[Federal Register Volume 74, Number 206 (Tuesday, October 27, 2009)]
[Notices]
[Pages 55367-55412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25545]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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Small Takes of Marine Mammals Incidental to Specified Activities; Open-
water Marine Survey Program in the Chukchi Sea, Alaska, During 2009-
2010; Notice

Federal Register / Vol. 74, No. 206 / Tuesday, October 27, 2009 / 
Notices

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XP00


Small Takes of Marine Mammals Incidental to Specified Activities; 
Open-water Marine Survey Program in the Chukchi Sea, Alaska, During 
2009-2010

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

ACTION:  Notice; issuance of an incidental take authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to Shell Offshore Inc. and 
Shell Gulf of Mexico Inc., collectively known as Shell, to take, by 
harassment, small numbers of 12 species of marine mammals incidental to 
an open-water marine survey program, which includes shallow hazards and 
site clearance work and strudel scour surveys, in the Chukchi Sea, 
Alaska, during the 2009/2010 Arctic open-water season.

DATES: Effective August 19, 2009, through August 18, 2010.

ADDRESSES: A copy of the application containing a list of the 
references used in this document, two addenda to the application, NMFS' 
Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI), and the IHA may be obtained by writing to the address 
specified above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    Documents cited in this notice may be viewed, by appointment, 
during regular business hours, at the aforementioned address.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``... an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. 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 authorization 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 December 15, 2008, NMFS received an application from Shell for 
the taking, by Level B harassment only, of small numbers of several 
species of marine mammals incidental to conducting an open-water marine 
survey program during the 2009/2010 Arctic open-water season in the 
Chukchi Sea. Shell plans to conduct site clearance and shallow hazards 
surveys and a strudel scour survey in the Chukchi Sea. These surveys 
are a continuation of those conducted by Shell in the Chukchi Sea in 
2008. Shell's December 2008, application also requested MMPA coverage 
for site clearance and shallow hazards surveys, an ice gouge survey, 
and a strudel scour survey in the Beaufort Sea and an ice gouge survey 
in the Chukchi Sea for the 2009/2010 season. However, in an addendum to 
the IHA application submitted to NMFS on March 10, 2009, Shell 
indicated that it cancelled all survey programs for the Beaufort Sea 
and the ice gouge survey for the Chukchi Sea in 2009. Shell submitted a 
second application addendum on May 19, 2009, indicating that Shell will 
utilize an array of 4 x 10 in\3\ guns (40 in\3\ total discharge volume) 
instead of the 2 x 10 in\3\ array (20 in\3\ total discharge volume).
    Site clearance and shallow hazards surveys will evaluate the 
seafloor and shallow sub-seafloor at prospective exploration drilling 
locations, focusing on the depth to seafloor, topography, the potential 
for shallow faults or gas zones, and the presence of archaeological 
features. The types of equipment used to conduct these surveys use low 
level energy sources focused on limited areas in order to characterize 
the footprint of the seafloor and shallow sub-seafloor at prospective 
drilling locations.

Description of the Specified Activity

Chukchi Site Clearance and Shallow Hazards Surveys

    Site clearance and shallow hazards surveys of potential proposed 
locations for exploration drilling will be executed as required by the 
Minerals Management Service's (MMS) regulations. 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). Site clearance and 
shallow hazards surveys can be accomplished by one vessel with acoustic 
sources. A detailed overview of the activities of this survey was 
provided in the Notice of Proposed IHA (74 FR 26217, June 1, 2009). 
Since publication of that notice, Shell updated two pieces of 
information. First, the R/V Mt. Mitchell will be utilized as the source 
vessel for the site clearance and shallow hazards surveys. The R/V Mt. 
Mitchell is a diesel powered vessel, 70 m (231 ft) long, 12.7 m (42 ft) 
wide, with a 4.5 m (15 ft) draft. Second, the specific prospects within 
Outer Continental Shelf (OCS) Lease Sale (LS) 193 have been identified. 
Shell will conduct the surveys at the Burger and Crackerjack prospects 
and, if time and weather conditions permit, at SW Shoebill. Additional 
information is also

[[Page 55369]]

contained in Shell's application and application addenda, which are 
available for review (see ADDRESSES).

Chukchi Strudel Scour Survey

    During the early melt, 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 
erosional areas are called ``strudel scours''. Information on these 
features is required for prospective pipeline planning. Two proposed 
activities are required to gather this information: aerial survey via 
helicopter overflights during the melt to locate the strudels and 
strudel scour marine surveys to gather bathymetric data. Additional 
information was provided in the Notice of Proposed IHA (74 FR 26217, 
June 1, 2009) and Shell's application (see ADDRESSES).

Comments and Responses

    A notice of receipt of Shell's MMPA application and NMFS' proposal 
to issue an IHA to Shell published in the Federal Register on June 1, 
2009 (74 FR 26217). That notice described, in detail, Shell's proposed 
activity, the marine mammal species that may be affected by the 
activity, and the anticipated effects on marine mammals. During the 30-
day public comment period, NMFS received six comment letters from the 
following: the Marine Mammal Commission (MMC); Ocean Conservancy and 
Oceana; the Alaska Eskimo Whaling Commission (AEWC); the Inupiat 
Community of the Arctic Slope (ICAS); the North Slope Borough (NSB) 
Office of the Mayor and NSB Department of Wildlife Management 
(collectively ``NSB''); and Alaska Wilderness League (AWL), Center for 
Biological Diversity, Defenders of Wildlife, Earthjustice, Natural 
Resources Defense Council, Northern Alaska Environmental Center, 
Pacific Environment, Sierra Club, The Wilderness Society, and World 
Wildlife Fund (collectively ``AWL''), along with an attached letter 
from David E. Bain, Ph.D.
    Both AEWC and NSB submitted several journal articles as attachments 
to their comment letters. NMFS acknowledges receipt of these documents 
but does not intend to address the specific articles themselves in the 
responses to comments. AEWC also submitted an unsigned, final version 
of the 2009 Conflict Avoidance Agreement (CAA). However, Shell signed 
the CAA on June 24, 2009. Some of NSB's comments were specific to the 
application and do not have a bearing on NMFS' determinations for 
issuing an IHA. For example, NSB pointed out that Figure 1 in Shell's 
application failed to identify the Alaska Maritime National Wildlife 
Refuge north of Point Lay and asked that the figure be revised. Those 
comments have been passed on to Shell for consideration in future IHA 
applications. Any application specific comments that address the 
statutory and regulatory requirements or findings NMFS must make to 
issue an IHA are addressed in this section of the Federal Register 
notice. Additionally, some of NSB's comments concerned the Beaufort Sea 
operations or ice gouge surveys. As noted above and in the Notice of 
Proposed IHA (74 FR 26217, June 1, 2009), Shell notified NMFS that it 
did not intend to conduct these activities; therefore, no marine 
mammals will be taken. Comments on the Beaufort operations and Chukchi 
ice gouge survey are not addressed in this document.

General Comments

    Comment 1: AWL believes that NMFS should not issue incidental take 
authorizations for oil and gas-related seismic surveying until NMFS and 
other agencies complete a comprehensive review of both the industrial 
activities and the marine resources of the Arctic. This review should 
ensure that critical information gaps relating to the Arctic are filled 
and that decisions made about Arctic activities are made in the context 
of a comprehensive plan for the region. In the interim, NMFS should not 
facilitate further potentially harmful seismic activity.
    Response: In order to issue an authorization pursuant to Section 
101(a)(5)(D) of the MMPA, NMFS must determine that the authorized 
activity will take only small numbers of marine mammals, will have a 
negligible impact on affected species or stocks, and will not have an 
unmitigable adverse impact on affected species or stocks for 
subsistence uses. If NMFS is able to make these findings, the Secretary 
is required to issue an IHA. In the case of Shell's activities for 
2009/2010 (as described in the application, the Notice of Proposed IHA 
(74 FR 26217, June 1, 2009) and this document), NMFS determined that 
the authorized activity met the requirements of Section 101(a)(5)(D) of 
the MMPA. Additionally, as described later in this section and 
throughout this document, NMFS has determined that Shell's activities 
will not result in injury or mortality of marine mammals.
    Comment 2: AWL, ICAS, and Ocean Conservancy and Oceana note that 
Shell's activities will occur on leases that were acquired in OCS LS 
193, which was conducted pursuant to MMS' 2007-2012 Five-Year Leasing 
Program. This leasing program is part of on-going litigation. NMFS 
should not issue IHAs for activities on these leases until the 
litigation is resolved.
    Response: NMFS is aware of the litigation in the U.S. Court of 
Appeals for the D.C. Circuit, but we disagree with the commenter's 
assertion that NMFS should not issue IHAs for activities on these 
leases until the litigation is resolved. Although the court issued an 
opinion vacating and remanding the 5-yr lease program to MMS, it also 
issued an order (on July 28, 2009) staying its mandate. MMS informed 
the court that it would complete remand proceedings as soon as possible 
and that, in the meantime, it would continue to review and act upon 
exploration plans for Chukchi Sea leases. MMS stated, however, that it 
would suspend activities under any approved plan pending the Secretary 
of the Interior's reconsideration decision on the remanded program, 
thereby halting all but data gathering ancillary activities on Chukchi 
Sea leases. Shell's 2009 operations are unaffected by the litigation 
because they are data gathering ancillary activities. Therefore, NMFS 
has concluded it was appropriate to issue an IHA to Shell for its 2009 
seismic operations.
    Comment 3: ICAS points out that Native communities in Alaska have 
long been ignored in the race to find and develop offshore oil and gas 
resources and that the U.S. Government has consistently failed to 
comply with legal requirements that require consultation with local 
Native communities as proposals are being developed that affect native 
environments. Instead, both Federal agencies and the entities they 
permit make only token gestures at consultations with Native groups 
offering them only the opportunity for involvement after proposals are 
developed and after local knowledge would serve a useful purpose.
    Response: Regulations at 50 CFR 216.104(a)(12) require applicants 
for IHAs in Arctic waters to submit a Plan of Cooperation (POC), which, 
among other things, requires the applicant to meet with affected 
subsistence communities to discuss the proposed activities. 
Additionally, for many years, NMFS has conducted the Arctic Open-water 
Meeting, which brings together the Federal agencies, the oil and gas 
industry, and affected Alaska Native organizations to discuss the 
proposed activities and monitoring plans. Local knowledge is considered 
at these times, and it is not too late for that knowledge to serve a 
useful purpose.

[[Page 55370]]

    Comment 4: Executive Order 13175 requires Federal agencies to 
conduct government-to-government consultation when undertaking to 
formulate and implement policies that have tribal implications. Despite 
this explicit requirement, ICAS believes that NMFS has failed to 
consult with governing bodies of Native people who will be and have 
been affected by the decisions NMFS is making under the MMPA. NMFS must 
meet with ICAS and local Native villages on a government-to-government 
basis to discuss the proposed IHA, as well as appropriate mitigation 
and monitoring requirements.
    Response: NMFS recognizes the importance of the government-to-
government relations and has taken steps to ensure that Alaska Natives 
play an active role in the management of Arctic species. For example, 
NOAA and the AEWC co-manage bowhead whales pursuant to a cooperative 
agreement. This agreement has allowed the AEWC to play a significant 
role in the management of a valuable resource by affording Alaska 
Natives the opportunity to protect bowhead whales and the Eskimo 
culture and to promote scientific investigation, among other purposes.
    In addition, NMFS works closely with Alaska Natives when 
considering whether to permit the take of marine mammals incidental to 
oil and gas operations. NMFS has met repeatedly over the years with 
Alaska Native representatives to discuss concerns related to NMFS' MMPA 
program in the Arctic, and has also taken into account recommended 
mitigation measures to reduce the impact of oil and gas operations on 
bowhead whales and to ensure the availability of marine mammals for 
taking for subsistence uses. Finally, NMFS has participated in Alaska 
Native community meetings in the past and will continue to do so, when 
feasible. NMFS will continue to ensure that it meets its government-to-
government responsibilities and will work closely with Alaska Natives 
to address their concerns.
    Comment 5: Ocean Conservancy and Oceana believe that Shell's 
activities could substantially affect marine mammals in an area already 
impacted by climate change and particularly vulnerable to ocean 
acidification. Approving an IHA in these circumstances would be 
contrary to NMFS' responsibilities under the law.
    Response: NMFS believes that it has made all of the necessary 
determinations in order to issue an IHA pursuant to Section 
101(a)(5)(D) of the MMPA. NMFS has determined that Shell's activities 
will affect only small numbers of marine mammals, will have a 
negligible impact on the affected species and stocks, and will not have 
an unmitigable adverse impact on the availability of such species or 
stock for taking for subsistence purposes, provided the mitigation 
measures described later in this document are implemented. NMFS 
completed an EA to analyze the impacts of cumulative activities on the 
affected species in the action area, including climate change.
    Comment 6: AEWC and NSB expressed three concerns with the timing of 
IHA applications. First, they ask that only one authorization be issued 
per calendar year or per operating season for work associated with a 
specific project. Secondly, NMFS should ensure that IHA applications 
are submitted at least 1 month prior to the April Open-water Meeting or 
comparable peer review meetings that may ultimately replace such 
meetings. This will allow Native communities to receive draft POCs and 
proposed mitigation measures sufficiently in advance of these meetings 
to allow for meaningful discussion of any identified major flaws, 
evaluation of suggested improvements that draw upon our particular 
local expertise, and consideration of appropriate peer reviewers. 
Lastly, they request that NMFS change the expiration date for 
authorizations so that a single calendar year is authorized rather than 
activities in the latter part of one calendar year and the early part 
of the following year.
    Response: Regarding the first and third points, Section 
101(a)(5)(D) of the MMPA allows NMFS to issue IHAs ``for periods of not 
more than 1 year.'' There is no requirement that the period of 
effectiveness of an IHA fall within 1 calendar year or operating 
season. In instances where the period of effectiveness of an IHA would 
cover more than one operating season (i.e., there is considerable 
downtime between the start and finish of the operations), NMFS analyzes 
impacts for the entire extent of the operations when issuing the IHA. 
Regarding the second point about distribution of applications, NMFS 
cannot guarantee that all applications will be submitted to NMFS at 
least 1 month prior to the meeting. NMFS has a unique relationship with 
AEWC pursuant to a cooperative agreement. Pursuant to this agreement, 
NOAA is required to consult with AEWC on any action undertaken or 
proposed to be undertaken that may affect the bowhead whale and/or 
subsistence whaling. To that end, NMFS will make every effort to 
provide the AEWC with as much information as possible prior to the 
Open-water Meeting or comparable peer review meeting. However, it is 
NMFS' practice not to release applications for MMPA authorizations 
until NMFS deems them complete and a proposed IHA notice or notice of 
receipt of an application for rulemaking has published in the Federal 
Register.
    Comment 7: NSB notes that Shell's application indicates that 
several vessels will be involved in the 2009-2010 period, involving 
various transit routes that are to be used to reach the Arctic survey 
sites. There is an absence of discussion of impacts and ``takes'' that 
may occur upon these transit routes. Shell needs to consider and state 
the impacts sufficiently. Additionally, Shell should consider other 
stocks of belugas beyond the Beaufort and Chukchi sea stocks, as 
impacts may occur in Bristol Bay during ship transit.
    Response: As has been stated in several Federal Register notices in 
the past, normal shipping and transit operations do not rise to a level 
requiring an authorization under the MMPA. To require IHAs and Letters 
of Authorization (LOAs) for standard shipping would reduce the ability 
of NMFS to review activities that have a potential to cause harm to 
marine mammal populations. For example, in the Arctic Ocean, NMFS would 
need to issue authorizations for barging operations that supply the 
North Slope villages in addition to various onshore and offshore oil 
and gas projects. However, on this matter, Shell will (in keeping with 
the CAA signed by Shell) follow transit routes contained in the CAA to 
avoid conflicts with subsistence hunters.
    Comment 8: NSB states that NMFS should not issue Shell an IHA for 
the strudel scour surveys in 2010, as they are substantially different 
from the shallow hazards and site clearance surveys. Additionally, it 
is not clear what other activities might be occurring in 2010, so it is 
not possible to evaluate the potential cumulative impacts from multiple 
activities that might occur in 2010. If NMFS does issue Shell an IHA 
for that survey, estimated takes and monitoring are needed. Additional 
information is needed from Shell about the possible impacts to marine 
mammals, monitoring plans, and mitigation measures from helicopter 
surveys over the sea ice. NMFS needs to make this additional 
information available to the public and decision makers for review and 
comment before it issues an IHA to Shell for strudel scour surveys in 
2010. NSB also notes that the number of days of operation for

[[Page 55371]]

the strudel scour surveys is not consistent throughout the application.
    Response: The activities for the strudel scour survey are described 
in Shell's application and the proposed IHA in order to describe the 
full scale of Shell's operations. However, NMFS has determined that the 
activities for the strudel scour survey will not result in take of 
marine mammals. While the sonar equipment proposed to be used for this 
project generates high sound energy, the equipment operates at 
frequencies (>100 kHz) beyond the effective hearing range of most 
marine mammals likely to be encountered during strudel scour 
operations. Given the direct downward beam pattern of these sonar 
systems coupled with the high-frequency characteristics of the signals, 
the horizontal received levels of 180 and 190 dB re 1 microPa (rms) 
would be much smaller when compared to those from the low-frequency 
airguns with similar source levels. Therefore, NMFS has determined that 
marine mammals will not have a significant behavioral response (i.e., a 
``take'') to the strudel scour surveys. However, Shell needs to 
coordinate these activities with the Native Alaskan communities to 
ensure that there is no unmitigable adverse impact to subsistence 
hunts. As described in the application, two separate activities will 
occur to complete the strudel scour surveys: helicopter overflights and 
marine vessel work. The overflights will take approximately 4 days to 
complete and will occur in mid-May or early June. The marine vessel 
portion of the survey will take approximately 10 days to complete and 
will occur sometime in July or early to mid-August.
    Comment 9: NSB incorporated by reference a December 18, 2008, 
letter sent to the Acting Assistant Administrator for Fisheries, as 
well as NMFS' February 19, 2009, response, asking for suspension and 
review of Shell's 2008-2009 IHA, wherein Shell was allowed to proceed 
with seismic activities despite what was acknowledged by NMFS to be a 
potentially flawed survey design. At that time, NSB asked that no more 
IHAs be issued until compliance with the MMPA could be demonstrated. 
Based on NSB's review of NMFS' current proposed IHA, NSB does not see a 
demonstration of compliance and thus does not support issuance of an 
IHA at this time.
    Response: As was stated in NMFS' February letter responding to 
NSB's concerns, NMFS determined that Shell was in substantial 
compliance with their IHA during the 2008 seismic survey season. No 
additional information has been provided to NMFS to indicate that Shell 
was not in compliance with the IHA. Additionally, NMFS believes that 
Shell will comply with the monitoring and mitigation measures required 
in the 2009 IHA.

MMPA Concerns

    Comment 10: AWL, NSB, and AEWC state that NMFS cannot issue an IHA 
or a LOA (because NMFS has not promulgated regulations for mortality by 
seismic activities) to Shell for its activities since they carry the 
potential for serious injury or death to marine mammals. AEWC also 
believes that because Level A harassment is possible, an LOA is needed.
    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 
Shell's surveys will result in serious injury or mortality, thus 
obviating the need for a LOA. As explained throughout this Federal 
Register Notice, it is highly unlikely that marine mammals would be 
exposed to sound pressure levels (SPLs) that could result in serious 
injury or mortality. The best scientific information indicates that an 
auditory injury is unlikely to occur as apparently sounds need to be 
significantly greater than 180 dB for injury to occur (Southall et al., 
2007). Based on the analysis contained in the ``Potential Effects of 
Survey Activities on Marine Mammals'' section in the Notice of Proposed 
IHA (74 FR 26217, June 1, 2009), NMFS has determined that an IHA can 
lawfully be issued to Shell for their activities since the already 
unlikely potential for serious injury or mortality will be reduced even 
further through the incorporation of the mitigation and monitoring 
measures described later in this document and required by the IHA.
    Comment 11: AEWC notes their disappointment in NMFS for releasing 
for public comment an incomplete application from Shell that fails to 
provide the mandatory information required by the MMPA and NMFS' 
implementing regulations. AEWC requests that NMFS return Shell's 
application as incomplete, or else the agency risks making arbitrary 
and indefensible determinations under the MMPA. The following is the 
information that AEWC believes to be missing from Shell's application: 
(1) a POC ``or information that identifies what measures have been 
taken and/or will be taken to minimize any adverse effects on the 
availability of marine mammals for subsistence uses'' (50 CFR 
216.104(a)(12)); (2) a scheduled meeting ``with the affected 
subsistence communities to discuss proposed activities and to resolve 
potential conflicts'' (50 CFR 216.104(a)(12)(ii)); (3) a ``description 
of what measures the applicant has taken and/or will take to ensure 
that proposed activities will not interfere with subsistence whaling or 
sealing'' (50 CFR 216.104(a)(12)(iii)); (4) suggested means of learning 
of, encouraging, and coordinating any research related activities (50 
CFR 216.104(a)(14)); (5) a description of the specified activities and 
specified geographic region (16 U.S.C. 1371(a)(5)(D)(i)); and (6) a 
description of the ``age, sex, and reproductive condition'' of the 
marine mammals that will be impacted (50 CFR 216.104(a)(6)). AWL and 
NSB also note their concern about the lack of specificity regarding the 
timing and location of the site clearance and shallow hazards and 
strudel scour surveys.
    Response: NMFS does not agree that it released an incomplete 
application for review during the public comment period. After NMFS' 
initial review of the application, NMFS submitted questions and 
comments to Shell on its application. After receipt and review of 
Shell's responses, which were submitted as an addendum to the original 
application, NMFS made its determination of completeness and released 
the application, addenda, and the proposed IHA notice (74 FR 26217, 
June 1, 2009). Regarding the six specific pieces of information 
believed to be missing by AEWC, Shell's original application included a 
description of the pieces of information that are required pursuant to 
50 CFR 216.104(a)(12). The application noted that Shell was planning to 
meet with subsistence communities in 2009 and described measures to 
ensure that the applicant's proposed activities will not interfere with 
subsistence whaling or sealing. The proposed IHA notice (74 FR 26217, 
June 1, 2009) also noted meetings that had already taken place in the 
villages of Barrow, Point Hope, Point Lay, Wainwright, and Kotzebue. 
Moreover, on May 15, 2009, Shell distributed its draft POC for the 2009 
activities to NMFS, other government agencies, and affected stakeholder 
communities.
    Information required pursuant to 50 CFR 216.104(a)(14) was also 
included in Shell's application. Shell provided a list of researchers 
who could potentially receive results of their research activities who 
may find the data useful in their own research. Additionally, Shell and 
ConocoPhillips will be

[[Page 55372]]

working together in 2009 to deploy an intensive array of acoustic 
recorders around both the Burger and Klondike prospects in the Chukchi 
Sea.
    NMFS also determined that Shell's application provides descriptions 
of the specified activities and specified geographic region. 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. Chukchi Sea meets Congressional intent 
and NMFS' definition because the region has similar geographic, 
physiographic (e.g., topography, temperature, sea ice), biologic (e.g., 
marine fauna (fish and marine mammals)), and sociocultural 
characteristics. Shell's application noted that the applicant would 
conduct activities on some of its prospects gained during LS 193, which 
itself is considered a ``specified geographic region.'' Since that 
time, Shell has informed NMFS of the specific areas within the lease 
holdings on which Shell intends to conduct the site clearance and 
shallow hazards surveys. They are the Burger and Crackerjack prospects, 
as well as SW Shoebill if time and weather conditions allow. At this 
time, more specificity on the location of the in-water portion of the 
strudel scour surveys cannot be provided. Until areas with strudel 
scour are revealed during helicopter overflights, it is uncertain the 
exact location along the Chukchi Sea coast where marine vessel 
operations will occur. However, as previously mentioned, the Chukchi 
Sea itself is considered a ``specified geographic region.'' Shell also 
provided a description of the types of equipment that would be used and 
time frame for conducting its activities. Therefore, NMFS believes that 
Shell's description of the activity and the locations for conducting 
their surveys meet the requirements of the MMPA.
    Lastly, 50 CFR 216.104(a)(6) requires that an applicant submit 
information on the ``age, sex, and reproductive condition (if 
possible)'' (emphasis added) of the number of marine mammals that may 
be taken. In the application, Shell described the species expected to 
be taken by harassment and provided estimates of how many of each 
species were expected to be taken during their activities. In most 
cases, it is very difficult to estimate how many animals, especially 
cetaceans, of each age, sex, and reproductive condition will be taken 
or impacted by seismic or site clearance and shallow hazards surveys. 
In conclusion, NMFS believes that Shell provided all of the necessary 
information to proceed with publishing a proposed IHA notice in the 
Federal Register.
    Comment 12: AEWC and NSB state that Shell did not disclose the full 
spectrum of activities in which it will engage. For example, Shell 
mentions support vessels and other equipment in its application but 
such machinery is not disclosed among Shell's activities. Additionally, 
Shell changed the airgun array it planned to use after submitting its 
application but did not conduct any new analysis of the impacts from 
this change, thus negating its analysis of the impacts from the 
original airgun array. Shell needs to adequately specify the activities 
and impacts of all the actions that will be undertaken in the Chukchi. 
AEWC also states that NMFS relied on surveys conducted in 2008 by Shell 
to calculate the area of ``water exposed to received levels at or above 
160 dB.'' The 2008 surveys, however, were based on signals from ``four 
10 in\3\ airguns,'' and not the 40 in\3\ airguns that Shell now intends 
to use. Thus, for this reason as well, Shell's application must be 
returned.
    Response: NMFS determined that Shell's application and application 
addenda fully described the activities in which Shell will engage. In 
previous years, when Shell conducted its larger, 3D seismic surveys, 
several support vessels were needed to carry out operations. However, 
for this smaller survey, all work will be conducted from the single 
source vessel. All acoustic equipment that will be used to conduct the 
surveys is listed in the application. Shell did change the number of 
airguns and submitted this information to NMFS in their second 
application addendum. In assessing the new airgun array, NMFS 
determined that the potential impacts to marine mammals would be the 
same if the total discharge volume was 20 in\3\ or 40 in\3\. Shell 
submitted revised take estimates based on the new discharge volume and 
ensonified zones. The analysis of impacts from airguns and the revised 
take estimates were contained in the proposed IHA notice (74 FR 26217, 
June 1, 2009). Therefore, NMFS determined that Shell adequately 
specified the activities and impacts of all the actions that will be 
undertaken in the Chukchi Sea.
    The modeled radii that Shell submitted were from sound source 
verification tests conducted in the Chukchi Sea during the 2008 open-
water season by JASCO. JASCO modeled three different airgun 
configurations: 4 x 10 in\3\ airgun array; 2 x 10 in\3\ airgun array; 
and 1 x 10 in\3\ airgun. For 2009, Shell intends to use the 4 x 10 
in\3\ airgun array and not the 40 in\3\ airguns, as noted by AEWC. 
Therefore, this modeling was accurately used by Shell in its submission 
to NMFS.
    Comment 13: NSB and AWL expressed concern that the IHA will cover a 
full year, as the assessment of effects on bowhead whales apparently 
relies in part on the surveys ending before the peak of the bowhead 
fall migration through the Chukchi Sea. Shell indicates that it will 
require a maximum of 50 days of active data acquisition, but it is 
noteworthy that this estimate expressly excludes any unplanned 
downtime. Consequently, Shell could need to survey well into the month 
of October, and the IHA as proposed would allow it to do so. A 1-year 
IHA is clearly not compelled by the MMPA, and an authorization that 
includes a portion of the next open-water season only invites later 
confusion. Although NMFS' analysis of impacts to marine mammals appears 
to consider the entire 50 days of active surveying, the process leaves 
open the possibility of an unjustifiably segmented evaluation of survey 
activity, looking only at a portion of the surveying that will take 
place in a single season. NMFS should take steps to avoid such results.
    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 (approximately July 20 to approximately 
November 15 in the U.S. Beaufort and Chukchi Seas), a period of less 
than 4 months, and even less

[[Page 55373]]

available time if an applicant's activity is located in an area subject 
to area closure due to native subsistence hunting. Provided the IHA 
application includes an analysis of the specified activities during the 
time frame proposed by the applicant, NMFS will consider issuing an IHA 
that extends into a portion of the following year. NMFS evaluated the 
effects of Shell's activities for the full requested time frame, 
including evaluating effects into the following season. Additionally, 
NMFS believes that even if Shell must conduct activities into the 
middle or end of October, the mitigation and monitoring measures 
required by the IHA (described later in this document) will not 
increase the level of impact to marine mammals in the area.
    Comment 14: AEWC and NSB state that NMFS failed to issue a draft 
authorization for public review and comment. The plain language of both 
the MMPA and NMFS' implementing regulations require that NMFS provide 
the opportunity for public comment on the ``proposed incidental 
harassment authorization'' (50 CFR 216.104(b)(1)(i); 16 U.S.C. 1371 
(a)(5)(D)(iii)) and not just on the application itself as NMFS has done 
here. Without a complete draft authorization and accompanying findings, 
AEWC and NSB cannot provide meaningful comments on Shell's proposed 
activities, ways to mitigate the impacts of those activities on marine 
mammals, and measures that are necessary to protect subsistence uses 
and sensitive resources. For example, AEWC cannot ensure that the 
authorization will comport with the requirements of the applicable CAA.
    Response: The June 1, 2009 proposed IHA notice (74 FR 26217) 
contained all of the relevant information needed by the public to 
provide comments on the proposed authorization itself. The notice 
contained the permissible methods of taking by harassment, means of 
effecting the least practicable impact on such species (i.e., 
mitigation), measures to ensure no unmitigable adverse impact on the 
availability of the species or stock for taking for subsistence use, 
requirements pertaining to the monitoring and reporting of such taking, 
including requirements for the independent peer review of the proposed 
monitoring plan. The notice provided detail on all of these points, 
allowing the public to provide meaningful comments. Additionally, the 
notice contained NMFS' preliminary findings of negligible impact and no 
unmitigable adverse impact.
    The signing of a CAA is not a requirement to obtain an IHA. 
Additionally, the CAA is a document that is negotiated between and 
signed by the industry participant, AEWC, and the Village Whaling 
Captains' Associations. NMFS has no role in the development or 
execution (other than, where appropriate, to include marine mammal-
related measures from the CAA in the IHA) of this agreement. While 
signing a CAA helps NMFS to make its no unmitigable adverse impact 
determination for bowhead and beluga whales, it is not a requirement.
    Comment 15: NSB states that based on the limited information 
provided by NMFS, there is no way to determine whether Shell's 
monitoring and reporting plans were subjected to independent peer 
review, as required by the MMPA. Unless NMFS can demonstrate compliance 
with the MMPA and its own regulations, it cannot issue an IHA to Shell. 
AEWC also notes that NMFS cannot issue an IHA to any company whose 
monitoring plan has not been cleared through independent peer review.
    Response: On May 6, 2009, NMFS contacted representatives from AEWC, 
NSB, MMC, and Shell about nominating people to participate in an 
independent peer review of Shell's monitoring plan. NMFS received 
nominations from all of the contacted parties and selected and 
contacted reviewers from these lists. Two of the contacted individuals 
provided detailed comments on Shell's monitoring and reporting plan. 
NMFS provided Shell with the comments and recommendations of the 
reviewers. The reviewers' comments and changes to the monitoring plan 
are addressed later in this document (see ``Monitoring Plan Independent 
Peer Review'' section later in this document). NMFS complied with the 
requirements under the MMPA and the implementing regulations for 
issuing IHAs, and therefore can legally issue an IHA to Shell to 
conduct their operations.
    Comment 16: AEWC states that because of the critical information 
provided through the direct observations of AEWC hunters, the peer 
review process must include AEWC representatives.
    Response: NMFS' proposed rule for implementing the 1994 amendments 
to the MMPA described the process for conducting an independent peer 
review of monitoring plans where the proposed activity may affect the 
availability of a species or stock for taking for subsistence uses (60 
FR 28379, May 31, 1995). While panelists for the independent peer 
review are selected by NMFS in consultation with the MMC, AEWC and/or 
other Alaska native organizations as appropriate, and the applicant, 
selected ``panelists are experts who are not currently employed or 
contracted by either the affected Alaskan native organization or the 
applicant'' (60 FR 28381, May 31, 1995). Therefore, it was NMFS' intent 
not to include AEWC representatives in the independent peer review 
process. However, AEWC representatives are afforded the opportunity to 
provide information based on their direct observations and experiences 
at the annual Open-water Meeting and through the public comment process 
on the proposed IHA.
    Comment 17: AEWC specifically requests that NMFS release its 
response to comments at the earliest possible time and that NMFS not 
allow seismic activities to begin until the whaling captains have had a 
chance to review NMFS' response. We note that in 2008, NMFS did not 
publish its response to comments on Shell's IHA for seismic operations 
in the Beaufort Sea until well after the fall subsistence hunt at Cross 
Island had concluded and seismic operations had already taken place. 
There can be no excuse for allowing seismic operations to take place 
directly within one of the most important subsistence hunting areas in 
the Arctic Ocean prior to NMFS explaining to the local communities and 
whaling captains why it was issuing an IHA over their well-reasoned 
objections, which were presented during the public comment period. The 
fact that NMFS would not release its response to comments until after 
the activities had taken place casts serious doubt on the validity of 
NMFS' public involvement process and the underlying analysis of impacts 
to subsistence activities and marine mammals.
    Response: NMFS publishes its responses to public comments in the 
Federal Register notice of issuance or denial. There is no provision 
requiring an applicant to wait to begin operations until after review 
of NMFS' responses to comments by members of the public. No public 
comment period is required on the Federal Register notice announcing 
NMFS' final decision. For the issuance of Shell's 2008 and 2009 IHAs, 
NMFS reviewed and considered all of the comments submitted before 
making its final determinations. Additionally, NMFS summarized and 
presented all of the significant issues raised by the commenters to the 
decision maker before signing the IHA.
    Comment 18: AEWC notes that by regulation, Shell must include with 
its application a POC that ensures potential conflicts with subsistence 
uses are resolved/mitigated prior to the issuance of an IHA. It is 
AEWC's view that

[[Page 55374]]

signing and following the CAA meets the POC requirement as it pertains 
to bowhead whales. AEWC states that Shell must agree to all the terms 
of the 2009 Open-water CAA in order to mitigate the effects of its 
proposed operations. In fact, the CAA was in use prior to NMFS' 
issuance of its regulations, and the POC requirement was included in 
the regulatory language to point operators to the CAA. In addition to 
the CAA setting forth mitigation measures agreed to by the operators 
and hunters, a schedule of meetings in preparation for each upcoming 
season, and post-season review meetings to evaluate the effectiveness 
of mitigation measures employed during a certain season, an operator's 
adherence to the terms of the CAA enables the Secretary to make the no 
unmitigable adverse impact finding required by Congress in the MMPA. 
NMFS is well-advised to heed the long-standing practice of relying on 
the CAA to enable the Secretary to make the required finding, as the 
agency has no other basis upon which to determine whether a specified 
set of mitigation measures will enable hunters to retain access to 
migrating marine mammals without increasing the risks associated with 
an already high-risk practice.
    Response: NMFS believes that the CAA is an important mechanism to 
ensure that there is not an unmitigable adverse impact on the 
availability of bowhead whales 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 POC pursuant to 50 CFR 216.104(a)(12). Moreover, the CAA is 
only one way to make the no unmitigable adverse impact to subsistence 
uses finding. 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 19: AEWC and NSB state that the conclusion that Shell's 
proposed activities will only take small numbers of marine mammals and 
will have no more than a negligible impact is not justified by the 
information provided. AEWC believes that without knowing more about the 
status and number of species present in the Chukchi Sea, this 
conclusion cannot be supported. NSB believes that NMFS has not 
adequately considered whether marine mammals may be harassed at 
received levels significantly lower than 160 dB and has not considered 
the possible serious injuries associated with authorizing the proposed 
activities.
    Response: NMFS believes that it provided sufficient information in 
its proposed IHA notice (74 FR 26217, June 1, 2009) to make the small 
numbers and negligible impact determinations and that the best 
scientific information available was used to make those determinations. 
The available information was sufficient to make the necessary 
findings. While some published articles indicate that certain marine 
mammal species may avoid seismic vessels at levels below 160 dB, NMFS 
does not believe that these responses rise to the level of a 
significant behavioral response. While studies, such as Miller et al. 
(1999), have indicated that some bowhead whales may have started to be 
deflected from their migratory path 35 km (21.7 mi) from the seismic 
vessel, it should be pointed out that these minor course changes are 
during migration and, as described in MMS' 2006 Final Programmatic 
Environmental Assessment (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 feeding, non-migratory 
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).
    NMFS has determined that Shell's activities will not cause serious 
injury to marine mammals. As explained throughout this Federal Register 
Notice, it is highly unlikely that marine mammals would be exposed to 
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). The 180-dB radius for 
the airgun array to be used by Shell is 160 m (525 ft). Therefore, if 
injury were possible from Shell's activities, the animal would need to 
be closer than 160 m (525 ft). However, based on the configuration of 
the airgun array and streamers, it is highly unlikely that a marine 
mammal would be that close to the seismic vessel. Mitigation measures 
described later in this document will be implemented should a marine 
mammal enter this small zone around the airgun array.
    Comment 20: AEWC notes that based on the density estimates, Shell 
is predicting that an average of 692 and a maximum of 1,078 ringed 
seals may be exposed to seismic sounds. These are by no means ``small 
numbers'' of marine mammals that will be subjected to impacts as a 
result of Shell's operations. NSB notes that Shell's application states 
that approximately 2 percent of the Bering-Chukchi-Beaufort stock of 
bowhead whales will be exposed to sounds greater than or equal to 160 
dB (rms). This is a large percentage of the population.
    Response: NMFS determined that the small numbers requirement has 
been satisfied. Shell has predicted that an average of 692 ringed seals 
will be exposed to SPLs of 160 dB or greater during operations. This 
does not mean that this is the number of ringed seals that will 
actually exhibit a disruption of behavioral patterns in response to the 
sound source; rather, it is simply the best estimate of the number of 
animals that potentially could have a behavioral modification due to 
the noise. For example, Moulton and Lawson (2002) indicate that most 
pinnipeds exposed to seismic sounds lower than 170 dB do not visibly 
react to that sound, and, therefore, pinnipeds are not likely to react 
to seismic sounds unless they are greater than 170 dB re 1 microPa 
(rms).
    The Level B harassment take estimate of 692 ringed seals is a small 
number, at least in relative terms, in that it represents only 0.3 
percent of the regional stock size of that species (249,000), if each 
``exposure'' at 160 dB represents an individual ringed seal. The 
percentage would be even lower if a higher SPL is required for a 
behavioral reaction (as is expected) or, if as expected, animals move 
out of the seismic area. As a result, NMFS determined that these 
``exposure'' estimates are conservative, and seismic surveys will 
actually affect less than 0.3 percent of the Chukchi Sea ringed seal 
population.
    Regarding bowhead whales, this percentage is a remnant from when 
Shell was going to conduct its full suite of surveys in both the 
Beaufort and Chukchi Seas. As mentioned earlier in this document, the 
Beaufort Sea surveys and the Chukchi Sea ice gouge survey were 
cancelled for the 2009/2010 season. Shell's Chukchi Sea site clearance 
and shallow hazards surveys are estimated to take only one bowhead 
whale, representing less than 0.01

[[Page 55375]]

percent of the Bering-Chukchi-Beaufort stock of bowhead whales.
    Comment 21: AEWC states that Shell should be required to engage in 
monitoring activities that are separate and apart from its oil and gas 
activities (see 50 CFR 216.104(a)(14)). These activities must be 
separate from Shell's proposed oil and gas related operations, since 
any data from such operations is skewed in light of marine mammals' 
avoidance of the vessels and seismic noise.
    Response: In 2009, Shell and ConocoPhillips are jointly funding an 
extensive acoustic monitoring program in the Chukchi Sea. A total of 44 
recorders will be distributed both broadly across the Chukchi lease 
area and nearshore environment and intensively on the Burger and 
Klondike lease areas. The broad area arrays are designed to capture 
both general background soundscape data and marine mammal call data 
across the lease area. Shell hopes to gain insights into large-scale 
distribution of marine mammals, identification of marine mammal species 
present, movement and migration patterns, and general abundance data. 
Many of these recorders will be placed tens of miles away from the site 
clearance and shallow hazards surveys. Additionally, these recorders 
will remain deployed after completion of Shell's survey work in 2009.
    Pursuant to 50 CFR 216.104(a)(14), an applicant must include 
``suggested means of learning of, encouraging, and coordinating 
research opportunities, plans, and activities relating to reducing such 
incidental taking and evaluating its effects.'' There is no requirement 
that this information or monitoring be conducted separate and apart 
from the authorized activities, since the research is supposed to 
evaluate the effects of the taking.

Marine Mammal Impact Concerns

    Comment 22: AWL, NSB, and AEWC noted that NMFS has acknowledged 
that permanent threshold shift (PTS) qualifies as a serious injury. 
Therefore, if an acoustic source at its maximum level has the potential 
to cause PTS and thus lead to serious injury, it would not be 
appropriate to issue an IHA for the activity (60 FR 28381, May 31, 
1995). AEWC states that therefore an LOA is required here. While the 
airguns proposed by Shell are smaller than those associated with 
typical 2D/3D deep marine surveys, the noise they produce is still 
considerable, as evidenced by the estimated 120 dB radius that extends 
out to 24 km (15 mi). These groups state that in the proposed IHA, NMFS 
did not rule out the possibility of animals incurring PTS (74 FR 26222, 
June 1, 2009). Although NMFS characterizes the possibility as unlikely, 
it nevertheless relies on mitigation measures, such as ramp-ups and 
exclusion zones, to ``minimize'' the ``already-minimal'' probability of 
PTS.
    Response: In the proposed rule implementing the process to apply 
for and obtain an IHA, NMFS stated that authorizations for harassment 
involving the ``potential to injure'' would be limited to only those 
that may involve non-serious injury (60 FR 28380, May 31, 1995). 
However, NMFS goes on to say that ``if the review of an application for 
incidental harassment indicates there is a potential for serious injury 
or death, NMFS proposes that it would either (1) determine that the 
potential for serious injury can be negated through mitigation 
requirements that could be required under the authorization or (2) 
deny'' (Ibid) the IHA and require the applicant to petition for 
regulations and LOA. As stated several times in this document and 
previous Federal Register notices for seismic activities, there is no 
empirical evidence that exposure to pulses of airgun sound can cause 
PTS in any marine mammal, even with large arrays of airguns (see 
Southall et al., 2007). PTS is thought to occur several decibels above 
that inducing mild temporary threshold shift (TTS), the mildest form of 
hearing impairment (a non-injurious effect). NMFS (1995, 2000) 
concluded that cetaceans and pinnipeds should not be exposed to pulsed 
underwater noise at received levels exceeding, respectively, 180 and 
190 dB re 1 microPa (rms). The established 180- and 190-dB re 1 microPa 
(rms) criteria are the received levels above which, in the view of a 
panel of bioacoustics specialists convened by NMFS before TTS 
measurements for marine mammals started to become available, one could 
not be certain that there would be no injurious effects, auditory or 
otherwise, to marine mammals. As summarized later in this document, 
data that are now available imply that TTS is unlikely to occur unless 
bow-riding odontocetes are exposed to airgun pulses much stronger than 
180 dB re 1 Pa rms (Southall et al., 2007). Additionally, while the 
Federal Register notice cited by the commenters states that NMFS 
considered PTS to be a serious injury (60 FR 28380, May 31, 1995), our 
understanding of anthropogenic sound and the way it impacts marine 
mammals has evolved since then, and NMFS no longer considers PTS to be 
a serious injury. NMFS has defined ``serious injury'' in 50 CFR 216.3 
as ``...any injury that will likely result in mortality.'' There are no 
data that suggest that PTS would be likely to result in mortality, 
especially the limited degree of PTS that could hypothetically be 
incurred through exposure of marine mammals to seismic airguns at the 
level and for the duration that are likely to occur in this action.
    The extent of the 120-dB radius does not indicate that animals may 
be seriously injured. Additionally, NMFS has required monitoring and 
mitigation measures to negate the possibility of marine mammals being 
seriously injured as a result of Shell's activities. In the proposed 
IHA, NMFS determined that no cases of TTS are expected to result from 
Shell's activities. Based on this determination and the explanation 
provided here, PTS is also not expected. Therefore, an IHA is 
appropriate.
    Comment 23: AEWC and NSB state that research is increasingly 
showing that marine mammals may remain within dangerous distances of 
seismic operations rather than leave a valued resource such as a 
feeding ground (see Richardson, 2004). The International Whaling 
Commission (IWC) scientific committee has indicated that the lack of 
deflection by feeding whales in Camden Bay (during Shell seismic 
activities) 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.). Thus, the noise from Shell's proposed operations could 
injure marine mammals if they are close enough to the source.
    Response: If marine mammals, such as bowhead whales, remain near a 
seismic operation to perform a biologically vital activity, such as 
feeding, depending on the distance from the vessel and the size of the 
160-dB radius, the animals may experience some Level B harassment. 
Depending on the distance of the animals from the vessel and the number 
of individual whales present, certain mitigation measures are required 
to be implemented. If an aggregation of 12 or more mysticete whales are 
detected within the 160-dB radius, then the airguns must be shutdown 
until the aggregation is no longer within that radius. Additionally, if 
any whales are sighted within the 180-dB radius of the active airgun 
array, then either a power-down or shutdown must be implemented 
immediately. For the reasons stated throughout this document, NMFS has 
determined that Shell's operations will not injure marine mammals.

[[Page 55376]]

    Comment 24: AWL and NSB state that the standard for determining 
whether an IHA is appropriate is exceptionally protective. If there is 
even the possibility of serious injury, NMFS must establish that the 
``potential for serious injury can be negated through mitigation 
requirements'' (60 FR 28380, May 31, 1995; emphasis added). Reports 
from previous surveys, however, indicate that, despite monitored 
exclusion zones, marine mammals routinely stray too close to the 
airguns. AEWC states that the safety radii proposed by Shell do not 
negate injury.
    Perhaps, more importantly, the documented exposures were recorded 
only because conditions were such that the marine mammals could be 
observed, but this only represents a fraction of the time that airguns 
are operating. Marine mammal observers (MMOs) cannot see animals at the 
surface when it is dark or during the day because of fog, glare, rough 
seas, the small size of animals such as seals, and the large portion of 
time that animals spend submerged. Shell has acknowledged that reported 
sightings are only ``minimum'' estimates of the number of animals 
potentially affected by surveying. AWL, NSB, and AEWC note that 
although NMFS recognizes that infra-red goggles and night-vision 
binoculars are of ``limited'' effectiveness when visibility is low, its 
only response for Shell's 2009 surveying is that MMOs are relieved of 
monitoring the exclusion zones at night, except during periods before 
and during ramp-ups.
    NMFS appears to simply presume that marine mammals will naturally 
avoid airguns when they are operating at full strength, removing the 
need for monitoring when conditions prevent MMOs from effectively 
watching for intrusions into the exclusion zones. That premise is not 
supported by the survey data, indicating that shutdowns and power-downs 
have repeatedly proven necessary. The requirement for ramp-up rests on 
the same foundation that marine mammals will leave an affected area as 
a result of increasing noise. Yet, as the Joint Subcommittee on Ocean 
Science & Technology report noted, although ramp-up is a widely imposed 
practice, ``there has never been a demonstration that it works as 
intended.'' Because NMFS has not negated the possibility of serious 
injury from Shell's 2009 seismic surveying, it may not issue an IHA.
    Response: As has already been stated several times in this 
document, recent literature has indicated that sounds need to be 
significantly higher than 180 dB to cause injury to marine mammals (see 
Southall et al., 2007). Therefore, the 180- and 190-dB safety zones are 
conservative. The survey reports indicate that mitigation measures 
(i.e., power-downs or shutdowns) were implemented, thus preventing the 
animals from being exposed to more than one or two seismic pulses. 
Additionally, Shell's operations will occur in an area where periods of 
darkness do not begin until early September. Beginning in early 
September, there will be approximately 1-3 hours of darkness each day, 
with periods of darkness increasing by about 30 min each day. By the 
end of the survey period, there will be approximately 8 hours of 
darkness each day.
    The source vessel will be traveling at speeds of about 1-5 knots 
(1.9-9.3 km/hr). With a 180-dB safety range of 160 m (525 ft), the 
vessel will have moved out of the safety zone within a few minutes. As 
a result, during underway survey operations, MMOs are instructed to 
concentrate on the area ahead of the vessel, not behind the vessel 
where marine mammals would need to be voluntarily swimming towards the 
vessel to enter the 180-dB zone. In fact, in some of NMFS' IHAs issued 
for scientific seismic operations, shutdown is not required for marine 
mammals that approach the vessel from the side or stern in order to 
ride the bow wave or rub on the seismic streamers deployed from the 
stern (and near the airgun array) as some scientists consider this a 
voluntary action on the part of an animal that is not being harassed or 
injured by seismic noise. While NMFS concurs that shutdowns are not 
likely warranted for these voluntary approaches, in the Arctic Ocean, 
all seismic surveys are shutdown or powered down for all marine mammal 
close approaches. Also, in all seismic IHAs, including Shell's IHA, 
NMFS requires that the safety zone be monitored for 30 min prior to 
beginning ramp-up to ensure that no marine mammals are present within 
the safety zones. Implementation of ramp-up is required because it is 
presumed it would allow marine mammals to become aware of the 
approaching vessel and move away from the noise, if they find the noise 
annoying. Data from 2007 and 2008, when Shell had support boats 
positioned 1 km (0.62 mi) on each side of the 3D seismic vessel, 
suggest that marine mammals do in fact move away from an active source 
vessel. In those instances, more seals were seen from the support 
vessels than were seen from the source vessels during active seismic 
operations. Additionally, research has indicated that some species tend 
to avoid areas of active seismic operations (e.g., bowhead whales, see 
Richardson et al., 1999).
    NMFS has determined that an IHA is the proper authorization 
required to cover Shell's survey. As described in other responses to 
comments in this document, NMFS does not believe that there is a risk 
of serious injury or mortality from these activities. The monitoring 
reports from 2006, 2007, and 2008 do not note any instances of serious 
injury or mortality (Patterson et al., 2007; Funk et al., 2008; Ireland 
et al., 2009). Additionally, NMFS is confident it has met all of the 
requirements of section 101(a)(5)(D) of the MMPA (as described 
throughout this document) and therefore can issue an IHA to Shell for 
its survey operations in 2009/2010.
    Comment 25: AWL, Dr. Bain, NSB, and AEWC believe that NMFS has not 
adequately considered whether marine mammals may be harassed at 
received levels significantly lower than 160 dB. Here, NMFS calculated 
harassment from Shell's proposed surveying based on the exposure to 
marine mammals to sounds at or above 160 dB. This uniform approach to 
harassment, however, does not take into account known reactions of 
marine mammals in the Arctic to levels of noise far below 160 dB. These 
letters state that bowhead, gray, killer, and beluga whales and harbor 
porpoise react to sounds lower than 160 dB. At least in the case of 
bowhead whales, a 120-dB level is more appropriate to assess levels of 
harassment.
    Citing several papers on killer whales and harbor porpoise, Dr. 
Bain states that major behavioral changes of these animals appear to be 
associated with received levels of around 135 dB re 1 microPa, and that 
minor behavioral changes can occur at received levels from 90-110 dB re 
1 microPa or lower. He also states that belugas have been observed to 
respond to icebreakers by swimming rapidly away at distances up to 80 
km, where received levels were between 94 and 105 dB re 1 microPa. 
Belugas exhibited minor behavioral changes such as changes in 
vocalization, dive patterns, and group composition at distances up to 
50 km (NRC, 2003), where received levels were likely around 120 dB.
    AEWC also states that in conducting scoping on its national 
acoustic guidelines for marine mammals, NMFS noted that the existing 
system for determining take (i.e., the 160 dB mark) ``considers only 
the sound pressure level of an exposure but not its other attributes, 
such as duration, frequency, or repetition rate, all of which are 
critical for assessing impacts on marine mammals'' and ``also assumes a

[[Page 55377]]

consistent relationship between rms (root-mean-square) and peak 
pressure values for impulse sounds, which is known to be inaccurate 
under certain (many) conditions'' (70 FR 1871, 1873, January 11, 2005). 
Thus, NMFS itself has recognized that 160 dB (rms) is not an adequate 
measure.
    Response: 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 Pa rms. Miller et al. (1999) surmise that deflection may have 
begun about 35 km (21.7 mi) to the east of the seismic operations, but 
did not provide SPL measurements to that distance and noted that sound 
propagation has not been studied as extensively eastward in the 
alongshore direction, as it has northward, in the offshore direction. 
Therefore, while this single year of data analysis indicates that 
bowhead whales may make minor deflections in swimming direction at a 
distance of 30-35 km (18.6-21.7 mi), there is no indication that the 
SPL where deflection first begins is at 120 dB, it could be at another 
SPL lower or higher than 120 dB. Miller et al. (1999) also note that 
the received levels at 20-30 km (12.4-18.6 mi) were considerably lower 
in 1998 than have previously been shown to elicit avoidance in bowheads 
exposed to seismic pulses. However, the seismic airgun array used in 
1998 was larger than the ones used in 1996 and 1997. Therefore, NMFS 
believes that it cannot scientifically support adopting any single SPL 
value below 160 dB and apply it across the board for all species and in 
all circumstances. Second, these minor course changes occurred during 
migration and, as indicated in MMS' 2006 PEA, have not been seen at 
other times of the year and during other activities.
    Third, as stated in the past, NMFS does not believe that minor 
course corrections during a migration rise to a level of being a 
significant behavioral response. 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 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 Pa). However, monitoring a 120-dB radius in the Chukchi 
Sea is not practicable and due to safety concerns, NMFS would not 
require this level of monitoring in the Chukchi Sea.
    Although it is possible that marine mammals could react to any 
sound levels detectable above the ambient noise level within the 
animals' respective frequency response range, this does not mean that 
such animals would react in a biologically significant way. According 
to experts on marine mammal behavior, the degree of reaction which 
constitutes a ``take,'' i.e., a reaction deemed to be biologically 
significant that could potentially disrupt the migration, breathing, 
nursing, breeding, feeding, or sheltering, etc., of a marine mammal is 
complex and context specific, and it depends on several variables in 
addition to the received level of the sound by the animals. These 
additional variables include, but are not limited to, other source 
characteristics (such as frequency range, duty cycle, continuous vs. 
impulse vs. intermittent sounds, duration, moving vs. stationary 
sources, etc.); specific species, populations, and/or stocks; prior 
experience of the animals (naive vs. previously exposed); habituation 
or sensitization of the sound by the animals; and behavior context 
(whether the animal perceives the sound as predatory or simply 
annoyance), etc. (Southall et al., 2007).
    The references cited in the comment letters address different 
source characteristics (continuous sound rather than impulse sound that 
are planned for the proposed shallow hazard and site clearance surveys) 
or species (killer whales and harbor proposes) that rarely occur in the 
proposed Arctic action area. Much research regarding bowhead and gray 
whales response to seismic survey noises has been conducted in addition 
to marine mammal monitoring studies during prior seismic surveys. 
Detailed descriptions regarding behavior responses of these marine 
mammals to seismic sounds are available (e.g., Richardson et al., 1995; 
review by Southall et al., 2007), and are also discussed in this 
document. Additionally, as Shell does not intend to use ice-breakers 
during its operations, statements regarding beluga reactions to 
icebreaker noise are not relevant to this activity.
    Regarding the last point raised in this comment by AEWC, NMFS 
recognizes the concern. Based on the information and data contained in 
Southall et al. (2007), NMFS is moving towards implementing a dual 
criteria for impacts of noise on marine mammals. However, until 
guidelines are available, NMFS will continue to use the 160-dB 
threshold for determining the level of take of marine mammals by Level 
B harassment for impulse noise (such as from airguns).
    Comment 26: NSB and AWL note that this IHA, as currently proposed, 
is based on uncertainties that are not allowed under the MMPA. Citing 
comments made by NMFS on recent MMS LS Environmental Impact Statements, 
they note that NMFS stated that without more current and thorough data 
on the marine mammals in the Chukchi Sea and their use of these waters, 
it would be difficult to make the findings required by the MMPA. NMFS 
also specifically observed that activities ``occurring near productive 
forage areas such as the Hanna Shoal'' or ``along migratory corridors'' 
are most likely to encounter and impact marine mammals. Shell's 
proposed surveying for 2009 will likely take place proximate to the 
Hanna Shoal and within the pathway for migrating bowheads.
    It is generally recognized that there is much unknown about the 
range of potential effects of sound on marine mammals, especially long-
term sublethal effects and the impact of exposure to increasing levels 
of noise year after year. NMFS noted in both sets of LS comments that 
the ``continued lack of basic audiometric data for key marine mammal 
species'' that occur throughout the Chukchi Sea inhibits the ``ability 
to determine the nature and biological significance of exposure to 
various levels of both continuous and impulsive oil and gas activity 
sounds.'' Again, NMFS stressed that additional data should be obtained 
for the agency to consider authorizing incidental taking under the MMPA 
and the Endangered Species Act (ESA). AWL also states that the need for 
more information regarding the effects of sound and the appropriate 
mitigation measures was emphasized in a recent report issued by an 
interagency task force led by a representative from NOAA (JSOST, 2009). 
This lack of information runs up against the precautionary nature of 
the MMPA. Nor can NMFS claim the lack of available information 
justifies its decision. NMFS has an affirmative obligation to find that 
impacts are no more than ``negligible''

[[Page 55378]]

and limited to the harassment of only ``small numbers of marine 
mammals.''
    NSB also notes that Shell's application contains several references 
to the lack of evidence for damage to auditory mechanisms of several 
marine mammals. A lack of data does not amount to a lack of evidence. 
Shell needs to provide actual citations that show a lack of damage. 
These citations must be from studies of baleen whales, belugas, and 
pinnipeds that were focused on the assessment of this type of damage. 
But this information does not exist for the noise produced typical of 
Arctic open-water seismic operations. In fact, the basic anatomy of 
bowhead whale auditory apparatus has not been investigated.
    Response: NMFS agrees that there is some uncertainty on the current 
status of some marine mammal species in the Chukchi Sea and on impacts 
to 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 the Stock Assessment 
Reports (SARs). 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 affect only 
small numbers of and have no more than a negligible impact on marine 
mammals in the Chukchi Sea. However, as NMFS recognizes that there is a 
lack of information on certain aspects of the marine mammals in the 
Chukchi Sea and the potential impacts on marine mammal species and 
stocks from offshore oil exploration, Shell (in collaboration with 
other offshore companies) has developed and implemented a monitoring 
program to address data gaps. NMFS used the best scientific information 
available to make the required findings under the MMPA. As explained in 
this document, based on that information, NMFS has determined that 
Shell's activities will affect only small numbers of marine mammals, 
will have a negligible impact on affected species or stocks, and will 
not have an unmitigable adverse impact on subsistence uses of the 
affected species or stocks.
    Comment 27: The MMC recommends 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) reviewed the situation and 
determined that further deaths or serious injuries are unlikely to 
occur; or (2) issued regulations authorizing such takes under section 
101(a)(5)(A) of the MMPA.
    Response: NMFS concurs with the MMC'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. Additionally, Shell is required to notify the Marine Mammal 
Stranding Network of stranded marine mammals.
    Comment 28: NSB and AEWC note that stranded marine mammals or their 
carcasses are also a sign of injury. NMFS states in its notice that it 
``does not expect any marine mammal will...strand as a result of the 
proposed survey'' (74 FR 26222, June 1, 2009). In reaching this 
conclusion, NMFS claims that strandings have not been recorded for the 
Beaufort and Chukchi Seas. NSB and AEWC included a paper, which 
documents 25 years of stranding data, including five whales reported in 
2008 alone in comparison with the five dead whales that were reported 
in the same area over the course of 25 years (Rosa, 2009). NSB also 
included some stranding reports and newspaper articles for bowhead 
whales discovered in the last 25 years.
    In light of the increase in seismic operations in the Arctic since 
2006, NSB's study raises serious concerns about the impacts of these 
operations and their potential to injure marine mammals. While we think 
this study taken together with the June 2008 stranding of ``melon 
headed whales off Madagascar that appears to be associated with seismic 
surveys'' (74 FR 26222, June 1, 2009) demonstrate that seismic 
operations have the potential to injure marine mammals beyond beaked 
whales (and that Shell needs to apply for an LOA for its operations), 
certainly NSB's study shows that direct injury of whales is on-going. 
These direct impacts must be analyzed and explanations sought out 
before additional activities with the potential to injure marine 
mammals are authorized.
    Thus, NMFS must explain how, in light of this new information, 
Shell's application does not have the potential to injure marine 
mammals. NMFS must also require Shell to report the numbers and species 
of dead animals it encounters and require necropsies to be performed on 
dead marine mammals found during Shell's operations.
    Response: NMFS has reviewed the information provided by NSB and 
AEWC regarding marine mammal strandings in the Arctic. The stranding 
reports and accompanying newspaper articles for the three bowhead 
whales discovered in the 1980s and 1990s do not link the deaths to 
seismic activities. Rather, the two more detailed reports point to 
entanglement in fishing gear as the possible cause of death in both 
instances. Additionally, Rosa (2009) does not provide any evidence 
linking the cause of death for the bowhead carcasses reported in 2008 
to seismic operations. Additionally, the increased reporting of 
carcasses in the Arctic since 2006 may also be a result of increased 
reporting effort and does not necessarily indicate that there were 
fewer strandings prior to 2008. MMOs aboard industry vessels in the 
Beaufort and Chukchi Seas have been required to report sightings of 
injured and dead marine mammals to NMFS as part of the IHA requirements 
only since 2006.
    Regarding the June 2008 stranding of melon headed whales off 
Madagascar, information available to NMFS at this time indicates that 
the seismic airguns were not active around the time of the stranding. 
While the NSB study (Rosa, 2009) does present information regarding the 
injury of whales in the Arctic, it does not link the cause of the 
injury to seismic survey operations. As NMFS has stated previously, 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 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

[[Page 55379]]

stranding was obtained. In addition, Taylor et al. (2004) indicates 
that the same seismic vessel was operating 500 km (270 nm) from the 
site of the Galapagos Island stranding in 2000. Whether the 2004 
seismic survey caused the 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 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.
    Moreover, marine mammal strandings do not appear to be related to 
seismic survey work in the Arctic Ocean. Additionally, 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 marine mammal strandings 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. Therefore, NMFS does not expect 
any marine mammals will incur serious injury or mortality as a result 
of Shell's 2009/2010 survey operations, so an LOA is not needed.
    Lastly, Shell is required to report all sightings of dead and 
injured marine mammals to NMFS and to notify the Marine Mammal Health 
and Stranding Response Network. However, Shell is not permitted to 
conduct necropsies on dead marine mammals. Necropsies can only be 
performed by people authorized to do so under the Marine Mammal Health 
and Stranding Response Program MMPA permit. NMFS is currently 
considering different methods for marking carcasses to reduce the 
problem of double counting. However, a protocol has not yet been 
developed, so marking is not required in the IHA.
    Comment 29: AWL states that additional mitigation measures are 
needed to address vulnerable cow/calf pairs. When assessing the 
potential impacts of noise, NMFS and MMS have recognized that bowhead 
cow/calf pairs merit special conditions. NMFS acknowledged in 2008 that 
more information is needed about the potential effects of even a single 
seismic survey on the health of females and very young calves. 
Collectively, these factors led NMFS to require a safety zone tailored 
to protect multiple migrating cow/calf pairs for the surveying that 
took place in both seas in 2006 and for the subsequent surveying in the 
Beaufort Sea in 2007 and 2008. These same factors compel a 120-dB 
safety zone for migrating cow/calf pairs during Shell's proposed 
surveying in the Chukchi Sea in 2009.
    Response: The 120-dB safety zone for migrating bowhead cow/calf 
pairs was implemented to reduce impacts to the animals as they migrated 
through the narrow corridor in the Beaufort Sea. However, in the 
Chukchi Sea, the migratory corridor for bowhead whales is wider and 
more open, thus the 120-dB ensonified zone would not impede bowhead 
whale migration. The animals would be able to swim around the 
ensonified area. Additionally, NMFS has not imposed a requirement to 
conduct aerial monitoring of the 120-dB safety zone for the occurrence 
of four or 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 30: AEWC states the analysis that is provided regarding 
bowhead whales assumes, without supporting evidence, their migrations 
through the Chukchi follow a narrow path. AEWC and NSB note that 
insufficient data exist about bowhead whale and other species' use of 
the Chukchi, and Shell should not be authorized to operate in this 
sensitive area until further information has been collected. For this 
same reason, AEWC asks NMFS to cap the seismic and related activities 
that it authorizes each year in the Arctic to ensure that we are not 
damaging sensitive marine resources that are relied on for subsistence 
in ways that we are unaware of.
    Response: NMFS disagrees with the first statement. In fact, in 
NMFS' Notice of Proposed IHA (74 FR 26217, June 1, 2009), NMFS stated 
that the bowhead migration pathway is narrower and more well defined in 
the Beaufort Sea than in the Chukchi Sea. Regarding the comment about 
insufficient data, please see the response to comment 26 in this 
document. While NMFS acknowledges that there is some uncertainty about 
the status of marine mammals in and their use of the Chukchi Sea, 
population assessments are being conducted. NMFS used the best 
scientific information available to make the necessary findings 
required under the MMPA. Using the best available information, NMFS 
determined that Shell's survey will affect only small numbers of marine 
mammals, will have a negligible impact on affected species or stocks, 
and will not have an unmitigable adverse impact on the affected species 
or stocks for subsistence uses.
    NMFS does not authorize the actual seismic and related activities. 
That authority falls to MMS. Rather, NMFS authorizes the take of marine 
mammals incidental to a specified activity (in this case, seismic 
activity) pursuant to sections 101(a)(5)(A) and (D) of the MMPA. While 
NMFS agrees that limiting the number of geophysical operations in 
either the Arctic 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 applicants are required to complete a POC to ensure that their 
activities will not affect subsistence hunts. As described elsewhere in 
this document, Shell has incorporated design features into their 
program,

[[Page 55380]]

signed the 2009 CAA, and implemented a POC, and NMFS has included 
measures in the IHA to ensure no unmitigable adverse impacts to 
subsistence hunts.
    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 31: NSB states that Shell needs to consider impacts on 
those species that may not occur in the project area in ``meaningful 
numbers.''
    Response: Although bowhead, beluga, and gray whales and harbor 
porpoise are more likely to occur in the project area than other 
cetacean species (i.e., humpback, fin, killer, and minke whale), all of 
these species were described and analyzed in Shell's application and 
NMFS' proposed IHA (74 FR 26217, June 1, 2009).
    Comment 32: NSB notes that Shell states, ``These types of surveys, 
collectively and individually, have not resulted in impacts of 
biological significance to marine mammals of the Arctic...'' Shell does 
not have data to support this statement, as Shell and other oil and gas 
companies have yet to examine whether there have been impacts of 
biological significance from exploration activities in the Beaufort and 
Chukchi Seas. Determination of the biological significance of impacts 
from oil and gas activities (beyond just behavioral deflection) is 
needed. Further, ``biological significance'' must be defined. NSB also 
notes that Shell states, ``Any effects would be temporary and of short 
duration at any one place.'' It is difficult, if not impossible to 
judge this statement from the information included in this IHA.
    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. However, 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. As stated 
previously, NMFS determines whether takings by harassment are occurring 
based on whether there is a significant behavioral change in 
biologically important activity, such as feeding, breeding, migration 
or sheltering. All of these activities are potentially important for 
reproductive success of a marine mammal population (67 FR 46722, July 
16, 2002). 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 
has determined that seismic survey noise in the Arctic will have no 
more than a short-term effect on marine mammals in the Chukchi Sea.
    Large-scale impact assessments on marine mammal species from 
offshore seismic activities have been ongoing since 2006 through the 
industry's comprehensive monitoring plan. NMFS along with AEWC, 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 
``Comprehensive Monitoring Reports''). If NSB wishes to set alternative 
priorities for this impact assessment program, it should make that 
concern known to NMFS and Shell as soon as possible.
    Comment 33: NSB notes that Shell states, ``Excessive amounts of 
repeated exposure can lead to overestimation of the number of animals 
potentially exposed through double counting.'' NSB indicates that this 
can also cause greater harm in animals exposed multiple times/
chronically.
    Response: Repeated exposure may cause a marine mammal to exhibit 
diminished 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. 
Additionally, the relatively short cross-track distance of the 160-dB 
radius associated with Shell's site clearance and shallow hazards 
surveys result in little overlap of exposed waters during the survey.
    Moreover, as explained in detail elsewhere in this document, marine 
mammals will need to be significantly closer to the seismic source and 
be exposed to SPLs greater than 180 dB to be injured or killed by the 
airgun array. For large airgun arrays (much larger than the array to be 
used by Shell in 2009/2010), 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 the 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 35: Citing research on long term adverse effects to whales 
and dolphins from whale watching activities (Trites and Bain, 2000; 
Bain, 2002; Lusseau et al., 2006), Dr. Bain states that Level B 
behavioral harassment could be the primary threat to cetacean 
populations.
    Response: Although NMFS agrees that long-term, persistent, and 
chronic exposure to Level B harassment could have a profound and 
significant impact on marine mammal populations, such as described in 
the references cited by Dr. Bain, those examples do not reflect the 
impacts of seismic surveys to marine mammals for Shell's project. 
First, whale watching vessels are intentionally targeting and making 
close approaches to cetacean species so the tourists onboard can have a 
better view of the animals. Some of these whale/dolphin

[[Page 55381]]

watching examples cited by Dr. Bain occurred in the coastal waters of 
the Northwest Pacific between April and October and for extended 
periods of time (``[r]ecreational and scientific whale watchers were 
active by around 6 a.m., and some commercial whale watching continued 
until around sunset''). Thus multiple vessels have been documented to 
be in relatively close proximity to whales for about 12 hours a day, 
six months a year, not counting some ``out of season'' whale watching 
activities and after dark commercial filming efforts. In addition, 
noise exposures to whales and dolphins from whale watching vessels are 
probably significant due to the vessels' proximity to the animals. To 
the contrary, Shell's proposed open-water shallow hazard and site 
clearance surveys, along with existing industrial operations in the 
Arctic Ocean, do not intentionally approach marine mammals in the 
project areas. Shell's survey locations are situated in a much larger 
Arctic Ocean Basin, which is far away from most human impacts. 
Therefore, the effects from each activity are remote and spread farther 
apart, as analyzed in NMFS' 2009 EA, as well as the MMS 2006 PEA.
    Shell's site clearance and shallow hazards activities would only be 
conducted between August and October for 50 days, weather permitting. 
In addition, although studies and monitoring reports from previous 
seismic surveys have detected Level B harassment of marine mammals, 
such as avoidance of certain areas by bowhead and beluga whales during 
the airgun firing, no evidence suggests that such behavioral 
modification is biologically significant or non-negligible (Malme et 
al., 1986, 1988; Richardson et al., 1987, 1999; Miller et al., 1999, 
2005), as compared to those exposed by chronic whale watching vessels 
cited by Dr. Bain. Therefore, NMFS believes that potential impacts to 
marine mammals in the Chukchi Sea by site clearance and shallow hazards 
surveys would be limited to Level B harassment only, and due to the 
limited scale and remoteness of the project in relation to a large 
area, such adverse effects would not accumulate to the point where 
biologically significant effects would be realized.
    Comment 36: Dr. Bain states that changes in behavior resulting from 
noise exposure could lead to indirect injury in marine mammals in the 
wild. He presented several examples to suggest that marine mammals 
repeatedly exposed to Level B harassment could result in Level A takes: 
(1) Harbor porpoise were observed traveling at high speeds during 
exposure to mid-frequency sonar in Haro Strait in 2003 and that 
exhaustion from rapid flight could lead to mortality; (2) citing MMS' 
(2004) Environmental Assessment on Proposed Oil and Gas Lease Sale 195 
in the Beaufort Sea Planning Area (OCS EIS/EA MMS 2004-028) that 
feeding requires a prey density of 800 mg/m3 and his own observation, 
Dr. Bain is concerned displacement from high productive feeding areas 
would negatively affect individual whales and that small cetaceans such 
as harbor porpoise would face a risk of death if they are unable to 
feed for periods as short as 48 - 72 hours, or they may move into 
habitat where they face an increased risk of predation; (3) individual 
killer whales have been observed splitting from their pod when 
frightened by sonar and that other killer whales' separation from their 
social units has resulted in death; (4) TTS may lead to harm, as a 
minke whale was nearly struck by a research vessel in the area where 
one had been observed fleeing mid-frequency sonar, and blunt force 
trauma was identified as a cause of death in the investigation of 
harbor porpoise mortalities following exposure to mid-frequency sonar; 
and (5) impaired auditory ability may increase predation, as white-
sided dolphins were attacked by killer whales because the noise of the 
research vessel caused the approach of the killer whales to go 
undetected by the dolphins.
    Response: NMFS agrees that it is possible that changes in behavior 
or auditory masking resulting from noise exposure could lead to injury 
in marine mammals under certain circumstances in the world, such as 
those examples/hypotheses raised by Dr. Bain. However, it is not likely 
that received SPLs from the site clearance and shallow hazards surveys 
would drastically cause changes in behavior or auditory masking in 
marine mammals in the vicinity of the action area. First, marine 
mammals in the aforementioned examples and hypotheses were exposed to 
high levels of non-pulse intermittent sounds, such as military sonar, 
which has been shown to cause flight activities (e.g., Haro Strait 
killer whales); and continuous sounds such as the vessel, which could 
cause auditory masking when animals are closer to the source. The 
sources produced by the acoustic equipment and airguns for Shell's site 
clearance and shallow hazards surveys are impulse sounds used in 
seismic profiling, bathymetry, and seafloor imaging. Unlike military 
sonar, seismic pulses have an extremely short duration (tens to 
hundreds of milliseconds) and relatively long intervals (several 
seconds) between pulses. Therefore, the sound energy levels from these 
acoustic sources and small airguns are far lower in a given time 
period. Second, the intervals between each short pulse would allow the 
animals to detect any biologically significant signals, and thus avoid 
or prevent auditory masking. In addition, NMFS requires mitigation 
measures to ramp-up acoustic sources at a rate of no more than 6 dB per 
5 min. This ramp-up would prevent marine mammals from being exposed to 
high level noises without warning, thereby eliminating the possibility 
that animals would dramatically alter their behavior (i.e. from a 
``startle'' reaction). NMFS also believes that long-term displacement 
of marine mammals from a feeding area is not likely because the seismic 
vessel is constantly moving, and the maximum 160-dB ensonified radius 
is about 1.4 km, which would create an area of ensonification of 
approximately 6 km\2\ at any given moment, which constitutes a very 
small portion of the Chukchi Sea (0.001 percent). In reality, NMFS 
expects the 160-dB ensonified zone to be smaller due to absorption and 
attenuation of acoustic energy in the water column.
    Comment 36: AEWC states that NMFS does little to assess whether 
Level A harassment is occurring as a result of the deflection of marine 
mammals as a result of Shell's proposed operations. Deflected marine 
mammals may suffer impacts due to masking of natural sounds including 
calling to others of their species, physiological damage from stress 
and other non-auditory effects, harm from pollution of their 
environment, tolerance, and hearing impacts (see Nieukirk et al., 
2004). Not only do these operations disrupt the animals' behavioral 
patterns, but they also create the potential for injury by causing 
marine mammals to miss feeding opportunities, expend more energy, and 
stray from migratory routes when they are deflected. Dr. Bain also 
states that there are three main ways that minor behavioral changes, 
when experienced by numerous individuals for extended periods of time, 
can affect population growth: increased energy expenditure, reduced 
food acquisition, and stress (Trites and Bain, 2000).
    Response: See the response to comment 35 regarding the potential 
for injury. The paper cited by AEWC (Nieukirk et al., 2004) tried to 
draw linkages between recordings of fin, humpback, and minke whales and 
airgun signals in the western North Atlantic; however, the authors note 
the difficulty in assessing impacts based on the data collected. The 
authors also state

[[Page 55382]]

that the effects of airgun activity on baleen whales is unknown and 
then cite to Richardson et al. (1995) for some possible effects, which 
AEWC lists in their comment. There is no statement in the cited study, 
however, about the linkage between deflection and these impacts. While 
deflection may cause animals to expend extra energy, there is no 
evidence that this deflection is causing a significant behavioral 
change to a biologically significant activity. In fact, 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). Therefore, NMFS does not believe that injury will occur as a 
result of Shell's activities. Additionally, Shell's total data 
acquisition activities will occur in an extremely small portion of the 
Chukchi Sea (0.2 percent). Therefore, based on the smaller radii 
associated with Shell's site clearance and shallow hazards surveys than 
the larger 2D or 3D seismic programs and the extremely small area of 
the Chukchi Sea where Shell will utilize airguns, it is unlikely that 
marine mammals will need to expend extra energy to locate prey or to 
have reduced foraging opportunities.
    Comment 37: Citing Erbe (2002), AEWC notes that any sound at some 
level can cause physiological damage to the ear and other organs and 
tissues. Placed in a context of an unknown baseline of sound levels in 
the Chukchi Sea, it is critically important that NMFS take a 
precautionary approach to permitting additional noise sources in this 
poorly studied and understood habitat. Thus, the best available science 
dictates that NMFS use a more cautious approach in addressing impacts 
to marine mammals from seismic operations.
    Response: The statement from Erbe (2002) does not take into account 
mitigation measures required in the IHA to reduce impacts to marine 
mammals. As stated throughout this document, based on the fact that 
Shell will be using a small airgun array (total discharge volume of 40 
in\3\) and will implement mitigation measures (i.e., ramp-up, power-
down, shutdown, etc.), NMFS does not believe that there will be any 
injury or mortality of marine mammals as a result of Shell's 
operations.
    Comment 38: AEWC states that in making its negligible impact 
determination, NMFS failed to consider several impacts: (1) Non-
auditory, physiological effects, namely stress; (2) the possibility of 
vessel strikes needs to be considered in light of scientific evidence 
of harm from ship traffic to marine mammals; (3) impacts to marine 
mammal habitat, including pollution of the marine environment and the 
risk of oil spills, toxic, and nontoxic waste being discharged; (4) 
impacts to fish and other food sources upon which marine mammals rely; 
(5) specific marine mammals that will be taken, including their age, 
sex, and reproductive condition; and (6) the use of multiple airguns at 
one time. For this last point, referencing Nieukirk et al. (2004) and 
NRC (2003), AEWC states that the impacts from airguns cannot simply be 
discounted by assuming that most of the energy is focused vertically, 
and, thus, the impacts horizontally are not great. Dr. Bain also notes 
that directional sources and arrays produce significant energy in 
directions other than their primary direction.
    Response: NMFS does not agree that these impacts were not 
considered. First, non-auditory, physiological effects, including 
stress, were analyzed in the Notice of Proposed IHA (74 FR 26217, June 
1, 2009). No single marine mammal is expected to be exposed to high 
levels of sound for extended periods based on the size of the airgun 
array to be used by Shell and the fact that an animal would need to 
swim close to, parallel to, and at the same speed as the vessel to 
incur several high intensity pulses. This also does not take into 
account the mitigation measures described later in this document.
    Second, impacts resulting from vessel strikes and habitat pollution 
and impacts to fish were fully analyzed in MMS' 2006 Final PEA and 
incorporated by reference into NMFS' 2009 EA for Shell's activities. 
Additionally, the proposed IHA analyzed potential impacts to marine 
mammal habitat, including prey resources. That analysis noted that 
while mortality has been observed for certain fish species found in 
extremely close proximity to the airguns, Saetre and Ona (1996) 
concluded that mortality rates caused by exposure to sounds are so low 
compared to natural mortality that issues relating to stock recruitment 
should be regarded as insignificant. Based on the small portion of the 
Chukchi Sea that will be ensonified during Shell's activities, less 
than 0.1 percent of available food resources are anticipated to be 
impacted, which would have little, if any, effect on a marine mammal's 
ability to forage successfully.
    For the fifth point, please see the response to comment 11. The 
age, sex, and reproductive condition must provided when possible. 
However, this is often extremely difficult to predict. Additional 
mitigation measures for bowhead cow/calf pairs, such as monitoring the 
120-dB radius and requiring shutdown when 4 or more cow/calf pairs 
enter that zone, were considered but determined to be impracticable for 
this survey. As stated elsewhere in this document, due to safety 
concerns, aerial surveys are not required in the offshore Chukchi Sea 
environment. Regarding the last point raised by AEWC, NMFS analyzed 
impacts from the use of an airgun array with a total discharge volume 
of 40 in\3\. In its analysis, NMFS did not discount the impacts from 
airguns by simply assuming that most of the energy is focused downward 
(i.e., vertically). While the fact that the downward direction of the 
airguns minimizes sound that is emitted in the horizontal direction, 
NMFS fully analyzed the impacts of airgun sounds on marine mammals and 
has required monitoring and mitigation measures to reduce the impacts 
further. Based on the information contained in this response and the 
analyses in the proposed IHA and NMFS' EA, NMFS determined that impacts 
to marine mammals as a result of Shell's action will be negligible.
    Comment 39: NSB notes that Shell's application states, ``In the 
absence of important feeding areas, the potential diversion of a small 
number of bowheads is not expected to have any significant or long-term 
consequences for individual bowheads or their population. Bowheads, 
gray, or beluga whales are not predicted to be excluded from any 
habitat.'' If these whales are avoiding the 160 dB and potentially the 
120 dB isopleths, and the logic that is used for use of the mitigation 
gun is that the sound ``clears'' the area, then, yes, they will most 
certainly be excluded from part of their habitat.
    Response: NMFS agrees with NSB's statement that whales will likely 
be excluded from part of their habitat. However, the exclusion is 
expected to be temporary and would not affect feeding opportunities 
because only an extremely small fraction of the Chukchi Sea will be 
ensonified as a result of Shell's operations (less than 0.2 percent). 
Implicit in this conclusion, therefore, is that there will be many 
other areas available to whales for feeding and other biologically 
important activities.

Acoustic Impacts

    Comment 40: Citing studies on noise impacts to chinchillas 
(Henderson et al., 1991) and human noise exposure standards by the U.S. 
Occupational Safety Health Administration (OSHA), Dr. Bain states, 
``[I]n humans, chronic exposure to levels of noise too low to generate 
a TTS can result in PTS.'' As OSHA standards require limiting human

[[Page 55383]]

exposure to noise at 115 dBA above threshold to 15 minutes per day, Dr. 
Bain concludes that this level is equivalent to 145 dB re 1 microPa for 
killer whales. Dr. Bain states that although the reference levels for 
sound in air and water are different, this difference is taken into 
account when determining thresholds.
    Dr. Bain notes that while OSHA's standards are for continuous noise 
and assume multi-year exposure, surveys employ multiple intermittent 
sources, which in a reverberant environment, have the potential to 
become nearly continuous. While individual projects will cause limited 
exposure to individual marine mammals, these individuals will 
accumulate exposure from natural sources (e.g., wind) and human 
activities (e.g., other seismic surveys, vessel traffic) conducted over 
the course of their lifetime.
    Response: Although NMFS agrees that chronic exposure to noise 
levels that would not cause TTS could result in hearing impairment in 
the long-term, it is important to understand that such exposure has to 
be of a chronic and long-term nature. The OSHA standards for 
permissible exposure are based on daily impacts throughout an 
employee's career, while the noise exposure to seismic surveys by 
marine mammals is short-term and intermittent (surveys occur for 2-3 
months in a given year), as described in the Notice of Proposed IHA and 
NMFS' EA. In addition, the reference Dr. Bain cites (Henderson et al., 
1991) does not address chronic noise impact to humans. The research by 
Henderson et al. (1991) focused on the applicability of the equal 
energy hypothesis (EEH) to impact (impulse) noise exposures on 
chinchillas, and the results indicated that hearing loss resulting from 
exposure to impact noise did not conform to the predictions of the EEH, 
which is the basis for OSHA standards for continuous noise exposure.
    Most importantly, Dr. Bain's extrapolation of 145 dB re 1 Pa for 
killer whale hearing safety from OSHA's 115 dBA is fundamentally flawed 
for three reasons:
    (1) The reference points when using decibel units that address 
sound in air and in water are different. For airborne sounds, such as 
those by OSHA, the reference point is 20 microPa, while for underwater 
sounds, the reference point is 1 microPa. There is a 26 dB difference 
between the values when different reference points are used for the 
same sound pressure; therefore, 115 dB re 20 microPa is 141 dB re 1 
microPa for the same sound pressure. So 115 dB re 20 microPa in air 
above human threshold (defined as 0 dB re 20 microPa in air) would be 
141 dB re 1 microPa underwater for the same sound pressure. Using the 
lowest threshold of 30 dB re 1 microPa as the killer whale hearing 
threshold and assuming that noise impacts to killer whales are the same 
as for humans, one could extrapolate that continuous noise exposure of 
171 dB re 1 microPa (141 dB over the 30 dB threshold) for 15 minutes 
for killer whales would be equivalent to humans exposed to 115 dB re 20 
Pa for 15 minutes. Nevertheless, such extrapolation still leaves much 
uncertainty since marine mammals have a different mechanism for sound 
reception (Au, 1993; Richardson et al., 1995). Some of the most recent 
science has shown that for some odontocetes, the onset of TTS when 
exposed to impulse noise is much higher (Finneran et al., 2002) than 
NMFS' current thresholds.
    (2) The decibel values used by OSHA are expressed as broadband A-
weighted sound levels expressed in dBA. This frequency-dependent 
weighting function is used to apply to the sound in accordance with the 
sensitivity of the human ear to different frequencies. Thus, it is 
inappropriate to compare these values to an animal's hearing 
capability, including how an animal perceives sound in air (Richardson 
et al., 1995). For marine mammals, M-weighting functions have been 
suggested based on five different hearing functional groups to address 
different hearing sensitivities of different frequencies by each of the 
marine mammal groups (Southall et al., 2007).
    (3) Finally, the sound characteristic used in OSHA standards is 
continuous sound, while the seismic sound from the proposed shallow 
hazard and site clearance surveys is impulse sound, which by its very 
nature is not a continuous sound. There are several seconds between 
each shot, and each shot only lasts for a few milliseconds. Therefore, 
the amount of time without seismic sound between each shot is greater 
than 99 percent. As there is a significant period of time between shot 
events, this does not qualify as a continuous sound source. NMFS' EA 
assessed the cumulative impacts from all activities in the Chukchi Sea. 
Based on that assessment, NMFS determined that Shell's activities would 
not produce any significant cumulative impacts to the human environment 
(i.e., marine mammals).
    Comment 41: Dr. Bain states that sound sources are typically 
divided into continuous and pulsed categories, and that behavioral 
effects from pulsed sound are likely to be independent of the 
repetition rate and duty cycle and depend primarily on the duration of 
the survey. Dr. Bain further states that intermittent pulses can result 
in continuously received noise when sound arrives via multiple paths, 
which Dr. Bain explains as ``sound that bounces between the bottom and 
the surface will take longer to reach an animal than sound traveling 
via a direct path,'' and that ``noise can mask signals for a brief 
period before and after it is received, meaning an almost continuous 
received noise can mask signals continuously.''
    Response: NMFS does not agree with Dr. Bain's statement on ocean 
acoustics and his subsequent analysis and assessment regarding 
underwater sound propagation and its effects to marine mammals. Within 
the scientific community on ocean acoustics and bioacoustics, two types 
of sound are traditionally recognized: transient sounds (sounds of 
relatively short duration) and continuous sounds (sounds that go on and 
on). Transient sounds can be further classified into impulsive (such as 
seismic airguns, explosives, pile driving) and non-impulsive (such as 
military tactic sonars) sounds (Richardson et al., 1995). Other 
researchers studying noise impacts on marine mammals classified sound 
types into a single pulse (a single explosive), multiple pulses 
(seismic airguns, pile driving), and non-pulses (ships, sonar) 
(Southall et al., 2007). A simple way to distinguish pulses sound from 
non-pulses (continuous sound included) is that the former have rapid 
rise-time in relation to its extremely short duration. As mentioned in 
the response to comment 25, behavioral responses from marine mammals 
when exposed to underwater noise is complex and context specific, and 
often depend on the sound characteristics (such as received levels, 
duration, duty cycles, frequency, etc.) and other variables.
    NMFS agrees that the distinction between transient and continuous 
sounds is not absolute, as continuous sound from a fast moving vessel 
is often treated as transient sound in relation to a stationary or slow 
moving marine mammal. Further, the distinction between pulses and non-
pulses is also not always clear, as certain pulsed sound sources (e.g., 
seismic airguns and explosives) may become non-pulses at greater 
distances due to signal decay through reverberation and other 
propagation paths. However, Dr. Bain's statement that intermittent 
pulses can result in continuously received noise when sound arrives via 
multiple paths is unfounded. For a marine mammal exposed to noise, 
multipath propagation

[[Page 55384]]

would expose the animal to the noise multiple times, usually each 
subsequent exposure with lower sound level due to loss of acoustic 
energy from surface and bottom reflections; however, the noise arriving 
via multipath propagation would not become continuous sound because the 
intervals between signals would always exist. In addition, noise cannot 
mask a signal before or after it is received by the animal. Masking of 
signals can only occur when the unwanted sound (noise) interferes with 
the signal when received by the animal, generally at similar 
frequencies (Richardson et al., 1995). Therefore, Dr. Bain's assessment 
regarding the potential impact of the acoustic sources to be used 
during Shell's operations is not supported.
    Comment 42: Dr. Bain states that one characteristic of pulsed 
sources is known as ``time-bandwidth'' product, and he explains that it 
is ``any sound with a finite duration (that is, any real-world sound) 
contains additional frequencies to the nominal frequency. That is, 
pulsed sources that nominally have a frequency that is too high to 
hear, may, in fact, be audible, as the source will contain lower 
frequencies that are detectable.''
    Response: NMFS does not agree with Dr. Bain's statement that high 
frequency pulsed sources nominally contain additional frequencies that 
are audible. The high frequency pulsed sources are expected to operate 
within their frequency range, although some mechanical noise at lower 
frequencies may be produced as a byproduct during the operation. The 
mechanical noise associated with acoustic equipment is expected to be 
low intensity and is not expected to result in harassment of marine 
mammals. Furthermore, the term ``time-bandwidth product'' is generally 
used in signal process, which is irrelevant to the Chukchi Sea site 
clearance and shallow hazards survey.

Marine Mammal Biology Concerns

    Comment 43: NSB states that Table 4-1 in Shell's application should 
be organized based on the NMFS accepted stocks of marine mammals, which 
is the appropriate management unit. For example, beluga whales should 
be evaluated for the Beaufort Sea stock and the eastern Chukchi Sea 
stock. Population estimates (including nmin, point estimate for stock 
size, and confidence interval around that point estimate) should be 
given for each stock. Grouping by species is misleading and 
inappropriate.
    Furthermore, Shell separates out numbers of marine mammals by 
offshore vs. nearshore/ice edge. This approach is confusing, 
inappropriate for the Chukchi Sea, and needs to be refined. Marine 
mammals occur and migrate across the entire area. Designating a 
separate abundance for offshore and nearshore is not appropriate and is 
not helpful for evaluating the potential for small takes of marine 
mammals.
    The pinniped section of Table 4-1 is also misleading. All four 
species occur in areas other than sea ice. Shell's estimate of the 
number of spotted seals is incorrect. The provided estimate is from a 
MMS document and is only for the Beaufort Sea. Thousands of spotted 
seals use Chukchi Sea haulouts. That information should be provided in 
the application.
    Response: Table 4-1 is meant to provide an overview of the marine 
mammals that are described in detail in Section 4 of Shell's 
application. The different stocks that may be encountered during 
Shell's activities are described in the text portions of the 
application that follow the table. For example, the discussion for 
beluga whales describes both the Beaufort Sea stock and the eastern 
Chukchi Sea stock. Where available, the requested information (e.g., 
nmin, point estimate for stock size, etc.) was provided; however, that 
information is not available in the NMFS SARs for all Arctic species. 
Shell will consider revising this table in future IHA applications. The 
textual descriptions also provide additional information on the use of 
the Chukchi Sea by the different species listed in Table 4-1 and a 
Chukchi Sea specific abundance estimate for spotted seals.
    Comment 44: NSB states that the last paragraph in the beluga 
section of the application (page 16) is incomplete. Decision makers and 
the public need to be aware that the entire Beaufort and Chukchi 
populations of belugas migrate through the Chukchi Sea during the 
autumn. This information is necessary because Shell's proposed work is 
in the Chukchi Sea and may impact beluga whales. Therefore, appropriate 
monitoring and mitigation plans are needed for the central Chukchi Sea.
    Response: Discussion of the migration patterns of the Beaufort Sea 
stock of beluga whales is contained earlier in the beluga whale 
description (page 15 of the application). NMFS considered impacts to 
beluga whales during Shell's Chukchi operations. The IHA issued to 
Shell contains appropriate monitoring and mitigation measures 
(described in detail later in this document) for all marine mammal 
species under NMFS' jurisdiction.
    Comment 45: NSB notes that statements regarding bowheads summering 
in the Chukchi Sea and feeding in the Beaufort Sea are incomplete. They 
provide statements of sightings during the summer months, indicating 
that not all bowheads migrate to the eastern Beaufort Sea in the 
summer. This information is needed by decision makers and the public to 
better assess the potential impacts from oil and gas activities on 
bowheads.
    Response: MMS' 2006 Final PEA contains a discussion about bowhead 
migration and references scientific literature and accounts from 
hunters, indicating that some bowheads may summer in the western 
Beaufort Sea or Chukchi Sea. This information was incorporated by 
reference into NMFS' 2009 EA for the issuance of an IHA to Shell and 
was considered in making the necessary MMPA findings.
    Comment 46: NSB states that the discussion of results from Shell's 
aerial surveys regarding gray whales is misleading. Shell states that 
gray whales were most abundant near shore between Barrow and 
Wainwright; however, Shell did not conduct aerial surveys in offshore 
areas, including in the proposed operation area. Shell's visual 
observations in offshore areas came solely from observers on boats. It 
is not reasonable to compare aerial and vessel surveys to conclude that 
gray whales are mostly using nearshore areas. Scientific information on 
how gray whales are using offshore areas should be considered limited 
at this time.
    Response: Comment noted. In assessing impacts to gray whales, NMFS 
considered that individuals may occur within the action area. Estimated 
take numbers for gray whales reflect the fact that the animals may use 
offshore areas near Shell's operations (see the ``Estimated Take of 
Marine Mammals'' section later in this document).
    Comment 47: AWL states that there is insufficient information in 
the proposed IHA Federal Register notice related to gray whales to 
justify NMFS' MMPA conclusions. Gray whales have been shown to abandon 
habitat in response to anthropogenic noise. It is not clear that NMFS 
considered the proximity of Shell's proposed survey areas to the Hanna 
Shoal or other potential eastern gray whale feeding areas.
    AWL and Dr. Bain note that gray whale numbers have declined since 
de-listing of the species in 1994. Dr. Bain states that this raises the 
question of whether gray whales should be re-listed as threatened under 
the ESA since their population has a negative trend and is at a level 
that was considered threatened even when it was increasing. One 
implication of re-listing would be a change in the recovery factor for

[[Page 55385]]

calculating Potential Biological Removal (PBR). Using the value for an 
ESA-listed species would reduce PBR to 42. Subsistence harvest in 
Russia alone exceeds this number. Thus, additional threats such as 
habitat loss due to disturbance from seismic surveys would result in 
further jeopardy to the survival of the species. It is clear that a 
careful evaluation of this species is needed before activities that 
disturb gray whales are allowed.
    Response: NMFS considered the potential impacts of the site 
clearance and shallow hazards surveys on gray whales. MMS' 2006 Final 
PEA contains discussion and analysis of the potential effects of airgun 
noise on gray whales, including avoidance of habitat when seismic 
surveys are occurring. This information was considered by NMFS and 
incorporated by reference into the EA prepared for this action. Through 
this analysis, NMFS considered the fact that the Chukchi Sea is 
considered a primary summer feeding ground for the eastern North 
Pacific stock of gray whales. However, NMFS determined that Shell's 
surveys will impact only small numbers of gray whales and will have a 
negligible impact on the affected stock. This determination was made 
based on several factors: (1) the small size of the airgun array (40 
in\3\); (2) the short duration of the survey (approximately 50 days); 
and (3) the incorporation of the required mitigation and monitoring 
measures described later in this document.
    Since 1994, NMFS has continued to monitor the status of the 
population consistent with its responsibilities under the ESA and the 
MMPA. In 1999, a NMFS review of the status of the eastern North Pacific 
stock of gray whales recommended the continuation of this stock's 
classification as non-threatened (Rugh et al., 1999). Workshop 
participants determined the stock was not in danger of extinction, nor 
was it likely to become so in the foreseeable future. In 2001 several 
organizations and individuals petitioned NMFS to re-list the eastern 
North Pacific gray whale population. NMFS concluded that there were 
several factors that may be affecting the gray whale population but 
there was no information indicating that the population may be in 
danger of extinction or likely to become so in the foreseeable future. 
Wade and Perryman (2002) and Punt et al. (2004) (cited in the 2008 SAR, 
Angliss and Allen, 2009) found that the stock is within its optimum 
sustainable population level and that the population is likely close to 
or above its unexploited equilibrium level. NMFS continues to monitor 
the abundance of the stock through the MMPA stock assessment process, 
especially as it approaches its carrying capacity. If new information 
suggests a reevaluation of the eastern North Pacific gray whales' 
listing status is warranted, NMFS will complete the appropriate 
reviews. Lastly, Shell's surveys are not expected to destroy or result 
in any permanent impact on habitats used by gray whales or to their 
prey resources or to jeopardize the continued existence of the species.
    Comment 48: AWL, Dr. Bain, and AEWC state that the division of the 
harbor porpoise population in Alaska is incorrect. Dr. Bain and AEWC 
cite to the 2008 harbor porpoise Bering Sea stock SAR (Angliss and 
Allen, 2009):

    In cases outside of Alaska, studies have shown that stock 
structure is more fine-scale than is reflected in the Alaska Stock 
Assessment Reports. At this time, no data are available to reflect 
stock structure for harbor porpoise in Alaska. However, based on 
comparisons with other regions, smaller stocks are likely. Should 
new information on harbor porpoise become available, the harbor 
porpoise Stock Assessment Reports will be updated.

    That is, the stock to be affected by the survey is likely to be far 
smaller than currently recognized. The implication is that the 
population is far less able to tolerate takes than expected based on 
the current stock definition. AWL states that while NMFS is not 
required to develop a definitive stock assessment, it cannot rely on 
concededly inaccurate information in order to comply with its MMPA 
obligations. AEWC states that without knowing whether a specific stock 
of harbor porpoise exists in the area that will be impacted by Shell's 
operations and the population numbers and health of that stock, NMFS 
cannot determine the level of take and whether such take will be 
negligible to the stock. Thus, operations in the Chukchi should not 
proceed until additional studies have been conducted.
    Response: Currently, there are insufficient samples to draw 
conclusions about stock structure of harbor porpoise within Alaska. 
While NMFS acknowledges that perhaps smaller stocks should be 
recognized in Alaska, the best science currently available indicates 
that Shell's activities will potentially impact only small numbers of 
harbor porpoise and will not have a negligible impact on the affected 
species or stock. Using the current estimated stock size for the Bering 
Sea stock, only 0.01 percent is estimated to be taken by harassment. If 
the number should be something closer to the low 1,000s (as suggested 
by AWL), this would still represent less than 1 percent of the stock 
size. NMFS does not agree that just because a stock contains fewer 
individuals than originally estimated that it is far less able to 
tolerate takes than expected. Dr. Bain does not provide any scientific 
evidence for this statement.
    Comment 49: Dr. Bain states that another point of concern regarding 
the harbor porpoise is that NMFS is reviewing new data on other sources 
of takes but will not complete the analysis until next year (Allen and 
Angliss, in prep.). These data are needed to assess the cumulative 
effects of the proposed survey and other factors that impact the 
population.
    Response: While the draft 2009 SAR (Allen and Angliss, in prep.) 
states that more current data on fishery-related serious injury and 
mortality are being analyzed and will be available for inclusion in the 
2010 SAR, it also states that in 2001 only one fishery-related harbor 
porpoise mortality was recorded in 2001, and none were recorded for the 
period 2002-2006. Although no records are currently available for 2007-
2009, the estimated level of human-caused mortality and serious injury 
is not known to exceed PBR (Allen and Angliss, in prep.). NMFS assessed 
cumulative impacts to all marine mammals that may occur in the area of 
Shell's operations in its 2009 EA. Based on that assessment, NMFS 
concluded that issuance of an IHA to Shell to conduct its open-water 
marine survey program in the Chukchi Sea during the 2009/2010 Arctic 
open-water season would not produce any significant cumulative impacts 
to the human environment.
    Comment 50: NSB notes that more information is needed regarding use 
of the Chukchi Sea and how environmental changes may affect that use 
for bearded and ringed seals.
    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 Shell's 
site clearance and shallow hazards surveys and the number of takings by 
Level B harassment will be small relative to the best estimate of 
population size. Therefore, NMFS has determined that Shell'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 Shell's 
proposed site clearance and

[[Page 55386]]

shallow hazard surveys are not expected to have adverse impacts on ice 
seals.

Density and Take Estimate Concerns

    Several of the comment letters addressed concerns over the species 
densities used by Shell to calculate take estimates. In general, the 
commenters believed that Shell used flawed density estimates, which 
then led to incorrect take estimates. This subsection addresses those 
concerns and provides further explanation beyond the information and 
explanations provided in Shell's application and the Notice of Proposed 
IHA (74 FR 26217, June 1, 2009). Dr. Sue Moore was one of the 
independent peer reviewers for Shell's 4MP. Those comments are 
addressed in the ``Monitoring Plan Independent Peer Review'' subsection 
later in this document. However, Dr. Moore also provided comments on 
the density estimates used by Shell, which are more appropriately 
addressed in this subsection.
    Comment 51: NSB states, ``Shell contends that ``Animal [marine 
mammal] densities are generally expected to be lower in deep water, and 
at locations far-offshore''' (page 13 in Shell's application). Shell 
does not provide references to support this statement. It is possible 
that the statement is based on visual surveys in offshore areas 
conducted from boats during the past 3 years. (Shell's nearshore 
surveys were conducted by plane.) Because of the impact from boat 
sounds, including 3D seismic, to marine mammals and the limited 
efficacy of MMOs, it is inappropriate to compare density estimates from 
the nearshore and offshore areas using these two different methods. 
Moreover, Shell's 2008 report on the ``Joint Monitoring Program'' 
showed that in some cases the number of marine mammal calls detected 
was greater in offshore areas compared to nearshore areas.
    Response: The statement is a generalization across multiple species 
and seasons and does not indicate that it applies for all species (use 
of the word ``generally''). Additionally, this statement was written 
when the application was also considering estimates of marine mammals 
in the Beaufort Sea. For example, results presented in Moore et al. 
(2000b) for bowhead and beluga whales during the summer months in the 
Beaufort Sea and to some extent for gray whales in the Chukchi Sea 
support this statement, as well as statements contained in Bengtson et 
al. (2005) for ringed and bearded seals. However, it is possible that 
certain species may be encountered in higher densities in offshore 
areas. The paragraph from which this statement was taken was merely an 
introduction. Species specific descriptions are contained in the 
following pages of the application.
    Comment 52: AEWC states that in assessing the level of take and 
whether it is negligible, NMFS relied on flawed density estimates that 
call into question all of NMFS' preliminary conclusions. Density data 
are lacking or outdated for almost all marine mammals that may be 
affected by Shell's operations in the Chukchi Sea, especially for the 
fall. A few species specific examples are provided that illustrate 
NMFS' failure to utilize the best available scientific studies in 
assessing Shell's application.
    NMFS' guess at the number of beluga and bowhead whales in the 
Chukchi in the summer relies on a study from Moore et al. that was 
published in 2000 based upon information from ``industry vessels.'' The 
estimate is contrary to the best available scientific information on 
beluga whale presence in the Chukchi in the SAR from 2005. While more 
updated information is necessary on beluga presence in the Chukchi 
during the summer, even the SAR demonstrates the arbitrary nature of 
NMFS' density calculations and the information upon which these 
calculations rely. The SAR for bowhead whales cites to a 2003 study 
that documented bowheads ``in the Chukchi and Bering Seas in the 
summer'' that are ``thought to be a part of the expanding Western 
Arctic stock'' (Angliss and Allen, 2009). While a study published in 
2003 still is not a sufficient basis for a 2009 density analysis, this 
study does show that additional information is available that indicates 
that the number of bowhead whales in the Chukchi may be higher than 
estimated by NMFS.
    Response: As required by the MMPA implementing regulations at 50 
CFR 216.102(a), NMFS has used the best scientific information available 
in assessing the level of take and whether it is negligible. The data 
presented in Moore et al. (2000b) was not derived from sightings on 
industry vessels. The paper relies on data collected over 10 years 
(1982-1991) from aerial surveys offshore of northern Alaska. AEWC does 
not provide a citation for the 2005 publication cited in the beluga 
SAR; however, NMFS assumes it is Suydam et al. (2005). This is a more 
recent paper that provides information on the movements of 23 tagged 
beluga whales in the Arctic Ocean basin. However, Suydam et al. (2005) 
do not provide any density calculations or information. Shell did 
reference this publication in section 4 of the IHA application when 
describing the distribution of beluga whales. Therefore, although this 
information was not used when deriving density or take estimates for 
beluga whales, this information was considered by NMFS in making its 
MMPA findings. Additionally, the 2003 study noted by AEWC in the 
bowhead whale SAR discusses distribution, not density (Rugh et al., 
2003). This paper is cited in the distribution discussion of bowhead 
whales in the Chukchi in section 4 of Shell's application. However, it 
is not useful for deriving density estimates. Therefore, density 
estimates for bowhead and beluga whales using Moore et al. (2000b) are 
based on the best available science.
    Comment 53: Dr. Moore notes that the last paragraph on page 25 of 
Shell's application states in part that ``For the Chukchi Sea, cetacean 
densities during the summer (July-August) were estimated from effort 
and sightings data in Moore et al. (2000b).'' Moore et al. (2000b) does 
provide summer Chukchi transect survey effort and sighting data 
(stratified by bathymetry) but only for gray whales. However, expected 
densities are listed for eight cetacean species. Since data for seven 
of these species cannot be referenced to Moore et al. (2000b), they 
must be calculated (somehow) from ``data collected aboard industry 
vessels in 2006 and 2007.'' However, to my knowledge, industry vessels 
never conducted surveys in a manner from which abundance can be 
estimated. NSB, AEWC, and Dr. Bain echo Dr. Moore's comment about using 
data from industry vessels for harbor porpoise. AEWC also states that 
the insufficiency of the harbor porpoise density estimate is compounded 
by NMFS' decision not to rely on data from ``early autumn months'' in 
calculating the ``fall period'' density of porpoises and to use 
``minimal values'' instead, which is equally arbitrary.
    Response: The paragraph noted by the reviewer is meant to indicate 
to the reader the primary sources from which density information was 
derived. In the following paragraphs in the application (and in the 
Notice of Proposed IHA), additional information on the derivation of 
summer and fall densities for each species is provided. As Dr. Moore 
suggests, data on the effort and sightings of gray whales during summer 
surveys are reported in Moore et al. (2000b), and these data were used 
to estimate their expected density. Although not reported in the text 
or tables in Moore et al. (2000b), Figure 6 in the article indicates 
two on-transect sightings of beluga whales in the Chukchi Sea in the 
summer. These two sightings along with the survey effort for gray 
whales were used to calculate a summer beluga

[[Page 55387]]

whale density estimate for the Chukchi Sea. As explained in Shell's 
application, this same method was used to calculate a summer density of 
bowhead whales by assuming one sighting had occurred (although none 
were actually reported) during the reported survey effort for gray 
whales.
    No published densities or data on survey efforts or sightings were 
available for harbor porpoise, but estimates had been calculated from 
industry survey data in 2006 and 2007, so those densities were used. 
The commenter is correct that the industry vessels did not conduct 
standard randomized line-transect surveys while operating (except for 
short periods in 2006). However, this information was considered the 
best scientific information available to determine a density estimate 
for harbor porpoise in the Chukchi Sea. As noted in the subsequent 
paragraphs in Shell's application, density or survey data for other 
cetacean species are either not available or have been reported in such 
low numbers that minimal densities were selected to account for chance 
encounters of these species that are less frequently observed in the 
area of Shell's operations in the Chukchi Sea. Additionally, for harbor 
porpoise, different density estimates were used for the summer and fall 
periods (see Tables 6-1 and 6-2 in Shell's application).
    Comment 54: Dr. Moore also notes that page 25 of Shell's 
application also states, ``Because few data are available on the 
densities of marine mammals other than large cetaceans in the Chukchi 
Sea in the fall (Sep-Oct), density estimates from the summer period 
have been adjusted to reflect the expected ratio of summer-to-fall 
densities based on the natural history characteristics of each 
species'' (emphasis added by commenter). Moore et al. (2000b) provides 
fall Chukchi data for bowhead, beluga, and gray whales, why is this not 
used? Even if these data were used, however, there remains the question 
of using sightings from industry vessels to ``calculate densities'' for 
five of the eight cetacean species listed in Table 6-2 of Shell's 
application. The MMC also recommends that NMFS require Shell to 
describe in detail how it adjusted the data in Moore et al. (2000b) to 
estimate cetacean densities in the Chukchi Sea in the fall.
    Response: Shell used the data from Moore et al. (2000b) to 
calculate densities for beluga and gray whales during the fall period 
in the Chukchi Sea, which is noted in subsequent paragraphs in the 
application. However, in order to be consistent with methods used to 
calculate bowhead densities in previous years, Moore et al. (2000b) was 
not used, although that data could have been used. See the response to 
comment 53 regarding deriving densities from industry vessels. In the 
absence of peer-reviewed literature, this was the best information 
available. Additional information on the use of correction factors and 
calculating density estimates is provided in the responses to several 
of the comments contained in this subsection of the document.
    Comment 55: AEWC states that NMFS fails to explain how and why it 
reaches various conclusions in calculating marine mammal densities and 
what the densities are actually estimated to be once calculated. One 
example is NMFS' reliance on Moore et al. (2000b) in making its density 
determinations. This study documented sightings of marine mammals but 
did not estimate the total number of animals present. NMFS fails to 
explain the basis for its ``conversion'' of data on sightings to its 
density conclusions.
    Response: All densities used in calculating estimated take of 
marine mammals based on the described operations are shown in Tables 6-
1 and 6-2 of Shell's application. Moore et al. (2000b) provides line 
transect effort and sightings from aerial surveys for cetaceans in the 
Chukchi Sea. The kilometers of ``on-transect'' observer effort and 
number of sightings were used in the accepted line-transect density 
estimate equation described in Buckland et al. (2001). Species specific 
correction factors for animals that were not at the surface or that 
were at the surface but were not sighted [g(0)] and animals not sighted 
due to distance from the survey trackline [f(0)] used in the equation 
were taken from reports or publications on the same species or similar 
species if no values were available for a given species, that used the 
same survey platform. Additional explanations regarding the 
calculations of marine mammal densities are provided in the responses 
to other comments in this subsection of this document.
    Comment 56: NSB indicates that Shell's approach to estimating 
densities of beluga and bowhead whales is problematic. Shell uses 
densities from aerial surveys, which would be appropriate if bowheads 
and belugas were more or less stationary. In reality, the entire 
bowhead population and both stocks of belugas migrate through the area 
Shell proposes for its 2009 exploration activities. Thus, many more 
bowheads and belugas may potentially be taken during Shell's operations 
than what they have estimated. NMFS should carefully evaluate, and 
modify as appropriate, the approach Shell has used for estimating 
takes.
    AWL also questions the use of a ``density'' measure in determining 
take in the Chukchi Sea during the bowhead migration. NMFS has 
recognized in the past that using density is inappropriate for 
determining bowhead take from seismic activities in the Beaufort Sea 
during the fall. It is not clear on what basis NMFS abandons an 
approach that would estimate migrating whales in the Chukchi Sea. Using 
a density calculation artificially reduces the number of bowheads that 
will likely be impacted from Shell's surveying and does not represent 
the best available science.
    Response: Shell's density estimates for bowhead and beluga whales 
are based on the best scientific information available, which is the 
standard required by the MMPA implementing regulations at 50 CFR 
216.102(a). The alternative method referred to by AWL for estimating 
take of migrating bowhead whales was only used for seismic operations 
in the Beaufort Sea (and is described in Shell's IHA application in the 
Beaufort Sea Estimating Take Section; however, Shell cancelled the 
Beaufort Sea activities). This method has not been applied to 
activities in the Chukchi Sea. Because the migration corridor is 
narrower and better defined in the Beaufort Sea than the Chukchi Sea 
this method was deemed appropriate by NMFS for seismic operations in 
the Beaufort. However, the migratory path taken by bowhead whales once 
they enter the Chukchi Sea is not as well understood. Moreover, the 
migratory route is not as narrowly defined in the Chukchi. 
Additionally, if these species avoid areas of active seismic operations 
at levels lower than 160 dB re 1 microPa (rms), as noted by several of 
the commenters, then fewer animals will occur in the area of Shell's 
operations. After careful evaluation of the methods used by Shell to 
estimate take, NMFS has determined that Shell used the best scientific 
information available in calculating the take estimates.
    Comment 57: Dr. Bain notes that when estimating number of takes, it 
is important to consider if the individuals are feeding or migrating. 
In the case where there is little natural movement, the number of 
individuals in the ensonified area is an index of the number of takes. 
Exposed individuals can accumulate noise exposure or move out of the 
area. Assuming optimal foraging, displaced individuals will move to 
poorer feeding areas or compete with individuals for food in comparable 
habitat. When competition outside the

[[Page 55388]]

ensonified area occurs, the fitness of all individuals involved will be 
reduced, although only those exposed to noise are typically counted as 
taken.
    Dr. Bain continues that when individuals are migrating through an 
area, new individuals are exposed to noise as they approach the noise 
source. Rather than estimating takes based on density in the ensonified 
area, it is more appropriate to draw a line across the ensonified area 
and estimate the number of individuals that would be expected to cross 
that line during the survey. Using an estimate of bowhead density from 
Funk et al. (2006) of 3/100 km\2\ (3/38.6 mi2) in offshore waters in 
mid-season and a 120-dB diameter of 46 km (28.6 mi), Dr. Bain presents 
take numbers during the bowhead migration. Taking into account typical 
migration speed for bowhead whales (4.5 km reported in Koski et al. 
[2002]), in 24 hours, approximately 144 whales would either enter the 
ensonified area or be deflected to avoid it. As can be seen, the number 
of migrating whales exposed is far higher than would be the case if the 
sound source and whales were relatively stationary. Although not meant 
to be exact, the numbers used here are well within the range of 
possibilities and serve to illustrate that far more whales might be 
exposed during migration than during a feeding season.
    Response: Dr. Bain does not provide any scientific support for his 
theory. The temporary displacement of marine mammals from foraging 
habitat is not expected to affect individual fitness. 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 Allen, 2009), even without implementation of 
current mitigation requirements. NMFS is not certain what Dr. Bain 
means by ``an index of the number of takes.''
    NMFS does not agree with Dr. Bain's method for calculating takes of 
migrating bowhead whales. First, Dr. Bain uses the 120-dB level to 
estimate the level of take. For impulse sounds, such as from seismic 
airguns, NMFS uses the 160 dB re 1 microPa (rms) threshold to estimate 
Level B harassment. NMFS has responded several times over the past few 
years and elsewhere in this document to the assertion by commenters 
that Level B harassment takes should be estimated at the 120 dB level 
and not at the 160 dB level (see response to comment 25). Because Dr. 
Bain used this lower threshold, the take number presented is much 
higher than that generated by NMFS and Shell. Second, Dr. Bain uses a 
density estimate from Funk et al. (2006), which is based on industry 
monitoring. The public has expressed concern over the use of density 
estimates derived from industry monitoring (see other comments in this 
subsection). As explained in the response to comment 53, NMFS uses 
density estimates from peer reviewed journal articles when they are 
available. However, in instances when monitoring from industry vessels 
provide the only information, estimates are derived from those reports. 
However, in the case of bowhead whales, information is available from 
non-industry monitoring studies (e.g., Moore et al. (2000b)); 
therefore, the estimate provided in Funk et al. (2006) was not used. 
Additionally, Dr. Bain's calculation assumes that the whales will 
continue their entire migration along the same track as the seismic 
vessel. While some bowhead whales may occur in the action area, the 
migration corridor in the Chukchi Sea is not well defined. One cannot 
assume that the entire migration will occur near Shell's operations. 
Lastly, Dr. Bain's calculation also asserts that deflection itself 
constitutes a take. As explained elsewhere in this document, a minor 
course correction does not constitute a significant behavioral response 
rising to the level of a take. Therefore, NMFS does not agree that Dr. 
Bain's formula accurately portrays the number of bowhead whale takes 
during the fall migration period through the Chukchi Sea.
    Comment 58: Dr. Bain states that NMFS modeled takes in the Chukchi 
in September based on sightings in the Beaufort. However, the model is 
demonstrably inaccurate based on existing data from the Chukchi. 
Further, NMFS misinterpreted the data that form the basis of their 
extrapolation. Dr. Bain argues that the three reasons provided by NMFS 
for believing densities would be 20 times lower in the survey area than 
in the Beaufort in September are wrong. First, while it may be true to 
some degree that the migration corridor is narrower in the Beaufort, 
this is irrelevant. The reported density for the Beaufort depends on 
how well the survey design identifies the corridor boundary. Regardless 
of whether the average density is correctly identified, the density 
will vary across the corridor. That is, when the corridor widens, the 
average density will decline, but concentrations may still occur, as 
appears to be the case for the survey area (see plot in Moore et al. 
(2000b)).
    Second, NMFS maintains that bowheads are more likely to migrate 
non-stop through the Chukchi in contrast to the Beaufort where they 
sometimes linger. As discussed in detail in Dr. Bain's letter (and 
comment 59), this will increase rather than decrease the number of 
whales taken. Third, NMFS states that most of the whales will migrate 
north of the survey area. To the contrary, the survey area is in the 
center of the migration route. Dr. Bain cites Quakenbush (2007), which 
shows a tagged bowhead whale migrating through Shell's survey area, and 
Moore et al. (2000b), which plotted bowhead sightings the same distance 
offshore as the survey area, not north of it. Finally, Funk et al. 
(2006) found many bowheads nearshore, not north of the survey area as 
anticipated by NMFS.
    AWL states even accepting a density approach for the fall, we do 
not believe that the 95% discount applied by NMFS is appropriate. NMFS' 
.05 ``correction factor'' rests on the three points raised by Dr. Bain 
in this comment. AWL states that as discussed by Dr. Bain, these 
assertions do not justify such a severe reduction.
    Response: Although it would be preferable to estimate takes of 
marine mammals migrating through the Chukchi Sea using detailed data on 
migration location, timing, and rates, as exist for bowhead whales in 
the Beaufort Sea, no such data exist for any species in the Chukchi 
Sea. Applying data from the Beaufort Sea without adjustment to the 
Chukchi Sea, as suggested by the commenter, is also demonstrably 
inaccurate based on the evidence provided. Because specific migration 
data are lacking, the more common approach of using expected marine 
mammal densities to estimate takes in the Chukchi Sea was used. 
However, even basic density information on many species present in the 
Chukchi Sea during the open-water season are not available in the 
published literature.
    In the case of bowhead whales, the most well documented density 
estimates, including f(0) and g(0) correction factors, are given in 
Richardson and Thomson (2002) for the Beaufort Sea, so this density was 
chosen as the starting point for estimating an expected density in the 
Chukchi Sea. The bowhead migration through the Chukchi Sea has been 
thought to bifurcate after passing Point Barrow. Recent data from the 
Alaska Department of Fish and Game (ADF&G 2009), which provides updated 
information of the tagging studies presented in Quakenbush (2007), 
suggest that a majority of bowheads travel through the northern Chukchi 
Sea to the Russian coast during the fall migration (approximately 90 
percent) while a small number may travel southeast along the U.S. 
Chukchi Sea coast

[[Page 55389]]

(approximately 10 percent). Many of the animals traveling through the 
northern Chukchi Sea to the Russian coast appeared to travel north of 
Shell's Burger and Crackerjack prospects (the location for the 2009 
site clearance and shallow hazards surveys). Although the sample size 
in the Beaufort Sea is somewhat smaller, the geographic distribution of 
migration paths through the Beaufort Sea does appear more restricted 
than through the northern Chukchi Sea (Quakenbush 2007; ADF&G 2009). 
Bowhead whale feeding areas have not been identified in or near lease 
holdings in the Chukchi Sea, so whales are not likely to concentrate at 
densities as high as those encountered by Richardson and Thomson (2002) 
in the Beaufort Sea, supporting a further reduction in the density used 
in the Chukchi Sea. These factors lead to the selection of a density 
that was 5 percent of the density reported by Richardson and Thomson 
(2002).
    Comment 59: AWL states that equally important is the lack of 
reasoning to support the final result. Although NMFS has provided some 
information as to why it applied a discount factor, it has not 
explained how it arrived at the precise figure. While some adjustment 
may be appropriate, NMFS does not include adequate information to 
demonstrate the basis for determining that such a sharp reduction is 
required. At a minimum, NMFS must reveal how it developed its 
calculations.
    Dr. Bain also notes that it is unclear how corrections were made, 
as the application indicated species specific values for g(0) and f(0) 
were used. However, these values are dependent on the species and the 
observation platform used and sighting conditions involved, not just 
the species. While no on-effort sightings during surveys were reported 
for some species, the probability of detecting any individuals given 
the effort level and assumed density was not reported.
    Response: See response to comment 58, which explains how NMFS 
arrived at a specific discount factor for bowhead whales in the Chukchi 
Sea. As noted in Shell's application, when densities were provided in 
publications the g(0) and f(0) correction factors used in density 
calculations were developed or applied by the original authors in the 
appropriate manner given the survey platform and conditions. Otherwise, 
g(0) and f(0) correction factors developed for the same type of survey 
platform and during on-effort (i.e., good sighting conditions) were 
used on survey data for which densities had not been explicitly 
calculated.
    Comment 60: Dr. Bain states that while the mean density may be used 
in some cases to calculate a best estimate of take, maximum estimates 
should be considered as well to ensure worst case scenarios do not pose 
an unacceptable threat to a population.
    Response: When evaluating the take estimates presented in Shell's 
IHA application, NMFS took into consideration both the average and 
maximum estimates. However, as explained in the Notice of Proposed IHA 
(74 FR 26217, June 1, 2009), since Shell did not provide a rationale 
regarding the maximum estimate, NMFS decided that the average density 
data of marine mammal populations would be used to calculate estimated 
take numbers because these numbers are based on surveys and monitoring 
of marine mammals in the vicinity of the proposed project area. NMFS 
only used the ``maximum'' estimates for marine mammal species that are 
considered rare in the project area and for which little to no density 
information exists (i.e., killer, fin, humpback, and minke whales and 
ringed seals) in order to account for some possibility of these species 
possibly being taken by Shell's activities. Additionally, using maximum 
density estimates is problematic as it tends to inflate harassment take 
estimates to an unreasonably high number and is not based on empirical 
science.
    Comment 61: Dr. Bain states that since the assumptions upon which 
NMFS based its model are faulty, one would expect available data to 
contradict the model, and this is, in fact, the case. He notes that 
Funk et al. (2006), using more recent data from the Chukchi than the 
data in Richardson and Thomson (2002) from the Beaufort Sea used by 
NMFS, found mid-season offshore densities to be 0.03156/km\2\, meaning 
that NMFS' model underestimates density by a factor of almost 30 for 
the latter part of the survey season. Additionally, Dr. Bain notes that 
the model used to calculate August densities works a little bit better 
than the September model, as the early season densities observed by 
Funk et al. (2006) were about 7.5 times higher than predicted by NMFS, 
using data from Moore et al. (2000b). Even if NMFS concluded estimating 
abundance from missed sightings rather than existing sighting data were 
the best approach, the assumption of one missed sighting is the wrong 
methodology. Rather, NMFS should identify the lowest density which 
would result in a small probability that all whales would be missed 
(scientists typically use 0.05, 0.01, or 0.001 as the definition of a 
``small probability''). In summary, the models used for estimating 
bowhead density are based on faulty assumptions and underestimate 
bowhead density by an order of magnitude.
    Response: Dr. Bain relies on Funk et al. (2006) for validating the 
applicability of bowhead density estimates derived from Moore et al. 
(2000b) and Richardson and Thomson (2002). However, the density 
estimates in Funk et al. (2006) were calculated from data collected 
aboard industry vessels during routine operations, not while conducting 
line-transect surveys and therefore serve as a very poor comparison to 
data reported by Richardson and Thomson (2002) and Moore et al. (2000b) 
collected from aircraft flying line-transect surveys. Routine industry 
vessel operations are often conducted in one or more highly localized 
areas, creating spatial and temporal auto-correlation that likely 
artificially inflate density estimates calculated from the data. As 
yet, there are no known or accepted methods to account for these types 
of auto-correlation in non-randomized survey data.
    Dr. Bain also appears to have misunderstood how a ``missed'' 
sighting was used to calculate the Chukchi Sea bowhead density 
estimate. Dr. Bain fails to understand that there were zero reported 
sightings (i.e., there were no ``existing sighting data'' to use, as 
suggested by the commenter), and, therefore, the assumption that there 
had been one sighting is, in effect, calculating the lowest density 
which would result in zero sightings. Because the calculation of 
bowhead density assuming this hypothetical sighting included the g(0) 
correction factor, animals ``missed'' by observers, for the various 
reasons described by Dr. Bain, were taken into account.
    Comment 62: NSB quotes a statement from page 29 of Shell's 
application: ``Small numbers of minke and humpback whales were observed 
during industry activities in 2006 and 2007'' (Ireland et al., 2008). 
NSB notes that if these animals were expected to flee from the industry 
operations/disturbance, then the numbers of animals actually seen would 
likely be a gross underestimate.
    Response: The sightings of minke and humpback whales that were 
reported in Ireland et al. (2008) occurred during non-seismic periods 
(i.e., no airguns firing). Therefore, fleeing would not be expected at 
those times.
    Comment 63: Dr. Moore and NSB note that Shell used Bengtson et al. 
(2005) to estimate pinniped densities; however, this paper only 
provides information for

[[Page 55390]]

springtime estimates of bearded and ringed seals. NSB notes that it is 
very likely that estimates of seals during open-water periods are much 
different than spring surveys, and Shell should be required to conduct 
surveys to appropriately estimate densities of these two seal species 
that are being considered for listing. Additionally, Shell states that 
it uses shipboard estimates of some marine mammals to estimate 
densities for estimating takes in the Chukchi Sea, which is 
inappropriate because it will underestimate densities. A cursory 
comparison of Shell's density estimate from shipboard and aerial 
surveys reveals that shipboard estimates are biased low; therefore, 
take estimates will be biased low for any time that density estimates 
from ships are used. NSB also believes that the method used to 
calculate density estimates for ribbon seals is entirely inappropriate 
and unacceptable. Dr. Moore asks, ``how is it that expected densities 
are listed for ribbon and spotted seals in Tables 6-1 and 6-2?''
    Response: NMFS agrees that densities may be different for ringed 
and bearded seals during the open-water period than during the spring 
ice-covered season reported in Bengtson et al. (2005). However, 
estimates for the open-water period are expected to be lower than those 
reported in the springtime because animals will no longer be 
concentrated during pupping/breeding season near ice cracks or leads. 
As mentioned later in the application, densities of seals calculated 
from industry vessel data were indeed lower than those reported by 
Bengtson et al. (2005). The data were provided merely for comparison 
purposes within the text. However, the higher densities reported by 
Bengtson et al. (2005) were used to calculate the take estimates. 
Additionally, as described later in the application, very little 
information exists on spotted seal densities in the offshore areas of 
the Chukchi Sea. Therefore, spotted seal densities were estimated by 
multiplying the bearded seal density provided in Bengtson et al. (2005) 
by 0.2, based on the ratio of abundance estimates of spotted seal to 
bearded seal. Ribbon seals have been reported in very small numbers 
within the Chukchi Sea by observers on industry vessels (Ireland et 
al., 2007a; Patterson et al., 2007) so minimal values have been used 
for expected densities to account for chance encounters of this species 
during Shell's operations. The use of minimal values for ribbon seal 
density estimates is appropriate and actually provides an overestimate 
of the likelihood of encountering a ribbon seal during Shell's surveys. 
Using actual densities of ribbon seals in the project area would result 
in an estimate of less than one seal being encountered. NMFS has 
determined that the best scientific information available on the four 
pinniped species that may occur in the project area was used to 
calculate density and take estimates.
    Comment 64: Page 35 of Shell's application states: ``Under this 
assumption, densities of marine mammals expected to be observed in or 
near ice margin areas have been applied to 10% of the proposed survey 
trackline.'' NSB requests more information on how these estimates were 
developed.
    Response: Survey operations require towing equipment in the water, 
making it susceptible to damage or loss in the presence of ice. 
Therefore, survey activities will not occur within pack-ice, and only a 
small amount of surveying may occur within the vicinity of ice. 
Densities of some marine mammal species that may occur in the project 
area are expected to be higher in or near sea ice. In order to avoid 
underestimating the potential number of takes by harassment if 
surveying occurs near ice for a short period of time, a small portion 
(10 percent) of the survey trackline was applied to these densities.
    Comment 65: NSB states that Shell must use the 120-dB isopleth for 
estimating the number of bowheads that might be taken by harassment, 
not the 160-dB isopleth because of the sensitivity of migrating 
bowheads to anthropogenic sound. Additionally, allowance for migration 
of the other marine mammal species is needed. Dr. Bain also states that 
increased takes due to migration of beluga whales should have been 
taken into account.
    Response: See responses to comments 27 and 31 in this document. 
Based on the information provided in those responses, NMFS continues to 
support the use of the 160-dB threshold to estimate take by Level B 
harassment from impulse sounds, such as seismic airguns.
    Comment 66: The AEWC states that ringed seals provide another prime 
example of NMFS' reliance on industry operations for information on the 
species (see 74 FR 26224, June 1, 2009). Again, the industry operations 
obtained far lower numbers than the scientific studies of ringed seals.
    Response: The commenter has misunderstood the inclusion of the 
density estimates obtained from industry operations in the Notice of 
Proposed IHA and Shell's application for ringed seals. The values were 
given in the text merely for purposes of comparison. As stated 
elsewhere in the application and Notice of Proposed IHA, the values 
used to calculate ringed seal densities were derived from Bengtson et 
al. (2005), which are higher than the values obtained from industry 
operations.
    Comment 67: NSB notes that Shell provides a take estimate of 283 
bowhead whales in the IHA application. NSB states that this would 
assume that Shell's MMOs would need to visualize 283 bowhead whales in 
the 160-dB isopleth. Such numbers of whales have not been seen in the 
past.
    Response: First, this number was the combined estimate for surveys 
that were originally proposed to be conducted in the Beaufort Sea and 
for operations proposed in the Chukchi Sea. The Beaufort Sea operations 
were cancelled by Shell and were not analyzed or authorized by NMFS. 
The average and maximum take estimates for bowheads in the Chukchi Sea 
are much lower (one and five, respectively). Additionally, NSB has 
misunderstood the original calculation of 283 whales and the method by 
which post-season take estimates are calculated. The calculation of 283 
whales includes corrections for animals that would not be observed by 
MMOs on the vessels either because the animals were underwater or 
because detection is more difficult the farther the animals are from 
the vessel. These same corrections are applied when estimating post-
season take numbers. However, based on the small size of the 160-dB 
radius for Shell's Chukchi Sea operations (1,400 m [0.87 mi]), it is 
anticipated that MMOs will be able to better monitor the zone than when 
monitoring aboard vessels using large airgun arrays.
    Comment 68: NSB notes that Shell states in its application that 
``the number of migrating bowhead whales exposed to sounds [gteqt]120 
dB by the proposed surveys would be 8.5x the number estimated at 
[gteqt]160 dB.'' Actual numbers should be included. By our calculation, 
this is 2,405 whales, almost a fifth of the Bering-Chukchi-Beaufort Sea 
stock of bowhead whales, exposed at 120 dB. Harassment of this many 
whales in this stock should not be permissible.
    Response: This statement was meant to indicate how many bowhead 
whales could potentially be exposed to sounds at the 120 dB level. 
However, as discussed elsewhere in this document, NMFS does not 
consider exposure to impulse sound at 120 dB to constitute a take. 
Additionally, as explained in the response to comment 67, the take 
estimate of 283 whales was when all operations were still planned to 
occur.

[[Page 55391]]

    Comment 69: AEWC is opposed to NMFS using ``survey data'' gathered 
by industry while engaging in oil and gas related activities and 
efforts to document their take of marine mammals. NMFS' methodologies 
are not adequate for assessing the density or presence of marine 
mammals that typically avoid such operations. Thus, it is completely 
arbitrary to rely on data collected from the very vessels that marine 
mammals avoid in making density arguments, and it is not surprising 
that such industry information consistently reports lower numbers for 
this reason. For these reasons, NMFS cannot rely on such industry 
information in calculating the density of marine mammals or determining 
whether certain species are present in the area without running afoul 
of the law.
    Response: See the response to comment 53. In making its 
determinations, NMFS uses the best scientific information available, as 
required by the MMPA implementing regulations. For some species, 
density estimates from sightings surveys, as well as from ``industry 
surveys'', were provided in the text of Shell's application and the 
Notice of Proposed IHA for purposes of comparison. However, where 
information was available from sightings surveys (e.g., Moore et al., 
2000b, Bengtson et al., 2005), those estimates were used to calculate 
take. Data collected on industry vessels were only used when no other 
information was available. Additionally, while some Arctic marine 
mammal species have shown fleeing responses to seismic airguns, data is 
also collected on these vessels during periods when no active seismic 
data collection is occurring.
    Comment 70: AEWC states that as a general matter, when it comes to 
NMFS assessing the various stocks of marine mammals under the MMPA, it 
cannot use out-dated data i.e., ``abundance estimates older than 8 
years'' because of the ``decline in confidence in the reliability of an 
aged abundance estimate'' (Angliss and Allen, 2009) and the agency is 
thus unable to reach certain conclusions. Similarly, here, where data 
are out-dated or non-existent, NMFS should decide it cannot reach the 
necessary determinations. These flaws in NMFS' analysis render the 
agency's preliminary determinations about the level of harassment and 
negligible impacts completely arbitrary.
    Response: The statements quoted by AEWC from Angliss and Allen 
(2009) are contained in species SARs where abundance estimates are 
older than 8 years. However, the full statement reads as follows: 
``However, the 2005 revisions to the SAR guidelines (NMFS, 2005) state 
that abundance estimates older than 8 years should not be used to 
calculate PBR due to a decline in confidence in the reliability of an 
aged abundance estimate.'' Shell's activities are not anticipated to 
remove any individuals from the stock or population. Therefore, a 
recent estimate of PBR is not needed for NMFS to make the necessary 
findings under Section 101(a)(5)(D) of the MMPA. Additionally, Shell's 
application provides information (including data limitations) and 
references for its estimates of marine mammal abundance. Because AEWC 
has not provided information contrary to the data provided by Shell, 
and NMFS does not have information that these estimates are not 
reliable, NMFS considers these data to be the best available.
    Comment 71: The MMC notes that Shell will base estimates of the 
minimum number of marine mammals taken by harassment on the numbers of 
animals directly seen within the relevant safety radii by observers on 
the vessel during survey activities. The MMC is concerned that this 
method of estimation may be misleading because (1) the minimum estimate 
will depend on the portion of time observers are on duty (e.g., 
operations or observations at night may not be included), (2) it does 
not account for observer sighting proficiency (e.g., the ability to 
sight cetaceans versus pinnipeds), and (3) it does not account for 
behavioral responses of animals outside the so-called safety zones. 
Shell's maximum take estimate is likewise problematic because it fails 
to take into account the movement patterns of these species, which 
could greatly bias the maximum estimates of take by harassment. Absent 
reasonable corrections for these factors, the minimum and maximum 
estimates may be potentially useless or misleading, with potentially 
adverse consequences. The MMC therefore recommends that NMFS require 
Shell and other applicants to develop and implement a biologically 
realistic study design for estimating take levels. Dr. Tim Ragen, one 
of the independent peer reviewers of Shell's 4MP, expressed similar 
concerns. [Dr. Ragen's comments specific to the contents of the 4MP are 
addressed later in this document in the ``Monitoring Plan Independent 
Peer Review'' subsection.]
    Response: In order to account for the concerns expressed by the 
MMC, Shell provides take estimates in the 90-day report based on 
several methods of calculation: a minimum; a potential maximum; and a 
mid-level estimate. NMFS agrees that all observations are a function of 
observer effort. The minimum effort is exactly that, a minimum. It is 
how many animals were actually seen within the specified sound radius 
(e.g., 160-dB isopleth). NMFS does not assume that the minimum estimate 
is anything more than what was seen or that this number is the actual 
number taken. It is not possible to provide a ``correction factor'' for 
the minimum take estimate, as it represents the number of animals 
sighted by the MMOs within a given radius.
    A mid-level estimate is made comparing the densities of animals 
collected during seismic and non-seismic periods. NMFS and Shell 
recognize that various factors, including those mentioned above create 
potential variation in these numbers. The third estimate is based on 
densities reported in the literature during periods when no seismic 
operations are occurring. Shell uses the numbers that are considered to 
be the best estimate of density for the area of operations. Depending 
upon when the densities are measured and when the seismic shoot 
occurred, such densities may overestimate the number of ``takes,'' but 
these are reported as potential maximum levels of ``take'' assuming 
that there was no avoidance of the operational area. (However, based on 
information provided elsewhere in this document, several species, such 
as bowhead and beluga whales have shown avoidance behavior to airguns.) 
The actual number of takes most likely lies somewhere between the mid-
level estimate and the potential maximum estimate. Calculation methods 
are described in detail in the 90-day reports submitted by Shell for 
operations conducted in 2006, 2007, and 2008 (Patterson et al., 2007; 
Funk et al., 2008; Ireland et al., 2009).
    Comment 72: Dr. Bain indicates that NMFS failed to consider the 
increases in takes of bowhead and beluga whales if there are delays in 
the work, resulting in its completion at the end of the period covered 
by the application (end of October) rather than at the time given for 
the best case scenario (late September).
    Response: If Shell encounters several delays in August or 
September, then animals would not be taken because no active data 
acquisition would be occurring. Those takes would then potentially 
occur in October. However, based on the migration patterns for these 
two species, the density estimates would be nearly the same in early to 
mid-October as late September (i.e., the beginning of the migratory 
period). Therefore, these higher densities have

[[Page 55392]]

already been taken into account when estimating the level of take.
    Comment 73: AEWC states that NMFS failed to account for the impacts 
from the strudel scour surveys in the spring of 2010, proposing only 
summer and fall density estimates. These practices have resulted in 
entirely arbitrary calculations of the level of take of marine mammals 
and whether such takes constitute ``small numbers'' or a ``negligible 
impact'' as a result of Shell's proposal.
    Response: See response to comment 8. NMFS has determined that 
marine mammals will not have a significant behavioral response (i.e., a 
``take'') to the strudel scour surveys. Therefore, neither Shell's 
application nor the Notice of Proposed IHA provide any take estimates 
for the strudel scour survey. However, Shell needs to coordinate these 
activities with the Native Alaskan communities to ensure that there is 
no unmitigable adverse impact to subsistence hunts.

Habitat Concerns

    Comment 74: NSB notes that Shell's application states, 
``...concluded that mortality rates caused by exposure to sounds are so 
low compared to natural mortality that issues relating to stock 
recruitment should be regarded as insignificant.'' NSB asks, ``What 
about these effects in addition to natural mortality?''
    Response: The potential for Shell's activities to affect ecosystem 
features and biodiversity components, including fish and invertebrates, 
is analyzed in NMFS' EA for this action. Shell's activities would 
impact less than 0.1 percent of available food resources, which would 
have little, if any, effect on a marine mammal's ability to forage 
successfully. Fish would need to be in very close proximity to the 
airguns in order to incur mortality. Based on the small scale of 
effects anticipated on fish, fish eggs, and larvae from the airgun 
activity, these mortalities are not expected to cumulatively cause 
significant impacts when added to the natural mortality rates.

Subsistence Use Concerns

    Comment 75: The MMC recommends that issuance of the 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 meet the requirements of the MMPA.
    Response: NMFS has required Shell, 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 2009 season, several of these mitigation measures 
were taken from the 2009 CAA signed by Shell on June 24, 2009, and 
include coastal stand-off distances for seismic and vessel transiting 
activities; a coastal community communication station; and emergency 
assistance to whalers, among other measures.
    Comment 76: NSB and AEWC state that the MMPA requires NMFS to find 
that the specified activities covered by an IHA ``will not have an 
unmitigable adverse impact on the availability of [marine mammal 
populations] for taking for subsistence uses `` (16 U.S.C. 
1371(a)(5)(D)(i)(II)). For the reasons presented herein, such a 
conclusion cannot be adequately supported. First, in order for impacts 
to be mitigated, the measures must be ``successfully implemented'' (50 
CFR 216.104(c)) (emphasis added). Thus, Shell cannot on the one hand 
rely on mitigation to claim its activities will not adversely impact 
subsistence use but on the other hand fail to commit to mitigating the 
impacts of its action or ensuring the public has the opportunity to 
comment on the mitigation measures. For example, Shell acknowledges 
that there ``could be an adverse impact on the Inupiat bowhead 
subsistence hunt'' but claims the impact ``is mitigated'' despite the 
fact the mitigation measures upon which Shell relies, such as the POC, 
have yet to even be established, and Shell makes no definitive 
commitment to measures to avoid conflicts.
    Second, the dates and durations of Shell's activities are stated in 
amorphous terms, making it impossible for NMFS to assess whether 
Shell's activities will interfere with subsistence hunting, migration, 
or feeding of marine mammals. Without this detailed information, NMFS 
is making arbitrary determinations about the actual impacts of Shell's 
activities on subsistence uses in the Chukchi Sea.
    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 has defined 
``unmitigable adverse impact'' in 50 CFR 216.103 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.
    Shell signed the 2009 CAA on June 24, 2009. As mentioned in the 
response to comment 75, NMFS included measures from the 2009 CAA 
related to marine mammals and avoiding conflicts with subsistence hunts 
in the IHA. Additionally, NMFS, other government agencies, and affected 
stakeholder agencies and communities were provided a copy of the draft 
POC in May 2009, which outlined measures Shell would implement to 
ensure no unmitigable adverse impact to subsistence uses. The POC 
specifies times and areas to avoid in order to minimize possible 
conflicts with traditional subsistence hunts by North Slope villages 
for transit and open-water activities. Shell waited to begin activities 
until the close of the spring beluga hunt in the village of Point Lay. 
NMFS also considered the fact that Shell's activities will occur more 
than 113 km (70 mi) offshore. Hunters typically do not travel this far 
to collect animals. Based on the measures contained in the IHA (and 
described later in this document), NMFS has determined that mitigation 
measures are in place to ensure that Shell's operations do not have an 
unmitigable adverse impact on the availability of marine mammal species 
or stocks for subsistence uses.
    Comment 77: NSB and AWL state that Shell's discussion of the 
impacts to subsistence use is far too limited in scope. Shell looks 
only at the direct impacts from its activities on active scouting and 
whaling but does nothing to quantify the overall impacts to subsistence 
users from on-going oil and gas activities throughout the whales' 
migration routes in the Beaufort and Chukchi Seas and beyond. AWL also 
states that NMFS must also evaluate the following: the susceptibility 
of bowhead and beluga whales to disturbance from levels of noise below 
160 dB; the potential impacts of future activities in both oceans; the 
acknowledged uncertainty regarding the effects of seismic activity; and 
the lack of baseline

[[Page 55393]]

biological data for the Chukchi Sea. For these reasons, NMFS has not 
adequately supported its MMPA finding as to subsistence resources (see 
50 CFR 216.104(c)) (best available science standard for subsistence 
finding).
    Response: NMFS analyzed the impacts from these additional 
activities in the cumulative impacts analysis section in the EA for 
this action. MMS' 2006 Final PEA also contains a full cumulative 
impacts analysis, which was incorporated into NMFS' 2009 EA by 
reference. NMFS has responded to the other issues raised by AWL 
elsewhere in this document. Based on the responses and reasoning 
provided throughout this document, NMFS has determined that its MMPA 
finding as to subsistence resources is adequately supported.
    Comment 78: NSB states that the MMPA authorizes NMFS to issue a 
take authorization only if it first finds that there will be adequate 
monitoring of such taking and that all methods and means of ensuring 
the least practicable impact have been adopted (16 U.S.C. 
1371(a)(5)(D)(ii)(I)). Shell's proposed monitoring and mitigation 
measures are insufficient to protect against adverse impacts on the 
availability of the species or stock for subsistence uses. Thus, NMFS 
should not issue an IHA for the proposed activities until adequate 
monitoring and mitigation techniques for avoiding adverse impacts to 
the marine mammals and subsistence hunting are developed.
    Response: First, the section of the statute the discussion the 
requirement for monitoring measures is 16 U.S.C. 
1371(a)(5)(D)(ii)(III), not 16 U.S.C. 1371(a)(5)(D)(ii)(I) as cited by 
the commenter. Second, NMFS has included measures from the 2009 CAA in 
Shell's IHA. Measures include: (1) avoiding groups or concentrations of 
whales; (2) reducing vessel speed when within 300 yards of whales and 
taking care not to separate members of a group from other members; (3) 
participating in Communication Centers; (4) planning vessel routes to 
minimize any potential conflict with subsistence whaling and sealing 
activities; (5) transiting at least five miles offshore; (6) conducting 
seismic operations at least 60 miles from shore; (7) providing 
emergency assistance to whalers; and (8) conducting a post-season 
review with the communities. Additionally, the following factors (1) 
Shell's activities will occur more than 113 km (70 mi) offshore where 
little to no subsistence hunting occurs, (2) activities will not 
commence before the end of the spring beluga hunt in Point Lay, and, 
(3) the location of the operational area is 225 km (140 mi) west of 
Barrow, so whales will reach Barrow for the fall hunt before being 
exposed to sounds from the airguns will also ensure no unmitigable 
adverse impact to subsistence uses in the Chukchi Sea. Therefore, NMFS 
has determined that the monitoring and mitigation measures required to 
be implemented by Shell are adequate to ensure no unmitigable adverse 
impact to subsistence uses.
    Comment 79: NSB notes that Shell states in its application that it 
will work with the communities to ``eliminate disturbance to 
subsistence whaling activities in the Beaufort and Chukchi Seas.'' 
Shell needs to provide the details of how it intends to ``eliminate 
disturbance.'' Shell has expressed increasing unwillingness to sign a 
CAA with AEWC to protect subsistence hunting of bowheads. If Shell is 
planning on only using POCs, developed in village meetings that are 
often poorly attended and without dialogue about details of mitigation 
measures, then Shell must provide details of the plans to ``eliminate 
disturbance.'' Additionally, details are needed about how Shell will 
avoid impacts to hunting of other marine mammals, especially belugas 
and walrus. NSB also states, ``If NMFS is going to rely on a POC so 
there are no unmitigable adverse impacts to subsistence hunting of 
marine mammals, there must be some process by which the communities can 
formally agree and accept the POC.'' They note that the CAA has worked 
well over the past 15 years in part because all parties agree to 
mitigation measures.
    Response: It should be understood that the POC is required by NMFS' 
implementing 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 Shell believe the POC 
must be a dynamic document, which will expand to incorporate the 
communications and consultation that will continue to occur throughout 
2009. Outcomes of POC meetings are included in 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, Shell signed a CAA in June 2009, 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.
    Information on how Shell will avoid impacts to subsistence hunts of 
beluga whales in the Chukchi Sea have been discussed elsewhere in this 
document. The walrus is managed by the U.S. Fish and Wildlife Service 
(USFWS), and as such, NMFS does not have jurisdiction over this 
species.
    Comment 80: NSB states that transit of Shell's vessels should not 
occur before July 15 instead of the stated date of July 1. The villages 
of Point Lay and Wainwright hunt beluga whales during late June or July 
(or sometimes early August). Transiting vessels through the Chukchi Sea 
might cause belugas to avoid their traditional congregation areas 
nearshore and thus impact subsistence hunting.
    Response: Shell's policy has been to communicate with the villages 
of Point Lay and Wainwright during the spring hunting period in order 
to ensure that vessel transits will not interfere with the spring 
beluga hunt. Shell will wait until the completion of the spring hunt 
before transiting through the Chukchi Sea.

Mitigation and Monitoring Concerns

    Comment 81: The MMC notes that NMFS is proposing to include in the 
IHA the additional mitigation and monitoring measures that were 
included in IHAs issued to Shell in 2006, 2007, and 2008. The MMC 
supports these proposed mitigation and monitoring measures and 
recommends that they be incorporated in the IHA, if issued.
    Response: NMFS has included the mitigation and monitoring measures 
described in the Notice of Proposed IHA (74 FR 26217, June 1, 2009) in 
the issued IHA. However, for reasons described elsewhere in this 
document, NMFS has not required a 120-dB shutdown zone for activities 
in the Chukchi Sea.
    Comment 82: NSB notes that it appears Shell wants to survey in 
areas other than Burger. If this is the case, NMFS needs to require 
additional and appropriate monitoring.
    Response: The monitoring measures contained in the IHA are required 
at all

[[Page 55394]]

site clearance and shallow hazards surveying sites, not just Burger. 
Therefore, if Shell conducts surveying activities at Crackerjack or SW 
Shoebill, the same monitoring measures required at Burger will be 
undertaken at Crackerjack and SW Shoebill.
    Comment 83: AWL states that NMFS has proposed an exclusion zone for 
12 or more gray or bowhead whales within the 160-dB zone, extending 
1,400 m (0.87 mi) from the seismic vessel. AWL and Dr. Bain note that 
there are serious concerns with the efficacy of mitigation measures 
such as exclusion zones, particularly when visibility is poor to non-
existent. AWL also states that NMFS has not indicated that it will 
require a fixed number of MMOs to be on duty, and Shell states that the 
number of MMOs during any period depends on multiple factors, including 
berthing availability and lifeboat space. If Shell ultimately relies on 
single observers located on the source vessel only, monitoring the full 
1,400 m (0.87 mi) radius for aggregations of whales will present a 
considerable challenge.
    NSB also notes the inadequacies of MMOs to monitor the 160- and 
120-dB isopleths. Therefore, MMOs will not provide a reasonable measure 
of how many marine mammals are exposed to sounds produced by site 
clearance and shallow hazards surveys. Additional monitoring 
approaches, such as intensive acoustic arrays, chase vessels, or aerial 
surveys are needed. NSB also states that Shell is intending to conduct 
intensive acoustic monitoring near the Burger and Klondike prospects. 
This will be useful for measuring takes of marine mammals and examining 
behavioral responses to site clearance and shallow hazards surveys. 
Other areas that Shell intends to explore with airguns should also be 
monitored with intensive acoustic arrays or with another suitable 
monitoring technique, such as aerial surveys. Detailed monitoring of 
marine mammal behavior and density is needed.
    Response: The seismic vessels will be traveling at speeds of about 
1-5 knots (1.9-9.3 km/hr). With a 180-dB safety range of 160 m (525 ft) 
and a 160-dB safety range of 1,400 m (0.87 mi), a vessel will have 
moved out of the applicable safety zone within a few minutes. As a 
result, during underway seismic operations, MMOs are instructed to 
concentrate on the area ahead of the vessel, not behind the vessel 
where marine mammals would need to be voluntarily swimming towards the 
vessel to enter the 180- or 160-dB zones. In fact, in some of NMFS' 
IHAs issued for scientific seismic operations, shutdown is not required 
for marine mammals that approach the vessel from the side or stern in 
order to ride the bow wave or rub on the seismic streamers deployed 
from the stern (and near the airgun array) as some scientists consider 
this a voluntary action on the part of an animal that is not being 
harassed or injured by seismic noise. While NMFS concurs that shutdowns 
are not likely warranted for these voluntary approaches, in the Arctic 
Ocean, all seismic surveys are shutdown or powered down for all marine 
mammal close approaches. Also, in all seismic IHAs, including Shell's 
IHA, NMFS requires that the safety zone be monitored for 30 min prior 
to beginning ramp-up to ensure that no marine mammals are present 
within the safety zones. Implementation of ramp-up is required because 
it is presumed it would allow marine mammals to become aware of the 
approaching vessel and move away from the noise, if they find the noise 
annoying.
    Periods of total darkness will not set in during Shell's survey 
until early September. For the month of September, nighttime conditions 
will occur for approximately 1-6 hrs. However, during times of reduced 
light, MMOs will be equipped with night vision devices. During poor 
visibility conditions, if the entire safety zone is not visible for the 
entire 30 min pre-ramp-up period, operations cannot begin.
    Shell will not be relying on single MMOs aboard the source vessel 
to monitor the different radii. The IHA requires Shell to have five 
MMOs on the source vessel at any time, and two MMOs must be on duty 
during all pre-ramp up and ramp-up periods, as well as for a large a 
fraction of the other operating hours as possible. MMOs are not 
permitted to work more than 4 consecutive hours and no more than three 
shifts per day (i.e., no more than 12 hours in a 24 hour period). By 
requiring five MMOs on the vessel at all times, this will allow for two 
MMOs to be on-watch for a greater period of time without causing 
fatigue.
    In 2009, Shell and ConocoPhillips are jointly funding an extensive 
acoustic monitoring program in the Chukchi Sea. A total of 44 recorders 
will be distributed both broadly across the Chukchi lease area and 
nearshore environment and intensively on the Burger and Klondike lease 
areas. The broad area arrays are designed to capture both general 
background soundscape data and marine mammal call data across the lease 
area. Shell hopes to gain insights into large-scale distribution of 
marine mammals, identification of marine mammal species present, 
movement and migration patterns, and general abundance data. While 
intensive arrays will not be deployed at the Crackerjack prospect, the 
broad array will still collect some of the information suggested by 
NSB. However, an intensive array is not necessary at every site, as the 
acoustic monitoring is not used to implement mitigation measures.
    Aerial monitoring is not required in IHAs for surveys that occur in 
the offshore environment of 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 84: AEWC states that as part of its application, Shell is 
required to suggest its proposed ``means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species'' and document ``the level of taking or impacts on populations 
of marine mammals...'' (50 CFR 216.104(a)(13)). One of the reasons for 
this monitoring is for NMFS to ``ensure that authorizations over time 
have only a negligible impact on species or stocks of marine mammals 
and no unmitigable adverse impact on the availability of species or 
stocks for taking for subsistence uses (60 FR 28381, May 31, 1995). 
Thus, monitoring is critical to the proper functioning of the MMPA. For 
this reason, NMFS has previously explained that a site-specific 
monitoring plan must be submitted and would have to include information 
regarding survey techniques and/or other methods to be used to 
determine whether the behavior of marine mammals near the activity is 
being affected and how the number of takes would be determined, 
including the expected precision of that estimated number. However, 
Shell has failed to adequately describe its monitoring plans. For 
example, Shell fails to disclose its ethograms for studying marine 
mammal behavior or describe how data will be collected to ``estimate 
the 'take' of marine mammals by harassment.'' Without this detailed 
information, AEWC cannot comment on the adequacy of Shell's monitoring 
plan or make suggestions for study design so that the data collected 
can easily be used by AEWC and others.
    Response: While a list of the types of animal behaviors that are 
recorded by the MMOs was not included in the 4MP, MMOs record common 
behaviors exhibited by cetaceans and pinnipeds. Shell's 2009 monitoring 
and reporting plan is similar to that used by Shell in

[[Page 55395]]

2006, 2007, and 2008. The 90-day reports from those seasons contain 
descriptions of the types of behaviors that were recorded (Patterson et 
al., 2007; Funk et al., 2008; Ireland et al., 2009). The 4MP contains a 
brief description of the methods to calculate take. These are the same 
methods that have been used by Shell in previous years. The full 
explanations can be found in the 90-day reports (Patterson et al., 
2007; Funk et al., 2008; Ireland et al., 2009). Shell's methods have 
been described several times, and AEWC and others have had several 
opportunities over the past few years to comment on the methods for 
monitoring and reporting behavior and take levels during seismic 
surveys.
    Comment 85: AEWC indicates that Shell's monitoring plan focuses 
solely on ``reporting'' the level of take and not ``monitoring'' marine 
mammals. The monitoring plan is designed to attempt to document the 
take of marine mammals and fails to include proactive monitoring beyond 
that necessary for attempting to assess the level of take that occurs. 
Especially given the lack of data that exists on marine mammals use of 
the Chukchi, Shell should be required to conduct basic presence and 
absence surveys and collect density data utilizing vessels and other 
tools that will minimally disturb marine life and scientifically 
recognized data collection techniques.
    Response: MMOs record the presence of marine mammals sighted 
outside of the monitoring zones and note the behaviors exhibited by the 
animals. Additionally, in 2009, Shell will be deploying an array of 44 
acoustic recorders to gain insights into large-scale distribution of 
marine mammals, identification of marine mammal species present, 
movement and migration patterns, and general abundance data of marine 
mammals in the Chukchi Sea. Similar data have been collected in 2006-
2008. The data collected during the 2009 season will assist in 
evaluating changes in the Chukchi Sea ecosystem.
    Comment 86: NSB asks how the mitigation measures are being 
evaluated for efficacy. NSB and AEWC note that Shell asserts that 
mitigation measures are designed to protect animals from injurious 
takes, but it is not clear that these mitigation measures are effective 
in protecting marine mammals or subsistence hunters. Data previously 
presented by Shell and ConocoPhillips from their seismic activities 
made clear that MMOs failed to detect many marine mammals that 
encroached within the designated safety zones. NSB states, ``In essence 
the MMOs were not able to observe marine mammals in the entire safety 
zone.'' Thus, the safety zones do not provide adequate mitigation from 
physical harm to marine mammals.
    Response: NMFS believes that the required monitoring and mitigation 
measures are effective at ensuring the least practicable impact to 
marine mammals. Moreover, the safety zones for Shell's 2009 surveys are 
much smaller than those for the larger 3D seismic surveys in past 
years. The 180- and 190-dB safety zones are 160 m (525 ft) and 50 m 
(164 ft), respectively. The monitoring reports from 2006, 2007, and 
2008 do not note any instances of serious injury or mortality 
(Patterson et al., 2007; Funk et al., 2008; Ireland et al., 2009). 
Additionally, the fact that a power-down or shutdown is required does 
not indicate that marine mammals are not being detected or that they 
are incurring serious injury. As discussed elsewhere in this document 
and in the Notice of Proposed IHA (74 FR 26217, June 1, 2009), the 
received level of a single seismic pulse (with no frequency weighting) 
might need to be approximately 186 dB re 1 microPa\2.\s (i.e., 186 dB 
sound exposure level [SEL]) in order to produce brief, mild TTS (a non-
injurious, Level B harassment) in odontocetes. Exposure to several 
strong seismic pulses that each have received levels near 175-180 dB 
SEL might result in slight TTS in a small odontocete, assuming the TTS 
threshold is (to a first approximation) a function of the total 
received pulse energy. For Shell's proposed survey activities, the 
distance at which the received energy level (per pulse) would be 
expected to be [gteqt]175-180 dB SEL is the distance to the 190 dB re 1 
microPa (rms) isopleth (given that the rms level is approximately 10-15 
dB higher than the SEL value for the same pulse). Seismic pulses with 
received energy levels [gteqt]175-180 dB SEL (190 dB re 1 microPa 
(rms)) are expected to be restricted to a radius of approximately 50 m 
(164 ft) around the airgun array.
    For baleen whales, there are no data, direct or indirect, on levels 
or properties of sound that are required to induce TTS. The frequencies 
to which baleen whales are most sensitive are lower than those to which 
odontocetes are most sensitive, and natural background noise levels at 
those low frequencies tend to be higher. As a result, auditory 
thresholds of baleen whales within their frequency band of best hearing 
are believed to be higher (less sensitive) than are those of 
odontocetes at their best frequencies (Clark and Ellison, 2004). From 
this, it is suspected that received levels causing TTS onset may also 
be higher in baleen whales.
    In pinnipeds, TTS thresholds associated with exposure to brief 
pulses (single or multiple) of underwater sound have not been measured. 
Initial evidence from prolonged exposures suggested that some pinnipeds 
may incur TTS at somewhat lower received levels than do small 
odontocetes exposed for similar durations (Kastak et al., 1999, 2005; 
Ketten et al., 2001; cf. Au et al., 2000). However, more recent 
indications are that TTS onset in the most sensitive pinniped species 
studied (harbor seal, which is closely related to the ringed seal) may 
occur at a similar SEL as in odontocetes (Kastak et al., 2004).
    NMFS (1995, 2000) concluded that cetaceans and pinnipeds should not 
be exposed to pulsed underwater noise at received levels exceeding, 
respectively, 180 and 190 dB re 1 microPa (rms). The established 180- 
and 190-dB re 1 microPa (rms) criteria are not considered to be the 
levels above which TTS might occur. Rather, they are the received 
levels above which, in the view of a panel of bioacoustics specialists 
convened by NMFS before TTS measurements for marine mammals started to 
become available, one could not be certain that there would be no 
injurious effects, auditory or otherwise, to marine mammals. As 
summarized above, data that are now available imply that TTS is 
unlikely to occur unless bow-riding odontocetes are exposed to airgun 
pulses much stronger than 180 dB re 1 microPa rms (Southall et al., 
2007).
    No cases of TTS are expected as a result of Shell's proposed 
activities given the small size of the source, the strong likelihood 
that baleen whales (especially migrating bowheads) would avoid the 
approaching airguns (or vessel) before being exposed to levels high 
enough for there to be any possibility of TTS, and the mitigation 
measures proposed to be implemented during the survey described later 
in this document.
    There is no empirical evidence that exposure to pulses of airgun 
sound can cause PTS in any marine mammal, even with large arrays of 
airguns (see Southall et al., 2007). PTS might occur at a received 
sound level at least several decibels above that inducing mild TTS if 
the animal is exposed to the strong sound pulses with very rapid rise 
time.
    It is highly unlikely that marine mammals could receive sounds 
strong enough (and over a sufficient duration) to cause permanent 
hearing impairment during a project employing the airgun sources 
planned here (i.e., an airgun array with a total discharge volume of 40 
in\3\). In the proposed project, marine mammals are unlikely to be 
exposed to

[[Page 55396]]

received levels of seismic pulses strong enough to cause more than 
slight TTS. Given the higher level of sound necessary to cause PTS, it 
is even less likely that PTS could occur. In fact, even the levels 
immediately adjacent to the airgun may not be sufficient to induce PTS, 
especially because a mammal would not be exposed to more than one 
strong pulse unless it swam immediately alongside the airgun for a 
period longer than the inter-pulse interval. Baleen whales, and belugas 
as well, generally avoid the immediate area around operating seismic 
vessels. The planned monitoring and mitigation measures, including 
visual monitoring, power-downs, and shutdowns of the airguns when 
mammals are seen within the safety radii, will minimize the already-
minimal probability of exposure of marine mammals to sounds strong 
enough to induce PTS.
    Comment 87: NSB states that Shell needs to include a plan of 
reporting/communicating the presence of floating dead marine mammals 
within the zone of industrial exploration. NSB would like to work with 
industry to determine cause of death and perform other biological 
sampling from carcasses noted in areas of industrial activity. There 
are no provisions within the 4MP that facilitate these objectives. 
Additionally, NSB has asked industry to work with NMFS to develop a 
plan to mark carcasses so that they are not re-counted and a more 
definitive count of dead, floating marine mammals within the industry 
zone of operations can be made. This is not included here.
    Response: The IHA requires Shell to notify both NMFS and the Marine 
Mammal Stranding Network within 24 hours of sighting a stranded marine 
mammal. The MMOs are also required to complete a Level A Stranding 
Report Form and to take photographs when possible. However, Shell is 
not permitted to collect samples or conduct necropsies on dead marine 
mammals. Necropsies can only be performed by people authorized to do so 
under the Marine Mammal Health and Stranding Response Program MMPA 
permit. NMFS is currently considering different methods for marking 
carcasses to reduce the problem of double counting. However, a protocol 
has not yet been developed, so marking is neither required nor 
authorized in the IHA.
    Comment 88: The MMC believes that absent an evaluation by the oil 
and gas industry of its monitoring and mitigation measures, the effects 
of the industry's activities will remain uncertain. The MMC recommends 
that NMFS require Shell and other companies conducting seismic work in 
the Arctic to undertake the studies needed to verify observer 
proficiency (including the number of observers needed to monitor entire 
safety zones and the presence of marine mammals near or within those 
zones, particularly when operations are being conducted 24 hours a day) 
and provide additional rationale allowing seismic surveys to continue 
under nighttime conditions when observer proficiency is severely 
compromised. AWL also notes that NMFS should prohibit surveying at 
night and at times of low visibility to achieve the means of effecting 
the least practicable impact on a species or stock. At a minimum, NMFS 
must require multiple observers working simultaneously in order to 
effectively monitor the 160-dB zone. NSB states that with regard to 
nighttime 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 MMOs from detecting 
all marine mammals in the safety zone.
    The MMC, AWL, and Dr. Bain recommend that Shell be required to 
supplement its mitigation measures by using passive acoustic monitoring 
(PAM). Such monitoring will enhance marine mammal detection 
capabilities under all conditions, but particularly at night and when 
visibility is otherwise poor.
    Response: The MMOs hired by Shell are required to complete training 
courses and exams to verify their proficiency. All MMOs used for the 
2009 surveys have at least 2 years of experience working as MMOs for 
surveys in Arctic waters. Several of the MMOs also have experience 
working on vessels in other parts of the world as well. Two MMOs are 
required to be on-duty during all pre-ramp-up and ramp-up periods and 
for as large a fraction of the active surveying period as possible. 
MMOs are not required to be on-duty during nighttime periods. However, 
if the entire safety zone is not visible during the 30 min pre-ramp-up 
and ramp-up periods, then operations are not permitted to begin.
    On the matter of practicability, NMFS has been informed by Shell 
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 
Shell 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 to be impracticable because of 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. The alternative mitigation measure could 
involve the use of 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 would result in the harassment of fewer marine mammals and 
further ensure that auditory injury does not occur. However, based on 
the small discharge volume of the airgun array to be used by Shell for 
its 2009/2010 survey operations and the required mitigation and 
monitoring measures (described later in this document), NMFS does not 
believe that marine mammal injury will occur, with or without the use 
of the HF/M3.
    Moreover, as stated in the Federal Register Notice of Proposed IHA 
(74 FR 26217, June 1, 2009), 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

[[Page 55397]]

mammal visual monitoring so that the safety zones can be re-
established.
    NMFS' 2009 EA for this action contains an analysis of why PAM is 
not required to be used by Shell to implement mitigation measures. 
Shell will deploy acoustic recorders to collect data on vocalizing 
animals. However, this information will not be used in a real-time or 
near-real-time capacity. Along with the fact that marine mammals may 
not always vocalize while near the PAM device, another shortcoming is 
that it requires a quiet vessel so that vessel noise does not hinder 
the ability to hear marine mammals. MMS is sponsoring a workshop in 
November 2009, which will review available acoustic monitoring 
technology (passive and active), its feasibility and applicability for 
use in MMS-authorized activities, and what additional developments need 
to take place to improve its effectiveness. NMFS may consider 
requirements for PAM in the future depending on information received as 
the technology develops further.
    Comment 89: It is also AEWC's position that independent 
verification of offshore operators' compliance with IHA provisions must 
be required as part of the mitigation for the IHAs.
    Response: NMFS' implementing regulations at 50 CFR 216.104 require 
an applicant to submit information about the mitigation, monitoring, 
and reporting measures that will be implemented to ensure the least 
practicable impact on the affected species or stock. NMFS reviews these 
proposed measures, and, after discussion with the applicant, requires 
mitigation, monitoring, and reporting protocols that NMFS determines 
will ensure only small numbers of marine mammals will be taken, that 
those takings will have a negligible impact on the affected species or 
stock, will not have an unmitigable adverse impact on the affected 
species or stock for taking for subsistence uses, and will effect the 
least practicable impact on the affected species or stock. While NMFS 
recognizes that independent verification of an operator's compliance 
with the terms of an IHA is generally the best course of action if 
possible or practicable, in some cases it is not practicable. In this 
case, and at this time, NMFS does rely on the industry to comply with 
the measures set forth in the IHA. NMFS continues to review reports 
submitted by IHA holders to ensure that they comply with the terms 
contained in the authorization. These reports require, among other 
things, the holder to supply information regarding sightings of marine 
mammals and the implementation of appropriate mitigation measures. NMFS 
is continually interested, and trying, to develop a monitoring program 
more independent of the action, but, until such a monitoring plan is 
implemented, NMFS will rely on the industry to provide assurance that 
the activity remains in compliance with measures contained in an IHA.
    Comment 90: The MMC cannot determine from the information provided 
in the application whether Shell plans to collect data during ramp-up 
procedures to test the assumption that animals are able to, and will, 
move away from an increasingly loud noise to avoid harmful effects. The 
MMC recommends that NMFS require Shell and other applicant's using 
ramp-up procedures to collect and analyze data pertaining to the 
efficacy of ramp-up as a mitigation measure. NSB also states that data 
need to be collected to better understand the effectiveness of the 
mitigation measures (i.e., ramp-up, power-down, and shutdown). Dr. Bain 
stresses the importance of collecting data on animals that are exposed 
to noise versus those that are not exposed in order to allow for 
comparisons of population dynamics.
    Response: While scientific research built around the question on 
whether ramp-up is effective has not been conducted, several studies on 
the effects of anthropogenic noise on marine mammals indicate that many 
marine mammals will move away from a sound source that they find 
annoying (e.g. Malme, 1984; Clark et al., 1999; Miller et al., 1999; 
others reviewed in Richardson et al., 1995). In particular, three 
species of baleen whales have been the subject of tests involving 
exposure to sounds from a single airgun, which is equivalent to the 
first stage of ramp-up. All three species were shown to move away at 
the onset of a single airgun operation (Malme et al., 1983-1986; BBN 
Reports 5366, 5586, 6265; Richardson et al., 1986; McCauley et al., 
1998, 2000).
    From this research, it can be presumed that if a marine mammal 
finds a noise source annoying or disturbing, it will move away from the 
source prior to sustaining an injury, unless some other over-riding 
biological activity keeps the animal from vacating the area. This is 
the premise supporting NMFS' and others' belief that ramp-up is 
effective in preventing injury to marine mammals. In addition, 
observers and power-down/shut-down criteria provide for the protection 
of non-responding mammals: e.g., those that either do not hear the 
sounds because of a hearing impairment or because the sounds are 
outside the hearing range of the species, or those individuals that do 
not react to the sounds because of behavioral or other physiological 
factors. Implementation of these measures would prevent injury to those 
animals that do not vacate the area. A ramp-up study was first proposed 
to be conducted by MMS in 1999 (HESS, 1999). While this study has not 
been funded to date, NMFS believes that a basic difficulty exists for 
testing ramp-up effectiveness without first establishing some mode of 
dose-response. As a result, prior to testing ramp-up effectiveness, 
this type of information is currently being obtained by the Sperm 
Whales Seismic Study. NMFS believes that this information is a critical 
component for understanding marine mammal impacts from world-wide 
operating seismic activities.
    Additionally, the IHA requires that MMOs make observations for the 
30 min prior to ramp-up, during all ramp-ups, and during all daytime 
seismic operations and record the following information: (1) the 
species, group size, age/size/sex categories (if determinable), the 
general behavioral activity, heading (if consistent), bearing and 
distance from seismic vessel, sighting cue, behavioral pace, and 
apparent reaction of all marine mammals seen near the seismic vessel 
and/or its airgun array (e.g., none, avoidance, approach, paralleling, 
etc); and (2) the time, location, heading, speed, and activity of the 
vessel (shooting or not), along with sea state, visibility, cloud cover 
and sun glare. These requirements should provide information regarding 
the effectiveness of ramp-up as a mitigation measure, provided animals 
are detected during ramp-up. This information is also recorded when a 
power-down or shutdown occurs. Lastly, Shell also documents sightings 
and behaviors of marine mammals when no active survey operations are 
occurring (e.g., down due to weather, transiting), allowing for some 
level of comparison between exposed and non-exposed individuals.
    Comment 91: AEWC states that Shell relies on an out-dated Notice to 
Lessees (NTL 2004-G01) in its proposed mitigation plan to supply some 
of its mitigation measures. Not only has this notice been superceded 
(see NTL 2007-G02), but it is based on requirements stemming from a 
NMFS Biological Opinion for a lease sale in the Gulf of Mexico. The 
conditions in the Notice are not designed for Alaskan operations or the 
specific and unique needs of the Arctic. Thus, Shell's reliance on this 
Notice in crafting its mitigation measures is arbitrary.

[[Page 55398]]

    Response: The full statement in the 4MP to which AEWC refers reads 
as follows: ``The Program will be operated and administered consistent 
with MMS NTL 2004-G01 or such alternative requirements as may be 
specified in the NMFS IHA...'' While the 2004 NTL is mentioned in the 
4MP, the mitigation measures that are described in the 4MP and Notice 
of Proposed IHA (74 FR 26217, June 1, 2009) and subsequently required 
in the IHA are similar to those that have been developed and required 
by NMFS over the past few years for oil and gas seismic surveys in 
Arctic waters. Several of the mitigation measures required by NMFS in 
the IHA are specific to the unique needs of the Arctic. One example is 
the 160-dB shutdown requirement when an aggregation of 12 or more 
bowhead are gray whales occur within that isopleth.
    Comment 92: AEWC and NSB both state that if NMFS relies on 
mitigation included in an IHA to find an activity will have only a 
negligible level of impact, that finding is ``subject to such 
mitigating measures being successfully implemented'' (50 CFR 216.104; 
emphasis added). The simple existence of a measure is not enough. Shell 
must be able to demonstrate that measures will and can be implemented, 
thus, ensuring that impacts to bowheads remain negligible. As Shell's 
proposed mitigation currently stands, this is a difficult if not 
impossible determination for NMFS to make.
    Response: Shell's 2006, 2007, and 2008 90-day monitoring reports 
indicate that the company was able to implement the required mitigation 
measures (Patterson et al., 2007; Funk et al., 2008; Ireland et al., 
2009). Since the measures contained in the 2009 IHA do not differ 
substantially from those required previously, NMFS does not have any 
reason to doubt successful implementation during the current site 
clearance and shallow hazards surveys. NMFS has determined that with 
the incorporation and implementation of the mitigation measures, 
impacts to bowheads and other marine mammals will be negligible. 
Additionally, AEWC and NSB have not provided information indicating 
that Shell did not successfully implement the required mitigation 
measures.
    Comment 93: NSB states that while there are descriptions of zones 
of impact within the 4MP, there is no clear statement of mitigation 
measures associated with these zones of impact. Monitoring does not 
equate to mitigation. There must be a clear action that results from 
monitoring, and these actions should go further than just power-downs. 
Clear indications of when mitigation measures are triggered and what 
results will occur are needed in this document.
    Response: The Notice of Proposed IHA (74 FR 26217, June 1, 2009) 
contained a discussion of mitigation measures associated with the 
different zones of impact. It explained when a power-down or shutdown 
in required to occur and how long airguns must remain off or used at a 
reduced level. NMFS has informed Shell that commenters have requested 
additional detail in the application documents. However, this does not 
have a bearing on NMFS' required MMPA findings for issuing an IHA.
    Comment 94: Dr. Bain questions the effectiveness of marine mammal 
monitoring with only two MMOs on duty full time. Citing Forney and 
Barlow (1998) and Dahlheim and Towell (1994), Dr. Bain states that a 
common work schedule where consistent effort is required would be 40 
minutes on, 40 minutes off, 40 minutes on, two hours off, three times a 
day. Dr. Bain suggests that an observation team of 12 MMOs would be 
required to cover a 24-hour period. Further, MMOs working shifts longer 
than 40 minutes cannot be expected to have the same sighting efficiency 
as those working in dedicated surveys, making it questionable to use 
sighting efficiencies from dedicated surveys to predict effectiveness 
of MMOs and to use dedicated survey parameters to extrapolate density 
estimates from MMO data. Dr. Bain further states that the probability 
of detecting marine mammals would drop with increased distance from the 
vessel.
    Response: NMFS does not agree with Dr. Bain's assessment and 
suggestions regarding MMOs and marine mammal monitoring. NMFS reviewed 
the references (Dahlheim and Towell, 1994; Forney and Barlow, 1998) 
provided by Dr. Bain, and did not find any type of work schedules 
described. Unlike observers during marine mammal population surveys who 
are required to search the entire field for any marine mammals, the 
primary responsibilities for MMOs are to monitor the safety zones, 
which in this case are 160 m (525 ft) for the 180-dB isopleth and 50 m 
(164 ft) for the 190-dB isopleth and to ensure that proper mitigation 
measures (power-down or shutdown) are implemented if a marine mammal is 
about to enter or is sighted within these safety zones. NMFS agrees 
that the detection probability of a marine mammal drops with increased 
distance from the ship. However, the occurrence of marine mammals 
outside the safety zones is not a big concern for marine mammal 
monitoring during the proposed seismic activity because it is presumed 
these animals would not be within a zone that could result in injury. 
Furthermore, MMOs would be on duty for 4 consecutive hours or less to 
reduce fatigue. Shell will have five MMOs on the vessel at all times so 
that two MMOs are on duty during all pre-ramp-up and ramp-up periods 
and for as a large a fraction of other periods as possible. In 
addition, all MMOs hired for the proposed seismic surveys must be NMFS-
approved observers who are qualified to perform the required monitoring 
tasks. Therefore, NMFS believes that two MMOs are effective for marine 
mammal monitoring for Shell's shallow hazard and site clearance 
surveys.
    Comment 95: Dr. Bain is concerned that many species that are 
capable of diving for more than 30 minutes could be missed during the 
monitoring.
    Response: NMFS agrees with Dr. Bain that monitoring for deep diving 
marine mammals poses a challenge. However, within the proposed survey 
area, there are no marine mammals that normally dive for more than 30 
minutes. However, in the event that a marine would be missed during the 
initial pre-survey monitoring, ramp-up procedures will be followed when 
an acoustic source begins to operate, so the undetected animal(s) would 
have an opportunity to detect the sound as it increases gradually and 
move away from the source. Please refer to the Mitigation and 
Monitoring Measures sections later in this document for a detailed 
description of these measures.
    Comment 96: Dr. Bain notes that a fundamental assumption in noise 
mitigation is that animals will move away from the noise source 
(horizontal avoidance). Dr. Bain is concerned that many species are 
sedentary, territorial, or have strong tendencies toward site fidelity, 
and that these species are unlikely to move away from a noise source. 
In addition, Dr. Bain is concerned that many predators are used to 
experiencing pain during feeding, and hence tolerate pain [from being 
exposed to loud noise] rather than abandoning their prey (e.g., many 
mammals involved in fishery-interactions).
    Response: First, the monitoring and mitigation measures described 
in this document and contained in Shell's IHA would prevent any marine 
mammals from being exposed to received levels that could cause onset of 
injury (180 dB re 1 microPa (rms) for cetaceans and 190 dB re 1 microPa 
(rms) for pinnipeds). Second, there are no sedentary marine mammals. 
The proposed survey is fundamentally

[[Page 55399]]

different from commercial fisheries activities in which the appearance 
of a seismic vessel does not reinforce the marine mammal with food or 
prey, therefore, it is unlikely that predatory marine mammals would 
approach the seismic vessel or acoustic source while searching for 
prey. Even if a marine mammal happens to be in close vicinity of the 
vessel or source, monitoring and mitigation measures require the crew 
to power-down or shutdown the acoustic sources so that the animal will 
not be affected by Level A harassment.

Cumulative Impact Concerns

    Comment 97: The MMC continues to be concerned about the potential 
cumulative impacts of climate-related ecosystem changes occurring in 
the Arctic and the anticipated increase in the level of seismic and 
other oil and gas-related activities in the region. The MMC recommends 
that NMFS conduct a more extensive analysis of the potential or likely 
effects of currently authorized and proposed oil and gas activities, 
climate change, and additional anthropogenic risk factors (e.g., 
industrial operations) and the possible cumulative effects of all of 
these activities over time. The MMC also recommends that NMFS, together 
with the applicant and other appropriate agencies and organizations, 
develop a comprehensive population monitoring and impact assessment 
program to assess whether these activities, in combination with other 
risk factors, are individually or cumulatively having any significant 
adverse population-level effects on marine mammals or having an 
unmitigable adverse effect on the availability of marine mammals for 
subsistence uses by Alaska Natives. Such a monitoring program should 
focus initially on the need to collect adequate baseline information to 
allow for future analyses of effects. Finally, the MMC recommends that 
NMFS sponsor a workshop or workshops to facilitate the development of a 
comprehensive population monitoring and impact assessment program.
    Response: A description of the monitoring program submitted by 
Shell was provided in Shell's application, outlined in the Notice of 
Proposed IHA (74 FR 26217, June 1, 2009), and posted on the NMFS PR IHA 
webpage. As a result of a dialogue on monitoring by scientists and 
stakeholders attending NMFS' public meetings in Anchorage in April, 
2006, October, 2006, and April, 2007, the industry has expanded its 
monitoring program in order to fulfill its responsibilities under the 
MMPA. Additionally, Shell's 2009 monitoring plan was subjected to an 
independent peer review. (See the ``Monitoring Plan Independent Peer 
Review'' subsection later in this document for more information.) For 
the fourth year, Shell has included a marine mammal research component 
designed to provide baseline data on marine mammals for future 
operations planning. A description of this research is provided later 
in this document (see ``Comprehensive Monitoring Reports'' section). 
Scientists are continuing discussions to ensure that the research 
effort obtains the best scientific information possible. Finally, it 
should be noted that this far-field monitoring program follows the 
guidance of the MMC's recommended approach for monitoring seismic 
activities in the Arctic (Hofman and Swartz, 1991), that additional 
research might be warranted when impacts to marine mammals would not be 
detectable as a result of vessel observation programs.
    Comment 98: NSB, AEWC, AWL, and Oceana and the Ocean Conservancy 
state that NMFS must also consider the effects of disturbances in the 
context of other activities occurring in the Arctic. NSB notes, as 
stated previously, the cumulative impacts of all industrial activities 
must be factored into any negligible impact determination. NMFS has not 
done so for Shell's activities, and, therefore, the proposed IHA should 
not be issued until a cumulative impact assessment is conducted.
    Response: Under section 101(a)(5)(D) of the MMPA, NMFS is required 
to determine whether the taking by the applicant's specified activity 
will take only small numbers of marine mammals, will have a negligible 
impact on the affected marine mammal species or population stocks, and 
will not have an unmitigable impact on the availability of affected 
species or stocks for subsistence uses. Cumulative impact assessments 
are NMFS' responsibility under the National Environmental Policy Act 
(NEPA), not the MMPA. In that regard, MMS' 2006 Final PEA, NMFS' 2007 
and 2008 Supplemental EAs, and NMFS' 2009 EA address cumulative 
impacts. The Final PEA's cumulative activities scenario and cumulative 
impact analysis focused on oil and gas-related and non-oil and gas-
related noise-generating events/activities in both Federal and State of 
Alaska waters that were likely and foreseeable. Other appropriate 
factors, such as Arctic warming, military activities, and noise 
contributions from community and commercial activities were also 
considered. Appendix D of the Final PEA addresses similar comments on 
cumulative impacts, including global warming. That information was 
incorporated into and updated in the NMFS 2008 SEA and into this 
document by citation. 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.
    Comment 99: AEWC is concerned that absent an analysis of the 
effects of all of the planned operations on marine mammals, it is 
impossible to assess the level of take of these animals that is on-
going. For this reason, AEWC advocates that NMFS implement a cap on the 
overall seismic-related activities that can occur in Arctic waters each 
year.
    Response: See the response to comment 98 discussing analysis of 
cumulative impacts. Regarding the suggestion to cap the number of 
activities each year, 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. 
However, NMFS will not issue an IHA for any activity where NMFS is 
unable to make the necessary findings under section 101(a)(5)(D) of the 
MMPA. Therefore, based on both practicability and that it is not 
necessary in this particular instance (because there is only one 
ancillary activity occurring this season), 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.

ESA Concerns

    Comment 100: AEWC and NSB both note that the Notice of Proposed IHA 
(74 FR 26217, June 1, 2009) states NMFS' determination that ``Shell's 
proposed activities...are adequately analyzed in the 2008 Biological 
Opinion'' and that ``NMFS does not plan to conduct a new section 7 
consultation.'' They both state that this is in direct contravention of 
the ESA. Both Shell and NMFS readily acknowledge that several 
endangered species will likely be impacted by

[[Page 55400]]

Shell's proposed authorizations. Therefore, under the plain language of 
the statute, the IHA must be consulted on pursuant to section 7 of the 
ESA. Moreover, in light of our changing climate and the increased 
activity in the Arctic, it is essential that NMFS continue to consult 
on authorized activities so that the baseline used in making jeopardy/
no-jeopardy determinations remains current.
    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 Biological Opinion issued on July 17, 2008, NMFS concluded that 
the issuance of seismic survey permits by MMS and the incidental take 
authorizations 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 Biological Opinion takes into 
consideration all oil and gas related activities that are reasonably 
likely to occur, including exploratory oil drilling activities. This 
Biological Opinion does not include impacts from production activities, 
which are subject to a separate consultation.
    NMFS has reviewed Shell's proposed action and has determined that 
the findings in the 2008 Biological Opinion apply to its 2009 Chukchi 
Sea site clearance and shallow hazards surveys. In addition, NMFS has 
issued an Incidental Take Statement (ITS) under this Biological Opinion 
for Shell's survey activities, which contains reasonable and prudent 
measures with implementing terms and conditions to minimize the effects 
of take of bowhead, humpback, and fin whales.
    Comment 101: AWL notes that NMFS' 2008 programmatic Biological 
Opinion does not contain an ITS. AWL assumes that NMFS will issue a new 
ITS in a timely manner.
    Response: As indicated in the response to comment 100, after 
issuance of the IHA, NMFS also issued a new ITS.

NEPA Concerns

    Comment 102: AEWC and NSB believe that NMFS, in direct 
contravention of the law, excluded the public from the NEPA process 
since NMFS did not release a draft EA for the public to review and 
provide comments prior to NMFS taking its final action.
    Response: Neither NEPA nor the Council on Environmental Quality's 
(CEQ) regulations explicitly require circulation of a draft EA for 
public comment prior to finalizing the EA. The Federal courts have 
upheld this conclusion, and in one recent case, the Ninth Circuit 
squarely addressed the question of public involvement in the 
development of an EA. In Bering Strait Citizens for Responsible 
Resource Development v. U.S. Army Corps of Engineers (9th Cir. 2008), 
the court held that the circulation of a draft EA is not required in 
every case; rather, Federal agencies should strive to involve the 
public in the decision-making process by providing as much 
environmental information as is practicable prior to completion of the 
EA so that the public has a sufficient opportunity to weigh in on 
issues pertinent to the agency's decision-making process. In the case 
of Shell's 2009 MMPA IHA request, NMFS involved the public in the 
decision-making process by distributing Shell's IHA application and 
addenda for a 30-day notice and comment period. However, at that time, 
a draft EA was not available to provide to the public for comment. The 
IHA application and NMFS' Notice of Proposed IHA (74 FR 26217, June 1, 
2009) contained information relating to the project. For example, the 
application included a project description, its location, environmental 
matters such as species and habitat to be affected, and measures 
designed to minimize adverse impacts to the environment and the 
availability of affected species or stocks for subsistence uses.
    Comment 103: AEWC notes that Shell's IHA application warrants 
review in an environmental impact statement (EIS) given the potential 
for significant impacts.
    Response: NMFS' 2009 EA was prepared to evaluate whether 
significant environmental impacts may result from the issuance of an 
IHA to Shell, which is an appropriate application of NEPA. After 
completing the EA, NMFS determined that there would not be significant 
impacts to the human environment and accordingly issued a FONSI. 
Therefore, an EIS is not needed for this action.
    Comment 104: AEWC, AWL, and NSB note the release of the MMS/NMFS 
Draft Programmatic EIS (PEIS; MMS, 2007) in the summer of 2007. To 
date, a Final PEIS has not been completed. The commenters believe that 
all public comments submitted on the Draft PEIS must be answered and 
the Final PEIS released before NMFS can issue new IHAs for seismic 
activities in the Chukchi and Beaufort Seas. AWL states that CEQ 
regulations limit new activities that are otherwise covered by a PEIS 
during the period in which the environmental review is in progress. 
Allowing surveying to continue avoids the broader look at potential 
impacts and could prejudice the agency's decision making.
    Response: While the Final PEIS will analyze the affected 
environment and environmental consequences from seismic surveys in the 
Arctic, the analysis contained in the Final PEIS will apply more 
broadly to Arctic seismic operations. NMFS' issuance of an IHA to Shell 
for the taking of several species of marine mammals incidental to 
conducting its open-water marine survey program in the Chukchi Sea in 
2009, as analyzed in the EA, is not expected to significantly affect 
the quality of the human environment. Shell's surveys are not expected 
to significantly affect the quality of the human environment because of 
the limited duration and scope of Shell's operations. Additionally, the 
EA contained a full analysis of cumulative impacts.

Marine Mammals Affected by the Activity

    Marine mammals that occur in the proposed survey areas belong to 
three taxonomic groups: (1) odontocetes (toothed cetaceans), (2) 
mysticetes (baleen whales), and (3) carnivora (pinnipeds and polar 
bears). Cetaceans and pinnipeds (except walrus) are the subject of this 
IHA. In the U.S., the walrus and polar bear are managed by the USFWS. 
USFWS issued a LOA to Shell on July 16, 2009, for incidental ``takes'' 
specific to walruses and polar bears.
    Marine mammal species under the jurisdiction of NMFS which are 
known to or may occur in the open-water marine survey area of the 
Chukchi Sea include eight cetacean and four pinniped species (see Table 
4-1 in Shell's application). Three of these species, the bowhead, 
humpback and fin whales, are listed as ``endangered'' under the ESA. 
Bowhead whales are more common in the survey area than other ESA 
species. Based on a small number of sightings, fin whales are unlikely 
to occur along the planned trackline in the Chukchi Sea. Humpback 
whales normally are not found in the Chukchi Sea; however, several 
humpback sightings were recorded during vessel-based surveys in the 
Chukchi Sea in 2007 (Reiser et al., 2008).
    The marine mammal species under NMFS jurisdiction that are most 
likely to occur in the survey area include:

[[Page 55401]]

beluga, bowhead, and gray whales, harbor porpoise, and ringed, bearded, 
and spotted seals. The marine mammal species likely to be encountered 
most widely (in space and time) throughout the survey period is the 
ringed seal. Encounters with bowhead and gray whales are expected to be 
limited to particular regions and seasons, as discussed in Shell's 
application.
    Four additional cetacean species and one pinniped species-the 
killer, minke, humpback, and fin whales and ribbon seals-could occur in 
the project area, but each of these species is uncommon or rare in the 
survey area and relatively few encounters with these species are 
expected during Shell's operations. Descriptions of the biology, 
distribution, and population status of the marine mammal species under 
NMFS' jurisdiction can be found in Shell's application and the NMFS 
SARs. The Alaska SAR is available at: http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2008.pdf. Please refer to those documents for information on 
these species.

Potential Effects of Survey Activities on Marine Mammals

    The only anticipated impacts to marine mammals associated with 
Shell's proposed activities (primarily resulting from noise 
propagation) are from vessel movements and airgun operations. Aircraft 
may provide a potential secondary source of sound. The physical 
presence of vessels and aircraft could also potentially lead to non-
acoustic effects on marine mammals involving visual or other cues.
    The effects of sounds from airguns might include one or more of the 
following: tolerance, masking of natural sounds, behavioral 
disturbance, and temporary or permanent hearing impairment or non-
auditory effects (Richardson et al., 1995). As outlined in previous 
NMFS documents, the effects of noise on marine mammals are highly 
variable, and can be categorized as follows (based on Richardson et 
al., 1995):
    (1) The noise may be too weak to be heard at the location of the 
animal (i.e., lower than the prevailing ambient noise level, the 
hearing threshold of the animal at relevant frequencies, or both);
    (2) The noise may be audible but not strong enough to elicit any 
overt behavioral response;
    (3) The noise may elicit reactions of variable conspicuousness and 
variable relevance to the well being of the marine mammal; these can 
range from temporary alert responses to active avoidance reactions such 
as vacating an area at least until the noise event ceases;
    (4) Upon repeated exposure, a marine mammal may exhibit diminishing 
responsiveness (habituation), or disturbance effects may persist; the 
latter is most likely with sounds that are highly variable in 
characteristics, infrequent, and unpredictable in occurrence, and 
associated with situations that a marine mammal perceives as a threat;
    (5) Any anthropogenic noise that is strong enough to be heard has 
the potential to reduce (mask) the ability of a marine mammal to hear 
natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise;
    (6) If mammals remain in an area because it is important for 
feeding, breeding, or some other biologically important purpose even 
though there is chronic exposure to noise, it is possible that there 
could be noise-induced physiological stress; this might in turn have 
negative effects on the well-being or reproduction of the animals 
involved; and
    (7) Very strong sounds have the potential to cause temporary or 
permanent reduction in hearing sensitivity. In terrestrial mammals, and 
presumably marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any TTS in its hearing 
ability. For transient sounds, the sound level necessary to cause TTS 
is inversely related to the duration of the sound. Received sound 
levels must be even higher for there to be risk of permanent hearing 
impairment. In addition, intense acoustic or explosive events may cause 
trauma to tissues associated with organs vital for hearing, sound 
production, respiration and other functions. This trauma may include 
minor to severe hemorrhage.
    The Notice of Proposed IHA (74 FR 36217, June 1, 2009) included a 
discussion of the effects of sounds from airguns on mysticetes, 
odontocetes, and pinnipeds, including tolerance, masking, behavioral 
disturbance, hearing impairment and other physical effects, and non-
auditory physiological effects, as well as a discussion on stranding 
and mortality events. The initial discussion of the potential effects 
of airguns on marine mammals presented in the Notice of Proposed IHA 
were presented without consideration of the mitigation measures 
proposed by Shell and required by NMFS. However, NMFS' preliminary 
determinations were made only after evaluation of Shell's proposed 
mitigation measures. When these measures are taken into account, it is 
unlikely that this project would result in temporary, or especially, 
permanent hearing impairment or any significant non-auditory physical 
or physiological effects.
    The Notice of Proposed IHA also included a discussion of the 
potential effects of the sonar equipment (e.g., multi-beam bathymetric 
sonar) to be used by Shell during the surveys. While the sonar 
equipment proposed to be used for this project generates high sound 
energy, the equipment operates at frequencies (>100 kHz) beyond the 
effective hearing range of most marine mammals likely to be encountered 
during the proposed activities (Richardson et al., 1995). Therefore, 
NMFS believes that effects of signals from sonar equipment to marine 
mammals will be negligible.

Estimated Take of Marine Mammals

    The anticipated harassments from the activities described above may 
involve temporary changes in behavior. There is no evidence that the 
planned activities could result in serious injury or mortality, for 
example due to collisions with vessels or strandings. Disturbance 
reactions, such as avoidance, are very likely to occur among marine 
mammals in the vicinity of the source vessel. The required mitigation 
and monitoring measures (described later in this document) will result 
in, at most, Level B harassment and will reduce even further the 
already minimal potential for the risk of injury.
    The Notice of Proposed IHA (74 FR 26217, June 1, 2009) included an 
in-depth discussion of the methodology used by Shell to estimate 
incidental take by harassment by its seismic activities and the numbers 
of marine mammals that might be affected during the site clearance and 
shallow hazards surveys in the Chukchi Sea. Additional information was 
included in Shell's IHA application and application addenda. Moreover, 
further explanations have been provided in the ``Comments and 
Responses'' section earlier in this document based on comments received 
during the 30-day public comment period. A summary is provided here.
    The estimates are based on data obtained during marine mammal 
surveys in and near the proposed survey area and on estimates of the 
sizes of the areas where effects could potentially occur. In some 
cases, these estimates were made from data collected in regions, 
habitats, or seasons that differ from those in the proposed survey 
areas. Adjustments to reported population or density estimates were 
made to account for these differences insofar as possible.
    Although several systematic surveys of marine mammals have been

[[Page 55402]]

conducted in the southern Beaufort Sea, few data (systematic or 
otherwise) are available on the distribution and numbers of marine 
mammals in the Chukchi Sea beyond the 200 m (656 ft) bathymetry 
contour. The main sources of distributional and numerical data used in 
deriving the estimates are described below and in Shell's application. 
While there is some uncertainty related to the use of regional 
population densities for applications that are local in focus, these 
estimates are based on the best available scientific data and 
represents standard practice.

Marine Mammal Density Estimates

    This section provides estimates of the number of individuals 
potentially exposed to sound levels at or above 160 dB re 1 Pa (rms). 
The estimates are based on a consideration of the number of marine 
mammals that might be disturbed appreciably by operations in the 
Chukchi Sea.
    For the Chukchi Sea, cetacean densities during the summer (July-
August) were estimated from effort and sightings data in Moore et al. 
(2000b) while pinniped densities were estimated from Bengtson et al. 
(2005). Because few data are available on the densities of marine 
mammals other than large cetaceans in the Chukchi Sea in the fall 
(September-October), density estimates from the summer period have been 
adjusted to reflect the expected ratio of summer-to-fall densities 
based on the natural history characteristic of each species. 
Alternatively, some densities from data collected aboard industry 
vessels in 2006 and 2007 in the Chukchi Sea have been used.
    As noted above, there is some uncertainty about the 
representativeness of the data and assumptions used in the 
calculations. To provide some allowance for the uncertainties, 
``maximum estimates'' as well as ``average estimates'' of the numbers 
of marine mammals potentially affected have been derived and provided 
by Shell in their application. For a few marine mammal species, several 
density estimates were available, and in those cases, the average and 
maximum estimates were calculated from the survey data. In other cases, 
only one, or no applicable estimate was available so correction factors 
were used to arrive at ``average'' and ``maximum'' estimates. These are 
described in detail in Shell's application and the Notice of Proposed 
IHA (74 FR 26217, June 1, 2009). Except where noted, the ``maximum'' 
estimates have been calculated as twice the ``average'' estimates. The 
densities presented are believed to be similar to, or in most cases 
higher than, the densities that will actually be encountered during the 
survey.
    Detectability bias, quantified in part by [f(0)], is associated 
with diminishing sightability with increasing lateral distance from the 
survey trackline. Availability bias [g(0)] refers to the fact that 
there is less than 100 percent probability of sighting an animal that 
is present along the survey trackline. These correction factors were 
applied to the data from Moore et al. (2000b) and were already included 
in data provided by Richardson and Thompson (2002) on beluga and 
bowhead whales, and where possible were applied to the available data 
for other species.
    Estimated densities of marine mammals in the Chukchi Sea during the 
``summer'' (July and August) site clearance and shallow hazards survey 
are presented in Table 6-1 of Shell's application. Densities of marine 
mammals estimated for the ``fall'' period of Shell's proposed 
activities in the Chukchi Sea (September and possibly October) are 
presented in Table 6-2 of the application. Both ``average'' and 
``maximum'' densities are provided in the tables. Unless otherwise 
noted by Shell in the application, maximum densities are twice the 
average densities. However, since Shell did not provide a rationale 
regarding the maximum estimate, NMFS has decided that the average 
density data of marine mammal populations will be used to calculate 
estimated take numbers because these numbers are based on surveys and 
monitoring of marine mammals in the vicinity of the proposed project 
area. NMFS only used the ``maximum'' estimates for marine mammal 
species that are considered rare in the project area and for which 
little to no density information exists (i.e., killer, fin, humpback, 
and minke whales and ringed seals).
(1) Cetaceans
    Nine species of cetaceans are known to occur in the Chukchi Sea 
project area. Only four of these (bowhead, beluga, and gray whales and 
harbor porpoise) are expected to be encountered in meaningful numbers 
during the proposed survey. Densities of bowhead and beluga whales are 
expected to be lower in the summer when the majority of the stocks are 
in the Canadian Beaufort Sea. Later in the season, as the animals begin 
their westward migration through the Alaskan Beaufort and Chukchi Seas, 
densities of these species will increase in the survey area. Species 
specific information for bowhead, beluga, and gray whales and harbor 
porpoise was contained in the Notice of Proposed IHA.
    The remaining four cetacean species that could be encountered in 
the Chukchi Sea during Shell's proposed open-water marine survey 
include the humpback, killer, minke, and fin whales. Although there is 
evidence of the occasional occurrence of these species in the Chukchi 
Sea, it is unlikely that individuals will be encountered during the 
proposed survey.
(2) Pinnipeds
    Four species of pinnipeds may be encountered in the Chukchi Sea 
area of Shell's proposed shallow hazards and site clearance program: 
ringed, bearded, spotted, and ribbon seals. Each of these species, 
except the spotted seal, is associated with both the ice margin and the 
nearshore area. Ribbon seals have been reported in very small numbers 
within the Chukchi Sea by observers on industry vessels (Ireland et 
al., 2007a; Patterson et al., 2007) so minimal values have been used 
for expected densities. Additional information for ringed, bearded, and 
spotted seals can be found in the Notice of Proposed IHA.

Exposure Calculations of Marine Mammals

    Numbers of marine mammals that might be present and potentially 
disturbed as a result of the site clearance and shallow hazards surveys 
are estimated below based on available data about mammal distribution 
and densities at different locations and times of the year, as 
described previously. Shell's survey would take place in the Chukchi 
Sea over two different seasons (i.e., summer, August, and fall, 
September and possibly October). The estimates of marine mammal 
densities have therefore been separated both spatially and temporally 
in an attempt to represent the distribution of animals expected to be 
encountered over the duration of the survey.
    The number of individuals of each species potentially exposed to 
received sound levels at or above 160 dB re 1 microPa (rms) within the 
survey region, time period, and habitat zone was estimated by 
multiplying:
     The expected species density (as provided in Tables 6-1 
and 6-2 of Shell's application); by
     The anticipated area to be ensonified to the specified 
level in the survey region (900 km\2\), time period, and habitat zone 
to which that density applies.
    The numbers of potential individuals exposed were then summed for 
each species across the survey region, seasons, and habitat zones. Some 
of the animals estimated to be exposed,

[[Page 55403]]

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 sound at or above 160 dB (rms) that would occur if there 
were no avoidance of the area ensonified to that level.
    The area of water potentially exposed to received levels at or 
above 160 dB (rms) by the proposed operations was calculated by 
multiplying the planned trackline distance by the cross-track distance 
of the sound propagation measured during previous field seasons. For 
site clearance and shallow hazards surveys in 2008 in the Chukchi Sea, 
the 160 dB radius from the Cape Flattery's four 10 in\3\ airguns 
measured in 2008 was 1,400 m (0.87 mi), and the single 10 in\3\ airgun 
was 440 m (0.27 mi).
    Closely spaced survey lines and large cross-track distances of the 
160 dB radii can result in repeated exposure of the same area of water. 
Excessive amounts of repeated exposure can lead to overestimation of 
the number of animals potentially exposed through double counting. 
However, the relatively short cross-track distances of the 160 dB radii 
associated with the site clearance and shallow hazards surveys result 
in little overlap of exposed waters during the survey, so multiple 
exposures due to overlap of ensonified areas have not been removed from 
the area calculations.
    Shallow hazards and site clearance surveys in the Chukchi Sea are 
planned to occur along approximately 480 km (298 mi) of survey lines 
(plus approximately 120 km (74.6 mi) of mitigation gun activity between 
survey lines) from August-September (and possibly early to mid-October) 
exposing approximately 900 km\2\ (347.5 mi2) of water to sounds at or 
above 160 dB re 1 Pa (rms). Additional information on the calculations 
for estimating take can be found in Shell's application and the Notice 
of Proposed IHA.
    Based on the operational plans and marine mammal densities 
described above, the estimates of marine mammals potentially exposed to 
sounds at or above 160 dB (rms) in the Chukchi Sea are presented in 
Table 6-7 of Addendum 2 to Shell's application. A discussion of the 
number of potential exposures is summarized by species in the following 
subsections.
(1) Cetaceans
    Based on density estimates, one ESA-listed cetacean species (the 
bowhead whale) is expected to be exposed to received sound levels at or 
above 160 dB (rms) unless bowheads avoid the survey vessel before the 
received levels reach 160 dB. Migrating bowheads are likely to avoid 
the survey vessel, though many of the bowheads engaged in other 
activities, particularly feeding and socializing may not. Using average 
density estimates, Shell estimates that one bowhead whale may 
potentially be exposed to sounds at or above 160 dB (rms) in the 
Chukchi Sea project area during the site clearance and shallow hazards 
survey (see Table 6-7 of Addendum 2 to Shell's application). Two other 
cetacean species listed as endangered under the ESA that may be 
encountered in the project area (fin and humpback whales) are unlikely 
to be exposed given their low ``average'' density estimates in the 
area. However, Shell has estimated that a ``maximum'' of five humpback 
whales and five fin whales may be exposed to sound levels at or above 
160 dB (rms) during the proposed survey (see Table 6-7 in Addendum 2). 
NMFS' reasoning for using the ``maximum'' estimate for these species 
was explained earlier in this document.
    Most of the cetaceans exposed to survey sounds with received levels 
greater than or equal to 160 dB (rms) would involve bowhead, gray, and 
beluga whales and harbor porpoise. Average and maximum estimates of the 
number of exposures of cetaceans other than bowheads are: beluga whale 
(10 and 19, respectively), gray whale (19 and 37, respectively), and 
harbor porpoise (6 and 11, respectively). Average estimates for the 
other cetacean species are zero (see Table 6-7 in Addendum 2 to Shell's 
application) since accurate density estimates are not possible given 
the paucity of sightings. However, maximum estimates are provided for 
these species (Table 6-7). For the common species, the requested 
numbers are calculated as described previously in this document and 
based on the average densities from the data reported in the different 
studies mentioned previously.
(2) Pinnipeds
    The ringed seal is the most widespread and abundant pinniped in 
ice-covered Arctic waters, and there is a great deal of annual 
variation in population size and distribution of these marine mammals. 
Ringed seals account for the vast majority of marine mammals expected 
to be encountered and hence exposed to airgun sounds with received 
levels greater than or equal to 160 dB re 1 microPa (rms) during the 
site clearance and shallow hazards survey. The average (and maximum) 
exposure estimate is that 692 (1,078) ringed seals might be exposed to 
marine survey sounds with received levels at or above 160 dB (rms).
    Two additional pinniped species (other than Pacific walrus) are 
expected to be encountered. They are the bearded seal (31 and 43, 
average and maximum estimates, respectively) and the spotted seal (6 
and 11, average and maximum estimates, respectively; Table 6-7 in 
Addendum 2 to Shell's application). The ribbon seal is unlikely to be 
encountered. Therefore, only a maximum estimate (5) has been provided 
for this species based on the minimal density data and extremely low 
density estimates for this species in the Chukchi Sea. NMFS' reasoning 
for using the ``maximum'' estimate for this species was explained 
earlier in this document.

Conclusions

(1) Cetaceans
    Most of the bowhead whales encountered during the summer will 
likely show overt disturbance (avoidance) if they receive airgun sounds 
with levels at or above 160 dB re 1 Pa (rms). The small airgun array 
proposed for use in this survey greatly limits the size of the 160 dB 
zone around the ship (1,400 m (0.87 mi)). The use of this smaller array 
will result in fewer bowhead whales being disturbed by the survey when 
compared to the use of larger arrays.
    Seismic operators sometimes see dolphins and other small toothed 
whales near operating airgun arrays, but in general, there seems to be 
a tendency for most delphinds to show some limited avoidance of 
operating seismic vessels (Stone, 2003; Moulton and Miller, 2005; Holst 
et al., 2006; Stone and Tasker, 2006). Studies that have reported cases 
of small toothed whales close to the operating airguns include Duncan 
(1985), Arnold (1996), Stone (2003), and Holst et al. (2006). However, 
at least when in the Canadian Beaufort Sea in summer, belugas appear to 
be fairly responsive to seismic energy, with few being sighted within 
10-20 km (6.2-12.4 mi) of seismic vessels during aerial surveys. These 
results were consistent with the low number of beluga sightings 
reported by observers aboard the seismic vessel, suggesting that some 
belugas might be avoiding the seismic operations at distances of 10-20 
km (6.2-12.4 mi; Miller et al., 2005). The study conducted by Miller et 
al. (2005) was aboard a vessel conducting a 3D seismic survey, 
utilizing two identical 2,250 in\3\ airgun arrays with each array 
containing 24 guns. Since the acoustic sources to be used during 
Shell's survey are significantly smaller

[[Page 55404]]

(total discharge volume of 40 in\3\) than the ones described in the 
Miller et al. (2005) study, deflections of that magnitude are not 
expected.
    Taking into account the mitigation measures that are planned, 
effects on cetaceans are generally expected to be restricted to 
avoidance of a limited area around the survey operation and short-term 
changes in behavior, falling within the MMPA definition of ``Level B 
harassment''. Furthermore, the estimated numbers of animals potentially 
exposed to sound levels sufficient to cause appreciable disturbance are 
relatively low percentages of the population sizes in the Bearing-
Chukchi-Beaufort seas, as described next.
    Based on the 160 dB (rms) disturbance criterion, the best (average) 
estimates of the numbers of cetacean exposures to sounds at or above 
160 dB re 1 microPa (rms) represent varying proportions of the 
populations of each species in the Chukchi Sea and adjacent waters (cf. 
Table 6-1 in Shell's application). For species listed as endangered 
under the ESA, Shell's estimates suggest it is unlikely that fin or 
humpback whales will be exposed to received levels greater than or 
equal to 160 dB rms, but that approximately one bowhead may be exposed 
at this level. The latter is less than 0.01 percent of the Bering-
Chukchi-Beaufort population of greater than 13,779 individuals assuming 
3.4 percent annual population growth from the 2001 estimate of 10,545 
animals (Zeh and Punt, 2005).
    Beluga whales may be exposed to sounds produced by the airgun 
arrays during the survey, and the numbers potentially affected are 
small relative to the population size (Table 6-7 in Addendum 2 to 
Shell's application). The best estimate of the number of belugas that 
might be exposed to sounds at or above 160 dB (10) represents 0.27 
percent of the eastern Chukchi Sea population of approximately 3,710 
individuals (Angliss and Allen, 2009).
    Gray whales and harbor porpoise may also be exposed to sounds 
produced by the airguns. The best (average) estimate of the number of 
gray whales and harbor porpoise that might be exposed to sounds at or 
above 160 dB (rms) represents 0.11 percent of the Eastern North Pacific 
stock of gray whales and less than 0.01 percent of the Bering Sea stock 
of harbor porpoise.
    In addition, killer, fin, humpback, and minke whales could also be 
taken by Level B harassment as a result of the survey. However, the 
possibility is low. The numbers of ``average'' estimated take of these 
species are not available because they are rare in the project area and 
little density data exist for these species in the project area. Since 
the Chukchi Sea represents only a small fraction of the North Pacific 
and Arctic basins where these animals occur, and these animals do not 
regularly congregate in the vicinity of the project area, NMFS has 
determined that only relatively small numbers, if any, of these marine 
mammal species would be potentially affected by Shell's activities.
    Varying estimates of the numbers of marine mammals that might be 
exposed to sounds from the airgun array during the 2009 Shell shallow 
hazards and site clearance surveys have been presented (average vs. 
maximum). The relatively short-term exposures that will occur are not 
expected to result in any long-term negative consequences for the 
individuals or their populations.
    The many reported cases of apparent tolerance by cetaceans of 
seismic exploration, vessel traffic, and some other human activities 
show that co-existence is possible. Mitigation measures such as 
controlled vessel speed, dedicated MMOs, non-pursuit, shutdowns or 
power-downs when marine mammals are seen within defined ranges, and 
avoiding migration pathways when animals are likely most sensitive to 
noise will further reduce short-term reactions and minimize any effects 
on hearing sensitivity. In all cases, the effects are expected to be 
short-term, with no lasting biological consequence. Subsistence issues 
are addressed later in this document.
    Potential Bowhead Disturbance at Lower Received Levels - Aerial 
surveys during fall seismic surveys in the Beaufort Sea showed that 
migrating bowhead whales appeared to avoid seismic activities at 
distances of 20-30 km (12.4-18.6 mi) and received sound levels of 120-
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 or near 
approximately 130 dB (rms). Using the same method of calculation as 
described earlier in this document for estimating take, the number of 
migrating bowhead whales exposed to sounds greater than or equal to 120 
dB by the proposed survey would be approximately 8.5 the number 
estimated at 160 dB. (It should be noted though that this calculation 
is more accurate for the Beaufort Sea where the bowhead whale migration 
pathway is narrower and more clearly defined than in the Chukchi Sea.) 
However, acoustic data collected in the vicinity of seismic surveys in 
the Beaufort Sea in 2007 indicated that bowhead whales did not avoid 
the sound source at distances equivalent to 120 dB (rms) and instead 
tolerated sounds at higher levels while likely changing their calling 
behavior (Blackwell et al., 2008).
    Reducing operations during the bowhead whale subsistence harvest is 
meant to accomplish two mitigation objectives. It greatly reduces the 
potential for conflicts with subsistence hunting activities, and it 
allows a large proportion of the bowhead population to migrate past the 
survey area without being exposed to survey sounds at or above 160 dB 
(rms) or 120 dB (rms).
    The western Arctic stock of bowhead whales usually begins its 
westward migration through the Beaufort Sea in late August. Westbound 
bowheads typically reach the Barrow area in mid-September and remain in 
that area until late October (Brower, 1996). Therefore, migrating 
bowhead whales are not expected in the proposed Chukchi Sea survey area 
until the second half of the survey, as the project is expected to 
occur for approximately 50 days between August and September, not 
including weather delays. Shell's seismic vessel left Dutch Harbor on 
July 27, 2009. Through September 30, 2009, Shell had completed 34 days 
of active data acquisition. Also during this period, Shell experienced 
13 down-days due to weather, and there were 19 days of transit to both 
Nome and Dutch Harbor for crew transfers and resupplying the vessel. 
Shell expects to complete active seismic operations on October 10, 
2009, and to return to Dutch Harbor on October 15 (G. Horner, 2009, 
Shell, pers. comm.).
(2) Pinnipeds
    A few pinniped species are likely to be encountered in the study 
area, but the ringed seal is by far the most abundant marine mammal 
species in the survey area. The best (average) estimates of the numbers 
of individual seals likely to be exposed to airgun sounds at received 
levels at or above 160 dB re 1 microPa (rms) during the open-water 
marine survey in the Chukchi Sea are as follows: ringed seals (692), 
bearded seals (31), and spotted seals (6), (representing 0.3 percent, 
0.6 percent, and 0.01 percent, respectively, of the Bering-Chukchi-
Beaufort populations for each species). It is probable that only a 
small percentage of the animals exposed to sound levels at 160 dB would 
actually be disturbed. For example, Moulton and Lawson (2002) indicate 
that most pinnipeds exposed to seismic sounds lower than 170 dB do not 
visibly react to that sound, and, therefore, pinnipeds are not likely 
to react to seismic sounds unless they are

[[Page 55405]]

greater than 170 dB re 1 microPa (rms). Consequently, the take 
estimates presented in this document may be an overestimation. The 
short-term exposures of pinnipeds to airgun sounds are not expected to 
result in any long-term negative consequences for the individuals or 
their populations, as observations have shown pinnipeds to be rather 
tolerant of (or habituated to) underwater seismic sounds.

Potential Impacts on Habitat

    Shell's activities will not result in any permanent impact on 
habitats used by marine mammals or to their prey sources. Any effects 
would be temporary and of short duration at any one place. The primary 
potential impacts to marine mammals are associated with acoustic sound 
levels from the site clearance and shallow hazards surveys discussed 
earlier in this document.
    The Notice of Proposed IHA (74 FR 26217, June 1, 2009) contained a 
discussion of the potential impacts to the marine mammal habitat in the 
survey area. The activities are not expected to have any habitat-
related effects that would produce long-term impacts to marine mammals 
or their habitat due to the limited extent of the acquisition areas and 
timing of the activities.

Effects of Seismic Noise and Other Related Activities on Subsistence

    The disturbance and potential displacement of marine mammals by 
sounds from seismic activities are the principal concerns related to 
subsistence use of the area. Subsistence remains the basis for Alaska 
Native culture and community. Marine mammals are legally hunted in 
Alaskan waters by coastal Alaska Natives. In rural Alaska, subsistence 
activities are often central to many aspects of human existence, 
including patterns of family life, artistic expression, and community 
religious and celebratory activities. The main species that are hunted 
include bowhead and beluga whales, ringed, spotted, and bearded seals, 
walruses, and polar bears . The importance of each of these species 
varies among the communities and is largely based on availability.
    Communities that participate in subsistence hunts that have the 
potential to be affected by Shell's open-water marine survey program in 
the Chukchi Sea survey areas are Point Hope, Point Lay, Wainwright, 
Barrow and possibly Kotzebue (however, this community is much farther 
to the south of the project area).
    Point Hope residents subsistence hunt for bowhead and beluga 
whales, polar bears, and walrus. Bowhead and beluga whales are hunted 
in the spring and early summer along the ice edge. Beluga whales may 
also be hunted later in the summer along the shore. Walrus are 
harvested in late spring and early summer, and polar bears are hunted 
from October to April (MMS, 2007). Seals are available from October 
through June, but are harvested primarily during the winter months, 
from November through March, due to the availability of other resources 
during the other periods of the year (MMS, 2007).
    With Point Lay situated near Kasegaluk Lagoon, the community's main 
subsistence focus is on beluga whales. Each year, hunters from Point 
Lay drive belugas into the lagoon to a traditional hunting location. 
The belugas have been predictably sighted near the lagoon from late 
June through mid- to late July (Suydam et al., 2001). Seals are 
available year-round, and polar bears and walruses are normally hunted 
in the winter. Hunters typically travel to Barrow, Wainwright, or Point 
Hope to participate in bowhead whale harvest, but there is interest in 
reestablishing a local Point Lay harvest. Shell's activities are 
scheduled to avoid the traditional subsistence beluga hunt, which 
annually occurs in July, and Shell will not begin data acquisition 
until the close of the hunt.
    Wainwright residents subsist on both beluga and bowhead whales in 
the spring and early summer. During these two seasons the chances of 
landing a whale are higher than during other seasons. Seals are hunted 
by this community year-round, and polar bears are hunted in the winter.
    Barrow residents' main subsistence focus is concentrated on 
biannual bowhead whale hunts. They hunt these whales during the spring 
and fall. Westbound bowheads typically reach the Barrow area in mid-
September and are in that area until late October (e.g., Brower, 1996). 
Autumn bowhead whaling near Barrow normally begins in mid-September to 
early October but may begin as early as late-August if whales are 
observed and ice conditions are favorable (USDI/BLM, 2005). Whaling 
near Barrow can continue into October, depending on the quota and 
conditions. Other animals, such as seals, walruses, and polar bears are 
hunted outside of the whaling season, but they are not the primary 
source of the subsistence harvest (URS Corporation, 2005).
    There could be an adverse impact on the Inupiat bowhead subsistence 
hunt if the whales were deflected seaward (further from shore) in 
traditional hunting areas. The impact would be that whaling crews would 
have 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. This potential 
impact is mitigated by application of the procedures established in the 
4MP. Adaptive mitigation measures may be employed during times of 
active scouting and whaling within the traditional subsistence hunting 
areas of the potentially affected communities. Shell did not begin 
activities until the close of the spring bowhead hunts. However, there 
is a possibility that their data acquisition will not be completed 
prior to the start of the fall bowhead hunt in Barrow. However, it is 
not expected that the whales will be deflected further offshore before 
reaching Barrow since Shell's survey will occur approximately 225 km 
(140 mi) west of Barrow. The whales will be traveling westward through 
the Beaufort Sea from Canada and will reach Barrow before entering the 
survey area in the Chukchi Sea. Based on these factors, Shell's Chukchi 
Sea survey is not expected to interfere with the fall bowhead harvest 
in Barrow. 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.
    Shell has adopted a spatial and temporal operational strategy for 
its Chukchi Sea operations that should minimize impacts to subsistence 
hunters. Operations will not begin prior to the close of the spring 
bowhead hunt in the Chukchi coastal villages and will closely 
coordinate with and avoid impacts to beluga whale hunts and walrus 
hunts through subsistence advisors.
    The timing (late summer and fall after many of the Chukchi Sea 
communities have harvested sizeable portions of their marine mammal 
quota) and distance (approximately 113 km (70 mi) or more) from shore, 
as well as the low volume airguns to be used and the required 
mitigation measures described later in this document, are expected to 
mitigate any adverse effects of the surveys on the availability of 
marine mammals for subsistence uses. NMFS does not expect subsistence 
users to be directly displaced by the surveys because subsistence 
hunters usually do not travel this far (113 km [70 mi]) offshore to 
harvest marine mammals. Also, because of the significant distance 
offshore and the lack of hunting in these areas, there is no 
expectation that any physical barriers would exist between

[[Page 55406]]

marine mammals and subsistence users. Based on this information, as 
well as the fact that Shell signed the 2009 Open-water CAA, NMFS has 
determined that Shell's site clearance and shallow hazards surveys in 
the Chukchi Sea in 2009/2010 will not have an unmitigable adverse 
impact on subsistence uses.

Plan of Cooperation (POC) and Conflict Avoidance Agreement (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. Shell has prepared and will implement 
a draft POC for its 2009 activities. The POC also describes concerns 
received during 2008. Shell developed the POC to mitigate and avoid any 
unreasonable interference from their planned activities with North 
Slope subsistence uses and resources. The POC is, and has been in the 
past, the result of numerous meetings and consultations between Shell, 
affected subsistence communities and stakeholders, and Federal 
agencies. 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. The Draft 
POC document was distributed to the communities, subsistence users 
groups, NMFS, and USFWS on May 15, 2009. To be effective, the POC must 
be a dynamic document which will expand to incorporate the 
communications and consultation that will continue to occur throughout 
2009 and 2010. Outcomes of POC meetings are typically included in 
updates attached to the POC as addenda and distributed to Federal, 
state, and local agencies as well as local stakeholder groups that 
either adjudicate or influence mitigation approaches for Shell's open-
water programs.
    Shell has held and plans to hold additional community meetings in 
Barrow, Wainwright, Point Hope, Point Lay, and Kotzebue regarding its 
2009 Chukchi open-water marine survey program. Some of the community 
POC meetings that have already occurred include: February 2, 2009, in 
Barrow; March 24, 2009, in Point Hope; March 25, 2009, in Kotzebue; 
March 26, 2009, in Wainwright; April 22, 2009, in Point Lay, and April 
23, 2009, in Kivalina. Shell plans to focus on lessons learned from the 
2008 open-water program to avoid potential conflicts. During 2009, 
Shell will continue to meet with the marine mammal commissions and 
committees including the AEWC, Eskimo Walrus Commission (EWC), Alaska 
Beluga Whale Committee (ABWC), Alaska Ice Seal Committee (AISC), and 
the Alaska Nanuuq Commission (ANC). Throughout 2009, Shell anticipates 
meeting with the marine mammal commissions and committees active in the 
subsistence harvests and marine mammal research.
    Also during 2009, Shell will meet at least twice with the 
commissioners and committee heads of ABWC, ANC, EWC, and AISC jointly 
in co-management meetings. During a pre-season co-management meeting 
Shell presented pre-season planning to the commissioners and committee 
leads in order to gather their input on subsistence use concerns, 
consider their traditional knowledge in the design of project 
mitigations, and to hear about their involvement in research on marine 
mammals and/or traditional use. Following the season, Shell will have a 
post-season co-management meeting with the commissioners and committee 
heads to discuss results of mitigation measures and outcomes of the 
preceding season. The goal of the post-season meeting is to build upon 
the knowledge base, discuss successful or unsuccessful outcomes of 
mitigation measures, and possibly refine plans or mitigation measures 
if necessary.
    In addition, Shell will meet with North Slope officials and 
community leaders on an as-requested basis before the 2009 open-water 
season in order to discuss the proposed activities. Lastly, Shell 
intends to discuss adaptive conflict avoidance mechanisms to address 
concerns expressed by subsistence users in the North Slope communities.
    The POC also specifies times and areas to avoid in order to 
minimize possible conflicts with traditional subsistence hunts by North 
Slope villages for transit and open-water activities. As mentioned 
elsewhere in this document, Shell waited to begin its 2009 activities 
until the close of Point Lay's spring beluga hunt. Additionally, Shell 
has stated that vessel transits in the Chukchi Sea spring lead system 
will not occur prior to July 1, 2009, and July 1, 2010.
    In regard to the CAA, the AEWC submitted a draft CAA to the 
industry earlier this spring and was signed by Shell on June 24, 2009. 
The 2009 CAA incorporated all appropriate measures and procedures 
regarding the timing and areas of the Shell's planned activities (e.g., 
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 Shell's vessels and whaling and hunting 
crews (i.e., the communications center will be located in strategic 
areas); provision for MMOs/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 the 
2009 CAA between Shell, 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) that may be needed 
in the implementation of future CAAs. In addition, NMFS has included in 
Shell's IHA, those mitigation and monitoring measures contained in the 
CAA that it determined would ensure that Shell's activities will not 
have an unmitigable adverse impact on subsistence uses of marine 
mammals.
    Based on the signed CAA, the mitigation and monitoring measures 
included in the IHA (see next sections), and the project design itself, 
NMFS has determined that there will not be an unmitigable adverse 
impact on subsistence uses from Shell's activities.

Mitigation and Monitoring

    As part of its application, Shell has implemented a 4MP that will 
consist of monitoring and mitigation during their open-water shallow 
hazards data acquisition activities in the Chukchi Sea during the 2009/
2010 open-water season. The program consists of monitoring and 
mitigation during Shell's various activities related to survey data 
acquisition, including transit and data acquisition. This program will 
provide information on the numbers of marine mammals potentially 
affected by the survey program and real-time mitigation to prevent 
possible injury or mortality of marine mammals by sources of sound and 
other vessel-related activities. Monitoring efforts will be initiated 
to collect data to address the following specific objectives: (1) 
improve the understanding of the distribution and abundance of marine 
mammals in the Chukchi Sea project areas; and (2) assess the effects of 
sound and vessel activities 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 through the utilization of 
vessel-based MMOs on the survey source vessels. Additional

[[Page 55407]]

information can be found in Shell's application.

Mitigation Measures

    The survey program incorporates both design features and 
operational procedures for minimizing potential impacts on cetaceans 
and pinnipeds and on subsistence hunts. The design features and 
operational procedures are described in the IHA application submitted 
to NMFS summarized here. Survey design features include:
     Timing and locating survey activities to avoid 
interference with the annual fall bowhead whale and other marine mammal 
hunts;
     Selecting and configuring the energy source array in such 
a way that it minimizes the amount of energy introduced into the marine 
environment and, specifically, so that it minimizes horizontal 
propagation;
     Limiting the size of the acoustic energy source to only 
that required to meet the technical objectives of the survey; and
     Early season field assessment 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 survey 
operations will be minimized further through the implementation of 
several ship-based mitigation measures, which include establishing and 
monitoring safety and disturbance zones, speed and course alterations, 
ramp-up (or soft start), power-down, and shutdown procedures, and 
provisions for poor visibility conditions.
(1) 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 have 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 could occur (see Southall et al., 2007).
    Monitoring similar to that conducted in the Chukchi Sea in 2007/
2008 is required in 2009/2010. Shell is required to use MMOs onboard 
the survey vessel to monitor the 190 and 180 dB (rms) safety radii for 
pinnipeds and cetaceans, respectively, and to implement appropriate 
mitigation as discussed in this document.
    In addition, a 160-dB (rms) vessel monitoring zone for bowhead and 
gray whales shall be established and monitored during all survey 
activities. Whenever an aggregation of 12 or more bowhead or gray 
whales are observed during a vessel-monitoring program within the 160-
dB zone around the source vessel, the survey will not commence or will 
shutdown until MMOs confirm they are no longer present within the 160-
dB safety radius of surveying operations (see the ``Power-downs and 
Shutdowns'' subsection later in this document). The radius of the 160-
dB isopleth based on modeling is 1,400 m (0.87 mi).
    During previous survey operations in the Chukchi Sea, Shell 
utilized early season sound source verification (SSV) to establish 
safety zones for the previously mentioned sound level criteria. As the 
equipment being utilized in 2009 is similar to that used in 2008, Shell 
will initially utilize the derived (i.e., measured) sound criterion 
distances from 2008. An acoustics contractor performed the direct 
measurements of the received levels of underwater sound versus distance 
and direction from the energy source arrays using calibrated 
hydrophones. The acoustic data was analyzed and used to verify (and if 
necessary adjust) the safety distances.
(2) Ramp-up
    A ramp-up of an energy source array provides a gradual increase in 
energy levels, and involves a step-wise increase in the number and 
total volume of energy released until the full complement is achieved. 
The purpose of a ramp-up (or ``soft start'') is to ``warn'' cetaceans 
and pinnipeds in the vicinity of the energy source and to provide the 
time for them to leave the area and thus avoid any potential injury or 
impairment of their hearing abilities.
    During the survey program, the operator is required ramp up energy 
sources slowly, if the energy source being utilized generates sound 
energy within the frequency spectrum of cetacean or pinniped hearing. 
Full ramp-ups (i.e., from a cold start after a shut down, when no 
airguns have been firing) shall begin by firing one small airgun. Ramp-
ups are required at any time electrical power to the airgun array has 
been discontinued for a period of 10 min or more and the MMO watch has 
been suspended
    Ramp-up, after a shutdown, will not begin until there has been a 
minimum of a 30 min 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 min lead-in 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 zone during 
the 30-min 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 min for small odontocetes and pinnipeds 
or 30 min for baleen whales (large odontocetes do not occur within the 
project area).
    During periods of turn around and transit between survey transects, 
at least one airgun (or energy source) shall remain operational. The 
ramp-up procedure still must be followed when increasing the source 
levels from one gun to the full array. Keeping air gun firing, however, 
avoids the prohibition of a cold start during darkness or other periods 
of poor visibility. Through use of this approach, survey operations can 
resume upon entry to a new transect without a full ramp-up and the 
associated 30-min lead-in observations. MMOs must 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-min 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 vessel operator and MMOs shall maintain records of the 
times when ramp-ups start and when the airgun arrays reach full power.
(3) Power-downs and Shutdowns
    A power-down is the immediate reduction in the number of operating 
energy sources from all firing to some smaller number. A shutdown is 
the immediate cessation of firing of all energy sources. The arrays 
shall be immediately powered down whenever a marine mammal is sighted 
approaching near or close to the applicable safety zone of the full 
arrays but is outside the applicable safety zone of the single source. 
If a marine mammal is sighted within the applicable safety zone of the 
single energy source, the entire array will be shut down (i.e., no 
sources firing). Although MMOs will be located on the bridge ahead of 
the center of the airgun array, the shutdown criterion for animals 
ahead of the vessel will be

[[Page 55408]]

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 array, the distance is measured from 
the array.
    Following a power-down or shutdown, operation of the airgun array 
will not resume until the marine mammal has cleared the applicable 
safety zone. The animal will be considered to have cleared the safety 
zone if it:
    (1) Is visually observed to have left the safety zone;
    (2) Has not been seen within the zone for 15 min in the case of 
small odontocetes and pinnipeds; or
    (3) Has not been seen within the zone for 30 min in the case of 
mysticetes.
    For the aggregation of 12 or more mysticete whales, the acoustic 
equipment will not be turned back on or return to full power until the 
aggregation has left the 160-dB isopleth or the animals forming the 
aggregation are reduced to fewer than 12 mysticete whales.
    In the unanticipated event that an injured or dead marine mammal is 
sighted within an area where the operator deployed and utilized airguns 
within the past 24 hours, the airguns must be shutdown immediately and 
the Marine Mammal Stranding Network notified.
    (4) Operations at Night and in Poor Visibility
    Shell plans to conduct the site clearance and shallow hazards 
survey 24 hr/day. Regarding nighttime operations, note that there will 
be no periods of total darkness until mid-August. When operating under 
conditions of reduced visibility attributable to darkness or to adverse 
weather conditions, infra-red or night-vision binoculars will be 
available for use. It is recognized, however, 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. As stated earlier, 
if the entire safety zone is not visible for at least 30 min prior to 
ramp-up, then ramp-up may not proceed. It should be noted that if one 
small energy source has remained firing, the rest of the array can be 
ramped up during darkness or in periods of low visibility. Survey 
operations may continue under conditions of darkness or reduced 
visibility.
    (5) Speed and Course Alterations
    If a marine mammal (in water) is detected outside the safety radius 
and, based on its position and the relative motion, is likely to enter 
the safety radius, the vessel's speed and/or direct course shall be 
changed in a manner that does not compromise safety requirements. The 
animal's activities and movements relative to the source vessel shall 
be closely monitored to ensure that the individual does not approach 
within the safety radius. If the mammal is sighted approaching near or 
close to the applicable safety radius, further mitigative actions must 
be taken, i.e., either further course alterations or power-down or 
shutdown of the airgun(s).
    (6) Determination on Mitigation
    NMFS has determined that the combination of the use of the 
mitigation gun, ramp-up of the airgun array, and the slow vessel speed 
(to allow marine mammals sufficient time to take necessary avoidance 
measures), the use of trained MMOs, shutdown 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 has 
determined 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.

Marine Mammal Monitoring

    Vessel-based monitoring for marine mammals shall be conducted 
throughout the period of survey operations. The 4MP is required to be 
implemented by a team of experienced MMOs, including both biologists 
and Inupiat personnel. All MMOs must be approved by NMFS prior to the 
start of operations. At least one observer on the survey vessel will be 
an Inupiat who will have the responsibility of communicating with the 
Inupiat community and (during the whaling season) directly with the 
Subsistence Advisors in coastal villages.
    The MMOs shall be stationed aboard the survey source vessel 
throughout the active field season. The duties of the MMOs include 
watching for and identifying cetaceans and pinnipeds; recording their 
numbers, distances, and reactions to the survey operations; initiating 
mitigation measures when appropriate; and reporting the results. MMOs 
aboard the survey source vessel must be on watch during all daylight 
periods when the energy sources are in operation and when energy source 
operations are to start up at night. Each MMO shift shall not exceed 
more than 4 consecutive hours, and no MMO shall work more than 3 shifts 
in a 24 hr period (i.e., 12 hours total per day) in order to avoid 
fatigue. Shell is required to have five MMOs on-board the source vessel 
at any one time during all survey operations.
    Crew leaders and most other biologists serving as observers in 2009 
are individuals with experience as observers during one or more of the 
1996-2008 monitoring projects for Shell, WesternGeco, or BP and/or 
subsequent offshore monitoring projects for other clients in Alaska, 
the Canadian Beaufort, or other offshore areas. Biologist-observers 
have previous marine mammal observation experience and field crew 
leaders are highly experienced with previous vessel-based monitoring 
projects. Qualifications for those individuals have been provided to 
NMFS for review and acceptance. Inupiat observers shall be experienced 
in the region and familiar with the marine mammals of the area. An MMO 
handbook, adapted for the specifics of the survey programs from the 
handbooks created for previous monitoring projects were prepared and 
distributed to all MMOs (see Shell's 4MP for additional details on the 
handbook). All observers completed a 2-day training and refresher 
session on marine mammal monitoring shortly before the start of the 
2009 open-water season.
(1) Monitoring Methodology
    The observer(s) shall watch for marine mammals from the best 
available vantage point on the operating source vessel, which is 
usually the bridge or flying bridge. The observer(s) will scan 
systematically with the naked eye and 7 x 50 reticle binoculars, 
supplemented with 20 x 50 image stabilized binoculars, and night-vision 
equipment when needed. Personnel on the bridge will assist the MMOs in 
watching for pinnipeds and cetaceans.
    The observer(s) will give particular attention to the areas within 
the ``safety zone'' around the source vessel. These zones are the 
maximum distances within which received levels may exceed 180 dB re 1 
microPa (rms) for cetaceans or 190 dB re 1 microPa (rms) for pinnipeds. 
MMOs shall also monitor the 160 dB re 1 microPa (rms) radius for Level 
B harassment takes, as this radius is expected to be a maximum of 1,400 
m (0.87 mi). The 160-dB isopleth (1,400 m [0.87 mi]) will also be 
monitored for the presence of aggregations of 12 or more bowhead or 
gray whales.
    Information required to be recorded by MMOs includes the same types 
of information that were recorded during previous monitoring programs 
(1998-2008) in the Chukchi and Beaufort seas

[[Page 55409]]

(Moulton and Lawson, 2002; Patterson et al., 2007). When a mammal 
sighting is made, the following information about the sighting shall be 
recorded:
    (1) Species, group size, age/size/sex categories (if determinable), 
behavior when first sighted and after initial sighting, heading (if 
consistent), bearing and distance from the source vessel, apparent 
reaction to the source vessel (e.g., none, avoidance, approach, 
paralleling, etc.), closest point of approach, and behavioral pace;
    (2) Time, location, heading, speed, activity of the vessel, and 
operational state (e.g., operating airguns, ramp-up, etc.), sea state, 
ice cover, visibility, and sun glare; and
    (3) The positions of other vessel(s) in the vicinity of the source 
vessel. This information will be recorded by the MMOs at times of whale 
(but not seal) sightings.
    The ship's position, heading, and speed, the operational state 
(e.g., number and size of operating energy sources), and water 
temperature (if available), water depth, sea state, ice cover, 
visibility, and sun glare shall also be recorded at the start and end 
of each observation watch and, during a watch, every 30 min and 
whenever there is a change in one or more of those variables.
    Distances to nearby marine mammals, e.g., those within or near the 
190 dB (or other) safety zone applicable to pinnipeds, will be 
estimated with binoculars (7 x 50) containing a reticle to measure the 
vertical angle of the line of sight to the animal relative to the 
horizon.
    Observers will use a laser rangefinder to test and improve their 
abilities for visually estimating distances to objects in the water. 
Previous experience showed that this Class 1 eye-safe device was not 
able to measure distances to seals more than about 70 m (230 ft) away. 
(Previous SSV measurements indicate that the 190-dB safety radius for 
the 4 x 10 in\3\ airgun array proposed for use during Shell's site 
clearance and shallow hazards survey is approximately 50 m (164 ft), 
well within the range of 70 m (230 ft)). However, it was very useful in 
improving the distance estimation abilities of the observers at 
distances up to about 600 m (1968 ft)-the maximum range at which the 
device could measure distances to highly reflective objects such as 
other vessels.
    When a marine mammal is seen within the safety radius applicable to 
that species, the geophysical crew shall be notified immediately so 
that the required mitigation measures described previously in this 
document can be implemented. As in 1996-2001 and in 2006-2008, it is 
expected that the airgun arrays will be shut down within several 
seconds-often before the next shot would be fired, and almost always 
before more than one additional shot is fired. The MMO shall then 
maintain a watch to determine when the mammal(s) is outside the safety 
zone such that airgun operations can resume.
    Night vision equipment (``Generation 3'' binocular image 
intensifiers or equivalent units) will be available for use when 
needed. Prior to mid-August, there will be no hours of total darkness 
in the project area. The operators shall provide or arrange for the 
following specialized field equipment for use by the onboard MMOs: 
reticule binoculars, 20 x 50 image stabilized binoculars, ``Big-eye'' 
binoculars, laser rangefinders, inclinometer, laptop computers, night 
vision binoculars, and possibly digital still and digital video 
cameras.
(2) Field Data-recording and Verification
    The observers shall record their observations onto datasheets or 
directly into handheld computers. During periods between watches and 
periods when operations are suspended, those data will be entered into 
a laptop computer running a custom computer database. The accuracy of 
the data entry will be verified in the field by computerized validity 
checks as the data are entered and by subsequent manual checking of the 
database printouts. These procedures allow initial summaries of data to 
be prepared during and shortly after the field season and will 
facilitate transfer of the data to statistical, graphical, or other 
programs for further processing. Quality control of the data will be 
facilitated by the start-of-season training session, subsequent 
supervision by the onboard field crew leader, and ongoing data checks 
during the field season.
(3) Acoustic Sound Source Verification Measurements
    As part of the IHA application process for similar shallow hazards 
and marine survey acquisition in 2006-2008, Shell contracted JASCO 
Research Ltd. to conduct acoustic measurements of vessel and energy 
source arrays on source and support to broadband received levels of 
190, 180, 170, 160, and 120 dB re 1 microPa (rms; see Table 1 of 
Attachment A in Shell's application).
    The radii measured by these previous SSV tests will be utilized as 
temporary safety radii until current SSV measurements of the actual 
airgun array sound are available as mentioned earlier in this document. 
The measurements wer made at the beginning of the field season and the 
measured radii are to used for the remainder of the survey period.
    The objectives of the SSV tests planned for 2009 in the Chukchi Sea 
and the methods used to conduct the tests were described in Shell's 4MP 
and the Notice of Proposed IHA (74 FR 26217, June 1, 2009).
(4) Chukchi Sea Acoustic Arrays
    Shell and ConocoPhillips are jointly funding an extensive acoustic 
monitoring program in the Chukchi Sea in 2009. This program 
incorporates the acoustic programs of 2006-2008 with a total of 44 
recorders distributed both broadly across the Chukchi lease area and 
the nearshore environment and intensively on the Burger and Klondike 
lease areas. The broad area arrays are designed to capture both general 
background soundscape data and marine mammal call data across the lease 
area. From these recordings, it is anticipated that Shell (and others) 
may be able to gain insights into large-scale distribution of marine 
mammals, identification of marine mammal species present, movement and 
migration patters, and general abundance data.
    The intense area arrays are designed to support localization of 
marine mammal calls on and around the leasehold areas. In the case of 
the Burger prospect, where Shell intends to conduct shallow hazards 
data acquisition, localized calls will enable investigators to 
understand response of marine mammals to survey operations both in 
terms of distribution around the operation and behavior (i.e., calling 
behavior).
(5) Aerial Surveys
    No manned aerial overflights are anticipated during the 2009 
shallow hazards and marine survey activities. In the Chukchi Sea, all 
shallow hazards activities will be conducted beyond 113 km (70 mi) from 
shore and well away from coastal communities or nearshore 
concentrations of subsistence resources. The strudel scour survey will 
be conducted beyond 8 km (5 mi) from shore and will utilize sources of 
low energy and frequencies outside the hearing ranges of cetacean and 
pinniped species in the area. Additionally, the energy source to be 
utilized by Shell for the survey operations is minimal by comparison to 
larger scale seismic operations. It is not anticipated that manned 
overflights would accomplish any direct mitigative effects or 
monitoring purpose. Additionally, aerial surveys are not required in 
the Chukchi Sea because they have currently been

[[Page 55410]]

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. Although no manned aerial 
surveys are planned as part of the 4MP, NMFS has determined that the 
monitoring and mitigation measures proposed by Shell in its 4MP and 
required in the IHA will be sufficient to reduce impacts on marine 
mammals to the lowest level practicable.
(6) Monitoring Plan Independent Peer Review
    The MMPA requires that monitoring plans be independently peer 
reviewed ``where the proposed activity may affect the availability of a 
species or stock for taking for subsistence uses'' (16 U.S.C. 
1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing 
regulations state, ``Upon receipt of a complete monitoring plan, and at 
its discretion, [NMFS] will either submit the plan to members of a peer 
review panel for review or within 60 days of receipt of the proposed 
monitoring plan, schedule a workshop to review the plan'' (50 CFR 
216.108(d)). Shell's 4MP was discussed by meeting participants at the 
Arctic Stakeholder Open-water Workshop in Anchorage, Alaska, on April 
6-8, 2009. On April 24, 2009, NMFS received a letter from the AEWC, 
which noted that while there was discussion of the 4MP at the workshop, 
they do not believe that there was ample review of the plan and wanted 
to know NMFS' plans to hold an independent peer review in order to meet 
its statutory requirement.
    NMFS established an independent peer review panel to review Shell's 
monitoring plan for the 2009/2010 open-water season activities. NMFS 
asked the AEWC, the Marine Mammal Commission, and Shell to recommend 
independent subject matter experts to take part in the panel. NMFS 
selected and contacted the panelists from the names submitted by the 
aforementioned organizations. NMFS received comments from two of the 
reviewers. NMFS considered the recommendations of the reviewers and 
modified the monitoring plan, as appropriate.
    The comments from the independent peer reviewers focused on the 
following: (1) the number of MMOs; (2) qualifications and training of 
MMOs; (3) standardization of methods and gear; (4) the inability of 
MMOs to monitor at night; (5) the efficacy of ramp-up and the minimum 
period for shutdowns; and (6) acoustic monitoring. The reviewers also 
addressed concerns similar to those raised by the public about the 
density estimates and take calculations and estimates. Those concerns 
are addressed in the ``Density and Take Estimate Concerns'' subsection 
of the ``Comments and Responses'' section earlier in this document.
    Shell has clarified some of the ambiguities in the 4MP, which 
address some of the concerns of the reviewers. Five MMOs will be on-
board the site clearance and shallow hazards vessel for the duration of 
the survey. This will allow for two MMOs to be on duty during all pre-
ramp-up and ramp-up periods and for as large a portion of active 
surveying during daylight hours for no more than 12 hours per day. 
Clarification has also been provided on the training and qualifications 
of the MMOs. The MMO handbook contains information on all species 
expected to occur in the project area, and post-training exams are 
required to verify proficiencies. Concerns regarding monitoring at 
night and the efficacy of ramp-up were addressed in the responses to 
the public comments. Ramp-up must occur if the airguns have been 
shutdown for 10 minutes or more. The reviewers also suggested the use 
of PAM as an alternate monitoring measure at night and in poor 
visibility conditions. The explanation for not requiring PAM was 
discussed earlier in this document and NMFS' EA.

Reporting

SSV Report

    A report on the preliminary results of the acoustic verification 
measurements, including as a minimum the measured 190-, 180-, and 160-
dB (rms) radii of the airgun sources, shall be submitted within 120 hr 
after collection and analysis of those measurements at the start of the 
field season. This report will specify the distances of the safety 
zones that were adopted for the survey.

Technical Reports

    The results of the 2009 Shell vessel-based monitoring, including 
estimates of ``take'' by harassment, shall be presented in the ``90-
day'' and Final Technical reports, as required by NMFS in the IHA. The 
Technical Reports shall include: (1) summaries of monitoring effort 
(e.g., total hours, total distances, and marine mammal distribution 
through study period versus operational state, sea state, and other 
factors affecting visibility and detectability of marine mammals); (2) 
summaries of the occurrence of power-downs, shutdowns, ramp-ups, and 
ramp-up delays; (3) analyses of the effects of various factors, 
influencing detectability of marine mammals (e.g., sea state, number of 
observers, and fog/glare); (4) species composition, occurrence, and 
distribution of marine mammal sightings, including date, water depth, 
numbers, age/size/gender categories (if determinable), group sizes, and 
ice cover; (5) sighting rates of marine mammals versus operational 
state (and other variables that could affect detectability); (6) 
initial sighting distances versus operational state; (7) closest point 
of approach versus operational state; (8) observed behaviors and types 
of movements versus operational state; (9) numbers of sightings/
individuals seen versus operational state; (10) distribution around the 
acoustic source vessel versus operational state; and (11) estimates of 
take by harassment. The take estimates will be calculated using two 
different methods to provide both minimum and maximum estimates. The 
minimum estimate will be based on the numbers of marine mammals 
directly seen within the relevant radii (160, 180, and 190 dB (rms)) by 
observers on the source vessel during survey activities. The maximum 
estimate will be calculated using densities of marine mammals 
determined for non-acoustic areas and times. These density estimates 
will be calculated from data collected during (a) vessel based surveys 
in non-operational areas, or (b) observations from the source vessel or 
supply boats during non-operational periods. The estimated densities in 
areas without data acquisition activity will be applied to the amount 
of area exposed to the relevant levels of sound to calculate the 
maximum number of animals potentially exposed or deflected. This report 
shall be due 90 days after termination of the 2009 open-water season 
and shall include the results from any seismic work conducted in the 
Chukchi/Beaufort Seas in 2009 under the previous IHA, which expired on 
August 19, 2009.

Comprehensive Monitoring Reports

    In November, 2007, Shell (in coordination and cooperation with 
other Arctic seismic IHA holders) released a final, peer-reviewed 
edition of the 2006 Joint Monitoring Program in the Chukchi and 
Beaufort Seas, July-November 2006 (LGL, 2007). This report is available 
on the NMFS Protected Resources website (see ADDRESSES). In March, 
2009, Shell released a final, peer-reviewed edition of the Joint 
Monitoring Program in the Chukchi and Beaufort Seas, Open Water 
Seasons, 2006-2007 (Ireland et al., 2009). This report is also 
available on the NMFS

[[Page 55411]]

Protected Resources website (see ADDRESSES). A draft comprehensive 
report for 2008 (Funk et al., 2009) was provided to NMFS and those 
attending the Arctic Stakeholder Open-water Workshop in Anchorage, 
Alaska, on April 6-8, 2009. The 2008 report provides data and analyses 
from a number of industry monitoring and research studies carried out 
in the Chukchi and Beaufort Seas during the 2008 open-water season with 
comparison to data collected in 2006 and 2007. Once Shell is able to 
incorporate reviewer comments, the final 2008 report will be made 
available to the public.
    Following the 2009 open-water season, a comprehensive report 
describing the acoustic and vessel-based monitoring programs will be 
prepared. The 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 
program into an assessment of 2009 industry activities and their 
impacts on marine mammals. The report will help to establish long term 
data sets that can assist with the evaluation of changes, if any, in 
the Chukchi Sea ecosystem. The report 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 report will consider data from many different sources 
including differing types of acoustic systems for data collection (net 
array and OBH systems) and vessel based observations. Collection of 
comparable data across the wide array of programs will help with the 
synthesis of information and allow integration of the data sets over a 
period of years. Data protocols for the acoustic operations will be 
similar to those used in 2006-2008 to facilitate this integration.

Endangered Species Act

    NMFS previously consulted under section 7 of the ESA on the 
issuance of IHAs for seismic survey activities in the Beaufort and 
Chukchi Seas. In a Biological Opinion issued on July 17, 2008, NMFS 
concluded that the issuance of seismic survey permits by MMS and the 
issuance of the associated IHAs for seismic surveys are not likely to 
jeopardize the continued existence of threatened or endangered species 
(specifically the bowhead, humpback, and fin whales) under the 
jurisdiction of NMFS or destroy or adversely modify any designated 
critical habitat. The 2008 Biological Opinion takes into consideration 
all oil and gas related activities that are reasonably likely to occur, 
including exploratory (but not production) oil drilling activities. 
NMFS has reviewed Shell's proposed activities in light of the 2008 
Biological Opinion and believes that Shell's 2009/2010 open-water 
season activities and their effects are adequately analyzed in the 2008 
Biological Opinion. NMFS has issued an ITS under this Biological 
Opinion which contains reasonable and prudent measures with 
implementing terms and conditions to minimize the effects of take of 
listed species.

National Environmental Policy Act (NEPA)

    NMFS prepared an EA that includes an analysis of potential 
environmental effects associated with NMFS' issuance of an IHA to Shell 
to take marine mammals incidental to conducting its open-water marine 
survey program in the Chukchi Sea during 2009-2010. NMFS has finalized 
the EA and prepared a FONSI for this action. Therefore, preparation of 
an EIS is not necessary.

Determinations

    Based on the information provided in Shell's application, Shell's 
application addenda, this document, Shell's 2009 4MP, the 2006 and 2007 
Final Comprehensive Reports, the 2008 Draft Comprehensive Report, NMFS' 
2009 EA, and other relevant documents, NMFS has determined that the 
impact of Shell conducting its proposed open-water marine survey 
program (site clearance and shallow hazards and strudel scour surveys) 
in the Chukchi Sea during the 2009/2010 open-water season may result, 
at worst, in a temporary modification in behavior (Level B Harassment) 
of small numbers of 12 species of marine mammals, will have no more 
than a negligible impact on the affected species or stocks, and will 
not have an unmitigable adverse impact on the availability of such 
species or stock for taking for subsistence purposes, provided the 
mitigation measures described previously in this document are 
implemented.
    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 survey operations, the number of potential harassment takings is 
estimated to be small (less than one percent of any of the estimated 
population sizes) and has been mitigated to the lowest level 
practicable through incorporation of the measures mentioned previously 
in this document. NMFS anticipates the actual take of individuals to be 
lower than the numbers presented in the analysis because those numbers 
do not reflect either the implementation of the required mitigation 
measures or the fact that some animals will avoid the sound at levels 
lower than those expected to result in harassment.
    In addition, no take by death and/or serious injury is anticipated, 
and the potential for temporary or permanent hearing impairment will be 
avoided through the incorporation of the mitigation and monitoring 
measures described earlier in this document. This determination is 
supported by the fact that: (1) given sufficient notice through slow 
ship speed and ramp-up of acoustic equipment, marine mammals are 
expected to move away from a sound source prior to it becoming 
potentially injurious; (2) TTS is unlikely to occur, especially in 
odontocetes and pinnipeds, until sound levels above 180 dB re 1 microPa 
(rms) and 190 dB re 1 microPa (rms), respectively, are reached; and (3) 
animals are unlikely to be exposed to potentially injurious levels of 
sound unless they get very close to the vessel (approximately 160 m 
(525 ft) for the 180 dB (rms) radius and 50 m (164 ft) for the 190 dB 
(rms) radius). However, as stated earlier in this document, based on 
the configuration of the airgun array and streamers, it is highly 
unlikely that a marine mammal would approach within 160 m (525 ft) of 
the seismic vessel. No rookeries, mating grounds, areas of concentrated 
feeding, or other areas of special significance for marine mammals 
occur within the area of operations during the season of operations.
    NMFS has determined that Shell's open-water marine survey program 
in the Chukchi Sea in 2009/2010 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) Survey activities will not 
begin prior to the closure of the spring bowhead hunt in Chukchi 
coastal villages; (2) Shell will closely coordinate with and avoid 
impacts to beluga whale hunts through subsistence advisors; (3) 
activities are scheduled to avoid the traditional subsistence beluga 
hunt, which annually occurs in July in the community of Point Lay; (4) 
Barrow is east of the project area, so the animals will reach Barrow 
before entering the project area on their fall westward migration 
through the Beaufort and Chukchi Seas; (5) the fact that survey 
activities will occur more than 113 km

[[Page 55412]]

(70 mi) or more from shore, and most cetaceans and pinnipeds are hunted 
much closer to the shore; and (6) that several of the required 
mitigation and monitoring conditions in the IHA (described earlier in 
this document) are designed to ensure that there will not be an 
unmitigable adverse impact on subsistence uses of marine mammals.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Shell for conducting an open-water marine survey program in the Chukchi 
Sea during the 2009/2010 Arctic open-water season.

    Dated: October 19, 2009.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E9-25545 Filed 10-26-09; 8:45 am]
BILLING CODE 3510-22-S