start after a 
shut-down, when no airguns have been firing) will begin by firing a 
small airgun in the arrays. Also, the minimum shut-down period, (i.e., 
without air guns firing), which must be followed by a ramp-up is the 
amount of time it would take the source vessel to cover the 180-dB 
safety radius.
    A full ramp-up, after a shut-down, cannot begin until there has 
been a minimum of a 30-minute period of observation by MMOs of the 
safety zone to assure that no marine mammals are present. The entire 
safety zone must be visible during the 30-minute leading up to a full 
ramp-up. If the entire safety zone is not visible, then ramp-up from a 
cold start cannot begin. If a marine mammal(s) is sighted within the 
safety

[[Page 66136]]

zone during the 30-minute watch prior to ramp-up, ramp-up will be 
delayed until the marine mammal(s) is sighted outside of the safety 
zone or the animal(s) is not sighted for at least 15-30 minutes: 15 
minutes for small odontocetes and pinnipeds, or 30 minutes for baleen 
whales and large odontocetes.
    During periods of turn around and transit between seismic 
transects, at least one airgun may remain operational to alert marine 
mammals in the area of the vessel's location. The ramp-up procedure 
still will be followed when increasing the source levels from one air 
gun to the full arrays. Moreover, keeping one air gun firing will avoid 
the prohibition of a cold start during darkness or other periods of 
poor visibility. Through use of this approach, seismic operations can 
resume upon entry to a new transect without a full ramp-up and the 
associated 30-minute lead-in observations. MMOs will be on duty 
whenever the airguns are firing during daylight, and during the 30-min 
periods prior to ramp-ups as well as during ramp-ups. Daylight will 
occur for 24 hr/day until mid-August, so until that date MMOs will 
automatically be observing during the 30-minute period preceding a 
ramp-up. Later in the season, MMOs will be called out at night to 
observe prior to and during any ramp-up. The seismic operator and MMOs 
will maintain records of the times when ramp-ups start, and when the 
airgun arrays reach full power.
Power-downs and Shut-downs
    A power-down is the immediate reduction in the number of operating 
airguns from all guns firing to some smaller number. A shut-down is the 
immediate cessation of firing of all airguns. The airgun arrays will be 
immediately powered down whenever a marine mammal is sighted 
approaching close to or within the applicable safety zone of the full 
airgun arrays (i.e., 180 dB rms for cetaceans, 190 dB rms for 
pinnipeds), but is outside the applicable safety zone of the single 
airgun. If a marine mammal is sighted within the applicable safety zone 
of the single airgun, the airgun array will be shut-down (i.e., no 
airguns firing). Although observers will be located on the bridge ahead 
of the center of the airgun array, the shut-down criterion for animals 
ahead of the vessel will be based on the distance from the bridge 
(vantage point for MMOs) rather than from the airgun array - a 
precautionary approach. For marine mammals sighted alongside or behind 
the airgun array, the distance is measured from the array.
Operations at Night and in Poor Visibility
    When operating under conditions of reduced visibility attributable 
to darkness or to adverse weather conditions, infra-red or night-vision 
binoculars will be available and required to be used. However, it is 
recognized that their effectiveness is limited. For that reason, MMOs 
will not routinely be on watch at night, except in periods before and 
during ramp-ups. It should be noted that if one small airgun remains 
firing, the rest of the array can be ramped up during darkness or in 
periods of low visibility. Seismic operations may continue under 
conditions of darkness or reduced visibility.

Determination on Mitigation

    NMFS believes that the combination of use of the mitigation gun, 
ramp-up of the seismic airgun array and the slow vessel speed (to allow 
marine mammals sufficient time to take necessary avoidance measures), 
the use of trained marine mammal observers and shut-down procedures (to 
avoid potential injury if the animal is close to the vessel), and the 
behavioral response of marine mammals (especially bowhead whales) to 
avoid areas of high anthropogenic noise all provide protection to 
marine mammals from serious injury or mortality. As a result, NMFS 
believes that it is not necessary to require termination of survey 
activities during darkness or reduced visibility and that the current 
level of mitigation will achieve the least practicable impact on marine 
mammal species or stocks result.

Marine Mammal Monitoring

    SOI will implement a marine mammal monitoring program (4MP) to 
collect data to address the following specific objectives: (1) improve 
the understanding of the distribution and abundance of marine mammals 
in the Chukchi and Beaufort sea project areas; (2) understand the 
propagation and attenuation of anthropogenic sounds in the waters of 
the project areas; (3) determine the ambient sound levels in the waters 
of the project areas; and (4) assess the effects of sound on marine 
mammals inhabiting the project areas and their distribution relative to 
the local people that depend on them for subsistence hunting.
    These objectives and the monitoring and mitigation goals will be 
addressed by: (1) vessel-based MMOs on the seismic source and other 
support vessels; (2) an acoustic program to predict and then measure 
the sounds produced by the seismic operations and the possible 
responses of marine mammals to those sounds; (3) an aerial monitoring 
and reconnaissance of marine mammals available for subsistence harvest 
along the Chukchi Sea coast; and (4) bottom-founded autonomous acoustic 
recorder arrays along the Alaskan coast and offshore in the Chukchi and 
Beaufort seas to record ambient sound levels, vocalizations of marine 
mammals, and received levels of seismic operations should they be 
detectable.

Seismic Source Vessel-based Visual Monitoring

    SOI is required to deploy and utilize a specified number of MMOs on 
each of the seismic source vessels to meet the following criteria: (1) 
100 percent monitoring coverage during all periods of seismic 
operations in daylight and for the 30 minutes prior to starting ramp-up 
and for the number of minutes required to reach full ramp-up; (2) 
coverage during darkness for 30-minutes before and during ramp-ups 
(provided MMOs verify that they can clearly see the entire safety 
zone); (3) maximum of 4 consecutive hours on watch per MMO; (4) maximum 
of approximately 12 hours on watch per day per MMO with no other 
shipboard duties; and (5) two-MMO coverage during ramp-up and the 30 
minutes prior to full ramp-ups and for as large a fraction of the other 
operating hours as possible.
    To accomplish these tasks SOI is required to have three to five 
MMOs (including one Inupiat observer/communicator) based aboard the 
seismic vessel. However, NMFS does not consider Inupiat observers to be 
included in the required minimum number of MMOs unless they have 
undergone MMO training at a facility approved in advance by NMFS. MMOs 
will search for and observe marine mammals whenever seismic operations 
are in progress and for at least 30 minutes before the planned start of 
seismic transmissions or whenever the seismic array's operations have 
been suspended for more than 10 minutes. The MMOs will scan the area 
immediately around the vessels with reticle binoculars during the 
daytime. Laser rangefinding equipment will be available to assist with 
distance estimation. After mid-August, when the duration of darkness 
increases, image intensifiers will be used by observers and additional 
light sources may be used to illuminate the safety zone.
    The seismic vessel-based work will provide the basis for real-time 
mitigation (airgun power-downs and, as necessary, shut-downs), as 
called for by

[[Page 66137]]

the IHA; information needed to estimate the ``take'' of marine mammals 
by harassment, which must be reported to NMFS; data on the occurrence, 
distribution, and activities of marine mammals in the areas where the 
seismic program is conducted; information to compare the distances, 
distributions and behavior; movements of marine mammals relative to the 
source vessels at times with and without seismic activity; a 
communication channel to Inupiat whalers through the Communications 
Coordination Center in coastal villages; and continued employment and 
capacity building for local residents, with one objective being to 
develop a larger pool of experienced Inupiat MMOs.
    The use of four or more MMOs allows two observers to be on duty 
simultaneously for up to 50 percent of the active airgun hours. The use 
of two observers increases the probability of detecting marine mammals, 
and two observers will be on duty for the entire duration of time 
whenever the seismic array is ramped up. As mentioned previously, 
individual watches will be limited to no more than 4 consecutive hours 
to avoid observer fatigue (and no more than 12 hours on watch per 24 
hour day). When mammals are detected within or about to enter the 
safety zone designated to prevent injury to the animals (see 
Mitigation), the geophysical crew leader will be notified so that 
shutdown procedures can be implemented immediately. Details of the 
vessel-based marine mammal monitoring program are described in SOI's 
IHA application (see Appendix B).

Chase Boat Monitoring

    MMOs will also be present on smaller support vessels that travel 
with the seismic source vessel. These support vessels are commonly 
known as ``guard boats'' or ``chase boats.'' During seismic operations, 
a chase boat remains very near to the stern of the source vessel 
anytime that a member of the source vessel crew is on the back deck 
deploying or retrieving equipment related to the seismic array. Once 
the seismic array is deployed the chase boat then serves to keep other 
vessels away from the seismic source vessel and the seismic array 
itself (including hydrophone streamer) during production of seismic 
data and provide additional emergency response capabilities.
    In the Chukchi and Beaufort seas in 2008, SOI's seismic source 
vessel will have one associated chase boat and possibly an additional 
supply vessel. The chase boat and supply vessel (if present) will have 
three MMOs onboard to collect marine mammal observations and to monitor 
the 160 dB (rms) disturbance zone from the seismic airgun array. MMOs 
on the chase boats will be able to contact the seismic ship if marine 
mammals are sited. To maximize the amount of time during the day that 
an observer is on duty, two observers aboard the chase boat or supply 
vessel will rarely work at the same time. As on the source vessels, 
shifts will be limited to 4 hrs in length and 12 hrs total in a 24 hr 
period.
    SOI is required to monitor the 160-dB (rms) disturbance radius in 
2008 using MMOs onboard the chase vessel. The 160-dB radius in the 
Chukchi Sea in 2007 and 2008 was determined by JASCO (2007, 2008)) to 
extend broadside of the vessel to ~8.1 km (5.0 mi) and 12.3 km (7.6 mi) 
from the airgun source on the M/V Gilavar in 2007 and 2008, 
respectively. In the Beaufort Sea, the 160-dB radius was measured at 
13.45 km (8.4 mi)in 2007 and 9.0 km (5.6 mi) in 2008 (JASCO, 2007, 
2008). This area around the seismic vessel was monitored by MMOs 
onboard the M/V Gulf Provider (the chase boat used in 2006 and 2007 
operations). As in 2007, the M/V Gulf Provider will travel ~8 km (5 mi) 
ahead and to the side of the M/V Gilavar as it monitors the 260-dB 
zone. MMOs onboard the M/V Gulf Provider will search the area ahead of 
the M/V Gilavar within the 160-dB zone for marine mammals. Every 8 km 
(5 mi) or so, the M/V Gulf Provider will move to the other side of the 
M/V Gilivar continuing in a stair-step type pattern. The distance at 
which the M/V Gulf Provider (or other equivalent vessel) travels ahead 
of the M/V Gilavar will be determined by the measured 160-dB radius. 
Mitigation (i.e., shut-down of the airgun array) will be implemented if 
a group of 12 or more bowhead or gray whales enter the 160-dB zone. SOI 
will use this same protocol in the Beaufort Sea after the 160-dB radius 
has been determined.
    The measured distance to the 180-dB isopleth ranges from about 2.45 
km (1.5 mi) in the Chukchi Sea to about 2.2 km (1.4 mi) in the Beaufort 
Sea near the Sivulliq prospect. For 2008, SOI decided to use an 
additional vessel to monitor this zone given its importance in 
protecting marine mammals from potential injury associated with 
exposure to seismic pulses.
Aerial Survey Program
    SOI conducted an aerial survey program in support of the seismic 
exploration program in the Beaufort Sea during summer and fall of 2008. 
The objectives of the aerial survey are to: (1) to advise operating 
vessels as to the presence of marine mammals in the general area of 
operation; (2) to provide mitigation monitoring (120 dB zones) as may 
be required under the conditions of the IHA; (3) to collect and report 
data on the distribution, numbers, movement and behavior of marine 
mammals near the seismic operations with special emphasis on migrating 
bowhead whales; (4) to support regulatory reporting and Inupiat 
communications related to the estimation of impacts of seismic 
operations on marine mammals; (5) to monitor the accessibility of 
bowhead whales to Inupiat hunters and (6) to document how far west of 
seismic activities bowhead whales travel before they return to their 
normal migration paths, and if possible, to document how far east of 
seismic operations the deflection begins.
    The same aerial survey design is required to be implemented during 
the summer (August) and fall (late August-October) period, but during 
the summer, the survey grid was flown twice a week, and during the 
fall, flights will be conducted daily. During the early summer, few 
cetaceans are expected to be encountered in the nearshore Alaskan 
Beaufort Sea where seismic surveys will be conducted. Those cetaceans 
that are encountered are expected to be either along the coast (gray 
whales: (Maher, 1960; Rugh and Fraker, 1981; Miller et al., 1999; 
Treacy, 2000) or seaward of the continental shelf among the pack ice 
(bowheads: Moore et al., 1989b; Miller et al., 2002; and belugas: Moore 
et al., 1993; Clark et al., 1993; Miller et al., 1999) north of the 
area where seismic surveys are to be conducted. During some years a few 
gray whales are found feeding in shallow nearshore waters from Barrow 
to Kaktovik but most sightings are in the western part of that area.
    During the late summer and fall, the bowhead whale is the primary 
species of concern, but belugas and gray whales are also present. 
Bowheads and belugas migrate through the Alaskan Beaufort Sea from 
summering areas in the central and eastern Beaufort Sea and Amundsen 
Gulf to their wintering areas in the Bering Sea (Clarke et al., 1993; 
Moore et al., 1993; Miller et al., 2002). Some bowheads are sighted in 
the eastern Alaskan Beaufort Sea starting mid-August and near Barrow 
starting late August but the main migration does not start until early 
September.
    The aerial survey procedures will be generally consistent with 
those during earlier industry studies (Miller et al., 1997, 1998, 1999; 
Patterson et al., 2007). This will facilitate comparison and pooling of 
data where appropriate. However, SOI notes that the specific

[[Page 66138]]

survey grids will be tailored to SOI's operations and the time of year. 
Information on survey procedures can be found in SOI's IHA application.

Survey Design in the Beaufort Sea in Summer

    The main species of concern in the Beaufort Sea is the bowhead 
whale but smaller numbers of belugas, and in some years, gray whales, 
are present in the Beaufort Sea during summer (see above). Few bowhead 
whales are expected to be found in the Beaufort Sea during early 
August; however, a reduced aerial survey program will be conducted 
during the summer prior to seismic operations to confirm the 
distribution and numbers of bowheads, gray whales and belugas, because 
no recent surveys have been conducted at this time of year. The few 
bowheads that were present in the Beaufort Sea during summer in the 
late 1980s were generally found among the pack ice in deep offshore 
waters of the central Beaufort Sea (Moore and DeMaster, 1998; Moore et 
al., 2000). Although gray whales were rarely sighted in the Beaufort 
Sea prior to the 1980s (Rugh and Fraker, 1981), sightings appear to 
have become more common along the coast of the Beaufort Sea in summer 
and early fall (Miller et al., 1999; Treacy 1998, 2000, 2002; Patterson 
et al., 2007) possibly because of increases in the gray whale 
population and/or reductions in ice cover in recent years. Because no 
summer surveys have been conducted in the Beaufort Sea since the 1980s, 
the information on summer distribution of cetaceans will be valuable 
for planning future seismic or drilling operations. The grid that was 
flown in the summer was essentially the same grid flown later in the 
year, but it was flown twice a week instead of daily. If cetaceans are 
encountered in the vicinity of planned seismic operations, then SOI 
will fly the survey grid proposed for later in the season, rather than 
the early-season survey plan. Surveys were conducted 2 days/week until 
the period one week prior to the start of seismic operations in the 
Beaufort Sea (early September). Approximately one week prior to the 
start of seismic operations, daily surveys were begun using the grid 
shown in Figure 3 in Appendix B of SOI's IHA application. Exact dates 
for activities will be provided in SOI's 90-day report, due later this 
year.

Survey Design in the Beaufort Sea in Fall

    Aerial surveys flown during the late August-October period were 
designed to provide mitigation monitoring as required under by the IHA. 
For example, mitigation monitoring is required under SOI's IHA to 
ensure that 4 or more mother-calf bowhead pairs do not approach to 
within the 120 dB re 1 microPa (rms) radius from the active seismic 
operation. However, priority is given to mitigation monitoring to the 
east of the seismic operation (see Appendix B, Figure 2 in SOI's 2008 
IHA application). SOI suggests, that, if permitted by the IHA, it is 
prepared to conduct some surveys to collect data on the extent of 
westward deflection while still monitoring the 120-dB radius to the 
east of the seismic operation. These surveys are necessary to obtain 
detailed data (weather permitting) on the occurrence, distribution, and 
movements of marine mammals, particularly bowhead whales, within an 
area that extends about 100 km (62 mi) to the east of the primary 
seismic vessel to a few km west of it, and north to about 65 km (40 mi) 
offshore. A westward emphasis would obtain the same data for an area 
about 100 km (62 mi) to the west of the primary seismic vessel and 
about 20 km (12 mi) east of it; again about 65 km (40 mi) offshore. 
This site-specific survey coverage will complements the simultaneous 
MMS/NMFS National Marine Mammal Laboratory Bowhead Whales Aerial Survey 
Program (BWASP) survey coverage of the broader Beaufort Sea area.
    The survey grid will provide data both within and beyond the 
anticipated immediate zone of influence of the seismic program, as 
identified by Miller et al. (1999). Miller et al. (1999) were not able 
to determine how far upstream and downstream (i.e., east and west) of 
the seismic operations bowheads began deflecting and then returned to 
their ``normal'' migration corridor. That is an important concern for 
the Inupiat whalers. SOI notes that the survey grid is not able to 
address that concern because of the need to extend flights well to the 
east to detect mother-calf pairs before they are exposed to seismic 
sounds greater than 120 dB re 1 microPa.
    If, due to ice or other operational restrictions, SOI may modify 
the aerial survey grid in order to maintain aerial observations to 100 
km (62 mi) east (or west) of the seismic survey area. This is necessary 
because the total km/mi of aerial survey that can be conducted each day 
is limited by the fuel capacity of the aircraft. The only alternative 
to ensure adequate aerial survey coverage over the entire area where 
seismic activities might influence bowhead whale distribution is to 
space the individual transects farther apart. For each 15-20 km (9.3-
12.4 mi) increase in the east-west size of the seismic survey area, the 
spacing between lines will need to be increased by 1 km (0.62 mi) to 
maintain survey coverage from 100 km (62 mi) east to 20 km (12.4 mi) 
west of the seismic activities (or vice versa). Data from the 
easternmost transects of the survey grid will document the main bowhead 
whale migration corridor east of the seismic exploration area and will 
provide the baseline data on the location of the migration corridor 
relative to the coast.
    SOI did not fly a smaller ``intensive'' survey grid in 2008 (and 
the current IHA will expire prior to this activity in 2009). In 
previous years, a separate grid of 4-6 shorter transects was flown, 
whenever possible, to provide additional survey coverage within about 
20 km (12.4 mi) of the seismic operations. This coverage was designed 
to provide additional data on marine mammal utilization of the actual 
area of seismic exploration and immediately adjacent waters. The 1996-
98 studies showed that bowhead whales were almost entirely absent from 
the area within 20 km (12.4 mi) of the active seismic operation (Miller 
et al. 1997, 1998, 1999). Thus, the flying-time that (in the past) 
would have been expended on flying the intensive grid will be used to 
extend the coverage farther to the east and west of the seismic 
activity.
    Depending on the distance offshore where seismic is being 
conducted, the survey grid may not extend far enough offshore to 
document whales which could potentially deflect north of the operation. 
In this case, SOI would extend the north ends of the transects farther 
north so that they extend 30-35 km (19-22 mi) north of the seismic 
operation and the two most westerly (or easterly depending upon the 
survey design) lines will not be surveyed. This means that the survey 
lines will only extend as far west as the seismic operation or start as 
far east as the seismic operations. SOI states that it is not possible 
to move the grid north without surveying areas south of the seismic 
operation because some whales may deflect south of the seismic 
operation and that deflection must be monitored.
    Aerial survey coverage of the area of most recent seismic 
operations continued for several days after seismic surveys by the M/V 
Gillavar ended on October 10, 2008. This survey provided ``post-
seismic'' data on whale distribution for comparison with whale 
distribution during seismic periods. These data will be used in 
analyses to estimate the extent of deflection during seismic activities 
and the duration of any potential deflection after surveys are 
completed.

[[Page 66139]]

    The survey grid patterns for summer and fall time periods are 
described in detail in SOI's IHA application.

Joint Industry Studies Program

Chukchi Sea Coastal Aerial Survey
    The only recent aerial surveys of marine mammals in the Chukchi Sea 
were conducted along coastal areas of the Chukchi Sea to approximately 
20 nmi (37 km) offshore in 2006 and 2007 in support of SOI's summer 
seismic exploration. These surveys provided data on the distribution 
and abundance of marine mammals in nearshore waters of the Chukchi Sea. 
Population sizes of several species found they may have changed 
considerably since earlier surveys were conducted and their 
distributions may have changed because of changes in ice conditions. 
SOI will conduct an aerial survey program in the Chukchi Sea in 2008 
that will be similar to the 2006 and 2007 programs.
    Alaskan Natives from several villages along the east coast of the 
Chukchi Sea hunt marine mammals during the summer and Native 
communities are concerned that offshore oil and gas development 
activities such as seismic exploration may negatively impact their 
ability to harvest marine mammals. Of particular concern is the 
potential impact on the beluga harvest at Point Lay and on future 
bowhead harvests at Point Hope, Wainwright and Barrow. Other species of 
concern in the Chukchi Sea include the gray whale, bearded, ringed, and 
spotted seals, and walrus. The gray whale is expected to be one of the 
most numerous cetacean species encountered during the summer seismic 
activities, although beluga whales and harbor porpoise may also occur 
in the area. The ringed seal is likely to be the most abundant pinniped 
species. The current aerial survey program has been designed to collect 
distribution data on cetaceans but will be limited in its ability to 
collect similar data on pinnipeds because of aircraft altitude.
    The aerial survey program will be conducted in support of the SOI 
seismic program in the Chukchi Sea during summer and fall of 2008/2009. 
The objectives of the aerial survey will be (1) to address data 
deficiencies in the distribution and abundance of marine mammals in 
coastal areas of the eastern Chukchi Sea; and (2) to collect and report 
data on the distribution, numbers, orientation and behavior of marine 
mammals, particularly beluga whales, near traditional hunting areas in 
the eastern Chukchi Sea.
    Aerial surveys of coastal areas to approximately 20 mi (37 km) 
offshore between Point Hope and Point Barrow began in early- to mid-
July and will continue until mid-November or until seismic operations 
in the Chukchi Sea are completed. Weather and equipment permitting, 
surveys will be conducted twice per week during this time period. In 
addition, during the 2008/2009 field season, SOI will coordinate and 
cooperate with the aerial surveys conducted by NMFS' National Marine 
Mammal Laboratory for MMS and any other groups conducting surveys in 
the same region. For a description of the aerial survey procedures, 
please see SOI's IHA application.

Acoustic ``Net'' Array: Chukchi Sea

    The acoustic ``net'' array used during the 2008 field season in the 
Chukchi Sea was designed to accomplish two main objectives. The first 
was to collect information on the occurrence and distribution of beluga 
whales that may be available to subsistence hunters near villages 
located on the Chukchi Sea coast. The second objective was to measure 
the ambient noise levels near these villages and record received levels 
of sounds from seismic survey activities further offshore in the 
Chukchi Sea.
    The net array configuration used in 2007 deployed again in 2008. 
The basic components are 30 ocean bottom hydrophones (OBH) systems. Two 
separate deployments with different placement configurations are 
planned. The first deployment will occur in mid-July immediately 
following the beluga hunt and will be adjusted to avoid any 
interference with the hunt. The initial net array configuration will 
include and extend the 2006 configuration (see Figures 8 and 9 in 
Appendix B of SOI's application for number of OBHs and locations for 
the two deployments). These offshore systems will capture seismic 
exploration sounds over large distances to help characterize the sound 
transmission properties of larger areas of the Chukchi Sea.
    A second deployment occurred in late August at the same time that 
all currently deployed systems will be recovered for battery 
replacement and data extraction. The second deployment emphasized the 
offshore coverage out to 72 degrees North (80 nm north of Wainwright, 
150 nm (172 mi; 278 km) north of Point Lay, and 180 nm (207mi; 333 km) 
north of Cape Lizbourne. The primary goal of extending the arrays 
further offshore later in the season is to obtain greater coverage of 
the central Chukchi Sea to detect vocalization from migrating bowheads 
starting in September. The specific geometries and placements of the 
arrays are primarily driven by the objectives of (a) detecting the 
occurrence and approximate offshore distributions of belugas and 
possibly bowhead whales during the July to mid-August period and 
primarily by bowhead whales during the mid-August to late-October 
period, (b) measuring ambient noise, and (c) measuring received levels 
of seismic survey activities. Timing of deployment and final positions 
will b subject to weather and ice conditions, based on consultation 
with local villages, and carried out to minimize any interference with 
subsistence hunting or fishing activities.
    Additionally, a set of 4 to 6 OBH systems were scheduled to be 
deployed near the end of the season to collect data throughout the 
winter.

Acoustic Array: Beaufort Sea

    In addition to the continuation of the acoustic net array program 
in the Chukchi Sea in 2008/2009, SOI also continued a program to deploy 
directional acoustic recording systems in the Beaufort Sea. The purpose 
of the array will be to further understand, define, and document sound 
characteristics and propagation resulting from offshore seismic and 
other industry operations that may have the potential to cause 
deflections of bowhead whales from anticipated migratory pathways. Of 
particular interest will be the east-west extent of deflection (i.e. 
how far east of a sound source do bowheads begin to deflect and how far 
to the west beyond the sound source does deflection persist). Of 
additional interest will be the extent of offshore deflection that 
occurs.
    In previous work around seismic and drill-ship operations in the 
Alaskan Beaufort Sea, the primary method for studying this issue has 
been aerial surveys. Acoustic localization methods provide a 
supplementary method for addressing these questions. As compared with 
aerial surveys, acoustic methods have the advantage of providing a 
vastly larger number of whale detections, and can operate day or night, 
independent of visibility, and to some degree independent of ice 
conditions and sea state-all of which prevent or impair aerial surveys. 
However, acoustic methods depend on the animals to call, and to some 
extent assume that calling rate is unaffected by exposure to industrial 
noise. Bowheads do call frequently in the fall, but there is some 
evidence that their calling rate may be reduced upon exposure to 
industrial sounds, complicating interpretation. The combined use of 
acoustic and aerial survey methods will provide information about these 
issues.
    SOI contracted with JASCO to conduct the whale acoustic monitoring

[[Page 66140]]

program using the passive acoustics techniques developed and used 
successfully since 2001 for monitoring the bowhead migration past BP's 
Northstar oil production facility northwest of Prudhoe Bay. Those 
techniques involve using directional autonomous seafloor acoustic 
recorders (DASARs) to measure the arrival angles of bowhead calls at 
known locations, then triangulating to locate the calling whale. 
Thousands, in some years tens of thousands, of whale calls have been 
located each year since 2001. The 2008/2009 study will use a new model 
of the DASAR similar to those deployed in 2007. Figure 11 in Appendix B 
of SOI's IHA application shows potential locations of the DASARs. The 
results of these data will be used to determine the extent of 
deflection of migrating bowhead whales from the sound sources. More 
information on DASARs and this part of SOI's monitoring program can be 
found in SOI's IHA application.

Additional Mitigation and Monitoring Measures

    In addition to the standard mitigation and monitoring measures 
mentioned previously, the IHA issued to SOI requires SOI to undertake 
additional mitigation/monitoring measures (such as expanded monitoring-
safety zones for bowhead and gray whales, and having those zones 
monitored effectively) to ensure that impacts on marine mammals are at 
the lowest level practicable. The additional mitigation measures are 
specific to the SOI seismic project, in part because SOI incorporated 
monitoring measures in the 4MP document that makes this monitoring 
practicable. It should be recognized that these mitigation/monitoring 
measures do not establish NMFS policy applicable to other projects or 
other locations under NMFS' jurisdiction, as each application for an 
IHA is context-specific. These measures have been developed based upon 
available data specific to the project areas. NMFS and MMS intend to 
collect additional information from all sources, including industry, 
non-governmental organizations, Alaska Natives and other Federal and 
state agencies regarding measures necessary for effectively monitoring 
marine mammal populations, assessing impacts from seismic on marine 
mammals, and determining practicable measures for mitigating those 
impacts. MMS and NMFS anticipate that mitigation measures applicable to 
future seismic and other activities may change and evolve based on 
newly-acquired data.

Reporting

Daily Reporting

    SOI will collect, via the aerial flights, unanalyzed bowhead 
sighting and flightline data which will be exchanged between MMS and 
SOI on a daily basis during the field season. NMFS recommends that each 
team submit its sighting information to NMFS in Anchorage each day. 
After the SOI and MMS data files have been reviewed and finalized, they 
will be shared in digital form.

Interim Report

    The results of the 2008 SOI vessel-based monitoring, including 
estimates of take by harassment, will be presented in the ``90 day'' 
and final Technical Report as required by NMFS in the IHAs. SOI's 
Technical Report will include: (1) summaries of monitoring effort: 
total hours, total distances, and distribution through study period, 
sea state, and other factors affecting visibility and detectability of 
marine mammals; (2) analyses of the effects of various factors 
influencing detectability of marine mammals: sea state, number of 
observers, and fog/glare; (3) species composition, occurrence, and 
distribution of marine mammal sightings including date, water depth, 
numbers, age/size/gender categories, group sizes, and ice cover; (4) 
sighting rates of marine mammals versus operational state (and other 
variables that could affect detectability); (5) initial sighting 
distances versus operational state; (6) closest point of approach 
versus seismic state; (7) observed behaviors and types of movements 
versus operational state; (8) numbers of sightings/individuals seen 
versus operational state; (9) distribution around the drilling vessel 
and support vessels versus operational state; and (10) estimates of 
take based on (a) numbers of marine mammals directly seen within the 
relevant zones of influence (160 dB, 180 dB, 190 dB (if SPLs of that 
level are measured)), and (b) numbers of marine mammals estimated to be 
there based on sighting density during daytime hours with acceptable 
sightability conditions. This report will be due 90 days after 
termination of the 2008 open water season and will include the results 
from any seismic work conducted in the Chukchi/Beaufort Seas in 2008 
under the previous IHA.

Comprehensive Monitoring Reports

    In November 2007, SOI (in coordination and cooperation with other 
Arctic seismic IHA holders) released a final, peer-reviewed edition of 
the 2006 Joint Monitoring Program in the Chukchi and Beaufort Seas, 
July-November 2006 (LGL, 2007). This report is available for 
downloading on the NMFS website (see ADDRESSES). A draft comprehensive 
report for 2007 was provided to NMFS and those attending the NMFS/MMS 
Arctic Ocean open water meeting in Anchorage, AK on April 14-16, 2008. 
Based on reviewer comments made at that meeting, SOI is currently 
revising this report and plans to make it available to the public 
shortly.
    Following the 2008 open water season, a comprehensive report 
describing the acoustic, vessel-based, and aerial monitoring programs 
will be prepared. The 2008 comprehensive report will describe the 
methods, results, conclusions and limitations of each of the individual 
data sets in detail. The report will also integrate (to the extent 
possible) the studies into a broad based assessment of industry 
activities and their impacts on marine mammals in the Beaufort Sea 
during 2008 (work conducted in 2009 under the 2008/2009 IHA will be 
analyzed in a 2009 comprehensive report). The 2008 report will form the 
basis for future monitoring efforts and will establish long term data 
sets to help evaluate changes in the Beaufort/Chukchi Sea ecosystems. 
The report will also incorporate studies being conducted in the Chukchi 
Sea and will attempt to provide a regional synthesis of available data 
on industry activity in offshore areas of northern Alaska that may 
influence marine mammal density, distribution and behavior.
    This comprehensive report will consider data from many different 
sources including two relatively different types of aerial surveys; 
several types of acoustic systems for data collection (net array, 
passive acoustic monitoring, vertical array, and other acoustical 
monitoring systems that might be deployed), and vessel based 
observations. Collection of comparable data across the wide array of 
programs will help with the synthesis of information. However, 
interpretation of broad patterns in data from a single year is 
inherently limited. Much of the 2008 data will be used to assess the 
efficacy of the various data collection methods and to establish 
protocols that will provide a basis for integration of the data sets 
over a period of years.

ESA

    Under section 7 of the ESA, NMFS has completed consultation with 
the MMS on ``Oil and Gas Leasing and Exploration Activities in the U.S. 
Beaufort and Chukchi Seas, Alaska; and Authorization of Small Takes 
Under the

[[Page 66141]]

Marine Mammal Protection Act.'' In a Biological Opinion (BiOp) issued 
on July 17, 2008, NMFS concluded that the issuance of seismic survey 
permits by MMS and the authorization of small takes under the MMPA for 
seismic surveys are not likely to jeopardize the continued existence of 
the endangered fin, humpback, or bowhead whale. As no critical habitat 
has been designated for these species; none will be affected. The 2008 
BiOp takes into consideration all oil and gas related activities that 
are reasonably likely to occur, including exploratory (but not 
production) oil drilling activities. A copy of the BiOp is available 
at: http://www.mms.gov/alaska/ref/BiOpinions.
    In addition, NMFS has issued an Incidental Take Statement under 
this BiOp which contains reasonable and prudent measures with 
implementing terms and conditions to minimize the effects of take of 
bowhead whales.

National Environmental Policy Act (NEPA)

    In 2006, the MMS prepared Draft and Final Programmatic 
Environmental Assessments (PEAs) for seismic surveys in the Beaufort 
and Chukchi Seas. Availability of the Draft and Final PEA was noticed 
by NMFS in several Federal Register notices regarding issuance of IHAs 
to SOI and others. NMFS was a cooperating agency in the preparation of 
the MMS PEA. On November 17, 2006, NMFS and MMS announced that they 
were jointly preparing a Draft Programmatic Environmental Impact 
Statement (Draft PEIS) to assess the impacts of MMS' annual 
authorizations under the Outer Continental Shelf (OCS) Lands Act to the 
U.S. oil and gas industry to conduct offshore geophysical seismic 
surveys in the Chukchi and Beaufort seas off Alaska, and NMFS' 
authorizations under the MMPA to incidentally harass marine mammals 
while conducting those surveys. On March 30, 2007, the Environmental 
Protection Agency (EPA) noticed the availability for comment of the 
NMFS/MMS Draft PEIS. Because NMFS has been unable to complete the Final 
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 has prepared an SEA which incorporates 
by reference the 2006 Final PEA and other related documents.
    In conclusion, the NMFS Office of Protected Resources has 
determined that the MMS 2006 Final PEA (which NMFS adopted) and the 
NMFS 2008 Supplemental EA for 2008 accurately and completely describe 
the NMFS selected action alternative, reasonable additional 
alternatives, and the potential impacts on marine mammals, endangered 
species, other marine life and native subsistence lifestyles that could 
be impacted by the selected alternative and the other alternatives. As 
a result of our review and analysis, we have determined that it is not 
necessary to prepare and issue an environmental impact statement for 
the issuance of an IHA to Shell for seismic activities in the Chukchi 
and Beaufort seas in 2008/2009.

Determinations

    Based on the information provided in SOI's application, this 
document, the MMS 2006 Final PEA for Arctic Seismic Surveys, the 2006 
and 2007 Comprehensive Monitoring Reports by SOI and other reports, 
NMFS' 2008 Final Supplemental EA, and other relevant documents, NMFS 
has determined that the impact of SOI conducting seismic surveys in the 
northern Chukchi Sea and eastern and central Beaufort Sea in 2008/2009 
will have no more than a negligible impact on marine mammals and that 
there will not be any unmitigable adverse impacts to subsistence 
communities, provided the mitigation measures described in this 
document are implemented (see Mitigation).
    For reasons explained previously in this document, NMFS has 
determined that no take by serious injury or death is authorized or 
anticipated by SOI's 2008/2009 seismic survey activities, and the 
potential for temporary or permanent hearing impairment is low and will 
be avoided through the incorporation of the mitigation measures 
mentioned in this document. 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.
    As described earlier, NMFS has also determined that only small 
numbers of marine mammals, relative to their population or stock size, 
will be harassed by SOI's 2008 seismic and shallow hazard programs.
    Therefore, NMFS has determined that the short-term impact of 
conducting seismic surveys in the U.S. Chukchi and Beaufort seas may 
result, at worst, in a temporary modification in behavior by certain 
species of marine mammals. While behavioral and avoidance reactions may 
be made by these species in response to the resultant noise, this 
behavioral change is expected to have a negligible impact on the 
animals. While the number of potential incidental harassment takes will 
depend on the distribution and abundance of marine mammals (which vary 
annually due to variable ice conditions and other factors) in the area 
of seismic operations, the number of potential harassment takings is 
estimated to be small (see Estimated Takes for NMFS' analysis). In 
addition, for reasons described previously, injury (temporary or 
permanent hearing impairment) and/or mortality is unlikely and will be 
avoided through the incorporation of the mitigation measures mentioned 
in this document and required by the authorization. No rookeries, 
mating grounds, areas of concentrated feeding, or other areas of 
special significance for marine mammals occur within or near the 
planned area of operations during the season of operations.
    Finally, NMFS has determined that the seismic activity by SOI in 
the northern Chukchi Sea and central and eastern Beaufort Sea in 2008/
2009 will not have an unmitigable adverse impact on the subsistence 
uses of bowhead whales and other marine mammals. This determination is 
supported by the information in this Federal Register Notice, 
including: (1) Seismic activities in the Chukchi Sea would not begin 
until after July 20 by which time the spring bowhead hunt is expected 
to have ended; (2) that the fall bowhead whale hunt in the Beaufort Sea 
is governed by a CAA between SOI and the AEWC and village whaling 
captains and by mitigation measures to protect subsistence hunting of 
marine mammals contained in the IHA; (3) the CAA and IHA conditions 
will significantly reduce impacts on subsistence hunters to ensure that 
there will not be an unmitigable adverse impact on subsistence uses of 
marine mammals; (4) while it is possible that accessibility to belugas 
during the spring subsistence beluga hunt could be impaired by the 
survey, it is unlikely because very little of the survey is within 25 
km (15.5 mi) of the Chukchi Sea coast, meaning the vessel will usually 
be well offshore and away from areas where seismic surveys would 
influence beluga hunting by communities; and (5) because seals (ringed, 
spotted, bearded) are hunted in nearshore waters and the seismic survey 
will remain offshore of the coastal and nearshore areas of these seals 
where natives would harvest these seals, it should not conflict with 
harvest activities.

[[Page 66142]]

Authorization

    As a result of these determinations, NMFS has issued an IHA to SOI 
to take small numbers of marine mammals, by harassment, incidental to 
conducting a seismic survey in the northern Chukchi Sea and central and 
eastern Beaufort Sea in 2008/2009, provided the mitigation, monitoring, 
and reporting requirements described in this document are undertaken.

    Dated: October 28, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-26269 Filed 11-5-08; 8:45 am]
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