[Federal Register Volume 79, Number 47 (Tuesday, March 11, 2014)]
[Notices]
[Pages 13626-13644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-05158]



[[Page 13626]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD039


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Seismic Survey in Cook Inlet, 
Alaska

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

ACTION: Notice; issuance of an incidental harassment 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 Apache Alaska Corporation 
(Apache) to take marine mammals, by harassment, incidental to a 
proposed 3D seismic survey in Cook Inlet, Alaska, between March 4, 
2014, and December 31, 2014.

DATES: Effective March 4, 2014, through December 31, 2014.

ADDRESSES: Electronic copies of the IHA, application, and associated 
Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI) may be obtained by writing to Jolie Harrison, Supervisor, 
Incidental Take Program, Permits and Conservation Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910, telephoning the contact listed below 
(see FOR FURTHER INFORMATION CONTACT), or visiting the internet at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in 
this notice may also be viewed, by appointment, during regular business 
hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 427-8401.

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.''
    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].''

Summary of Request

    On July 18, 2013, NMFS received an application from Apache for the 
taking of marine mammals incidental to a 3D seismic survey program. 
Based on comments and questions from NMFS, the application was revised. 
Apache submitted a new application on November 11, 2013. The 
application was determined adequate and complete on November 20, 2013. 
On December 31, 2013, NMFS published a notice in the Federal Register 
of our proposal to issue an IHA with preliminary determinations and 
explained the basis for the proposal and preliminary determinations (78 
FR 80386). The filing of the notice initiated a 30-day public comment 
period. The comments and our responses are discussed later in this 
document.
    Apache proposes to conduct a 3D seismic survey in Cook Inlet, 
Alaska. The activity would occur for approximately 8-9 months between 
March 4 and December 31, 2014. In-water airguns will only be active for 
approximately 2-3 hours during each of the slack tide periods. There 
are approximately four slack tide periods in a 24-hour period; 
therefore, airgun operations will be active during approximately 8-12 
hours per day, if weather conditions allow. The following specific 
aspects of the activities are likely to result in the take of marine 
mammals: seismic airgun operations. Take, by Level B Harassment only, 
of individuals of five species/stocks is anticipated to result from the 
specified activity.
    This is the third request NMFS has received from Apache for takes 
of marine mammals incidental to conducting a seismic survey in Cook 
Inlet. On April 30, 2012, NMFS issued a 1-year IHA to Apache for their 
first season of seismic acquisition in Cook Inlet (77 FR 27720). NMFS 
issued a second 1-year IHA to Apache in February 2013 (78 FR 12720, 
February 25, 2013). That IHA expired on March 1, 2014. Except for the 
location and the size of the survey area, the activities authorized 
under this third IHA are essentially the same as those conducted during 
the first season. No seismic survey operations were conducted under the 
second IHA.

Description of the Specified Activity

Overview

    Apache proposes to conduct a 3D seismic survey in Cook Inlet, 
Alaska, in an area that encompasses approximately 4,238 km\2\ (1,636 
mi\2\) of intertidal and offshore areas (see Figure 2 in Apache's 
application). Vessels will lay and retrieve nodal sensors on the sea 
floor in periods of low current, or, in the case of the intertidal 
area, during high tide over a 24-hour period. Apache will utilize two 
synchronized vessels. Each source vessel will be equipped with 
compressors and 2,400 cubic inch (in \3\) airgun arrays. Additionally, 
one of the source vessels will be equipped with a 440 in \3\ shallow 
water source array, which can be deployed at high tide in the 
intertidal area in less than 1.8 m (6 ft) of water. The two source 
vessels do not fire the airguns simultaneously; rather, each vessel 
fires a shot every 24 seconds, leaving 12 seconds between shots.
    The operation will utilize two source vessels, three cable/nodal 
deployment and retrieval operations vessels, a mitigation/monitoring 
vessel, a node re-charging and housing vessel, and two small vessels 
for personnel transport and node support in the extremely shallow 
waters in the intertidal area. Water depths for the program will range 
from 0-128 m (0-420 ft).
    Apache has acquired over 800,000 acres of oil and gas leases in 
Cook Inlet since 2010 with the primary objective to explore for and 
develop oil and gas resources in Cook Inlet. Seismic surveys are 
designed to collect bathymetric and sub-seafloor data that allow the

[[Page 13627]]

evaluation of potential shallow faults, gas zones, and archeological 
features at prospective exploration drilling locations. In the spring 
of 2011, Apache conducted a seismic test program to evaluate the 
feasibility of using new nodal (no cables) technology seismic recording 
equipment for operations in Cook Inlet. This test program found and 
provided important input to assist in finalizing the design of the 3D 
seismic program in Cook Inlet (the nodal technology was determined to 
be feasible). Apache began seismic onshore acquisition on the west side 
of Cook Inlet in September 2011 and offshore acquisition in May 2012 
under an IHA issued by NMFS for April 30, 2012 through April 30, 2013 
(77 FR 27720, May 11, 2012) (see Figure 1 in Apache's application).

Dates and Duration

    Apache proposes to acquire offshore/transition zone operations for 
approximately 8 to 9 months in offshore areas in open water periods 
from March 4 through December 31, 2014. During each 24-hour period, 
seismic support activities may be conducted throughout the entire 
period; however, in-water airguns will only be active for approximately 
2-3 hours during each of the slack tide periods. There are 
approximately four slack tide periods in a 24-hour period; therefore, 
airgun operations will be active during approximately 8-12 hours per 
day, if weather conditions allow. Two airgun source vessels will work 
concurrently on the spread, acquiring source lines approximately 12 km 
(7.5 mi) in length. Apache anticipates that a crew can acquire 
approximately 6.2 km\2\ (2.4 mi\2\) per day, assuming a crew can work 
8-12 hours per day. Thus, the actual survey duration will take 
approximately 160 days over the course of 8 to 9 months. The vessels 
will be mobilized out of Homer or Anchorage with resupply runs 
occurring multiple times per week out of Homer, Anchorage, or Nikiski.

Specified Geographic Region

    Each phase of the Apache program would encounter land, intertidal 
transition zone, and marine environments in Cook Inlet, Alaska. 
However, only the portions occurring in the intertidal zone and marine 
environments have the potential to take marine mammals. The land-based 
portion of the program would not result in underwater sound levels that 
would rise to the level of a marine mammal take.
    The proposed location of Apache's acquisition plan has been divided 
into areas denoted as Zone 1 and Zone 2 (see Figure 2 in Apache's 
application). Zone 1 is located in mid-Cook Inlet and extends on the 
east coast from approximately 10 km (6.2 mi) south of Point Possession 
to 25 km (15.5 mi) north of the East Foreland. Zone 1 only reaches into 
mid-channel and parallels the western shoreline from the Beluga River 
south to Bertha Bay. Zone 2 begins at the southern edge of Zone 1 (25 
km [15.5 mi] north of the East Foreland) on both the east and west 
coasts and extends down to approximately Harriet Point on the west 
coast and to an area about 12 km (7.5 mi) north of Homer. Zones 1 and 2 
together encompass approximately 4,238 km\2\ (1,636 mi\2\) of 
intertidal and offshore areas. Although Apache would only operate in a 
portion of this entire area between March 4 and December 31, 2014, 
Apache requested to operate in this entire region in order to allow for 
operational flexibility. There are numerous factors that influence the 
survey areas, including the geology of the Cook Inlet area, other 
permitting restrictions (i.e., commercial fishing, Alaska Department of 
Fish and Game refuges), seismic imaging of leases held by other 
entities with whom Apache has agreements (e.g., data sharing), overlap 
of sources and receivers to obtain the necessary seismic imaging data, 
and general operational restrictions (ice, weather, environmental 
conditions, marine life activity, etc.). Water depths for the program 
will range from 0-128 m (0-420 ft).

Detailed Description of Activities

    The Notice of Proposed IHA (78 FR 80386, December 31, 2013) 
contains a full detailed description of the 3D seismic survey, 
including the recording system, sensor positioning, and seismic source. 
That information has not changed and is therefore not repeated here.

Comments and Responses

    A Notice of Proposed IHA was published in the Federal Register on 
December 31, 2013 (78 FR 80386) for public comment. During the 30-day 
public comment period, NMFS received nine comment letters from the 
following: the Natural Resources Defense Council (NRDC); the Marine 
Mammal Commission (MMC); the Resource Development Council; Alaska Oil 
and Gas Association; the Alaska Big Village Network, Center for Water 
Advocacy, the Chickaloon Village Traditional Council, and Alaska Inter-
Tribal Council (hereafter referred to as ``AITC''); Apache; and three 
private citizens.
    NRDC submitted several journal articles and documents as 
attachments to their comment letter. NMFS acknowledges receipt of these 
articles and documents but does not intend to address each one 
specifically in the responses to comments. All of the public comment 
letters received on the Notice of Proposed IHA (78 FR 80386, December 
31, 2013) are available on the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Following is a summary of the public 
comments and NMFS' responses.
    Comment 1: The three private citizen letters requested that we deny 
issuance of the IHA. One letter requested denial because ``we still do 
not know how much harm their proposed activity will create.'' The other 
citizens requested denial because marine mammals would be killed as a 
result of this survey.
    Response: Extensive analysis of the proposed 3D seismic survey was 
conducted in accordance with the MMPA, Endangered Species Act (ESA), 
and National Environmental Policy Act (NEPA). Pursuant to those 
statutes, we analyzed the impacts to marine mammals (including those 
listed as threatened or endangered under the ESA), their habitat 
(including critical habitat designated under the ESA), and to the 
availability of marine mammals for taking for subsistence uses. The 
MMPA analyses revealed that the activities would have a negligible 
impact on affected marine mammal species or stocks and would not have 
an unmitigable adverse impact on the availability of marine mammals for 
taking for subsistence uses. The ESA analysis concluded that the 
activities likely would not jeopardize the continued existence of ESA-
listed species or destroy or adversely modify designated critical 
habitat. The NEPA analysis concluded that there would not be a 
significant impact on the human environment. Moreover, this activity is 
not expected to result in the death of any marine mammal species, and 
no such take is authorized. Mitigation and monitoring measures (as 
described later in this document) are required to reduce this potential 
even further.
    Comment 2: The Resource Development Council and the Alaska Oil and 
Gas Association support issuance of this IHA in a timely manner and 
urge NMFS to recognize the benefits of seismic surveys and subsequent 
development of energy resources to Alaskans and the local economy.
    Response: After careful evaluation of all comments and the data and 
information available regarding potential impacts to marine mammals and 
their habitat and to the availability

[[Page 13628]]

of marine mammals for subsistence uses, NMFS has issued the final 
authorization to Apache to take marine mammals incidental to conducting 
a 3D seismic survey program in Cook Inlet for the period March 4 
through December 31, 2014.
    Comment 3: The MMC recommends that NMFS defer issuance of the 
proposed IHA until such time as NMFS can, with reasonable confidence, 
support a conclusion that the proposed activities would affect no more 
than a small number of Cook Inlet beluga whales and have no more than a 
negligible impact on the population. The MMC recommends that NMFS defer 
issuance until we have better information on the cause or causes of 
ongoing decline of the population and a reasonable basis for 
determining that authorizing additional takes would not contribute to 
or exacerbate that decline. The MMC continues to believe that any 
activity that may contribute to or that may worsen the observed decline 
should not be viewed as having a negligible impact on the population. 
The NRDC states that NMFS failed to meet both the ``small numbers'' and 
``negligible impact'' standards.
    Response: In accordance with our implementing regulations at 50 CFR 
216.104(c), we use the best available scientific evidence to determine 
whether the taking by the specified activity within the specified 
geographic region will have a negligible impact on the species or stock 
and will not have an unmitigable adverse impact on the availability of 
such species or stock for subsistence uses. Based on the scientific 
evidence available, NMFS determined that the impacts of the proposed 3D 
seismic survey program, which are primarily acoustic in nature, would 
meet these standards. Moreover, Apache proposed and NMFS has required 
in the IHA a rigorous mitigation plan to reduce impacts to Cook Inlet 
beluga whales and other marine mammals to the lowest level practicable, 
including measures to power down or shutdown airguns if any beluga 
whale is observed approaching or within the Level B harassment zone and 
restricting activities within a 10 mi (16 km) radius of the Susitna 
Delta from April 15 through October 15, which is an important area for 
beluga feeding and calving in the spring and summer months.
    Our analysis indicates that issuance of this IHA will not 
contribute to or worsen the observed decline of the Cook Inlet beluga 
whale population. Additionally, the February 14, 2013, ESA Biological 
Opinion determined that the issuance of an IHA is not likely to 
jeopardize the continued existence of the Cook Inlet beluga whales or 
the western distinct population segment of Steller sea lions or destroy 
or adversely modify Cook Inlet beluga whale critical habitat. The 
Biological Opinion also outlined Terms and Conditions and Reasonable 
and Prudent Measures to reduce impacts, which have been incorporated 
into the IHA. Therefore, based on the analysis of potential effects, 
the parameters of the seismic survey, and the rigorous mitigation and 
monitoring program, NMFS determined that the activity would have a 
negligible impact on the population.
    Moreover, the seismic survey would take only small numbers of 
marine mammals relative to their population sizes. The number of 
animals likely to be taken for harbor porpoises, killer whales, harbor 
seals, and Steller sea lions represent less than 2% of the stock or 
population sizes. As described in the proposed IHA Federal Register 
notice, NMFS used a method that incorporates density of marine mammals 
overlaid with the anticipated ensonified area to calculate an estimated 
number of takes for belugas, which was estimated to be less than 10% of 
the stock abundance, which NMFS considers small. In addition to this 
quantitative evaluation, NMFS has also considered qualitative factors 
that further support the ``small numbers'' determination, including: 
(1) The seasonal distribution and habitat use patterns of Cook Inlet 
beluga whales, which suggest that for much of the time only a small 
portion of the population would be accessible to impacts from Apache's 
activity, as most animals are concentrated in upper Cook Inlet; (2) the 
mitigation requirements, which provide spatio-temporal limitations that 
avoid impacts to large numbers of animals feeding and calving in the 
Susitna Delta and limit exposures to sound levels associated with Level 
B harassment; and (3) monitoring results from previous surveys 
conducted by Apache in the same general vicinity, which indicated that 
no Cook Inlet beluga whales were sighted within the Level B harassment 
zone. Based on all of this information, NMFS determined that the number 
of beluga whales likely to be taken is small. See response to Comment 4 
and our small numbers analysis later in this document for more 
information about the small numbers determination for beluga whales and 
the other marine mammal species.
    Comment 4: The MMC states that it remains unclear how NMFS is 
defining both small numbers and negligible impact in this situation and 
more generally. Reviewing courts have ruled that ``small numbers'' and 
``negligible impact'' are not synonymous and the former cannot be 
defined on the basis of the latter--that is, they are separate 
standards. Defining the term ``small numbers'' for application to 
multiple species or stocks has been a challenge. An absolute definition 
(i.e., a set number of animals) might make sense in some cases but 
would not in others. A relative definition (e.g., a percentage) also 
might be appropriate in some cases but not in others. Because the Cook 
Inlet beluga population has been significantly reduced and is 
relatively small (about 300 individuals), defining small numbers as a 
percentage of the population's abundance would seem most appropriate in 
this instance. The NRDC commented that NMFS provides inadequate 
justification for these two standards.
    Response: As both this notice and the proposed IHA Federal Register 
notice (78 FR 80386, December 31, 2013) show, NMFS considers ``small 
numbers'' and ``negligible impact'' as separate standards and conducts 
its analysis of each requirement separately. When making the negligible 
impact determination, NMFS assesses whether or not the activity is 
likely to affect annual rates of recruitment or survival of the 
affected species or stock. In addition to the number of estimated Level 
B harassment takes, NMFS considers other factors, such as the likely 
nature of any responses (their intensity, duration, etc.), the context 
of any responses (critical reproductive time or location, migration 
corridor, etc.), as well as the number and nature of estimated Level A 
harassment takes and the number of estimated serious injuries or 
mortalities. We also consider the status of the species or stock 
(threatened, endangered, depleted, etc.) and how the mitigation 
measures are expected to reduce the number or severity of takes. As 
noted previously, Apache proposed and NMFS has required a rigorous set 
of mitigation measures to not only reduce and/or avoid Level A 
harassment takes but also to reduce and/or avoid Level B (behavioral) 
harassment takes.
    In both the proposed IHA notice and this document, we have made a 
separate ``small numbers'' finding. As recommended by the MMC, we have 
based that finding on the percentage of the stock anticipated to be 
taken. The amount of Cook Inlet beluga whale takes authorized 
represents 9.6% of the population. This percentage is consistent with 
previous authorizations issued by NMFS and does not violate the ``small 
numbers'' requirement.
    Comment 5: The MMC recommends that NMFS work with the U.S. Fish and 
Wildlife Service (USFWS) and the MMC

[[Page 13629]]

to develop a policy that sets forth clear criteria and/or thresholds 
for determining what constitutes ``small numbers'' and ``negligible 
impact'' for the purpose of authorizing incidental takes of marine 
mammals. The MMC understands that NMFS has been working on developing a 
policy and would welcome an opportunity to discuss this policy further 
before it is finalized.
    Response: NMFS is in the process of developing both a clearer 
policy to outline the criteria for determining what constitutes ``small 
numbers'' and an improved analytical framework for determining whether 
an activity will have a ``negligible impact'' for the purpose of 
authorizing takes of marine mammals. We fully intend to engage the MMC 
in these processes at the appropriate time, and we will coordinate with 
the USFWS where needed.
    Comment 6: The NRDC states: ``As NMFS' regulations make clear, the 
agency must modify, withdraw, or suspend an IHA if the authorized 
taking, ``either individually or in combination with other 
authorizations,'' is having a greater than negligible impact on the 
species or population or an unmitigable adverse impact on subsistence 
use. 50 CFR 216.107(f)(2). This year, in addition to Apache's, NMFS has 
received IHA applications from two other companies, Furie and 
SAExploration, that plan to conduct seismic exploration in Cook Inlet 
and, according to documents published by the Alaska Department of 
Natural Resources, largely within the same general areas identified by 
Apache.'' The NRDC, AITC, and the MMC both note that NMFS must address 
the cumulative effects of activities in Cook Inlet on Cook Inlet beluga 
whales and whether the cumulative impacts of all the activities are 
having ``either individually or in combination'' a greater than 
negligible impact on marine mammals.
    Response: The section of the implementing regulations cited by the 
NRDC relates to the level of take and degree of impacts known to have 
occurred or be occurring after issuance of the IHA not to the standards 
and protocols that must be followed to issue the authorization 
initially. Neither the MMPA nor NMFS' implementing regulations specify 
how to consider other activities and their impacts on the same 
populations when conducting a negligible impact analysis. However, 
consistent with the 1989 preamble for NMFS' implementing regulations 
(54 FR 40338, September 29, 1989), the impacts from other past and 
ongoing anthropogenic activities are incorporated into the negligible 
impact analysis via their impacts on the environmental baseline (e.g., 
as reflected in the density/distribution and status of the species, 
population size and growth rate, and ambient noise).
    In addition, cumulative effects were addressed in the EA and 
Biological Opinion prepared for this action. These documents, as well 
as the Alaska Marine Stock Assessments and the most recent abundance 
estimate for Cook Inlet beluga whales (Allen and Angliss, 2013), are 
part of NMFS' Administrative Record for this action, and provided the 
decision maker with information regarding other activities in the 
action area that affect marine mammals, an analysis of cumulative 
impacts, and other information relevant to the determination made under 
the MMPA.
    Comment 7: The MMC states that NMFS should explain why it believes 
marine mammals that avoid an area in response to a sound source, even 
if their exposure is below the assumed disturbance threshold, should 
not be considered to have been taken under the MMPA's definition of 
Level B harassment (16 U.S.C. 1362(18)(A)(ii)).
    Response: When estimating the numbers of animals that may be 
``taken'' by Level B harassment by acoustic sources, NMFS has 
identified specific sound thresholds to make that assessment. Based on 
available scientific data and information some individuals may react to 
a degree that is considered a take by harassment while others may not. 
Additionally, some individuals may react before entering the relevant 
sound isopleth, and, again, others may not. Avoidance to the degree 
that would be considered a take under the MMPA has been incorporated 
into our threshold and our analysis.
    Comment 8: The MMC notes that in the 2012 monitoring reports, 
Apache reported four instances in which gray whales were observed 
approaching the disturbance zone, resulting in shutdown of operations. 
To ensure that unauthorized takes of gray whales do not occur in 2014, 
the MMC recommends that NMFS advise Apache to request the authorization 
of incidental takes of gray whales associated with its proposed 
activities.
    Response: Distribution of gray whales in upper Cook Inlet has not 
been well understood, and Apache's monitoring reports have provided new 
information. However, occurrence of gray whales is still not expected 
to be common in the seismic survey area. The IHA contains a measure 
that states if any marine mammal species are encountered during seismic 
activities that are not listed in the IHA for authorized taking and are 
likely to be exposed to sound pressure levels (SPLs) greater than or 
equal to 160 dB re 1 [micro]Pa (rms), then Apache must alter speed or 
course, power down, or shut-down the sound source to avoid take. Take, 
even by Level B harassment, of any species not specifically listed in 
the IHA is prohibited. Therefore, Apache will continue to implement 
mitigation measures to avoid take of gray whales. Based on the low 
level of occurrence, the ability to implement mitigation measures, and 
the high likelihood of detectability of gray whales during monitoring, 
NMFS determined that take of gray whales is not needed in this IHA. 
However, Apache intends to continue their 3D seismic survey program and 
has submitted an application requesting 5-year regulations and a Letter 
of Authorization. We will advise Apache to consider including take of 
gray whales in that longer-term request.
    Comment 9: The NRDC and AITC state that NMFS failed to properly 
estimate take in the proposed IHA. The NRDC states that NMFS failed to 
account for survey duration in the estimation of beluga whale takes and 
that NMFS based beluga takes using a predictive habitat density model 
(Goetz et al., 2012) that is based on data from summer months and 
confined to summer distribution when belugas are generally concentrated 
in the Upper Inlet, even though activity could occur year round.
    Response: The numerical estimation of take for beluga whales did 
not consider survey duration in the calculation. However, the method of 
using daily footprints (as was done for the four other marine mammal 
species for which take is authorized), while offering a good picture of 
instances of take, overestimates the numbers of individual animals 
likely to be taken because the calculation assumes a 100% turnover of 
animals every day, which is unlikely. This overestimation of 
individuals would be especially exacerbated if this method were used 
for Cook Inlet beluga whales because it is well known from data that 
the majority of the population occurs in the upper Inlet (around the 
Susitna, Little Susitna, and Beluga Rivers) from late April/early May 
until late September/early October.
    Moreover, the model (or other numerical methods for estimating 
take) does not take into consideration the rigorous mitigation 
protocols that will be implemented by Apache to reduce the number of 
actual Level B harassment takes of Cook Inlet beluga whales. As 
mentioned previously, the IHA contains a condition restricting Apache's 
airgun operations within 10

[[Page 13630]]

mi (16 km) of the mean higher high water line of the Susitna Delta from 
April 15 through October 15. During this time, a significant portion of 
the Cook Inlet beluga whale population occurs in this area for feeding 
and calving. This setback distance includes the entire 160 dB radius of 
5.9 mi (9.5 km) predicted for the full airgun array plus an additional 
4.1 mi (6.5 km) of buffer, thus reducing the number of animals that may 
be exposed to Level B harassment thresholds. Apache is also required to 
shut down the airguns if any beluga whale is sighted approaching or 
entering the Level B harassment zone to avoid take. Additionally, 
Apache will fly daily aerial surveys, safety and weather permitting, to 
monitor for the presence of large groups of beluga whales. Observations 
from these surveys will provide the basis for real-time mitigation 
(i.e., airgun power down, shutdown, and ramp up), and aerial observers 
will be in radio contact with the seismic operations personnel. The 
aerial surveys can be used to redirect seismic operations as needed 
based on presence of large numbers of beluga whales. Lastly, 
observations from previous Apache monitoring reports did not note 
sightings of any beluga whales inside the 160 dB threshold. Therefore, 
NMFS combined use of the National Marine Mammal Laboratory (NMML) 
model, which we determined to be the best available data upon which to 
base density estimates, with consideration of all of the mitigation 
measures required to be implemented to authorize 30 beluga whale takes. 
This approach is reasonable and does not contradict available science 
and data of beluga whale distribution and local abundance during the 
period of operations.
    Comment 10: The NRDC states that in the case of marine mammals 
other than beluga whales, NMFS repeated past errors associated with its 
use of raw NMML survey data. Errors in the density calculations include 
the failure to incorporate correction factors for missed marine mammals 
in the analysis and the failure to fully account for survey duration by 
multiplying densities (which are calculated on an hourly basis) by the 
number of survey days but not the number of hours in a day.
    Response: Based on a comment from the MMC (see Comment 11), NMFS 
has increased the number of harbor seal takes to match the average 
density and take estimation. Correction factors for marine mammal 
surveys, with the exception of beluga whales, are not available for 
Cook Inlet. The primary purpose and focus of the NMFS aerial surveys in 
Cook Inlet for the past decade has been to monitor the beluga whale 
population. Although incidental observations of other marine mammals 
are noted during these surveys, they are focused on beluga whales. With 
the exception of the beluga whale, no detailed statistical analysis of 
Cook Inlet marine mammal survey results has been conducted, and no 
correction factors have been developed for Cook Inlet marine mammals. 
The only published Cook Inlet correction factor is for beluga whales. 
Developing correction factors for other marine mammals would have 
required different survey data collection and consideration of 
unavailable data such as Cook Inlet sightability, movement patterns, 
tidal correlations and detailed statistical analyses. For example, 
other marine mammal numbers are often rounded to the nearest 10 or 100 
during the NMFS aerial survey; resulting in unknown observation bias. 
Therefore, the data from the NMFS surveys are the best available and 
take levels are still likely overestimated because of the assumption 
that there is a 100% turnover rate of marine mammals each day.
    Survey duration was appropriately considered in the estimations by 
multiplying density by area of ensonification by number of survey days. 
NMFS does not calculate takes on an hourly basis, and, additionally, 
the multiple hours surveyed within a day are reflected in the area of 
ensonification, which considers the distance they can move within a day 
and is therefore larger than what would be covered in one hour. 
Moreover, Apache will not be using the seismic airguns 24 hours per 
day, so multiplying by a daily duration may in fact overestimate take 
for some species. While protected species observers (PSOs) cannot 
detect every single animal within the Level B harassment zone, the 
monitoring reports indicate that sightings did not exceed anticipated 
estimates. Also, Apache was able to successfully implement mitigation 
measures to avoid Level A harassment takes of these species. The take 
estimates for species other than beluga whales also assume that Apache 
will operate in the entire proposed area (all of Zone 1 and all of Zone 
2). Because Apache will only operate in a subset of the total area, the 
take levels are again likely overestimates. Therefore, we determined 
that appropriate calculations were used to estimate take levels.
    Comment 11: The MMC notes that Apache made adjustments to the 
average and maximum densities for several species in its newest 
application and that the estimates for harbor seals went up 
significantly from the previous application. However, no corresponding 
adjustments were made either to Apache's take request or the number of 
takes proposed by NMFS for harbor seals. Therefore, to ensure that 
authorized takes for harbor seals are not exceeded for proposed 
activities in 2014, the MMC recommends that NMFS authorize, at a 
minimum, the average estimated number of takes for harbor seals.
    Response: Based on the MMC recommendation, NMFS has increased the 
number of estimated and authorized harbor seal takes from 200 (number 
included in the proposed IHA notice) to 440 (the average estimated 
number of harbor seal takes in Apache's application). This changes the 
percentage of the population potentially taken by Level B harassment 
from 0.87% to 1.9%. However, the amount of take is still a small number 
relative to the affected species/stock size. Additionally, the change 
in the amount of take does not alter the previous analysis for harbor 
seals, and the takes will have a negligible impact on harbor seals.
    Comment 12: The NRDC commented that NMFS underestimated the size of 
Apache's impact area by: (1) Using an outdated and incorrect threshold 
for behavioral take; and (2) disregarding the best available evidence 
on the potential for temporary and permanent threshold shift on mid- 
and high-frequency cetaceans and on pinnipeds.
    Response: The comment that NMFS uses an outdated and incorrect 
threshold for behavioral takes does not include any specific 
recommendations. NMFS uses 160 dB (rms) as the exposure level for 
estimating Level B harassment takes for most species in most cases. 
This threshold was established for underwater impulse sound sources 
based on measured avoidance responses observed in whales in the wild. 
Specifically, the 160 dB threshold was derived from data for mother-
calf pairs of migrating gray whales (Malme et al., 1983, 1984) and 
bowhead whales (Richardson et al., 1985, 1986) responding to seismic 
airguns (e.g., impulsive sound source). We acknowledge there is more 
recent information bearing on behavioral reactions to seismic airguns, 
but those data only illustrate how complex and context-dependent the 
relationship is between the two. See 75 FR 49710, 49716 (August 13, 
2010) (IHA for Shell seismic survey in Alaska; response to comment 9). 
Accordingly, it is not a matter of merely replacing the existing 
threshold with a new one. NOAA is

[[Page 13631]]

developing relatively more sophisticated draft guidelines for 
determining acoustic impacts, including information for determining 
Level B harassment thresholds. Due to the complexity of the task, the 
draft guidelines will undergo a rigorous review that includes internal 
agency review, public notice and comment, and external peer review 
before any final product is published. In the meantime, and taking into 
consideration the facts and available science, NMFS determined it is 
reasonable to use the 160 dB threshold for estimating takes of marine 
mammals in Cook Inlet by Level B harassment. However, we discuss the 
science on this issue qualitatively in our analysis of potential 
effects to marine mammals.
    The comment that NMFS disregarded the best available evidence on 
the potential for temporary and permanent threshold shift on mid- and 
high-frequency cetaceans and on pinnipeds does not contain any specific 
recommendations. We acknowledge there is more recent information 
available bearing on the relevant exposure levels for assessing 
temporary and permanent hearing impacts. (See NMFS' Federal Register 
notice (78 FR 78822, December 27, 2013) for the draft guidance for 
assessing the onset of permanent and temporary threshold shift.) Again, 
NMFS will be issuing new acoustic guidelines, but that process is not 
complete, so we did not use it to assign new thresholds for calculating 
take estimates for hearing impacts. However, we did consider the 
information, and it suggests the current 180 and 190 dB thresholds are 
appropriate and that they likely overestimate potential for hearing 
impacts. See 75 FR 49710, 49715, 49724 (August 13, 2010) (IHA for Shell 
seismic survey in Alaska; responses to comment 8 and comment 27). 
Moreover, the required mitigation is designed to ensure there are no 
exposures at levels thought to cause hearing impairment, and, for 
several of the marine mammal species in the project area, mitigation 
measures are designed to reduce or eliminate exposure to Level B 
harassment thresholds.
    Comment 13: The NRDC commented that the proposed IHA fails to 
properly evaluate the impacts of stress, the risk of stranding, 
potential reduction in prey, and effects of increased turbidity.
    Response: NMFS provided a detailed discussion of the potential 
effects of this action in the notice of the proposed IHA (78 FR 80386, 
December 31, 2013) and determined the analyses and preliminary 
determinations were appropriate. The comment does not provide any 
specific recommendations or criticism regarding the sufficiency of 
those analyses. The potential effects of this action are also addressed 
in NMFS's EA and Biological Opinion (which are incorporated by 
reference herein).
    Comment 14: AITC commented that NMFS focuses mostly on marine 
mammals in its analysis, but they believe a more comprehensive 
ecological risk assessment is needed to understand localized and 
cumulative effects to subsistence use of the ecosystem resources.
    Response: The proposed IHA Federal Register notice contained 
analysis of potential impacts to marine mammals, marine mammal habitat, 
and the availability of marine mammals for subsistence uses. That 
document thoroughly analyzed these issues, allowing us to come to 
preliminary determinations that the proposed activity would have a 
negligible impact on marine mammals and would not have an unmitigable 
adverse impact on the availability of marine mammals for taking for 
subsistence uses. See response to Comment 6 for information on NMFS' 
cumulative effects analysis.
    Comment 15: AITC commented that to date NMFS has avoided requests 
for consultation with affected Native Alaskan Tribal governments on the 
IHAs, including this one.
    Response: Apache and NMFS recognize the importance of ensuring that 
Alaska Native Organizations (ANOs) and federally recognized tribes are 
informed, engaged, and involved during the permitting process and will 
continue to work with the ANOs and tribes to discuss operations and 
activities. On February 6, 2012, in response to requests for 
government-to-government consultations by the Cook Inlet Marine Mammal 
Council (CIMMC)--a now dissolved ANO that represented Cook Inlet 
tribes--and Native Village of Eklutna, NMFS met with representatives of 
these two groups and a representative from the Ninilchik. We engaged in 
a discussion about the proposed IHA for phase 1 of Apache's seismic 
program, the MMPA process for issuing an IHA, concerns regarding Cook 
Inlet beluga whales, and how to achieve greater coordination with NMFS 
on issues that impact tribal concerns. We immediately notified local 
tribal governments of the publication of this proposed IHA notice and 
invited their input. However, we did not receive any emails, letters, 
or phone calls requesting formal government-to-government consultation 
on this most recent proposed IHA notice.
    Additionally, Apache met with the CIMMC on March 29, 2011, to 
discuss the proposed activities and discuss any subsistence concerns. 
Apache also met with the Tyonek Native Corporation on November 9, 2010 
and the Salamatof Native Corporation on November 22, 2010. Additional 
meetings were held with the Native Village of Tyonek, the Kenaitze 
Indian Tribe, and Knik Tribal Council, and the Ninilchik Traditional 
Council. According to Apache, during these meetings, no concerns were 
raised regarding potential conflict with subsistence harvest of marine 
mammals.
    Since the issuance of the April 2012 IHA, Apache has maintained 
regular and consistent communication with federally recognized Alaska 
Natives. The Alaska Natives, Native Corporations, and ANOs that Apache 
has communicated with include: the Native Village of Tyonek; Tyonek 
Native Corporation; Ninilchik Native Association; Ninilchik Traditional 
Council; Salamatof Native Association; Knikatnu; Knik Native Council; 
Alexander Creek; Cook Inlet Region, Inc.; the Native Village of 
Eklutna; Kenaitze Indian Tribe; and Seldovia Native Association. Apache 
has shared information gathered during the seismic survey conducted 
under the April 2012 IHA and hosted an information exchange with Alaska 
Native Villages, Native Corporations, and other Non-Governmental 
Organizations in the spring of 2013 where data from the past year's 
monitoring operations were presented. Apache continued to meet with the 
Native Village of Tyonek, Tyonek Native Corporation, Cook Inlet Region 
Inc., and other recognized tribes and village corporations in the Cook 
Inlet Region throughout 2013.
    Comment 16: The NRDC and AITC comment that the proposed mitigation 
measures fail to meet the MMPA's ``least practicable adverse impact'' 
standard. The NRDC provides a list of approximately eight measures that 
NMFS ``failed to consider or adequately consider.''
    Response: NMFS provided a detailed discussion of proposed 
mitigation measures and the MMPA's ``least practicable impact'' 
standard in the notice of the proposed IHA (78 FR 80836, December 31, 
2013), which are repeated in the ``Mitigation'' section of this notice. 
The measures that NMFS allegedly failed to consider or adequately 
consider are identified and discussed below:
    (1) Seasonal exclusions around river mouths, including early spring 
(pre-April 14) exclusions around the Beluga River and Susitna Delta, 
and avoidance of other areas that have a higher probability of beluga 
occurrence: NMFS has required a 10 mile (16 km)

[[Page 13632]]

exclusion zone around the Susitna Delta (which includes the Beluga 
River) in this IHA. This mitigation mirrors a measure in the Incidental 
Take Statement for the 2012 and 2013 Biological Opinions. Seismic 
survey operations involving the use of airguns will be prohibited in 
this area between April 15 and October 15. In both the MMPA and ESA 
analysis, NMFS determined that this date range is sufficient to protect 
Cook Inlet beluga whales and the critical habitat in the Susitna Delta. 
While data indicate that belugas may use this part of the inlet year 
round, peak use occurs from early May to late September. NMFS added a 
2-week buffer on both ends of this peak usage period to add extra 
protection to feeding and calving belugas. (In addition, the Alaska 
Department of Fish and Game (ADF&G) prohibits the use of airguns within 
1 mi (1.6 km) of the mouth of any stream listed by the ADF&G on the 
Catalogue of Waters Important for the Spawning, Rearing, or Migration 
of Anadromous Fishes. See additional explanation in ``Mitigation 
Measures Considered but not Required'' section, later in this 
document.)
    (2) Use of advance aerial surveys to redirect activity if 
sufficient numbers of belugas or other species are sighted: Safety and 
weather permitting, aerial surveys will occur daily. Aerial surveys 
will be required when operating near river mouths to identify large 
congregations of beluga whales and harbor seal haul outs. In addition, 
daily aerial surveys must be conducted when there are any seismic-
related activities (including, but not limited to, node laying/
retrieval or airgun operations) occurring in either Zone 1 or Zone 2 of 
Apache's seismic operating area (see Figure 2 in Apache's application). 
Aerial survey paths will encompass river mouths to search for groups of 
belugas and harbor seal haulouts. The purposes of these surveys is to 
mitigate impacts and reduce incidental take by identifying the presence 
of Cook Inlet belugas and alert the vessels accordingly of necessary 
actions to avoid or minimize potential disturbance, to monitor the 
effects of the seismic program on Cook Inlet belugas and their primary 
feeding and reproduction areas, and to monitor that any displacement 
from the Susitna Delta region is temporary and would not be likely to 
cause harm to whales by reducing their ability to feed. This 
information allows for better planning by PSOs and assists in better 
understanding of the movements of large groups of beluga whales with 
respect to the tide. Moreover, aerial observations can be used to 
locate rarely seen animals that are difficult to track from the 
vessels.
    (3) Field testing and use of alternative technologies, such as 
vibroseis and gravity gradiometry, to reduce or eliminate the need for 
airguns and delaying seismic acquisition in higher density areas until 
the alternative technology of marine vibroseis becomes available: 
Apache requested takes of marine mammals incidental to the seismic 
survey operations described in the IHA application, which identified 
airgun arrays as the technique Apache would employ to acquire seismic 
data. It would be impractical for NMFS to require Apache to make this 
kind of change to the specified activity and is beyond the scope of the 
request for takes incidental to Apache's operation of airguns and other 
active acoustic sources.
    Apache continues to examine new and emerging alternative technology 
such as marine vibroseis, marine sparkers, and other systems to 
incorporate into their seismic program. Apache knows of no current 
technology scaled for industrial use that is reliable enough to meet 
the environmental challenges of operating in Cook Inlet. Apache is 
aware that many prototypes are currently in development, and may 
ultimately incorporate these new technologies into their evaluation 
process as they enter commercial viability. However, none of these 
technologies are currently ready for use on a large scale in Cook 
Inlet. As this technology is developed, Apache will evaluate its 
utility for operations in the Cook Inlet environment.
    (4) Required use of the lowest practicable source level in 
conducting airgun activity: Apache determined that the 2400 in\3\ array 
provides the data required for Apache's operations. If it is determined 
that lower source levels or volume outputs are appropriate to complete 
the seismic acquisition, testing will occur to determine the extent of 
the new array size that can be used. If a lower source level is 
acceptable to complete Apache's operations, a new sound source 
verification will be conducted based on the airgun array and reported 
to NMFS.
    (5) Observance of a 10 knot speed limit for all vessels, including 
supply vessels, employed in the activity: Apache has indicated that 
vessels typically move at 2-4 knots during active seismic data 
acquisition. While other vessels typically do not operate at speeds 
greater than 10 knots, stipulating vessel speeds could hamper Apache's 
seismic survey by increasing the amount of time needed to complete the 
survey because it may take longer to transit to other survey areas, and 
would not be practicable. In any event, NMFS requires speed and course 
alterations when a marine mammal is detected outside the 160 dB zone 
and, based on position and relative motion, is likely to enter the 
zone. When not conducting seismic acquisition operations, vessels are 
operated at speeds based upon sea state and safe operating conditions. 
Moreover, ship strikes of Cook Inlet beluga whales or other Cook Inlet 
marine mammals have not been an issue.
    (6) Limitation of the mitigation airgun to the longest shot 
interval necessary to carry out its intended purpose: This general 
comment contained no specific recommendations. However NMFS has added a 
mitigation measure to the IHA requiring that Apache reduce the shot 
interval for the mitigation gun to one shot per minute.
    (7) Immediate suspension of airgun activity, pending investigation, 
if any beluga strandings occur within or within an appropriate distance 
of the year 3 survey area: There is no evidence in the literature that 
airgun pulses cause marine mammal strandings, and the sounds produced 
by airguns are quite different from sound sources that have been 
associated with stranding events, such as military mid-frequency active 
sonar or sub-bottom profilers. Nevertheless, the IHA requires Apache to 
immediately cease activities and report unauthorized takes of marine 
mammals, such as injury, serious injury, or mortality. NMFS will review 
the circumstances of Apache's unauthorized take and determine if 
additional mitigation measures are needed before activities can resume 
to minimize the likelihood of further unauthorized take and to ensure 
MMPA compliance. Apache may not resume activities until notified by 
NMFS. Separately the IHA includes measures if injured or dead marine 
mammals are sighted and the cause cannot be easily determined. In those 
cases, NMFS will review the circumstances of the stranding event while 
Apache continues with operations.
    (8) Establishment of a larger exclusion zone for beluga whales that 
is not predicated on the detection of whale aggregations or cow-calf 
pairs: Both the proposed IHA notice and the issued IHA contain a 
requirement for Apache to delay the start of airgun use or shutdown the 
airguns if a beluga whale is visually sighted approaching or within the 
160-dB disturbance zone until the animal(s) are no longer present 
within the 160-dB zone. The measure applies to the sighting of any 
beluga

[[Page 13633]]

whale, not just sightings of groups or cow-calf pairs.
    Comment 17: The NRDC comments that monitoring measures should 
include passive acoustic monitoring (PAM) superior to over-the-side 
hydrophone, and, for visual surveillance, NMFS should require at least 
two ship-based PSOs per vessel on watch at all times during daylight 
hours with a maximum of 2 consecutive hours on watch and 8 hours of 
watch time per day per PSO.
    Response: The passive acoustic monitoring plan for Apache's 2012 
survey anticipated the use of a bottom-mounted telemetry buoy to 
broadcast acoustic measurements using a radio-system link back to a 
monitoring vessel. Although a buoy was deployed during the first week 
of surveying under the 2012 IHA, it was not successful. Upon 
deployment, the buoy immediately turned upside down due to the strong 
current in Cook Inlet. After retrieval, the buoy was not redeployed and 
the survey used a single omni-directional hydrophone lowered from the 
side of the mitigation vessel. During the entire 2012 survey season, 
Apache's PAM equipment yielded only six confirmed marine mammal 
detections, one of which was a Cook Inlet beluga whale. The single Cook 
Inlet beluga whale detection did not, however, result in a shutdown 
procedure.
    Additionally, Joint Base Elmendorf-Fort Richardson, NMML, and ADF&G 
conducted a 2012 study (Gillespie et al., 2013) to determine if beluga 
whale observations at the mouth of Eagle River corresponded with 
acoustic detections received by a PAMBuoy data collection system. The 
PAMBuoy data collection system was deployed in the mouth of Eagle River 
from 12-31 August 2012. This study was a trial period conducted with 
one hydrophone at the mouth of the river. Overall, it was successful in 
detecting beluga whale echolocation clicks and whistles, but came with 
several limitations:
     The PAM system was able to reliably detect all whales 
approaching or entering the river but still performs less well than a 
human observer;
     Sounds from vessels in Cook Inlet (e.g. vessel noise) have 
a large chance of interfering with detections from PAM. The mouth of 
Eagle River has very little vessel traffic, which is likely why the 
study was successful there and not likely to be successful in Cook 
Inlet;
     PAMbouys could be a navigational hazard in Cook Inlet for 
commercial, subsistence, and sport fishing, as well as the commercial 
vessel traffic traveling through Cook Inlet;
     The limited testing in a very small area should not become 
the new standard of monitoring in the entire Cook Inlet. The tide, 
vessel traffic, bathymetry, and substrate of Cook Inlet are far more 
complex than the study area;
     It appears the hydrophone must be hardwired to the shore 
which is not practical for mobile marine seismic operations;
     Currently, deployment of the system is done by walking 
tripods onto the mudflats. This is not feasible for the vast majority 
of the Apache project area. Walking onto the mudflats in parts of Cook 
Inlet also poses a safety risk;
     The study found considerable investment would be necessary 
to develop an ice and debris proof mounting system. Other issues with 
hydrophone configuration include: at extreme low tides, the hydrophone 
was uncovered and therefore not usable; the hydrophone had to be 
located in such a position so that it could be occasionally visually 
inspected; hydrophone battery supply has to constantly be checked; the 
costs and practicalities of long-term hydrophone mounting and data 
transmission have not been determined.; and only one hydrophone was 
tested, and Apache would need several hydrophones;
     Observer sightings and acoustic detections of belugas 
generally corresponded with one another. Thus PAMBuoys would be simply 
duplicating PSO and aerial efforts;
     The wireless modem that transmits the acoustic data to the 
``base station'' was only tested to 3.2 km; and
     The study did not conclude anything about the detection 
range of the system, except that it was greater than 400 m.
    Therefore, given the limited capability of various PAM 
methodologies for Apache's project in Cook Inlet (see Austin and 
Zeddies, 2012 for more information), as compared to visual monitoring 
methods, including expanded daily aerial surveys, the bottom-mounted 
telemetry buoy and omni-directional hydrophone are no longer considered 
practicable, and will not be a component of the 2014 seismic survey.
    Vessel-based observers are stationed on three vessels with two PSOs 
on the support vessel and one PSO on each of the two source vessels. 
Due to space limitations onboard the source vessels, no more than one 
PSO can be accommodated on each vessel. PSOs monitor for marine mammals 
during all daylight hours prior to and during seismic survey 
operations, unless precluded by weather (e.g., fog, ice, high sea 
states). PSOs on the vessels rotate observation shifts every 4-6 hours 
in order to better monitor the survey area, implement mitigation 
measures, and avoid fatigue. In addition, vessel crews are instructed 
to assist with detecting marine mammals and implementing mitigation 
measures.
    Comment 18: The MMC notes that NMFS is reviewing two other IHA 
applications for proposed seismic surveys in Cook Inlet in 2014 and 
that it is not clear whether these applications are seeking separate 
authorizations for some or all of the same activities. NMFS needs to 
adopt policies and institute procedures to ensure that separate 
applications to conduct essentially the same activities in the same 
areas are considered more holistically. If indeed the applicants are 
proposing to conduct multiple seismic surveys within the same area, it 
would increase the numbers of marine mammals taken and expose beluga 
whales and other marine mammals to unnecessary, avoidable risks. 
Section 101(a)(5)(D)(ii)(I) of the MMPA directs NMFS to structure IHAs 
so that they prescribe ``other means of effecting the least practicable 
impact on such species or stock and its habitat.'' Allowing multiple 
operators to obtain separate IHAs to conduct duplicative surveys is 
inconsistent with that mandate. Data sharing and collaboration is 
critical in habitat areas used by endangered populations, such as Cook 
Inlet beluga whales. The MMC recommends that NMFS encourage Apache and 
other applicants proposing to conduct seismic surveys in Cook Inlet in 
2014 to collaborate on those surveys and, to the extent possible, 
submit a single application seeking authorization for incidental 
harassment of marine mammals.
    Response: We agree and have encouraged Apache to cooperate with 
other interested parties to minimize the impacts of new seismic surveys 
in the region. Currently, Apache works with other oil and gas operators 
in the area to enter into cooperative agreements. Sometimes these 
negotiations are successful, but at other times the companies cannot 
reach an agreement acceptable to both parties. Apache will continue its 
discussions with other operators in Cook Inlet to find opportunities to 
joint venture in oil and gas operations, including seismic data 
acquisition.
    The portion of the statute cited by the MMC refers to the need to 
require mitigation measures to ensure that the specified activity for 
which take is authorized in that particular authorization ``effects the 
least practicable impact.'' Apache proposed

[[Page 13634]]

and NMFS has required a rigorous mitigation and monitoring plan to 
ensure that Apache's program meets that standard. Moreover, NMFS will 
not issue IHAs to other applicants if that standard cannot be met. 
Regarding the issue of cumulative impacts, see our response to Comment 
6.
    Comment 19: Apache comments that there is no scientific basis or 
rationale for the 10 mi (16 km) buffer spanning from the Beluga River 
to the Little Susitna River and requests that the exclusion zone be 
described as a 5.9 mi (9.5 km) radius from the mouth of the Big Susitna 
River.
    Response: As described in the proposed IHA notice and in detail in 
the 2013 Biological Opinion, the seasonal exclusion area contained in 
the Terms and Conditions section of the Incidental Take Statement is 
defined as 10 mi (16 km) of the mean higher high water (MHHW) line of 
the Susitna Delta (Beluga River to the Little Susitna River). This zone 
is based on the location of beluga whales during the spring and fall in 
that area for foraging and calving with a buffer to keep sound over 160 
dB (rms) out of this area. NMFS does not support the suggested 
reduction in distance and has included the mitigation measure in the 
IHA with the 10 mi (16 km) setback.
    Comment 20: Apache requested clarification on the aerial monitoring 
measures (condition 7(c)(ii) in the proposed IHA) to reduce redundancy.
    Response: Conditions 7(c)(ii) and 7(c)(iv) both outlined parameters 
for conducting aerial surveys in Zone 1 of Apache's operating area, but 
the language did not match and thus created some confusion. NMFS has 
combined the two conditions in the proposed IHA into one condition in 
this final IHA (now condition 7(c)(ii)) to read as follows: ``When 
operating in Zone 1 (see Figure 2 for proposed survey zones), flight 
paths should encompass areas from Anchorage, along the coastline of the 
Susitna Delta to Tyonek, across the inlet to Point Possession, around 
the coastline of Chickaloon Bay to Burnt Island, and across to 
Anchorage (or in reverse order). The surveys will continue daily when 
Apache has any activities north or east of a line from Tyonek across to 
the eastern side of Number 3 Bay of the Captain Cook State Recreation 
Area (IHA Application Figure 19).'' NMFS has also added language to the 
final IHA specific to aerial monitoring when Apache is operating in 
Zone 2.
    Comment 21: Apache requested to only fly aerial surveys when 
airguns are in operation but not at other times (i.e., node laying/
retrieval).
    Response: In the marine mammal monitoring plan submitted with the 
IHA application, Apache proposed to conduct aerial surveys both during 
active seismic airgun operations and during other activities, such as 
node laying/retrieval. This is included in the Terms and Conditions of 
the ESA ITS, and was included in the proposed IHA notice. The purpose 
of flying during both active airgun operations and other operations is 
to better understand distribution and abundance of marine mammals 
(especially beluga whales) in the operating area and to better 
understand if displacement is occurring as a result of the operation. 
Therefore, NMFS has required aerial monitoring flights to occur for 
both activities in the final IHA.
    Comment 22: Apache requested that language is added to clarify that 
permitted Level B harassment takes are estimated from the methods 
described in Apache's application but that the permitted Level B takes 
are for actual individual marine mammals observed inside of the 
exclusion zones by the PSOs.
    Response: In the IHA application, Apache presented a detailed 
equation that indicated when 30 ``estimated'' beluga takes may occur. 
In the application, Apache stated: ``Apache will operate in Zone 1 or 
Zone 2 until the 30 calculated takes of belugas has been met or the IHA 
expires.'' We based our analysis on the fact that Apache predicted that 
30 takes would occur if they operated within a specified area. If, for 
example, Apache operates in double that amount of area or time, then we 
would have needed to estimate a higher level of activity. Apache cannot 
conduct more activity than what was predicted and analyzed in the 
application and proposed IHA.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS's jurisdiction that could 
occur near operations in Cook Inlet include three cetacean species, all 
odontocetes (toothed whales): beluga whale (Delphinapterus leucas), 
killer whale (Orcinus orca), and harbor porpoise (Phocoena phocoena), 
and two pinniped species: harbor seal (Phoca vitulina richardsi) and 
Steller sea lions (Eumetopias jubatus). The marine mammal species that 
is likely to be encountered most widely (in space and time) throughout 
the period of the planned surveys is the harbor seal. While killer 
whales and Steller sea lions have been sighted in upper Cook Inlet, 
their occurrence is considered rare in that portion of the Inlet.
    Of the five marine mammal species likely to occur in the proposed 
marine survey area, Cook Inlet beluga whales and Steller sea lions are 
listed as endangered under the ESA (Steller sea lions are listed as two 
distinct population segments (DPSs), an eastern and a western DPS; the 
relevant DPS in Cook Inlet is the western DPS). The eastern DPS was 
recently removed from the endangered species list (78 FR 66139, 
November 4, 2013). These species are also designated as ``depleted'' 
under the MMPA. Despite these designations, Cook Inlet beluga whales 
and the western DPS of Steller sea lions have not made significant 
progress towards recovery. Data indicate that the Cook Inlet population 
of beluga whales has been decreasing at a rate of 1.1 percent annually 
between 2001 and 2011 (Allen and Angliss, 2013). A recent review of the 
status of the population indicated that there is an 80% chance that the 
population will decline further (Hobbs and Shelden 2008). Counts of 
non-pup Steller sea lions at trend sites in the Alaska western stock 
increased 11% from 2000 to 2004 (Allen and Angliss, 2013). These were 
the first region-wide increases for the western stock since 
standardized surveys began in the 1970s and were due to increased or 
stable counts in all regions except the western Aleutian Islands. 
Between 2004 and 2008, Alaska western non-pup counts increased only 3%: 
eastern Gulf of Alaska (Prince William Sound area) counts were higher 
and Kenai Peninsula through Kiska Island counts were stable, but 
western Aleutian counts continued to decline. Johnson (2010) analyzed 
western Steller sea lion population trends in Alaska and concluded that 
the overall 2000-2008 trend was a decline 1.5% per year; however, there 
continues to be considerable regional variability in recent trends 
(Allen and Angliss, 2013). NMFS has not been able to complete a non-pup 
survey of the AK western stock since 2008, due largely to weather and 
closure of the Air Force base on Shemya in 2009 and 2010.
    Pursuant to the ESA, critical habitat has been designated for Cook 
Inlet beluga whales and Steller sea lions. The proposed action falls 
within critical habitat designated in Cook Inlet for beluga whales but 
is not within critical habitat designated for Steller sea lions. The 
portion of beluga whale critical habitat--identified as Area 2 in the 
critical habitat designation--where the seismic survey will occur is 
located south of the Area 1 critical habitat where belugas are 
particularly vulnerable to impacts due to their high seasonal densities 
and the biological

[[Page 13635]]

importance of the area for foraging, nursery, and predator avoidance. 
Area 2 is based on dispersed fall and winter feeding and transit areas 
in waters where whales typically appear in smaller densities or deeper 
waters (76 FR 20180, April 11, 2011).
    There are several species of mysticetes that have been observed 
infrequently in lower Cook Inlet, including minke whale (Balaenoptera 
acutorostrata), humpback whale (Megaptera novaeangliae), fin whale 
(Balaenoptera physalus), and gray whale (Eschrichtius robustus). 
Because of their infrequent occurrence in the location of seismic 
acquisition, take is not likely, and they are not included in this IHA 
notice. Sea otters also occur in Cook Inlet but are managed by the 
USFWS and are therefore not considered further in this IHA notice. The 
Notice of Proposed IHA (78 FR 80836, December 31, 2013) and Apache's 
application contain detailed descriptions of the status, distribution, 
seasonal distribution, abundance, and life history of the five marine 
mammal species most likely to occur in the project area. That 
information has not changed and is therefore not repeated here. 
Additional information can also be found in the NMFS 2012 Alaska Stock 
Assessment Report on the Internet at: http://www.nmfs.noaa.gov/pr/sars/pdf/ak2012.pdf.

Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the 
types of stressors associated with the specified activity (e.g., 
seismic airgun operations, vessel movement) have been observed to or 
are thought to impact marine mammals. This section may include a 
discussion of known effects that do not rise to the level of an MMPA 
take (for example, with acoustics, we may include a discussion of 
studies that showed animals not reacting at all to sound or exhibiting 
barely measurable avoidance). The discussion may also include reactions 
that we consider to rise to the level of a take and those that we do 
not consider to rise to the level of a take. This section is intended 
as a background of potential effects and does not consider either the 
specific manner in which this activity will be carried out or the 
mitigation that will be implemented or how either of those will shape 
the anticipated impacts from this specific activity. The ``Estimated 
Take by Incidental Harassment'' section later in this document will 
include a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The ``Negligible Impact 
Analysis'' section will include the analysis of how this specific 
activity will impact marine mammals and will consider the content of 
this section, the ``Estimated Take by Incidental Harassment'' section, 
the ``Mitigation'' section, and the ``Anticipated Effects on Marine 
Mammal Habitat'' section to draw conclusions regarding the likely 
impacts of this activity on the reproductive success or survivorship of 
individuals and from that on the affected marine mammal populations or 
stocks.
    Operating active acoustic sources, such as airgun arrays, has the 
potential for adverse effects on marine mammals. The majority of 
anticipated impacts would be from the use of acoustic sources.
    The effects of sounds from airgun pulses 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). However, for reasons 
discussed in the proposed IHA, it is unlikely that there would be any 
cases of temporary, or especially permanent, hearing impairment 
resulting from Apache's activities. As outlined in previous NMFS 
documents, the effects of noise on marine mammals are highly variable, 
often depending on species and contextual factors (based on Richardson 
et al., 1995).
    In the ``Potential Effects of the Specified Activity on Marine 
Mammals'' section of the Notice of Proposed IHA (78 FR 80836, December 
31, 2013), NMFS included a qualitative discussion of the different ways 
that Apache's 2014 3D seismic survey program may potentially affect 
marine mammals. The discussion focused on information and data 
regarding potential acoustic and non-acoustic effects from seismic 
activities (i.e., use of airguns, pingers, and support vessels and 
aircraft). Marine mammals may experience masking and behavioral 
disturbance. The information contained in the ``Potential Effects of 
Specified Activities on Marine Mammals'' section from the proposed IHA 
has not changed. Please refer to the proposed IHA for the full 
discussion (78 FR 80836, December 31, 2013).
    Marine mammals may behaviorally react to sound when exposed to 
anthropogenic noise. These behavioral reactions are often shown as: 
changing durations of surfacing and dives, number of blows per 
surfacing, or moving direction and/or speed; reduced/increased vocal 
activities; changing/cessation of certain behavioral activities (such 
as socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping); avoidance of 
areas where noise sources are located; and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    Masking is the obscuring of sounds of interest by other sounds, 
often at similar frequencies. Marine mammals use acoustic signals for a 
variety of purposes, which differ among species, but include 
communication between individuals, navigation, foraging, reproduction, 
avoiding predators, and learning about their environment (Erbe and 
Farmer, 2000; Tyack, 2000). Masking, or auditory interference, 
generally occurs when sounds in the environment are louder than, and of 
a similar frequency as, auditory signals an animal is trying to 
receive. Masking is a phenomenon that affects animals that are trying 
to receive acoustic information about their environment, including 
sounds from other members of their species, predators, prey, and sounds 
that allow them to orient in their environment. Masking these acoustic 
signals can disturb the behavior of individual animals, groups of 
animals, or entire populations. For the airgun sound generated from 
Apache's seismic surveys, sound will consist of low frequency (under 
500 Hz) pulses with extremely short durations (less than one second). 
There is little concern regarding masking near the sound source due to 
the brief duration of these pulses and relatively longer silence 
between air gun shots (approximately 12 seconds). Masking from airguns 
is more likely in low-frequency marine mammals like mysticetes (which 
do not occur or are uncommon in the survey area). It is less likely for 
mid- to high-frequency cetaceans and pinnipeds.
    Hearing impairment (either temporary or permanent) is unlikely. 
Given the higher level of sound necessary to cause permanent threshold 
shift as compared with temporary threshold shift, it is considerably 
less likely that permanent threshold shift would occur during the 
seismic survey in Cook Inlet. Cetaceans generally avoid the immediate 
area around operating seismic vessels, as do some other marine mammals. 
Some pinnipeds show avoidance reactions to airguns, but their avoidance 
reactions are generally not as strong or consistent as those of 
cetaceans, and occasionally they seem to be attracted to operating 
seismic vessels (NMFS, 2010).
    Serious injury or mortality is not anticipated from use of the 
equipment. To date, there is no evidence that serious injury, death, or 
stranding by marine mammals can occur from

[[Page 13636]]

exposure to airgun pulses, even in the case of large air gun arrays. It 
should be noted that strandings related to sound exposure have not been 
recorded for marine mammal species in Cook Inlet. Beluga whale 
strandings in Cook Inlet are not uncommon; however, these events often 
coincide with extreme tidal fluctuations (``spring tides'') or killer 
whale sightings (Shelden et al., 2003). For example, in August 2012, a 
group of Cook Inlet beluga whales stranded in the mud flats of 
Turnagain Arm during low tide and were able to swim free with the flood 
tide. No strandings or marine mammals in distress were observed during 
the 2D test survey conducted by Apache in March 2011, and none were 
reported by Cook Inlet inhabitants. Furthermore, no strandings were 
reported during seismic survey operations conducted under the April 
2012 IHA. Accordingly, NMFS does not expect any marine mammals will 
incur serious injury or mortality in Cook Inlet or strand as a result 
of the proposed seismic survey.
    Studies on the reactions of cetaceans to aircraft show little 
negative response (Richardson et al., 1995). In general, reactions 
range from sudden dives and turns and are typically found to decrease 
if the animals are engaged in feeding or social behavior. Whales with 
calves or in confined waters may show more of a response. Generally 
there has been little or no evidence of marine mammals responding to 
aircraft overflights when altitudes are at or above 305 m (1,000 ft), 
based on three decades of flying experience in the Arctic (NMFS, 
unpublished data). Based on long-term studies that have been conducted 
on beluga whales in Cook Inlet since 1993, NMFS expect that there will 
be no effects of this activity on beluga whales or other cetaceans. No 
change in beluga swim directions or other noticeable reactions have 
been observed during the Cook Inlet aerial surveys flown from 183 to 
244 m (600 to 800 ft) (e.g., Rugh et al., 2000). By applying 
operational requirements regarding altitude, sound levels underwater 
are not expected to rise to the level of a take.
    Vessel activity and noise associated with vessel activity will 
temporarily increase in the action area during Apache's seismic survey 
as a result of the operation of nine vessels. The addition of nine 
vessels and noise due to vessel operations associated with the seismic 
survey would not be outside the present experience of marine mammals in 
Cook Inlet, although levels may increase locally. Vessels will be 
operating at slow speed (2-4 knots) when conducting surveys and in a 
purposeful manner to and from work sites in as direct a route as 
possible. Marine mammal monitoring observers and passive acoustic 
devices will alert vessel captains as animals are detected to ensure 
safe and effective measures are applied to avoid coming into direct 
contact with marine mammals. Therefore, NMFS neither anticipates nor 
authorizes takes of marine mammals from ship strikes.

Anticipated Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat and other 
marine species are associated with elevated sound levels produced by 
airguns and other active acoustic sources. However, other potential 
impacts to the surrounding habitat from physical disturbance are also 
possible. The proposed IHA contains a full discussion of the potential 
impacts to marine mammal habitat and prey species in the project area. 
No changes have been made to that discussion. Please refer to the 
proposed IHA for the full discussion of potential impacts to marine 
mammal habitat (78 FR 80836, December 31, 2013). NMFS has determined 
that Apache's 3D seismic survey program is not expected to have any 
habitat-related effects that could cause significant or long-term 
consequences for individual marine mammals or their populations.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking for certain subsistence uses (where relevant). This 
section summarizes the required mitigation measures contained in the 
IHA.

Mitigation Measures in Apache's Application

    Apache listed the following protocols to be implemented during its 
seismic survey in Cook Inlet.
1. Exclusion and Disturbance Zones
    Apache will establish exclusion zones corresponding to the 180 dB 
(rms) isopleth for cetaceans and the 190 dB (rms) isopleth for 
pinnipeds to avoid Level A harassment of all marine mammals and will 
shut down or power down operations if animals are seen approaching this 
zone (more detail next). Additionally, Apache will monitor the Level B 
harassment disturbance zone corresponding to the 160 dB (rms) isopleth 
for all marine mammals and implement shut down measures if any beluga 
whales or groups of five or more harbor porpoise or killer whales are 
seen entering or approaching the Level B harassment disturbance zone.
2. Power Down and Shutdown Procedures
    A power down is the immediate reduction in the number of operating 
energy sources. A shutdown is the immediate cessation of firing of all 
energy sources. The arrays will be immediately powered down whenever a 
marine mammal is sighted approaching close to or within the applicable 
exclusion zone of the full arrays but is outside the applicable 
exclusion zone of the single source. If a marine mammal is sighted 
within the applicable exclusion zone of the single energy source, the 
entire array will be shutdown (i.e., no sources firing). Following a 
power down or a shutdown, airgun activity will not resume until the 
marine mammal has left the applicable exclusion zone. The animal will 
be considered to have left the zone if it: (1) Is visually observed to 
have left the zone; (2) has not been seen within the zone for 15 
minutes in the case of pinnipeds and small odontocetes; or (3) has not 
been seen within the zone for 30 minutes in the case of large 
odontocetes, including killer whales and belugas.
3. Ramp-Up Procedures
    A ramp-up of an airgun array provides a gradual increase in sound 
levels, and involves a step-wise increase in the number and total 
volume of air guns firing until the full volume is achieved. The 
purpose of a ramp-up (or ``soft start'') is to ``warn'' cetaceans and 
pinnipeds in the vicinity of the airguns and to provide the time for 
them to leave the area and thus avoid any potential injury or 
impairment of their hearing abilities.
    During the seismic survey, the seismic operator will ramp up the 
airgun array slowly. NMFS requires the rate of ramp-up to be no more 
than 6 dB per 5-minute period. Ramp-up is used at the start of airgun 
operations, after a power- or shut-down, and after any period of 
greater than 10 minutes in duration without airgun operations (i.e., 
extended shutdown).
    A full ramp-up after a shutdown will not begin until there has been 
a minimum of 30 minutes of observation

[[Page 13637]]

of the Level A harassment exclusion zones by PSOs to assure that no 
marine mammals are present. The entire exclusion zone must be visible 
during the 30-minute lead-in to a full ramp up. If the entire exclusion 
zone is not visible, then ramp-up from a cold start cannot begin. If a 
marine mammal(s) is sighted within the relevant exclusion zone during 
the 30-minute watch prior to ramp-up, ramp-up will be delayed until the 
marine mammal(s) is sighted outside of the zone or the animal(s) is not 
sighted for at least 15-30 minutes: 15 minutes for small odontocetes 
and pinnipeds (e.g. harbor porpoises, harbor seals, and Steller sea 
lions), or 30 minutes for large odontocetes (e.g., killer whales and 
beluga whales).
4. Operation of Mitigation Airgun at Night
    Apache proposes to conduct both daytime and nighttime operations. 
Nighttime operations would only be initiated if a mitigation airgun 
(typically the 10 in\3\) has been continuously operational from the 
time that PSO monitoring has ceased for the day. The mitigation airgun 
would operate on a longer duty cycle than the full airgun arrays, 
firing every 60 seconds. At night, the vessel captain and crew would 
maintain lookout for marine mammals and would order the airgun(s) to be 
shut down if marine mammals are observed in or about to enter the 
established exclusion or disturbance zones. Seismic activity would not 
ramp up from an extended shut-down (i.e., when the airgun has been down 
with no activity for at least 10 minutes) during nighttime operations 
and survey activities would be suspended until the following day 
because dedicated PSOs would not be on duty.
5. Speed or Course Alteration
    If a marine mammal is detected outside the Level A (injury) 
harassment zone and, based on its position and the relative motion, is 
likely to enter that zone, the vessel's speed and/or direct course may, 
when practical and safe, be changed that also minimizes the effect on 
the seismic program. This can be used in coordination with a power down 
procedure. The marine mammal activities and movements relative to the 
seismic and support vessels will be closely monitored to ensure that 
the marine mammal does not approach within the applicable exclusion 
radius. If the mammal appears likely to enter the exclusion radius, 
further mitigative actions will be taken, i.e., either further course 
alterations, power down, or shut down of the airgun(s).
6. Shut-downs for Beluga Whales and Aggregations of Other Cetaceans
    A 160-dB Level B harassment disturbance zone would be established 
and monitored in Cook Inlet during all seismic surveys. As mentioned 
previously, Whenever a beluga whale or an aggregation of killer whales 
or harbor porpoises (five or more individuals of any age/sex class) are 
observed approaching the 160-dB zone around the survey operations, the 
survey activity will not commence or will shut down, until they are no 
longer present within the 160-dB zone of seismic surveying operations.

Additional Mitigation Measures Required by NMFS

    Activities shall not occur within 16 km (10 mi) of the MHHW line of 
the Susitna Delta (Beluga River to the Little Susitna River) between 
April 15 and October 15. The purpose of this mitigation measure is to 
protect the designated critical habitat in this area that is important 
for beluga whale feeding and calving during the spring and fall months. 
The range of the setback required creates an effective buffer where 
sound does not encroach on this important habitat during those months. 
Activities can occur within this area from October 16-April 14.
    Additionally, seismic survey operations, involving the use of 
airguns and pingers, must cease if the total authorized takes of any 
marine mammal species are met or exceeded.

Mitigation Measures Considered but Not Required

    NMFS considered whether additional time/area restrictions were 
warranted. NMFS determined that such restrictions are not necessary or 
practicable elsewhere in the 2014 survey area. Beluga whales remain in 
Cook Inlet year-round, but demonstrate seasonal movement within the 
Inlet; in the summer and fall, they concentrate in upper Cook Inlet's 
rivers and bays, but tend to disperse offshore and move to mid-Inlet in 
winter (Hobbs et al., 2005). The available information indicates that 
in the winter months belugas are dispersed in deeper waters in mid-
Inlet past Kalgin Island, with occasional forays into the upper inlet, 
including the upper ends of Knik and Turnagain Arms. Their winter 
distribution does not appear to be associated with river mouths, as it 
is during the warmer months. The spatial dispersal and diversity of 
winter prey are likely to influence the wider beluga winter range 
throughout the mid-Inlet. Apache expects to mobilize crews and 
equipment for its seismic survey in February and March 2014, which 
would coincide with the time of year when belugas are dispersed 
offshore in the mid-Inlet and away from river mouths. In the spring, 
when survey operations are expected to start, beluga whales are 
regularly sighted in the upper Inlet beginning in late April or early 
May, coinciding with eulachon runs in the Susitna River and Twenty Mile 
River in Turnagain Arm. Therefore, NMFS determined that the timing and 
location of the seismic survey, with the exclusion zone around the 
Susitna Delta, adequately avoids areas and seasons that overlap with 
important beluga whale behavioral patterns.
    NMFS also considered whether to require time area restrictions for 
areas identified as home ranges during August through March for 14 
satellite-tracked beluga whales in Hobbs et al. (2005). NMFS has 
determined not to require time/area restrictions for these areas within 
the phase 3 survey area. The areas in question within phase 3 are 
relatively large areas in which belugas are dispersed. In addition, 
data for 14 tracked belugas do not establish that belugas will not 
appear in other areas--particularly during the periods of the year when 
belugas are more dispersed in Cook Inlet. We do not have enough 
information to establish that time/area restrictions for these areas 
would yield a benefit for the species. Such restrictions also are not 
practicable given the applicant's need to survey the areas in question 
and the need for operational flexibility given weather conditions, 
real-time adjustment of operations to avoid marine mammals and other 
factors. The suite of other mitigation and monitoring measures still 
apply whenever survey operations occur.

Mitigation Conclusions

    NMFS has carefully evaluated Apache's mitigation measures and 
considered a range of other measures, including measures recommended by 
the public, in the context of ensuring that NMFS prescribes the means 
of effecting the least practicable impact on the affected marine mammal 
species and stocks and their habitat. Our evaluation of potential 
measures included consideration of the following factors in relation to 
one another:
     The manner in which, and the degree to which, the 
successful implementation of the measures are expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and

[[Page 13638]]

     The practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS and those recommended by the 
public, NMFS has determined that the required mitigation measures 
provide the means of effecting the least practicable impact on marine 
mammals species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the proposed action area. 
Apache submitted information regarding marine mammal monitoring to be 
conducted during seismic operations as part of the IHA application. 
That information can be found in Sections 12 and 14 of the application.

Monitoring Measures

1. Visual Vessel-Based Monitoring
    Vessel-based monitoring for marine mammals will be conducted by 
experienced PSOs throughout the period of marine survey activities. 
PSOs will monitor the occurrence and behavior of marine mammals near 
the survey vessel during all daylight periods during operation and 
during most daylight periods when airgun operations are not occurring. 
PSO duties include watching for and identifying marine mammals, 
recording their numbers, distances, and reactions to the survey 
operations, and documenting ``take by harassment'' as defined by NMFS.
    A sufficient number of PSOs is required onboard the survey vessel 
to meet the following criteria: (1) 100 percent monitoring coverage 
during all periods of survey operations in daylight; (2) maximum of 4 
consecutive hours on watch per PSO; and (3) maximum of 12 hours of 
watch time per day per PSO.
    PSO teams shall consist of experienced field biologists. An 
experienced field crew leader would supervise the PSO team onboard the 
survey vessel. Apache currently plans to have PSOs aboard three 
vessels: the two source vessels (M/V Peregrine Falcon and M/V Arctic 
Wolf) and one support vessel (M/V Dreamcatcher). Two PSOs would be on 
the source vessels, and two PSOs would be on the support vessel to 
observe and implement the exclusion, power down, and shut down areas. 
When marine mammals are about to enter or are sighted within designated 
Level B harassment disturbance zones and Level A harassment exclusion 
zones, airgun or pinger operations would be powered down (when 
applicable) or shut down immediately. The vessel-based observers would 
watch for marine mammals during all periods when sound sources are in 
operation and for a minimum of 30 minutes prior to the start of airgun 
or pinger operations after an extended shut down.
    Crew leaders and most other biologists serving as observers would 
be individuals with experience as observers during seismic surveys in 
Alaska or other areas in recent years.
    The observer(s) will watch for marine mammals from the best 
available vantage point on the source and support vessels, typically 
the flying bridge. The observer(s) will scan systematically with the 
unaided eye and 7x50 reticle binoculars. Laser range finders will be 
available to assist with estimating distance on the two source vessels. 
Personnel on the bridge will assist the observer(s) in watching for 
marine mammals. Seismic survey personnel will receive the same training 
as the marine mammal PSOs.
    All observations will be recorded in a standardized format. Data 
will be entered into a custom database using a notebook computer. The 
accuracy of the data would be verified by computerized validity data 
checks as the data are entered and by subsequent manual checks of the 
database. These procedures would allow for initial summaries of the 
data to be prepared during and shortly after the completion of the 
field program, and would facilitate transfer of the data to 
statistical, geographical, or other programs for future processing and 
achieving. When a mammal sighting is made, the following information 
about the sighting will be recorded:
     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 PSO, apparent 
reaction to activities (e.g., none, avoidance, approach, paralleling, 
etc.), closest point of approach, and behavioral pace;
     Time, location, speed, activity of the vessel (e.g., 
seismic airguns off, pingers on, etc.), sea state, ice cover, 
visibility, and sun glare; and
     The positions of other vessel(s) in the vicinity of the 
PSO location.
    The ship's position, speed of support vessels, and water 
temperature, water depth, sea state, ice cover, visibility, and sun 
glare will also be recorded at the start and end of each observation 
watch, every 30 minutes during a watch, and whenever there is a change 
in any of those variables.
2. Visual Shore-Based Monitoring
    In addition to the vessel-based PSOs, Apache will utilize a shore-
based station daily, when safety and weather permit, to visually 
monitor for marine mammals. The shore-based station would follow all 
safety procedures, including bear safety. The location of the shore-
based station will be sufficiently high to observe marine mammals; the 
PSOs will be equipped with pedestal mounted ``big eye'' (20 x 110) 
binoculars. The shore-based PSOs will scan the area prior to, during, 
and after the airgun operations and will be in contact with the vessel-
based PSOs via radio to communicate sightings of marine mammals 
approaching or within the project area. This communication will allow 
the vessel-based observers to go on a ``heightened'' state of alert 
regarding occurrence of marine mammals in the area and aid in timely 
implementation of mitigation measures.
3. Aerial-Based Monitoring
    Safety and weather permitting, Apache will conduct daily aerial 
surveys when there are any seismic-related activities (including but 
not limited to node laying/retrieval or airgun operations). Safety and 
weather permitting, surveys are to be flown even if the airguns are not 
being fired. Flights will be conducted with an aircraft with adequate 
viewing capabilities (i.e., view not obstructed by wing or other 
obstruction).
    When operating north or east of a line from Tyonek across to the 
eastern side of Number 3 Bay of the Captain Cook State Recreation Area, 
Cook Inlet, Apache will fly daily aerial surveys (safety and weather 
permitting). Flight paths shall encompass areas from Anchorage, along 
the coastline of the Susitna Delta to Tyonek, across the inlet to Point 
Possession, around the coastline of Chickaloon Bay to Burnt Island, and 
across to Anchorage (or in reverse order). These designations apply 
when Apache is operating in Zone 1 (see Figure 2 in the IHA 
application). These aerial surveys will be conducted in order to notify 
the vessel-based PSOs of marine mammals that may be on a

[[Page 13639]]

path that could intersect with the seismic survey, and so that Apache 
can determine if operations should be relocated or temporarily 
suspended.
    When operating in Zone 2 (see Figure 2 in the IHA application), 
Apache will conduct aerial surveys, safety and weather permitting, a 
minimum distance of 30 km (18.6 mi) around the seismic operating area 
expected for that day. Additionally, Apache will, safety and weather 
permitting, conduct aerial surveys when operating near river mouths to 
identify large congregations of beluga whales and harbor seal haul 
outs. Again, these aerial surveys will be conducted in order to notify 
the vessel-based PSOs of the presence of marine mammals that may be on 
a path that could intersect with the seismic survey, and so that Apache 
can determine if operations should be relocated or temporarily 
suspended.
    Weather and scheduling permitting, aerial surveys will fly at an 
altitude of 305 m (1,000 ft). In the event of a marine mammal sighting, 
aircraft would attempt to maintain a radial distance of 457 m (1,500 
ft) from the marine mammal(s). Aircraft would avoid approaching marine 
mammals from head-on, flying over or passing the shadow of the aircraft 
over the marine mammal(s). By following these operational requirements, 
sound levels underwater are not expected to meet or exceed NMFS 
harassment thresholds (Richardson et al., 1995; Blackwell et al., 
2002).
    Based on data collected from Apache during its survey operations 
conducted under the April 2012 IHA, NMFS has determined that the 
foregoing monitoring measures will allow Apache to identify animals 
nearing or entering the Level B harassment zone with a reasonably high 
degree of accuracy.

Reporting Measures

    Reports will be submitted to NMFS immediately if 25 belugas are 
detected in the Level B harassment zone to evaluate and make necessary 
adjustments to monitoring and mitigation. If the number of detected 
takes for any marine mammal species is met or exceeded, Apache will 
immediately cease survey operations involving the use of active sound 
sources (e.g., airguns and pingers) and notify NMFS.
1. Weekly Reports
    Weekly reports will be submitted to NMFS no later than the close of 
business (Alaska time) each Thursday during the weeks when in-water 
seismic activities take place. The field reports will summarize species 
detected, in-water activity occurring at the time of the sighting, 
behavioral reactions to in-water activities, and the number of marine 
mammals taken.
2. Monthly Reports
    Monthly reports will be submitted to NMFS for all months during 
which in-water seismic activities take place. The monthly report will 
contain and summarize the following information:
     Dates, times, locations, heading, speed, weather, sea 
conditions (including Beaufort sea state and wind force), and 
associated activities during all seismic operations and marine mammal 
sightings.
     Species, number, location, distance from the vessel, and 
behavior of any sighted marine mammals, as well as associated seismic 
activity (number of power-downs and shutdowns), observed throughout all 
monitoring activities.
     An estimate of the number (by species) of: (i) pinnipeds 
that have been exposed to the seismic activity (based on visual 
observation) at received levels greater than or equal to 160 dB re 1 
[micro]Pa (rms) and/or 190 dB re 1 [micro]Pa (rms) with a discussion of 
any specific behaviors those individuals exhibited; and (ii) cetaceans 
that have been exposed to the seismic activity (based on visual 
observation) at received levels greater than or equal to 160 dB re 1 
[micro]Pa (rms) and/or 180 dB re 1 [micro]Pa (rms) with a discussion of 
any specific behaviors those individuals exhibited.
     A description of the implementation and effectiveness of 
the: (i) terms and conditions of the Biological Opinion's Incidental 
Take Statement (ITS); and (ii) mitigation measures of the IHA. For the 
Biological Opinion, the report shall confirm the implementation of each 
Term and Condition, as well as any conservation recommendations, and 
describe their effectiveness, for minimizing the adverse effects of the 
action on ESA-listed marine mammals.
3. 90-Day Technical Report
    A report will be submitted to NMFS within 90 days after the end of 
the project. The report will summarize all activities and monitoring 
results (i.e., vessel and shore-based visual monitoring and aerial 
monitoring) conducted during in-water seismic surveys. The Technical 
Report will include the following:
     Summaries of monitoring effort (e.g., total hours, total 
distances, and marine mammal distribution through the study period, 
accounting for sea state and other factors affecting visibility and 
detectability of marine mammals).
     Analyses of the effects of various factors influencing 
detectability of marine mammals (e.g., sea state, number of observers, 
and fog/glare).
     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.
     Analyses of the effects of survey operations.
     Sighting rates of marine mammals during periods with and 
without seismic survey activities (and other variables that could 
affect detectability), such as: (i) Initial sighting distances versus 
survey activity state; (ii) closest point of approach versus survey 
activity state; (iii) observed behaviors and types of movements versus 
survey activity state; (iv) numbers of sightings/individuals seen 
versus survey activity state; (v) distribution around the source 
vessels versus survey activity state; and (vi) estimates of take by 
Level B harassment based on presence in the 160 dB harassment zone.
4. Notification of Injured or Dead Marine Mammals
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury (Level A harassment), serious injury or 
mortality (e.g., ship-strike, gear interaction, and/or entanglement), 
Apache would immediately cease the specified activities and immediately 
report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the Alaska Regional 
Stranding Coordinators. The report would include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the

[[Page 13640]]

circumstances of the prohibited take. NMFS would work with Apache to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Apache would not be able to 
resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that Apache discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
Apache would immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the NMFS Alaska Stranding Hotline and/or by email to the Alaska 
Regional Stranding Coordinators. The report would include the same 
information identified in the paragraph above. Activities would be able 
to continue while NMFS reviews the circumstances of the incident. NMFS 
would work with Apache to determine whether modifications in the 
activities are appropriate.
    In the event that Apache discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Apache would report the incident 
to the Chief of the Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or 
by email to the Alaska Regional Stranding Coordinators, within 24 hours 
of the discovery. Apache would provide photographs or video footage (if 
available) or other documentation of the stranded animal sighting to 
NMFS and the Marine Mammal Stranding Network.

Estimated Take by Incidental 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]. Only take by Level B behavioral 
harassment is anticipated as a result of the marine survey program. 
Anticipated impacts to marine mammals are associated with noise 
propagation from the sound sources (e.g., airguns and pingers) used in 
the seismic survey; no take is expected to result from the detonation 
of explosives onshore, as supported by the SSV study, from vessel 
strikes because of the slow speed of the vessels (2-4 knots), or from 
aircraft overflights, as surveys will be flown at a minimum altitude of 
305 m (1,000 ft) and at 457 m (1,500 ft) when marine mammals are 
detected.
    Apache requested and NMFS has authorized the take of five marine 
mammal species by Level B harassment. These five marine mammal species 
are: Cook Inlet beluga whale; killer whale; harbor porpoise; harbor 
seal; and Steller sea lion.
    For impulse sounds, such as those produced by airgun(s) used in the 
seismic survey, NMFS uses the 160 dB re 1 [mu]Pa (rms) isopleth to 
indicate the onset of Level B harassment. The current Level A (injury) 
harassment threshold is 180 dB (rms) for cetaceans and 190 dB (rms) for 
pinnipeds. Section 7 of Apache's application contains a full 
description of the methodology used by Apache to estimate takes by 
harassment, including calculations for the 160 dB (rms) isopleths and 
marine mammal densities in the areas of operation (see ADDRESSES), 
which was also provided in the proposed IHA notice (78 FR 80836, 
December 31, 2013). Please refer to those documents for the full 
description of the methodology. This discussion is not repeated here. 
NMFS verified Apache's methods and used Apache's take estimates in its 
analyses. However, as discussed previously in this document in the 
response to Comment 11, NMFS has increased the authorized take for 
harbor seals from that requested by Apache and published in the 
proposed IHA notice to the average estimate noted in Apache's IHA 
application.
    The estimated take levels presented in Table 5 in the proposed IHA 
Federal Register notice and in Table 8 of Apache's application identify 
the worst-case probability of encountering these marine mammal species 
within the 160 dB zone during the survey and does not account for 
seasonal distribution of these species, haul outs of harbor seals and 
Steller sea lions, or the rigorous mitigation and monitoring techniques 
implemented by Apache to reduce Level B takes to all species.
    Table 1 here outlines the density estimates used to estimate Level 
B takes, the authorized Level B harassment take levels, the abundance 
of each species in Cook Inlet, the percentage of each species or stock 
estimated to be taken, and current population trends.

  Table 1--Density Estimates, Authorized Level B Harassment Take Levels, Species or Stock Abundance, Percentage of Population Proposed To Be Taken, and
                                                                  Species Trend Status
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Average density
             Species                ( /hr/km    Authorized level       Abundance         Percentage of                    Trend
                                           \2\)               B take                                population
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beluga Whale.....................  Zone 1 = 0.0212....                 30  312................                9.6  Decreasing.
                                   Zone 2 = 0.0056....
Harbor Seal......................  0.00512............                440  22,900.............                1.9  Stable.
Harbor Porpoise..................  0.00009............                 20  25,987.............               0.08  No reliable information.
Killer Whale.....................  0.00001............                 10  1,123 (resident)...               0.89  Resident stock possibly increasing.
                                                                           552 (transient)....                1.8   Transient stock stable.
Steller Sea Lion.................  0.00016............                 20  45,916.............               0.04  Decreasing but with regional
                                                                                                                    variability (some stable).
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 13641]]

Analysis and Determinations

Negligible Impact

    Negligible impact is ``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'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, feeding, migration, 
etc.), as well as the number and nature of estimated Level A harassment 
takes, the number of estimated mortalities, and effects on habitat, and 
the status of the species.
    Given the required mitigation and related monitoring, no injuries 
or mortalities are anticipated to occur as a result of Apache's seismic 
survey in Cook Inlet, and none are authorized. Additionally, animals in 
the area are not expected to incur hearing impairment (i.e., TTS or 
PTS) or non-auditory physiological effects. The number of takes that 
are anticipated and authorized are expected to be limited to short-term 
Level B behavioral harassment. The seismic airguns do not operate 
continuously over a 24-hour period. Rather airguns are operational for 
a few hours at a time totaling about 12 hours a day.
    Both Cook Inlet beluga whales and the western DPS of Steller sea 
lions are listed as endangered under the ESA. Both stocks are also 
considered depleted under the MMPA, and both stocks are declining at a 
rate of about 1.1-1.5 percent per year. Additionally, as discussed in 
NMFS' EA for this IHA, the Cook Inlet beluga whale population has not 
rebounded since the moratorium on subsistence hunting was enacted in 
1999 and extended indefinitely in December 2000. The population of 
belugas has a constricted range that is confined to the Inlet. The 
other three species that may be taken by harassment during Apache's 
seismic survey program are not listed as threatened or endangered under 
the ESA nor as depleted under the MMPA.
    Odontocete (including Cook Inlet beluga whales, killer whales, and 
harbor porpoises) reactions to seismic energy pulses are usually 
assumed to be limited to shorter distances from the airgun(s) than are 
those of mysticetes, in part because odontocete low-frequency hearing 
is assumed to be less sensitive than that of mysticetes. 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 (6-12 mi) of 
seismic vessels during aerial surveys (Miller et al., 2005). However, 
as noted previously, Cook Inlet belugas are more accustomed to 
anthropogenic sound than beluga whales in the Beaufort Sea. Therefore, 
the results from the Beaufort Sea surveys do not directly relate to 
potential reactions of Cook Inlet beluga whales. Also, due to the 
dispersed distribution of beluga whales in Cook Inlet during winter and 
the concentration of beluga whales in upper Cook Inlet from late April 
through early fall, belugas would likely occur in small numbers in the 
survey area designated as Zone 2 by Apache during the survey period. 
For the same reason, it is unlikely that animals would be exposed to 
received levels capable of causing injury.
    Taking into account the required mitigation measures, 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''. 
However, even Level B harassment takes will likely be limited and less 
than those authorized based on the rigorous mitigation measures 
required in the IHA, especially for cetaceans. Apache is required to 
shutdown airguns when any beluga whale is sighted approaching or 
entering the Level B harassment disturbance zone and must also shutdown 
if aggregations of five or more harbor porpoise or killer whales are 
sighted approaching or entering this same zone. This is meant to reduce 
behavioral disturbances even further. Animals are not expected to 
permanently abandon any area that is surveyed, and any behaviors that 
are interrupted during the activity are expected to resume once the 
activity ceases. Only a small portion of marine mammal habitat will be 
affected at any time, and other areas within Cook Inlet will be 
available for necessary biological functions. In addition, the area 
where the survey will take place is not known to be an important 
location where beluga whales congregate for feeding, calving, or 
nursing. The primary location for these biological life functions occur 
in the Susitna Delta region of upper Cook Inlet. The IHA requires 
Apache to implement a 16 km (10 mi) seasonal exclusion from seismic 
survey operations in this region from April 15-October 15. The highest 
concentrations of belugas are typically found in this area from early 
May through September each year. NMFS has incorporated a 2-week buffer 
on each end of this seasonal use timeframe to account for any anomalies 
in distribution and marine mammal usage.
    Mitigation measures such as controlled vessel speed, dedicated 
PSOs, non-pursuit, and shutdowns or power downs when marine mammals are 
seen within defined ranges will further reduce short-term reactions and 
minimize any effects on hearing sensitivity. In all cases, the effects 
of the seismic survey are expected to be short-term, with no lasting 
biological consequence. Therefore, because exposure of cetaceans to 
sounds produced by this phase of Apache's seismic survey is not 
anticipated to have any fitness effects that would reduce the 
reproductive success or survivorship of any individuals, it is not 
expected to affect annual rates of recruitment or survival of the 
stock.
    Some individual pinnipeds may be exposed to sound from the seismic 
surveys more than once during the timeframe of the project. Taking into 
account the required mitigation measures, effects on pinnipeds 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''. Animals are not 
expected to permanently abandon any area that is surveyed, and any 
behaviors that are interrupted during the activity are expected to 
resume once the activity ceases. Only a small portion of pinniped 
habitat will be affected at any time, and other areas within Cook Inlet 
will be available for necessary biological functions. In addition, the 
area where the survey will take place is not known to be an important 
location where pinnipeds haul out. The closest known haul-out site is 
located on Kalgin Island, which is about 22 km from the McArthur River. 
Data from some 2013 aerial surveys indicate large groups of harbor seal 
sightings in the Susitna Delta region. However, these large groups were 
sighted during time periods when Apache is not permitted to conduct 
airgun operations within 16 km (10 mi) of the MHHW line of the Susitna 
Delta region. For these reasons, the exposure of pinnipeds to sounds 
produced by this phase of Apache's

[[Page 13642]]

seismic survey is not anticipated to have an effect on annual rates of 
recruitment or survival.
    Potential impacts to marine mammal habitat were discussed 
previously in this document and the proposed IHA notice (see the 
``Anticipated Effects on Habitat'' section). Although some disturbance 
is possible to food sources of marine mammals, the impacts are 
anticipated to be minor enough as to not affect annual rates of 
recruitment or survival of marine mammals in the area. Based on the 
size of Cook Inlet where feeding by marine mammals occurs versus the 
localized area of the marine survey activities, any missed feeding 
opportunities in the direct project area would be minor based on the 
fact that other feeding areas exist elsewhere. Additionally, seismic 
survey operations will not occur in the primary beluga feeding and 
calving habitat during times of high use.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
Apache's seismic survey will have a negligible impact on the affected 
marine mammal species or stocks.

Small Numbers

    The authorized takes represent 9.6 percent of the Cook Inlet beluga 
whale population of approximately 312 animals (Allen and Angliss, 
2013), 0.89 percent of the Alaska resident stock and 1.8 percent of the 
Gulf of Alaska, Aleutian Island and Bering Sea stock of killer whales 
(1,123 residents and 552 transients), and 0.08 percent of the Gulf of 
Alaska stock of approximately 25,987 harbor porpoises. The authorized 
takes for harbor seals represent 1.9 percent of the Cook Inlet/Shelikof 
stock of approximately 22,900 animals. The authorized takes for Steller 
sea lions represent 0.04 percent of the western stock of approximately 
45,916 animals. These take estimates represent the percentage of each 
species or stock that could be taken by Level B behavioral harassment 
if each animal is taken only once.
    NMFS finds that any incidental take reasonably likely to result 
from the effects of the proposed activities, as mitigated through this 
IHA process, will be limited to small numbers of the affected species 
or stock sizes. In addition to the quantitative methods used to 
estimate take, NMFS also considered qualitative factors that further 
support the ``small numbers'' determination, including: (1) The 
seasonal distribution and habitat use patterns of Cook Inlet beluga 
whales, which suggest that for much of the time only a small portion of 
the population would be accessible to impacts from Apache's activity, 
as most animals are found in the Susitna Delta region of Upper Cook 
Inlet from early May through September; (2) other cetacean species and 
Steller sea lions are not common in the seismic survey area; (3) the 
mitigation requirements, which provide spatio-temporal limitations that 
avoid impacts to large numbers of belugas feeding and calving in the 
Susitna Delta and limit exposures to sound levels associated with Level 
B harassment; (4) the required monitoring requirements and mitigation 
measures described earlier in this document for all marine mammal 
species will further reduce impacts and the amount of takes; and (5) 
monitoring results from previous activities that indicated no beluga 
whale sightings within the Level B harassment disturbance zone and low 
levels of Level B harassment takes of other marine mammals. Therefore, 
NMFS determined that the number of animals likely to be taken is small.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

Relevant Subsistence Uses

    The subsistence harvest of marine mammals transcends the 
nutritional and economic values attributed to the animal and is an 
integral part of the cultural identity of the region's Alaska Native 
communities. Inedible parts of the whale provide Native artisans with 
materials for cultural handicrafts, and the hunting itself perpetuates 
Native traditions by transmitting traditional skills and knowledge to 
younger generations (NOAA, 2007).
    The Cook Inlet beluga whale has traditionally been hunted by Alaska 
Natives for subsistence purposes. For several decades prior to the 
1980s, the Native Village of Tyonek residents were the primary 
subsistence hunters of Cook Inlet beluga whales. During the 1980s and 
1990s, Alaska Natives from villages in the western, northwestern, and 
North Slope regions of Alaska either moved to or visited the south 
central region and participated in the yearly subsistence harvest 
(Stanek, 1994). From 1994 to 1998, NMFS estimated 65 whales per year 
(range 21-123) were taken in this harvest, including those successfully 
taken for food and those struck and lost. NMFS has concluded that this 
number is high enough to account for the estimated 14 percent annual 
decline in the population during this time (Hobbs et al., 2008). Actual 
mortality may have been higher, given the difficulty of estimating the 
number of whales struck and lost during the hunts. In 1999, a 
moratorium was enacted (Public Law 106-31) prohibiting the subsistence 
take of Cook Inlet beluga whales except through a cooperative agreement 
between NMFS and the affected Alaska Native organizations. Since the 
Cook Inlet beluga whale harvest was regulated in 1999 requiring 
cooperative agreements, five beluga whales have been struck and 
harvested. Those beluga whales were harvested in 2001 (one animal), 
2002 (one animal), 2003 (one animal), and 2005 (two animals). The 
Native Village of Tyonek agreed not to hunt or request a hunt in 2007, 
when no co-management agreement was to be signed (NMFS, 2008a).
    On October 15, 2008, NMFS published a final rule that established 
long-term harvest limits on the Cook Inlet beluga whales that may be 
taken by Alaska Natives for subsistence purposes (73 FR 60976). That 
rule prohibited harvest for a 5-year period (2008-2012), if the average 
abundance for the Cook Inlet beluga whales from the prior five years 
(2003-2007) was below 350 whales. The next 5-year period that could 
allow for a harvest (2013-2017), would require the previous five-year 
average (2008-2012) to be above 350 whales. The 2008 Cook Inlet Beluga 
Whale Subsistence Harvest Final Supplemental Environmental Impact 
Statement (NMFS, 2008a) authorizes how many beluga whales can be taken 
during a 5-year interval based on the 5-year population estimates and 
10-year measure of the population growth rate. Based on the 2008-2012 
5-year abundance estimates, no hunt occurred between 2008 and 2012 
(NMFS, 2008a). The CIMMC, which managed the Alaska Native Subsistence 
fishery with NMFS, was disbanded by a unanimous vote of the Tribes' 
representatives on June 20, 2012. At this time, no harvest is expected 
in 2014. Residents of the Native Village of Tyonek are the primary 
subsistence users in Knik Arm area.
    Data on the harvest of other marine mammals in Cook Inlet are 
lacking. Some data are available on the subsistence harvest of harbor 
seals, harbor porpoises, and killer whales in Alaska in the marine 
mammal stock assessments. However, these numbers are for the Gulf of 
Alaska including Cook Inlet, and they are not indicative of the harvest 
in Cook Inlet.
    Some detailed information on the subsistence harvest of harbor 
seals is available from past studies conducted by the ADF&G (Wolfe et 
al., 2009). In

[[Page 13643]]

2008, only 33 harbor seals were taken for harvest in the Upper Kenai-
Cook Inlet area. In the same study, reports from hunters stated that 
harbor seal populations in the area were increasing (28.6%) or 
remaining stable (71.4%). The specific hunting regions identified were 
Anchorage, Homer, Kenai, and Tyonek, and hunting generally peaks in 
March, September, and November (Wolfe et al., 2009).

Potential Impacts to Subsistence Uses

    Section 101(a)(5)(D) requires NMFS to determine that the 
authorization will not have an unmitigable adverse impact on the 
availability of marine mammal species or stocks for subsistence use. 
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.
    The primary concern is the disturbance of marine mammals through 
the introduction of anthropogenic sound into the marine environment 
during the seismic survey. Marine mammals could be behaviorally 
harassed and either become more difficult to hunt or temporarily 
abandon traditional hunting grounds. However, the seismic survey will 
not have any impacts to beluga harvests as none currently occur in Cook 
Inlet. Additionally, subsistence harvests of other marine mammal 
species are limited in Cook Inlet.

Plan of Cooperation or Measures To Minimize Impacts to Subsistence 
Hunts

    Regulations at 50 CFR 216.104(a)(12) require IHA applicants for 
activities that take place in Arctic waters to provide a Plan of 
Cooperation 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. NMFS 
regulations define Arctic waters as waters above 60[deg] N. latitude. 
Consistent with NMFS' implementing regulations, Apache met with the 
CIMMC--a now dissolved ANO that represented Cook Inlet tribes--on March 
29, 2011, to discuss the proposed activities and discuss any 
subsistence concerns. Apache also met with the Tyonek Native 
Corporation on November 9, 2010 and the Salamatof Native Corporation on 
November 22, 2010. Additional meetings were held with the Native 
Village of Tyonek, the Kenaitze Indian Tribe, and Knik Tribal Council, 
and the Ninilchik Traditional Council. According to Apache, during 
these meetings, no concerns were raised regarding potential conflict 
with subsistence harvest of marine mammals. Apache has identified the 
following features that are intended to reduce impacts to subsistence 
users:
     In-water seismic activities will follow mitigation 
procedures to minimize effects on the behavior of marine mammals and, 
therefore, opportunities for harvest by Alaska Native communities; and
     Regional subsistence representatives may support recording 
marine mammal observations along with marine mammal biologists during 
the monitoring programs and will be provided with annual reports.
    Since the issuance of the April 2012 IHA, Apache has maintained 
regular and consistent communication with federally recognized Alaska 
Natives. The Alaska Natives, Native Corporations, and ANOs that Apache 
has communicated with include: The Native Village of Tyonek; Tyonek 
Native Corporation; Ninilchik Native Association; Ninilchik Traditional 
Council; Salamatof Native Association; Knikatnu; Knik Native Council; 
Alexander Creek; Cook Inlet Region, Inc.; the Native Village of 
Eklutna; Kenaitze Indian Tribe; and Seldovia Native Assocaition. Apache 
has shared information gathered during the seismic survey conducted 
under the April 2012 IHA and hosted an information exchange with Alaska 
Native Villages, Native Corporations, and other Non-Governmental 
Organizations in the spring of 2013 where data from the past year's 
monitoring operations was presented.
    Apache and NMFS recognize the importance of ensuring that ANOs and 
federally recognized tribes are informed, engaged, and involved during 
the permitting process and will continue to work with the ANOs and 
tribes to discuss operations and activities. On February 6, 2012, in 
response to requests for government-to-government consultations by the 
CIMMC and Native Village of Eklutna, NMFS met with representatives of 
these two groups and a representative from the Ninilchik. We engaged in 
a discussion about the proposed IHA for phase 1 of Apache's seismic 
program, the MMPA process for issuing an IHA, concerns regarding Cook 
Inlet beluga whales, and how to achieve greater coordination with NMFS 
on issues that impact tribal concerns. Following the publication of 
this proposed IHA, we contacted the local Native Villages to inform 
them of the availability of the Federal Register notice and the opening 
of the public comment period and to invite their input. We received one 
comment letter from several Native organizations, and we have responded 
to their comments and concerns earlier in this document. However, they 
did not request a formal government-to-government consultation with us 
on the third IHA. Apache has continued to meet with the Native Village 
of Tyonek, Tyonek Native Corporation, Cook Inlet Region Inc., and other 
recognized tribes and village corporations in the Cook Inlet Region 
throughout 2013.

Unmitigable Adverse Impact Analysis and Determination

    The project will not have any effect on current beluga whale 
harvests because no beluga harvest will take place in 2014. 
Additionally, the seismic survey area is not an important native 
subsistence site for other subsistence species of marine mammals. Also, 
because of the relatively small proportion of marine mammals utilizing 
Cook Inlet, the number harvested is expected to be extremely low. 
Therefore, because the program would result in only temporary 
disturbances, the seismic program would not impact the availability of 
these other marine mammal species for subsistence uses.
    The timing and location of subsistence harvest of Cook Inlet harbor 
seals may coincide with Apache's project, but because this subsistence 
hunt is conducted opportunistically and at such a low level (NMFS, 
2013c), Apache's program is not expected to have an impact on the 
subsistence use of harbor seals.
    NMFS anticipates that any effects from Apache's seismic survey on 
marine mammals, especially harbor seals and Cook Inlet beluga whales, 
which are or have been taken for subsistence uses, would be short-term, 
site specific, and limited to inconsequential changes in behavior and 
mild stress responses. NMFS does not anticipate that the authorized 
taking of affected species or stocks will reduce the availability of 
the species to a level insufficient for a harvest to meet subsistence 
needs by: (1) Causing the marine mammals to abandon or avoid hunting 
areas; (2) directly displacing subsistence users; or (3) placing 
physical barriers between the marine mammals and the subsistence 
hunters; and that cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to

[[Page 13644]]

allow subsistence needs to be met. Based on the description of the 
specified activity, the measures described to minimize adverse effects 
on the availability of marine mammals for subsistence purposes, and the 
required mitigation and monitoring measures, NMFS has determined that 
there will not be an unmitgable adverse impact on subsistence uses from 
Apache's activities.

Endangered Species Act (ESA)

    There are two marine mammal species listed as endangered under the 
ESA with confirmed or possible occurrence in the proposed project area: 
The Cook Inlet beluga whale and the western DPS of Steller sea lion. In 
addition, the proposed action would occur within designated critical 
habitat for the Cook Inlet beluga whale. NMFS' Permits and Conservation 
Division consulted with NMFS' Alaska Region Protected Resources 
Division under section 7 of the ESA on the issuance of the first IHA to 
Apache under section 101(a)(5)(D) of the MMPA, which analyzed the 
impacts in the other areas where Apache has proposed to conduct seismic 
surveys, including Area 2 (the area covered in the second IHA).
    On May 21, 2012, NMFS' Alaska Region issued a revised Biological 
Opinion, which concluded that the IHA is not likely to jeopardize the 
continued existence of the marine mammal species (such as Cook Inlet 
beluga whales and Steller sea lions) affected by the seismic survey or 
destroy or adversely modify designated critical habitat for Cook Inlet 
beluga whales. Although the Biological Opinion considered the effects 
of multiple years of seismic surveying in the entire project area as a 
whole (see Figure 6 in the Biological Opinion), to be cautious, in 
light of the change in scope, NMFS' Permits and Conservation Division 
requested reinitiation of consultation under section 7 of the ESA to 
address these changes in the proposed action. A new Biological Opinion 
was issued on February 14, 2013. That Biological Opinion determined 
that the issuance of an IHA is not likely to jeopardize the continued 
existence of the Cook Inlet beluga whales or the western distinct 
population segment of Steller sea lions or destroy or adversely modify 
Cook Inlet beluga whale critical habitat. Finally, the Alaska Region 
issued an Incidental Take Statement (ITS) for Cook Inlet beluga whales 
and Steller sea lions. The ITS contains reasonable and prudent measures 
implemented by terms and conditions to minimize the effects of this 
take.
    The Biological Opinion issued on February 14, 2013, is valid 
through December 31, 2014. NMFS' Permits and Conservation Division 
discussed this third IHA request with NMFS' Alaska Region and 
determined that this IHA falls within the scope and analysis of the 
current Biological Opinion. This IHA does not trigger any of the 
factors requiring a reinitiation of consultation. Therefore, a new 
section 7 consultation was not conducted.

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 
Apache to take marine mammals incidental to conducting a 3D seismic 
survey program in Cook Inlet, Alaska. NMFS has finalized the EA and 
prepared a FONSI for this action. Therefore, preparation of an 
Environmental Impact Statement is not necessary.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Apache for the take of marine mammals incidental to conducting a 
seismic survey program in Cook Inlet, Alaska, from March 4 through 
December 31, 2014, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: March 4, 2014.
Perry F. Gayaldo,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2014-05158 Filed 3-10-14; 8:45 am]
BILLING CODE 3510-22-P