Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Open Water Marine Seismic Survey in the Beaufort and Chukchi Seas, Alaska

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XV09

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Open Water Marine Seismic Survey in the Beaufort and Chukchi Seas, Alaska

AGENCY:

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

ACTION:

Notice; issuance of an incidental take authorization.

SUMMARY:

In accordance with the Marine Mammal Protection Act (MMPA) regulations, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to Shell Offshore Inc. (Shell) to take, by harassment, small numbers of 8 species of marine mammals incidental to a marine survey program, which includes site clearance and shallow hazards, ice gouge, and strudel scour surveys, in the Beaufort and Chukchi Seas, Alaska, during the 2010 Arctic open water season.

DATES:

Effective August 6, 2010, through November 30, 2010.

ADDRESSES:

Inquiry for information on the incidental take authorization should be addressed to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. A copy of the application containing a list of the references used in this document, NMFS' Environmental Assessment (EA) and Finding of No Significant Impact (FONSI), and the IHA may be obtained by writing to the address specified above, telephoning the contact listed below (

see

FOR FURTHER INFORMATION CONTACT

), or visiting the Internet at:

http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT:

Shane Guan, Office of Protected Resources, NMFS, (301) 713-2289 or Brad Smith, NMFS, Alaska Region, (907) 271-3023.

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361

et seq.

) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:

any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [“Level A harassment”]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [“Level B harassment”].

Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.

Summary of Request

NMFS received an application on December 24, 2009, from Shell for the taking, by harassment, of marine mammals incidental to several marine surveys designed to gather data relative to site clearance and shallow hazards, ice gouge, and strudel scour in selected areas of the Beaufort Sea and ice gouge in the Chukchi Sea, Alaska. These surveys are continuations of those performed by Shell in the Beaufort Sea beginning in 2006, and in the Chukchi Sea in 2008. After addressing comments from NMFS, Shell modified its application and submitted a revised application on April 19, 2010. The April 19, 2010, application is the one available for public comment (

see

ADDRESSES

) and considered by NMFS for this proposed IHA.

Site clearance and shallow hazards surveys will evaluate the seafloor, and shallow sub seafloor at prospective exploration drilling locations, focusing on the depth to seafloor, topography, the potential for shallow faults or gas zones, and the presence of archaeological features. The types of equipment used to conduct these surveys use low level energy sources focused on limited areas in order to characterize the footprint of the seafloor and shallow sub seafloor at prospective drilling locations. Ice gouge surveys will determine the depth and distribution of ice gouges into the seabed. Ice gouge surveys use low-level energy sources similar to the site clearance and shallow hazards.

Shell intends to conduct these marine surveys during the 2010 Arctic open-water season (July through October). Impacts to marine mammals may occur from noise produced by various active acoustic sources used in the surveys.

Description of the Specified Activity

Shell plans to complete the following surveys during the 2010 open-water season:

• Beaufort Sea Site Clearance and Shallow Hazards Surveys

• Beaufort Sea Marine Surveys

○ Ice Gouge Survey

○ Strudel Scour Survey

• Chukchi Sea Marine Surveys

○ Ice Gouge Survey

Each of these individual surveys will require marine vessels to accomplish the work. Shell states that these marine surveys will be conducted between July and October 2010, however, ice and weather conditions will influence the exact dates and locations marine vessel survey operations can be conducted.

1. Beaufort Sea Site Clearance and Shallow Hazards Surveys

Shell's proposed site clearance and shallow hazards surveys are to gather data on: (1) Bathymetry, (2) seabed topography and other seabed characteristics (

e.g.,

boulder patches), (3) potential geohazards (

e.g.,

shallow faults and shallow gas zones), and (4) the presence of any archeological features (

e.g.,

shipwrecks). Site clearance and shallow hazards surveys can be accomplished by one vessel with

acoustic sources. No other vessels are necessary to accomplish the proposed work.

The focus of this activity will be on Shell's existing leases in Harrison Bay in the central Beaufort Sea. Actual locations of site clearance and shallow hazards surveys within Harrison Bay have not been definitively set as of this date, although these will occur on the Outer Continental Shelf (OCS) lease blocks in Harrison Bay located in the Beaufort Sea shown on Figure 1 of Shell's IHA application. The site clearance and shallow hazards surveys will be conducted within an area of approximately 216 mi

2

(558 km

2

) north of Thetis Island more than 3 mi (4.8 km) to approximately 20 mi (33 km) offshore. Approximately 63 mi (162.7 km) of the data acquisition is planned within this general area. The survey track line is approximately 351.5 mi

2

(565 km

2

). The average depth of the survey area ranges from 35 to 85 ft (10.7 to 26 m).

Ice and weather permitting, Shell is proposing to conduct site clearance and shallow hazards surveys within the timeframe of July 2010 through October 2010. The actual survey time is expected to take 30 days.

The vessel that will be conducting this activity has not been determined at this point, but will be similar to the R/V

Mt. Mitchell

which is the vessel that was used for surveys in the Chukchi Sea in 2009. The R/V

Mt. Mitchell

is a diesel powered-vessel, 70 m (231 ft) long, 12.7 m (42 ft) wide, with a 4.5 m (15 ft) draft.

It is proposed that the following acoustic instrumentation, or something similar, be used.

• Deep Penetration Profiler, (40 cu-in airgun source with 48-channel streamer) and Medium Penetration Profiler, (40 cu-in airgun source with 24-channel streamer):

The deep and medium penetration profilers are the major active acoustic sources used in the site clearance and shallow hazards surveys. The modeled source level is estimated at 217 dB re 1 μPa rms. The 120, 160, 180, and 190 dB re 1 μPa rms received level isopleths are estimated at 14,900 m, 1,220 m, 125 m, and 35 m from the source, respectively.

• Dual-frequency side scan sonar, (100-400 kHz or 300-600 kHz):

Based on Shell's 2006 90-day report, the source level of this active acoustic source when operated at 190 and 240 kHz is approximately 225 dB re 1 μPa rms. Due to its high frequency range, NMFS does not consider its acoustic energy would be strong enough to cause impacts to marine mammals beyond a couple of hundred meters from the source.

• Single beam Echo Sounder, (high: 100-340 kHz, low: 24-50 kHz):

This echo sounder is a typical “fathometer” or “fish-finder” that is widely used in most recreational or fishing vessels. Source levels for these types of units are typically in the range of 180-200 dB re 1 μPa rms. Using a spherical spreading model, the 160 dB isopleth is estimated at 100 m from the source for the lower range of the acoustic signals. For the higher range of the signal, due to the higher absorption coefficients, the 160 dB isopleth is expected to be under 100 m from the source.

• Multi-Beam Echo Sounder, (240 kHz):

Since the output frequency from this echo sounder is above the upper-limit of marine mammal hearing range, NMFS believes it unlikely that a marine mammal would be taken by this activity.

• Shallow Sub-Bottom Profiler, (2-12 kHz):

Information regarding this active acoustic source on two vessels (

Alpha Helix

and

Henry C.

) was provided in Shell's 2008 90-day open water marine survey monitoring report. For the

Alpha Helix

measurement, at 3.5 kHz, the source level for the shallow sub-bottom profiler was 193.8 dB re 1 μPa rms, and its 120, 160, 180, and 190 dB re 1 μPa rms isopleths were determined to be 310 m, 14 m, 3 m, and 1 m from the source, respectively. For the

Henry C.

measurement, at 3.5 kHz, the source level of the similar profiler was measured at 167.2 dB re 1 μPa rms, and its 120 and 160 dB re 1 μPa rms isopleths were determined to be 980 m and 3 m, respectively.

2. Beaufort Sea Marine Surveys

Two marine survey activities are proposed for the Beaufort Sea: (1) Ice gouge survey, and (2) strudel scour survey. Shell continues to conduct these types of marine surveys annually over a few years to enhance baseline and statistical understanding of the formation, longevity, and temporal distribution of sea floor features and baseline environmental and biologic conditions. Marine surveys for ice gouge and strudel scour surveys can be accomplished by one vessel for each. No other vessels are necessary to accomplish the proposed work.

The proposed ice gouge surveys will be conducted in both State of Alaska waters including Camden Bay, and the Federal waters of the OCS in the Beaufort Sea near Pt. Thomson ranging from near shore to approximately 37 mi (59.5 km) offshore. The water depth in the ice gouging survey area ranges between 15 to 120 ft (4.5 to 36.6 m), and the surveys will be conducted within an area of 1,950 mi

2

(5,036 km

2

) with a survey track line of approximately 1,276 mi (2,050 km,

See

Figure 2 of Shell's IHA application).

The proposed strudel scour survey will occur in State of Alaska waters in Pt. Thomson ranging from near shore to 3 mi (4.8 km) offshore. The water depth ranges from 3 to 20 ft (0.9 to 6.1 m). The strudel scour survey will be conducted in an area of approximately 140 mi

2

(361.5 km

2

). The survey track line is approximately 124 mi (200 km).

Ice and weather permitting, Shell is proposing to conduct this work within the timeframe of July 2010 through October 2010. The actual survey time is expected to take 45 days.

Ice Gouge Survey

As part of the feasibility study for Shell's Alaskan prospects a survey is required to identify and evaluate seabed conditions. Ice gouging is created by ice keels, which project from the bottom of moving ice and gouge into seafloor sediment. Ice gouge features are mapped, and by surveying each year, new gouges can be identified. The ice gouge information is used to aid in predicting the prospect of, orientation, depth, and frequency of future ice gouges. Ice gouge information is required for the design of potential pipelines and for the design of pipeline trenching and installation equipment.

The 2010 ice gouge surveys will be conducted using the conventional survey method where the acoustic instrumentation will be towed behind the survey vessel, or possibly with the use of an Autonomous Underwater Vehicle (AUV). The same acoustic instrumentation will be used during both AUV and the conventional survey methods. The AUV is a self-propelled autonomous vehicle that will be equipped with acoustic instrumentation and programmed for remote operation over the seafloor where the ice gouge survey is to be conducted, and the vehicle is launched and retrieved from a marine vessel.

For the survey operations, the AUV will be launched from the stern of a vessel and will survey the seafloor close to the vessel. The vessel will transit an area, with the AUV surveying the area behind the vessel. The AUV also has a Collision Avoidance System and operates without a towline that reduces potential impact to marine mammals (such as entanglement). Using bathymetric sonar or multibeam echo sounder the AUV can record the gouges on the seafloor surface caused by ice keels. The sub-bottom profiler can

record layers beneath the surface to about 20 feet (6 m). The AUV is more maneuverable and able to complete surveys more quickly than a conventional survey. This reduces the duration that vessels producing sound must operate. The proposed ice gouge survey in the Beaufort Sea is expected to last for 45 days.

The vessel that will be used for ice gouging surveys has not been selected, but it is anticipated that the vessel would be similar to the R/V

Mt. Mitchell,

which is 70 m (231 ft) long, 12.7 m (42 ft) wide, and 4.5 m (15 ft) draft.

It is proposed that the following acoustic instrumentation, or something similar, be used.

• Dual Frequency sub-bottom profiler; (2 to 7 kHz or 8 to 23 kHz):

Information regarding this active acoustic source on

Henry C.

was provided in Shell's 2006 and 2007 90-day open water marine survey monitoring reports. In the 2006 report, at 2-7 and 8-23 kHz, the source level was estimated at 184.6 dB re 1 μPa rms, and its 120, 160, and 180 dB re 1 μPa rms isopleths were determined to be 456 m, 7 m, and 2 m from the source, respectively. In the 2007 report, at 2-7 kHz, the source level was estimated at 161.1 dB re 1 μPa rms, and its 120 and 160 dB re 1 μPa rms isopleths were determined to be 260 m and 1 m, respectively.

• Multibeam Echo Sounder (240 kHz) and Side-scan sonar system (190 to 210 kHz):

Since the output frequencies from these acoustic instruments are above the upper-limits of marine mammal hearing range, NMFS believes it unlikely that a marine mammal would be taken by this activity.

Strudel Scour Survey

During the early melt on the North Slope, the rivers begin to flow and discharge water over the coastal sea ice near the river deltas. That water flows down holes in the ice (“strudels”) and scours the seafloor. These areas are called “strudel scours”. Information on these features is required for prospective pipeline planning. Two proposed activities are required to gather this information: aerial survey via helicopter overflights during the melt to locate the strudels; and strudel scour marine surveys to gather bathymetric data. The overflights investigate possible sources of overflood water and will survey local streams that discharge in the vicinity of Point Thomson including the Staines River, which discharges to the east into Flaxman Lagoon, and the Canning River, which discharges to the east directly into the Beaufort Sea. These helicopter overflights will occur during late May/early June 2010 and, weather permitting, should take no more than two days. There are no planned landings during these overflights other than at the Deadhorse or Kaktovik airports.

Areas that have strudel scour identified during the aerial survey will be verified and surveyed with a marine vessel after the breakup of nearshore ice. The vessel has not been determined, however, it is anticipated that it will be the diesel-powered R/V

Annika Marie

which has been utilized 2006 through 2008 and measures 13.1 m (43 ft) long, or similar vessel.

This proposed activity is not anticipated to take more than 5 days to conduct. The operation is conducted in the shallow water areas near the coast in the vicinity of Point Thomson. This vessel will use the following equipment:

• Multibeam Echo Sounder (240 kHz) and Side-scan sonar system (190 to 210 kHz):

Since the output frequencies from these acoustic instruments are above the upper-limits of marine mammal hearing range, NMFS believes it unlikely that a marine mammal would be taken by this activity.

• Single Beam Bathymetric Sonar:

Source levels for these types of units are typically in the 180-230 dB range, somewhat lower than multibeam or side scan sonars. A unit used during a previous survey had a source level (at high power) of 215 dB re 1 μPa (0-peak) and a standard operating frequency of 200 kHz. Since the output frequencies from these acoustic instruments are above the upper-limits of marine mammal hearing range, NMFS believes it unlikely that a marine mammal would be taken by this activity.

3. Chukchi Sea Marine Survey—Ice Gouge Survey

Shell proposes one marine survey activity for the Chukchi Sea in 2010. Shell intends to conduct ice gouge surveys annually over a few years to enhance baseline and statistical understanding of the formation, longevity, and temporal distribution of sea floor features and baseline environmental and biologic conditions. The ice gouge survey can be accomplished by one vessel. No other vessels are necessary to accomplish the proposed work.

The proposed ice gouge surveys will be conducted in both State of Alaska waters and the Federal waters of the OCS in the Chukchi Sea. Actual locations of the ice gouge surveys have not been definitively set as of this date, although these will occur within the area outlined in Figure 4 of the IHA application. The water depth of the ice gouging survey ranges between 20 to 120 ft (6.1 to 36.6 m), and the surveys will take in an area of 21,954 mi

2

(56,965 km

2

), with a survey track line of approximately 1,539 mi (2,473 km). This activity is proposed to be conducted within the timeframe of July through October 2010. The total program will last a maximum of 60 days, excluding downtime due to ice, weather and other unforeseen delays, and should be complete by the end of October 2010.

The equipment and method used to conduct the ice gouge survey in the Chukchi Sea will be the same as that used in the Beaufort Sea. Because of the low source levels of the sub-bottom profiler and the high-frequency nature of the multi-beam echo sounder used in the proposed ice gouge survey, NMFS believes it unlikely that a marine mammal would be taken by this activity.

Comments and Responses

A notice of NMFS' proposal to issue an IHA to Shell published in the

Federal Register

on May 18, 2010 (75 FR 27708). That notice described, in detail, Shell's proposed activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received five comment letters from the following: the Marine Mammal Commission (Commission); the Alaska Eskimo Whaling Commission (AEWC); the Inupiat Community of the Arctic Slope (ICAS); the North Slope Borough Office of the Mayor (NSB); and Alaska Wilderness League (AWL), Audubon Alaska, Center for Biological Diversity, Defenders of Wildlife, Earthjustice, Greenpeace, Natural Resources Defense Council, Northern Alaska Environmental Center, Ocean Conservancy, Oceana, Pacific Environment, Sierra Club, and World Wildlife Fund (collectively “AWL”), along with an attached letter from Dr. David E. Bain, a contract scientist for NMFS.

The AEWC submitted several journal articles as attachments to its comment letters. NMFS acknowledges receipt of these documents but does not intend to address the specific articles themselves in the responses to comments, since these journal articles are merely used as citations in AEWC's comments. AEWC also submitted an unsigned, final version of the 2010 Conflict Avoidance Agreement (CAA), since Shell declined to sign the CAA. Dr. Bain also attached

an in-review journal article he coauthored. Any comments specific to Shell's application that address the statutory and regulatory requirements or findings NMFS must make to issue an IHA are addressed in this section of the

Federal Register

notice.

General Comments

Comment 1:

AEWC and ICAS believe that NMFS should not issue incidental take authorizations for oil and gas-related activities given the current suspension of offshore drilling in Alaska and pending reorganization of the Minerals Management Service (MMS). AEWC and ICAS point out that the harm caused by an oil spill is not the only risk to marine mammals posed by oil and gas activities on the OCS and that there are concerns regarding underwater noise from geophysical activities and the threats posed to marine mammals from noise and chemical pollution, as well as increased vessel traffic. AEWC further claims that many times, NMFS issued IHAs over the objections of the scientific and subsistence communities as well as the agencies' own scientists.

Response:

The legal requirements and underlying analysis for the issuance of an IHA concerning take associated with seismic activities are unrelated to the moratorium on offshore drilling and reorganization of the MMS. In order to issue an authorization pursuant to Section 101(a)(5)(D) of the MMPA, NMFS must determine that the taking by harassment of small numbers of marine mammal species or stocks will have a negligible impact on affected species or stocks, and will not have an unmitigable adverse impact on the availability of affected species or stocks for taking for subsistence uses. If NMFS is able to make these findings, the Secretary is required to issue an IHA. In the case of Shell's activities for 2010 (as described in the application, the notice of proposed IHA (75 FR 27708; May 18, 2010) and this document), NMFS determined that it was able to make the required MMPA findings. Additionally, as described later in this section and throughout this document, NMFS has determined that Shell's activities will not result in injury or mortality of marine mammals, and no injury or mortality is authorized under the IHA.

As discussed in detail in the proposed IHA (75 FR 27708; May 18, 2010), the EA for the issuance of IHAs to Shell and Statoil for the proposed open water marine and seismic surveys, and this document, NMFS has conducted a thorough analysis of the potential impacts of underwater anthropogenic sound (especially sound from geophysical surveys) on marine mammals. We have cited multiple studies and research that support NMFS' MMPA and National Environmental Policy Act (NEPA) determinations that the localized and short-term disturbance from seismic surveys, with strict mitigation and monitoring measures implemented, is likely to result in negligible impacts to marine mammals and no significant impact to the human environment, respectively. Although issuance of the IHA may be of concern to certain members of the public, the proposed issuance of the IHA was carefully reviewed and analyzed by NMFS scientists both at headquarters, through an Endangered Species Act (ESA) section 7 consultation at NMFS Alaska Regional Office, and by an independent bioacoustics expert and NMFS' National Marine Mammal Laboratory. Based on those reviews, NMFS staff in the Office of Protected Resources made appropriate changes to this document.

Comment 2:

ICAS points out that Native communities in Alaska have long been ignored in the race to find and develop offshore oil and gas resources and that the U.S. Government has consistently failed to comply with legal requirements that require consultation with local Native communities as proposals are being developed that affect native environments. Instead, both Federal agencies and the entities they permit make only token gestures at consultations with Native groups offering them only the opportunity for involvement after proposals are developed and after local knowledge would serve a useful purpose.

Response:

Regulations at 50 CFR 216.104(a)(12) require applicants for IHAs in Arctic waters to submit a Plan of Cooperation (POC), which, among other things, requires the applicant to meet with affected subsistence communities to discuss the proposed activities. Additionally, for many years, NMFS has conducted the Arctic Open Water Meeting, which brings together the Federal agencies, the oil and gas industry, and affected Alaska Native organizations to discuss the proposed activities and monitoring plans. Local knowledge is considered at these times, and it is not too late for that knowledge to serve a useful purpose. These communities are also afforded the opportunity to submit comments on the application and proposed IHA notice, which are then considered by NMFS before making a final determination on whether or not to issue an IHA.

Comment 3:

Executive Order 13175 requires Federal agencies to conduct government-to-government consultation when undertaking to formulate and implement policies that have tribal implications. Despite this explicit requirement, ICAS believes that NMFS has failed to consult with governing bodies of Native people who will be and have been affected by the decisions NMFS is making under the MMPA. NMFS must meet with ICAS and local Native villages on a government-to-government basis to discuss the proposed IHA, as well as appropriate mitigation and monitoring requirements.

Response:

NMFS recognizes the importance of the government-to-government relationship and has taken steps to ensure that Alaska Natives play an active role in the management of Arctic species. For example, NOAA and the AEWC co-manage bowhead whales pursuant to a cooperative agreement. This agreement has allowed the AEWC to play a significant role in the management of a valuable resource by affording Alaska Natives the opportunity to protect bowhead whales and the Eskimo culture and to promote scientific investigation, among other purposes.

In addition, NMFS works closely with Alaska Natives when considering whether to permit the take of marine mammals incidental to oil and gas operations. NMFS has met repeatedly over the years with Alaska Native representatives to discuss concerns related to NMFS' MMPA program in the Arctic, and has also taken into account recommended mitigation measures to reduce the impact of oil and gas operations on bowhead whales and to ensure the availability of marine mammals for taking for subsistence uses. Finally, NMFS has participated in Alaska Native community meetings in the past and will continue to do so, when feasible. NMFS most recently met with ICAS at its May monthly meeting in Barrow to discuss NMFS' role in minimizing impacts to marine mammals from oil and gas industry activities and asked the ICAS membership for specific recommendations. NMFS will continue to ensure that it meets its government-to-government responsibilities and will work closely with Alaska Natives to address their concerns.

MMPA Concerns

Comment 4:

AEWC notes their disappointment in NMFS for releasing for public comment an incomplete application from Shell that fails to provide the mandatory information required by the MMPA and NMFS' implementing regulations. AEWC requests that NMFS return Shell's application as incomplete, or else the agency risks making arbitrary and

indefensible determinations under the MMPA. The following is the information that AEWC believes to be missing from Shell's application: (1) A description of the “age, sex, and reproductive condition” of the marine mammals that will be impacted, particularly in regard to bowhead whales (50 CFR 216.104(a)(6)); (2) the economic “availability and feasibility * * * of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance” (50 CFR 216.104(a)(11)); and (3) suggested means of learning of, encouraging, and coordinating any research related activities (50 CFR 216.104(a)(14)). NSB also notes its concern about the lack of specificity regarding the timing and location of the proposed surveys, as well as the lack of specificity regarding the surveys themselves.

Response:

NMFS does not agree that it released an incomplete application for review during the public comment period. After NMFS' initial review of the application, NMFS submitted questions and comments to Shell on its application. After receipt and review of Shell's responses, which were incorporated into the final version of the IHA application that was released to the public for review and comment, NMFS made its determination of completeness and released the application, addenda, and the proposed IHA notice (75 FR 27708; May 18, 2010). Regarding the three specific pieces of information believed to be missing by AEWC, Shell's original application included a description of the pieces of information that are required pursuant to 50 CFR 216.104(a)(12).

Information required pursuant to 50 CFR 216.104(a)(6) requires that an applicant submit information on the “age, sex, and reproductive condition (if possible)” of the number of marine mammals that may be taken. In the application, Shell described the species expected to be taken by harassment and provided estimates of how many of each species were expected to be taken during their activities. In most cases, it is very difficult to estimate how many animals, especially cetaceans, of each age, sex, and reproductive condition will be taken or impacted by seismic or site clearance and shallow hazards surveys.

Shell also provided information on economic “availability and feasibility * * * of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance” (50 CFR 216.104(a)(11)) in its IHA application. In its application, Shell states that four main mitigations regarding site clearance and shallow hazards surveys in the Beaufort Sea are proposed: (1) Timing and locations for active survey acquisition work; (2) to configure airguns in a manner that directs energy primarily down to the seabed thus decreasing the range of horizontal spreading of noise; (3) using a energy source which is as small as possible while still accomplishing the survey objectives; and (4) curtailing active survey work when the marine mammal observers sight visually (from shipboard) the presence of marine mammals within identified ensonified zones. Details of these mitigation measures are discussed further in the 4MP that is included in Shell's IHA application. In addition to these measures, NMFS' Notice of Proposed IHA (75 FR 27708, May 18, 2010) described mitigation measures proposed to be implemented by Shell (outlined in the application), as well as additional measures proposed by NMFS for inclusion in an IHA.

Lastly, information required pursuant to 50 CFR 216.104(a)(14) was also included in Shell's application. Shell provided a list of researchers who could potentially receive results of their research activities who may find the data useful in their own research. Additionally, Shell states that it plans to deploy arrays of acoustic recorders in the Beaufort Sea in 2010, similar to those deployed in 2007 and 2008 using DASARs supplied by Greeneridge. These directional acoustic systems permit localization of bowhead whale and other marine mammal vocalizations, and to further understand, define, and document sound characteristics and propagation resulting from shallow hazards surveys that may have the potential to cause deflections of bowhead whales from their migratory pathway. NMFS also determined that Shell's application provides descriptions of the specified activities and specified geographic region.

In conclusion, NMFS believes that Shell provided all of the necessary information to proceed with publishing a proposed IHA notice in the

Federal Register

.

Comment 5:

AEWC and NSB state that NMFS failed to issue a draft authorization for public review and comment. The plain language of both the MMPA and NMFS' implementing regulations require that NMFS provide the opportunity for public comment on the “proposed incidental harassment authorization” (50 CFR 216.104(b)(1)(i); 16 U.S.C. 1371 (a)(5)(D)(iii)) and not just on the application itself as NMFS has done here. Given Shell's refusal to sign the CAA and without a complete draft authorization and accompanying findings, AEWC states that it cannot provide meaningful comments on Shell's proposed activities, ways to mitigate the impacts of those activities on marine mammals, and measures that are necessary to protect subsistence uses and sensitive resources.

Response:

The May 18, 2010 proposed IHA notice (75 FR 27708) contained all of the relevant information needed by the public to provide comments on the proposed authorization itself. The notice contained the permissible methods of taking by harassment, means of effecting the least practicable impact on such species (

i.e.,

mitigation), measures to ensure no unmitigable adverse impact on the availability of the species or stock for taking for subsistence use, requirements pertaining to the monitoring and reporting of such taking, including requirements for the independent peer review of the proposed monitoring plan. The notice provided detail on all of these points and, in NMFS view, allowed the public to comment on the proposed authorization and inform NMFS' final decision. Additionally, the notice contained NMFS' preliminary findings of negligible impact and no unmitigable adverse impact.

The signing of a CAA is not a requirement to obtain an IHA. The CAA is a document that is negotiated between and signed by the industry participant, AEWC, and the Village Whaling Captains' Associations. NMFS has no role in the development or execution of this agreement. Although the contents of a CAA may inform NMFS' no unmitigable adverse impact determination for bowhead and beluga whales and ice seals, the signing of it is not a requirement. While a CAA has not been signed and a final version agreed to by industry participants, AEWC, and the Village Whaling Captains' Associations, NMFS was provided with a copy of the version ready for signature by AEWC. NMFS has reviewed the CAA and included several measures from the document which relate to marine mammals and avoiding conflicts with subsistence hunts in the IHA. Some of

the conditions which have been added to the IHA include: (1) Avoiding concentrations of whales and reducing vessel speed when near whales; (2) flying at altitudes above 457 m (1,500 ft) unless involved in marine mammal monitoring or during take-offs, landings, or in emergencies situations; (3) conducting sound source verification measurements; and (4) participating in the Communication Centers. Despite the lack of a signed CAA for 2010 activities, NMFS is confident that the measures contained in the IHA will ensure no unmitigable adverse impact to subsistence users.

Comment 6:

AEWC and NSB argue that Shell has not demonstrated that its proposed activities would take only “small numbers of marine mammals of a species or population stock,” resulting in no more than a “negligible impact” on a species or stock. In addition, NSB argues that NMFS has not adequately analyzed harassment associated with received levels of noise below 160 dB.

Response:

NMFS believes that it provided sufficient information in its proposed IHA notice (75 FR 27708; May 18, 2010) to make the small numbers and negligible impact determinations and that the best scientific information available was used to make those determinations. While some published articles indicate that certain marine mammal species may avoid seismic vessels at levels below 160 dB, NMFS does not consider that these responses rise to the level of a take, as defined in the MMPA. While studies, such as Miller

et al.

(1999), have indicated that some bowhead whales may have started to deflect from their migratory path 35 km (21.7 mi) from the seismic vessel, it should be pointed out that these minor course changes are during migration and, as described in MMS' 2006 Final Programmatic Environmental Assessment (PEA), have not been seen at other times of the year and during other activities. To show the contextual nature of this minor behavioral modification, recent monitoring studies of Canadian seismic operations indicate that feeding, non-migratory bowhead whales do not move away from a noise source at an SPL of 160 dB. Therefore, while bowheads may avoid an area of 20 km (12.4 mi) around a noise source, when that determination requires a post-survey computer analysis to find that bowheads have made a 1 or 2 degree course change, NMFS believes that does not rise to a level of a “take,” as the change in bearing is due to animals sensing the noise and avoiding passage through the ensonified area during their migration, and should not be considered as being displaced from their habitat. NMFS therefore continues to estimate “takings” under the MMPA from impulse noises, such as seismic, as being at a distance of 160 dB (re 1 μPa). As explained throughout this

Federal Register

notice, it is highly unlikely that marine mammals would be exposed to SPLs that could result in serious injury or mortality. The best scientific information indicates that an auditory injury is unlikely to occur, as apparently sounds need to be significantly greater than 180 dB for injury to occur (Southall

et al.,

2007). The 180-dB radius for the airgun array to be used by Shell is 125 m (410 ft). Therefore, if injury were possible from Shell's activities, the animal would need to be closer than 125 m (410 ft). However, based on the configuration of the airgun array and streamers, it is highly unlikely that a marine mammal would be that close to the seismic vessel. Mitigation measures described later in this document will be implemented should a marine mammal enter this small zone around the airgun array.

Regarding the “small numbers” issue raised by the AEWC and NSB, NMFS has provided estimates on the number of marine mammals that could be taken as a result of Shell's proposed marine surveys, and the estimated takes from these proposed activities are all under 3 percent for affected marine mammal populations (

see

Potential Number of Takes by Harassment section below).

Impacts to Marine Mammals

Comment 7:

AEWC notes that based on the density estimates, Shell is predicting that an average of 381 and a maximum of 394 Bering-Chukchi-Beaufort (B-C-B) stock of bowhead whales may be exposed to seismic sounds at received levels above 160 dB. AEWC states that these are by no means “small numbers” of marine mammals that will be subjected to impacts as a result of Shell's operations.

Response:

NMFS determined that the small numbers requirement has been satisfied. Shell has predicted that an average of 381 individuals of the B-C-B stock of bowhead whales would be exposed to noise received levels above 160 dB as the result of Shell's proposed marine surveys, and NMFS assumes that animals exposed to received levels above 160 dB are taken. However, because of the tendency of whales to avoid the source to some degree, and the fact that both the whales and the source are both moving through an area, the majority of the exposures would likely occur at levels closer to 160 dB (not higher levels) and the impacts would be expected to be relatively low-level and not of a long duration. NMFS addresses “small numbers” in terms relative to the stock or population size. The Level B harassment take estimate of 381 bowhead whales is a small number in relative terms, because of the nature of the anticipated responses and in that it represents only 2.67 percent of the regional stock size of that species (14,247), if each “exposure” at 160 dB represents an individual bowhead whale. Additionally, the percentage would be even lower if animals move out of the seismic area in a manner that does not result in a take at all.

Comment 8:

AWL, NSB, and AEWC noted that NMFS has acknowledged that permanent threshold shift (PTS) qualifies as a serious injury. Therefore, if an acoustic source at its maximum level has the potential to cause PTS and thus lead to serious injury, it would not be appropriate to issue an IHA for the activity (60 FR 28381, May 31, 1995). AEWC states that therefore an LOA is required here. While the airguns proposed by Shell are smaller than those associated with typical 2D/3D deep marine surveys, the noise they produce is still considerable, as evidenced by the estimated 120 dB radius that extends out to 14,000 m.

Response:

In the proposed rule to implement the process to apply for and obtain an IHA, NMFS stated that authorizations for harassment involving the “potential to injure” would be limited to only those that may involve non-serious injury (60 FR 28379; May 31, 1995). While the

Federal Register

notice cited by the commenters states that NMFS considered PTS to be a serious injury (60 FR 28379; May 31, 1995), our understanding of anthropogenic sound and the way it impacts marine mammals has evolved since then, and NMFS no longer considers PTS to be a serious injury. NMFS has defined “serious injury” in 50 CFR 216.3 as “* * * any injury that will likely result in mortality.” There are no data that suggest that PTS would be likely to result in mortality, especially the limited degree of PTS that could hypothetically be incurred through exposure of marine mammals to seismic airguns at the level and for the duration that are likely to occur in this action.

Further, as stated several times in this document and previous

Federal Register

notices for seismic activities, there is no empirical evidence that exposure to pulses of airgun sound can cause PTS in any marine mammal, even with large arrays of airguns (

see

Southall

et al.

2007). PTS is thought to occur several decibels above that inducing mild temporary threshold shift (TTS), the mildest form of hearing impairment (a non-injurious effect).

NMFS concluded that cetaceans and pinnipeds should not be exposed to pulsed underwater noise at received levels exceeding, respectively, 180 and 190 dB re 1 μPa (rms). The established 180- and 190-dB re 1 μPa (rms) criteria are the received levels above which, in the view of a panel of bioacoustics specialists convened by NMFS before TTS measurements for marine mammals started to become available, one could not be certain that there would be no injurious effects, auditory or otherwise, to marine mammals. As summarized later in this document, data that are now available imply that TTS is unlikely to occur unless bow-riding odontocetes are exposed to airgun pulses much stronger than 180 dB re 1 Pa rms (Southall

et al.

2007). Additionally, NMFS has required monitoring and mitigation measures to negate the possibility of marine mammals being seriously injured as a result of Shell's activities. In the proposed IHA, NMFS determined that Shell's activities are unlikely to even result in TTS. Based on this determination and the explanation provided here, PTS is also not expected. Therefore, an IHA is appropriate.

Comment 9:

AWL, Dr. Bain, NSB, and AEWC state that NMFS has not adequately considered whether marine mammals may be harassed at received levels significantly lower than 160 dB and that NMFS did not use the best scientific evidence in setting the sound levels against which take was assessed. They state that NMFS calculated harassment from Shell's proposed surveying based on the exposure to marine mammals to sounds at or above 160 dB and that this uniform approach to harassment does not take into account known reactions of marine mammals in the Arctic to levels of noise far below 160 dB. These comments state that bowhead, gray, killer, and beluga whales and harbor porpoise react to sounds lower than 160 dB.

Citing several papers on killer whales and harbor porpoise, Dr. Bain states that major behavioral changes of these animals appear to be associated with received levels of around 135 dB re 1 μPa, and that minor behavioral changes can occur at received levels from 90-110 dB re 1 μPa or lower. He also states that belugas have been observed to respond to icebreakers by swimming rapidly away at distances up to 80 km, where received levels were between 94 and 105 dB re 1 μPa. Belugas exhibited minor behavioral changes such as changes in vocalization, dive patterns, and group composition at distances up to 50 km (NRC 2003), where received levels were likely around 120 dB.

AEWC also states that in conducting scoping on its national acoustic guidelines for marine mammals, NMFS noted that the existing system for determining take (

i.e.,

the 160 dB mark) “considers only the sound pressure level of an exposure but not its other attributes, such as duration, frequency, or repetition rate, all of which are critical for assessing impacts on marine Mammals” and “also assumes a consistent relationship between rms (root-mean-square) and peak pressure values for impulse sounds, which is known to be inaccurate under certain (many) conditions” (70 FR 1871, 1873; January 11, 2005). Thus, NMFS itself has recognized that 160 dB (rms) is not an adequate measure. AEWC argues that current scientific research establishes that 120 dB (rms) is a more appropriate measure for impacts to marine mammals.

Response:

The best information available to date for reactions by bowhead whales to noise, such as seismic, is based on the results from the 1998 aerial survey (as supplemented by data from earlier years) as reported in Miller

et al.

(1999). In 1998, bowhead whales below the water surface at a distance of 20 km (12.4 mi) from an airgun array received pulses of about 117-135 dB re 1 μPa rms, depending upon propagation. Corresponding levels at 30 km (18.6 mi) were about 107-126 dB re 1 μPa rms. Miller

et al.

(1999) surmise that deflection may have begun about 35 km (21.7 mi) to the east of the seismic operations, but did not provide SPL measurements to that distance and noted that sound propagation has not been studied as extensively eastward in the alongshore direction, as it has northward, in the offshore direction. Therefore, while this single year of data analysis indicates that bowhead whales may make minor deflections in swimming direction at a distance of 30-35 km (18.6-21.7 mi), there is no indication that the SPL where deflection first begins is at 120 dB; it could be at another SPL lower or higher than 120 dB. Miller

et al.

(1999) also note that the received levels at 20-30 km (12.4-18.6 mi) were considerably lower in 1998 than have previously been shown to elicit avoidance in bowheads exposed to seismic pulses. However, the seismic airgun array used in 1998 was larger than the ones used in 1996 and 1997. Therefore, NMFS believes that it cannot scientifically support adopting any single SPL value below 160 dB and apply it across the board for all species and in all circumstances. Second, these minor course changes occurred during migration and, as indicated in MMS' 2006 PEA, have not been seen at other times of the year and during other activities. Third, as stated in the past, NMFS does not believe that minor course corrections during a migration equate to “take” under the MMPA. This conclusion is based on controlled exposure experiments conducted on migrating gray whales exposed to the U.S. Navy's low frequency sonar (LFA) sources (Tyack 2009). When the source was placed in the middle of the migratory corridor, the whales were observed deflecting around the source during their migration. However, such minor deflection is considered not to be biologically significant. To show the contextual nature of this minor behavioral modification, recent monitoring studies of Canadian seismic operations indicate that when, not migrating, but involved in feeding, bowhead whales do not move away from a noise source at an SPL of 160 dB. Therefore, while bowheads may avoid an area of 20 km (12.4 mi) around a noise source, when that determination requires a post-survey computer analysis to find that bowheads have made a 1 or 2 degree course change, NMFS believes that does not rise to a level of a “take.” NMFS therefore continues to estimate “takings” under the MMPA from impulse noises, such as seismic, as being at a distance of 160 dB (re 1 μPa). Although it is possible that marine mammals could react to any sound levels detectable above the ambient noise level within the animals' respective frequency response range, this does not mean that such animals would react in a biologically significant way. According to experts on marine mammal behavior, the degree of reaction which constitutes a “take,”

i.e.,

a reaction deemed to be biologically significant that could potentially disrupt the migration, breathing, nursing, breeding, feeding, or sheltering, etc., of a marine mammal is complex and context specific, and it depends on several variables in addition to the received level of the sound by the animals. These additional variables include, but are not limited to, other source characteristics (such as frequency range, duty cycle, continuous vs. impulse vs. intermittent sounds, duration, moving vs. stationary sources, etc.); specific species, populations, and/or stocks; prior experience of the animals (naive vs. previously exposed); habituation or sensitization of the sound by the animals; and behavior context (whether the animal perceives the sound as predatory or simply annoyance), etc. (Southall

et al.

2007).

The references cited in the comment letters address different source characteristics (continuous sound rather than impulse sound that are planned for the proposed shallow hazard and site clearance surveys) or species (killer whales and harbor proposes) that rarely occur in the proposed Arctic action area. Some information about the responses of bowhead and gray whales to seismic survey noises has been acquired through dedicated research and marine mammal monitoring studies conducted during prior seismic surveys. Detailed descriptions regarding behavioral responses of these marine mammals to seismic sounds are available (

e.g.,

Richardson

et al.

1995; review by Southall

et al.

2007), and are also discussed in this document. Additionally, as Shell does not intend to use ice-breakers during its operations, statements regarding beluga reactions to icebreaker noise are not relevant to this activity.

Regarding the last point raised in this comment by AEWC, NMFS recognizes the concern. However, NMFS does not agree with AEWC's statement that current scientific research establishes that 120 dB (rms) is a more appropriate measure for impacts to marine mammals for reasons noted above. Based on the information and data summarized in Southall

et al.

(2007), and on information from various studies, NMFS believes that the onset for behavioral harassment is largely context dependent, and there are many studies showing marine mammals do not show behavioral responses when exposed to multiple pulses at received levels above 160 dB re 1 μPa (

e.g.,

Malme

et al.

1983; Malme

et al.

1984; Richardson

et al.

1986; Akamatsu

et al.

1993; Madsen and Møhl 2000; Harris

et al.

2001; Miller

et al.

2005). Therefore, although using a uniform SPL of 160-dB for the onset of behavioral harassment for impulse noises may not capture all of the nuances of different marine mammal reactions to sound, it is an appropriately conservative way to manage and regulate anthropogenic noise impacts on marine mammals. Therefore, unless and until an improved approach is developed and peer-reviewed, NMFS will continue to use the 160-dB threshold for determining the level of take of marine mammals by Level B harassment for impulse noise (such as from airguns).

Comment 10:

NSB and AWL note that this IHA, as currently proposed, is based on uncertainties that are not allowed under the MMPA. Citing comments made by NMFS on recent MMS Lease Sale Environmental Impact Statements, NSB notes that NMFS stated that without more current and thorough data on the marine mammals in the Chukchi Sea and their use of these waters, it would be difficult to make the findings required by the MMPA. NSB notes that NMFS noted that the “continued lack of basic audiometric data for key marine mammal species” that occur throughout the Chukchi Sea inhibits the “ability to determine the nature and biological significance of exposure to various levels of both continuous and impulsive oil and gas activity sounds.”

Response:

NMFS agrees that while there may be some uncertainty on the current status of some marine mammal species in the Chukchi Sea and on impacts to marine mammals from seismic surveys, the best available information supports our findings. NMFS is currently proposing to conduct new population assessments for Arctic pinniped species, and current information is available on-line through the Stock Assessment Reports (SARs). Moreover, NMFS has required the industry to implement a monitoring and reporting program to collect additional information concerning effects to marine mammals.

In regard to impacts, there is no indication that seismic survey activities are having a long-term impact on marine mammals. For example, apparently, bowhead whales continued to increase in abundance during periods of intense seismic activity in the Chukchi Sea in the 1980s (Raftery

et al.

1995; Angliss and Outlaw 2007), even without implementation of current mitigation requirements. As a result, NMFS believes that seismic survey noise in the Arctic will affect only small numbers of and have no more than a negligible impact on marine mammals in the Chukchi Sea. As explained in this document and based on the best available information, NMFS has determined that Shell's activities will affect only small numbers of marine mammals, will have a negligible impact on affected species or stocks, and will not have an unmitigable adverse impact on subsistence uses of the affected species or stocks.

Comment 11:

AEWC notes that stranded marine mammals or their carcasses are also a sign of injury. NMFS states in its notice that it “does not expect any marine mammal will * * * strand as a result of the proposed survey” (75 FR 27708; May 18, 2010). In reaching this conclusion, NMFS claims that strandings have not been recorded for the Beaufort and Chukchi Seas. AEWC states that the Department of Wildlife Management of NSB has completed a study documenting 25 years worth of stranding data and showing that five dead whales were reported in 2008 alone in comparison with the five dead whales that were reported in the same area over the course of 25 years (Rosa 2009).

In light of the increase in seismic operations in the Arctic since 2006, AEWC says that NSB's study raises serious concerns about the impacts of these operations and their potential to injure marine mammals. AEWC states that while they think this study taken together with the June 2008 stranding of “melon headed whales off Madagascar that appears to be associated with seismic surveys” (75 FR 27708; May 18, 2010) demonstrate that seismic operations have the potential to injure marine mammals beyond beaked whales (and that Shell needs to apply for an LOA for its operations), certainly NSB's study shows that direct injury of whales is on-going. AEWC states that these direct impacts must be analyzed and explanations sought out before additional activities with the potential to injure marine mammals are authorized, and that NMFS must explain how, in light of this new information, Shell's application does not have the potential to injure marine mammals.

Response:

NMFS has reviewed the information provided by AEWC regarding marine mammal strandings in the Arctic. The Rosa (2009) paper cited by AEWC does not provide any evidence linking the cause of death for the bowhead carcasses reported in 2008 to seismic operations. Additionally, the increased reporting of carcasses in the Arctic since 2006 may also be a result of increased reporting effort and does not necessarily indicate that there were fewer strandings prior to 2008. Marine mammal observers (MMOs) aboard industry vessels in the Beaufort and Chukchi Seas have been required to report sightings of injured and dead marine mammals to NMFS as part of the IHA requirements only since 2006.

Regarding the June 2008 stranding of melon headed whales off Madagascar, information available to NMFS at this time indicates that the seismic airguns were not active around the time of the stranding. While the Rosa (2009) study does present information regarding the injury of whales in the Arctic, it does not link the cause of the injury to seismic survey operations. As NMFS has stated previously, the evidence linking marine mammal strandings and seismic surveys remains tenuous at best. Two papers, Taylor

et al.

(2004) and Engel

et al.

(2004) reference seismic signals as a possible cause for a marine mammal stranding.

Taylor

et al.

(2004) noted two beaked whale stranding incidents related to seismic surveys. The statement in Taylor

et al.

(2004) was that the seismic vessel was firing its airguns at 1300 hrs on September 24, 2004, and that between 1400 and 1600 hrs, local fishermen found live stranded beaked whales 22 km (12 nm) from the ship's location. A review of the vessel's trackline indicated that the closest approach of the seismic vessel and the beaked whales stranding location was 18 nm (33 km) at 1430 hrs. At 1300 hrs, the seismic vessel was located 25 nm (46 km) from the stranding location. What is unknown is the location of the beaked whales prior to the stranding in relation to the seismic vessel, but the close timing of events indicates that the distance was not less than 18 nm (33 km). No physical evidence for a link between the seismic survey and the stranding was obtained. In addition, Taylor

et al.

(2004) indicates that the same seismic vessel was operating 500 km (270 nm) from the site of the Galapagos Island stranding in 2000. Whether the 2004 seismic survey caused the beaked whales to strand is a matter of considerable debate (

see

Cox

et al.

2006). However, these incidents do point to the need to look for such effects during future seismic surveys. To date, follow up observations on several scientific seismic survey cruises have not indicated any beaked whale stranding incidents.

Engel

et al.

(2004), in a paper presented to the IWC in 2004 (SC/56/E28), mentioned a possible link between oil and gas seismic activities and the stranding of 8 humpback whales (7 off the Bahia or Espirito Santo States and 1 off Rio de Janeiro, Brazil). Concerns about the relationship between this stranding event and seismic activity were raised by the International Association of Geophysical Contractors (IAGC). The IAGC (2004) argues that not enough evidence is presented in Engel

et al.

(2004) to assess whether or not the relatively high proportion of adult strandings in 2002 is anomalous. The IAGC contends that the data do not establish a clear record of what might be a “natural” adult stranding rate, nor is any attempt made to characterize other natural factors that may influence strandings. As stated previously, NMFS remains concerned that the Engel

et al.

(2004) article appears to compare stranding rates made by opportunistic sightings in the past with organized aerial surveys beginning in 2001. If so, then the data are suspect.

Finally, if bowhead and gray whales react to sounds at very low levels by making minor course corrections to avoid seismic noise, and mitigation measures require Shell to ramp-up the seismic array to avoid a startle effect, strandings such as those observed in the Bahamas in 2000 are highly unlikely to occur in the Arctic Ocean as a result of seismic activity. Therefore, NMFS does not expect any marine mammals will incur serious injury or mortality as a result of Shell's 2010 survey operations, so an LOA is not needed.

Lastly, Shell is required to report all sightings of dead and injured marine mammals to NMFS and to notify the Marine Mammal Health and Stranding Response Network. However, Shell is not permitted to conduct necropsies on dead marine mammals. Necropsies can only be performed by people authorized to do so under the Marine Mammal Health and Stranding Response Program MMPA permit. NMFS is currently considering different methods for marking carcasses to reduce the problem of double counting. However, a protocol has not yet been developed, so marking is not required in the IHA.

Comment 12:

AEWC and NSB state that research is increasingly showing that marine mammals may remain within dangerous distances of seismic operations rather than leave a valued resource such as a feeding ground (

see

Richardson 2004). The International Whaling Commission (IWC) scientific committee has indicated that the lack of deflection by feeding whales in Camden Bay (during Shell seismic activities) likely shows that whales will tolerate and expose themselves to potentially harmful levels of sound when needing to perform a biologically vital activity, such as feeding (mating, giving birth, etc.). Thus, the noise from Shell's proposed operations could injure marine mammals if they are close enough to the source. NSB further states that NMFS has not adequately analyzed the potential for serious injury.

Response:

If marine mammals, such as bowhead whales, remain near a seismic operation to perform a biologically vital activity, such as feeding, depending on the distance from the vessel and the size of the 160-dB radius, the animals may experience some Level B harassment. A detailed analysis on potential impacts of anthropogenic noise (including noise from seismic airguns and other active acoustic sources used in geophysical surveys) is provided in the proposed IHA (75 FR 27708; May 18, 2010) and in this document. Based on the analysis, NMFS believes that it is unlikely any animals exposed to noise from Shell's proposed marine surveys would be exposed to received levels that could cause TTS (a non-injurious Level B harassment). Therefore, it is even less likely that marine mammals would be exposed to levels of sound from Shell's activity that could cause PTS (a non-lethal Level A harassment).

In addition, depending on the distance of the animals from the vessel and the number of individual whales present, certain mitigation measures are required to be implemented. If an aggregation of 12 or more mysticete whales are detected within the 160-dB radius, then the airguns must be shutdown until the aggregation is no longer within that radius. Additionally, if any whales are sighted within the 180-dB radius or any pinnipeds are sighted within the 190-dB radius of the active airgun array, then either a power-down or shutdown must be implemented immediately. For the reasons stated throughout this document, NMFS has determined that Shell's operations will not injure, seriously injure, or kill marine mammals.

Comment 13:

AEWC states that NMFS does little to assess whether Level A harassment is occurring as a result of the deflection of marine mammals as a result of Shell's proposed operations. Deflected marine mammals may suffer impacts due to masking of natural sounds including calling to others of their species, physiological damage from stress and other non-auditory effects, harm from pollution of their environment, tolerance, and hearing impacts (

see

Nieukirk

et al.

2004). Not only do these operations disrupt the animals' behavioral patterns, but they also create the potential for injury by causing marine mammals to miss feeding opportunities, expend more energy, and stray from migratory routes when they are deflected. Dr. Bain also states that there are three main ways that minor behavioral changes, when experienced by numerous individuals for extended periods of time, can affect population growth: Increased energy expenditure, reduced food acquisition, and stress (Trites and Bain 2000).

Response: See

the response to comment 9 regarding the potential for injury. The paper cited by AEWC (Nieukirk

et al.

2004) tried to draw linkages between recordings of fin, humpback, and minke whales and airgun signals in the western North Atlantic; however, the authors note the difficulty in assessing impacts based on the data collected. The authors also state that the effects of airgun activity on baleen whales is unknown and then cite to Richardson

et al.

(1995) for some possible effects, which AEWC lists in their comment. There is no statement in the cited study, however, about the

linkage between deflection and these impacts. While deflection may cause animals to expend extra energy, there is no evidence that this deflection is causing a significant behavioral change that will adversely impact population growth. In fact, bowhead whales continued to increase in abundance during periods of intense seismic activity in the Chukchi Sea in the 1980s (Raftery

et al.

1995; Angliss and Outlaw 2007). Therefore, NMFS does not believe that injury will occur as a result of Shell's activities. Additionally, Shell's total data acquisition activities would only ensonify 7.3 km

2

to received levels above 160 dB of the Beaufort Sea (0.0016% of the entire Beaufort Sea). Therefore, based on the smaller radii associated with Shell's site clearance and shallow hazards surveys than the larger 2D or 3D seismic programs and the extremely small area of the Beaufort Sea where Shell will utilize airguns, it is unlikely that marine mammals will need to expend extra energy to locate prey or to have reduced foraging opportunities.

Comment 14:

Citing Erbe (2002), AEWC notes that any sound at some level can cause physiological damage to the ear and other organs and tissues. Placed in a context of an unknown baseline of sound levels in the Chukchi Sea, it is critically important that NMFS take a precautionary approach to permitting additional noise sources in this poorly studied and understood habitat. Thus, the best available science dictates that NMFS use a more cautious approach in addressing impacts to marine mammals from seismic operations.

Response:

The statement from Erbe (2002) does not take into account mitigation measures required in the IHA to reduce impacts to marine mammals. As stated throughout this document, based on the fact that Shell will be using a small airgun array (total discharge volume of 40 in

3

) and will implement mitigation measures (

i.e.,

ramp-up, power-down, shutdown, etc.), NMFS does not believe that there will be any injury or mortality of marine mammals as a result of Shell's operations.

Comment 15:

AEWC states that in making its negligible impact determination, NMFS failed to consider several impacts: (1) Displacing marine mammals from feeding areas; (2) non-auditory, physiological effects, namely stress; (3) the possibility of vessel strikes needs to be considered in light of scientific evidence of harm from ship traffic to marine mammals; (4) impacts to marine mammal habitat, including pollution of the marine environment and the risk of oil spills, toxic, and nontoxic waste being discharged; (5) impacts to fish and other food sources upon which marine mammals rely; and (6) specific marine mammals that will be taken, including their age, sex, and reproductive condition. The first issue was also raised by Dr. Bain.

Response:

NMFS does not agree that these impacts were not considered. First, the area that would be ensonified by Shell's proposed open water marine surveys represents a small fraction of the total habitat of marine mammals in the Beaufort and Chukchi Seas. In addition, as the survey vessel is constantly moving, the ensonified zone where the received levels exceed 160 dB re 1 µPa (rms), which is estimated to be approximately 7.3 km

2

at any given time, is constantly moving. Therefore, the duration during which marine mammals would potentially avoid the ensonified area would be brief. Therefore, NMFS does not believe marine mammals would be displaced from their customary feeding areas as a result of Shell's proposed marine surveys.

Second, non-auditory, physiological effects, including stress, were analyzed in the Notice of Proposed IHA (75 FR 27708; May 18, 2010). No single marine mammal is expected to be exposed to high levels of sound for extended periods based on the size of the airgun array to be used by Shell and the fact that an animal would need to swim close to, parallel to, and at the same speed as the vessel to incur several high intensity pulses. This also does not take into account the mitigation measures described later in this document.

Third, impacts resulting from vessel strikes and habitat pollution and impacts to fish were fully analyzed in NMFS' 2010 Final EA for Shell and Statoil's open water marine and seismic activities (NMFS 2010). Additionally, the proposed IHA analyzed potential impacts to marine mammal habitat, including prey resources. That analysis noted that while mortality has been observed for certain fish species found in extremely close proximity to the airguns, Sætre and Ona (1996) concluded that mortality rates caused by exposure to sounds are so low compared to natural mortality that issues relating to stock recruitment should be regarded as insignificant.

For the sixth point, please

see

the response to comment 4. The age, sex, and reproductive condition must be provided when possible. However, this is often extremely difficult to predict. Additional mitigation measures for bowhead cow/calf pairs, such as monitoring the 120-dB radius and requiring shutdown when 4 or more cow/calf pairs enter that zone, were considered and required for this survey.

Comment 16:

AEWC states that in assessing the level of take and whether it is negligible, NMFS relied on flawed density estimates that call into question all of NMFS' preliminary conclusions. AEWC states that density data are lacking or outdated for almost all marine mammals that may be affected by Shell's operations in the Beaufort and Chukchi Seas, especially for the fall. AEWC provided a few species specific examples to show that NMFS failed to utilize the best available scientific studies in assessing Shell's application. AEWC argues that NMFS' guess at the number of beluga and bowhead whales relies on a study from Moore

et al.

that was published in 2000, that the density of bowhead whales was derived from limited aerial surveys conducted by industry operators, and that these estimates are contrary to the best available scientific information. AEWC also points out that NMFS makes no mention of the most recent Alaska Marine Mammal Stock Assessment Report (SAR) which was released this year, and that the Assessment cites to a 2003 study that documented bowheads “in the Chukchi and Bering Seas in the summer” that are “thought to be a part of the expanding Western Arctic stock” (Angliss and Allen 2009). While a study published in 2003 still is not a sufficient basis for a 2009 density analysis, this study does show that additional information is available that indicates that the number of bowhead whales in the Chukchi may be higher than estimated by NMFS.

Response:

As required by the MMPA implementing regulations at 50 CFR 216.102(a), NMFS has used the best scientific information available in assessing the level of take and whether it is negligible. Although most of the data NMFS depends on were collected over 10 years (1982-1991) from aerial surveys offshore of northern Alaska (Moore

et al.

2000), these are the best scientific information available for bowhead and beluga whale density and distribution so far. Since approximately 10 days of Shell's proposed shallow hazards and site clearance surveys are likely to occur during the fall period when bowheads are migrating through the Beaufort Sea, more conservative estimates were made to take account for this 10-day moving average presented by Richardson and Thomson (2002). Additionally, the 2003 study noted by AEWC in the bowhead whale Alaska Marine Mammal SAR discusses distribution, not density (Rugh

et al.

2003). It was not cited because it is not useful for deriving density estimates.

Therefore, density estimates for bowhead and beluga whales using Moore

et al.

(2000) are based on the best available science.

Comment 17:

AEWC states that NMFS fails to explain how and why it reaches various conclusions in calculating marine mammal densities and what the densities are actually estimated to be once calculated. One example is NMFS' reliance on Moore

et al.

(2000) in making its density determinations. This study documented sightings of marine mammals but did not estimate the total number of animals present. AEWC states that NMFS's practices have resulted in entirely arbitrary calculations of the level of take of marine mammals and whether such takes constitute “small numbers” or a “negligible impact” as a result of Shell's proposal.

Response:

All densities used in calculating estimated take of marine mammals based on the described operations are shown in Tables 6-1 to 6-3 of Shell's application. Moore

et al.

(2000) provides line transect effort and sightings from aerial surveys for cetaceans in the Chukchi Sea. The kilometers of “on-transect” observer effort and number of sightings were used in the accepted line-transect density estimate equation described in Buckland

et al.

(2001). Species specific correction factors for animals that were not at the surface or that were at the surface but were not sighted [g(0)] and animals not sighted due to distance from the survey trackline [f(0)] used in the equation were taken from reports or publications on the same species or similar species if no values were available for a given species, that used the same survey platform. Additional explanations regarding the calculations of marine mammal densities are provided in the Shell's application and the

Federal Register

notice for the proposed IHA (75 FR 27708; May 18, 2010). Therefore, NMFS believes the methodology used in calculations of the level of take of marine mammals is scientifically well supported.

Comment 18:

AEWC is opposed to NMFS using “survey data” gathered by industry while engaging in oil and gas related activities and efforts to document their take of marine mammals. AEWC points out that such industry “monitoring” is designed to document the level of take occurring from the operation (

see

75 FR 27724 and Shell's 4MP). AEWC argues that putting aside whether the methodologies employed are adequate for this purpose, they certainly are not adequate for assessing the density or presence of marine mammals that typically avoid such operations.

Response:

In making its determinations, NMFS uses the best scientific information available, as required by the MMPA implementing regulations. For some species, density estimates from sightings surveys, as well as from “industry surveys”, were provided in the text of Shell's application and the Notice of Proposed IHA for purposes of comparison. However, where information was available from sightings surveys (

e.g.,

Moore

et al.

2000; Bengtson

et al.

2005), those estimates were used to calculate take. Data collected on industry vessels were only used when no other information was available. Additionally, while some Arctic marine mammal species have shown fleeing responses to seismic airguns, data is also collected on these vessels during periods when no active seismic data collection is occurring.

Comment 19:

AEWC states that as a general matter, when it comes to NMFS assessing the various stocks of marine mammals under the MMPA, it cannot use outdated data

i.e.,

“abundance estimates older than 8 years” because of the “decline in confidence in the reliability of an aged abundance estimate” (Angliss and Allen 2009) and the agency is thus unable to reach certain conclusions. Similarly, here, where data are outdated or nonexistent, NMFS should decide it cannot reach the necessary determinations. AEWC argues that these flaws in NMFS' analysis render the agency's preliminary determinations about the level of harassment and negligible impacts completely arbitrary.

Response:

The statements quoted by AEWC from Angliss and Allen (2009) are contained in species SARs where abundance estimates are older than 8 years. However, the full statement reads as follows: “However, the 2005 revisions to the SAR guidelines (NMFS 2005) state that abundance estimates older than 8 years should not be used to calculate PBR due to a decline in confidence in the reliability of an aged abundance estimate.” Shell's activities are not anticipated to remove any individuals from the stock or population. Therefore, a recent estimate of PBR is not needed for NMFS to make the necessary findings under Section 101(a)(5)(D) of the MMPA. Additionally, Shell's application provides information (including data limitations) and references for its estimates of marine mammal abundance. Because AEWC has not provided information contrary to the data provided by Shell, and NMFS does not have information that these estimates are not reliable, NMFS considers these data to be the best available.

Comment 20:

AWL argues that the effects of ice gouge and strudel scour surveying should be considered. AWL states that NMFS' dismissal of potential effects based on marine mammal hearing is not adequately supported. AWL and Dr. Bain argue that NMFS' approach fails to take into consideration the fact that: (1) Juvenile whales, based on their smaller size, likely hear sounds of higher frequencies than adults of the same species; (2) that sound sources contain frequencies beyond the “normal” frequency in the form of undertones, overtones, distortion, or noise; (3) NMFS failed to consider the beat frequency, that when a source simultaneously emits sound of more than one frequency, it will also emit energy at the difference between the two frequencies; (4) NMFS fails to take into account the fact that information about hearing abilities of bowhead whales is based on estimates since bowheads have not been the subject of direct testing and there is inherent uncertainty in these estimates; and (5) the

Federal Register

notice does not address the fact that toothed whales are sensitive to high-frequency sounds including those over 100 kHz.

Response:

NMFS considered the potential effects of Shell's proposed ice gouge and strudel scour surveys in the Beaufort and Chukchi Seas (75 FR 27708; May 18, 2010). The reason NMFS does not think take of marine mammal is likely from ice gouge and strudel scour is because the active acoustic devices being used in these surveys are either in the frequency range above 180 kHz, which is beyond marine mammals functional hearing range, or with low source levels. In addition, due to their high-frequency nature, there is much absorption during sound propagation, which weakens much of the acoustic intensity within a relatively short range.

Although NMFS recognizes much scientific information is still needed on marine mammal hearing capability and audiograms, studies over the past sixty years on key common species across several major taxonomy groups have provided overall hearing ranges of marine mammal species (

see

review in Richardson

et al.

1995; Southall

et al.

2007). These studies show that marine mammal hearing ranges follow certain patterns and can be divided into five functional hearing groups: low-frequency cetacean (baleen whales), mid-frequency cetacean (mostly large to mid-size toothed whales, and delphinids), high-frequency cetacean (porpoises and river dolphins),

pinniped in water, and pinniped in air (Southall

et al.

2007). Although it is possible that juvenile animals could have better hearing at high-frequency ranges similar to humans, however, the overall sensitivity that defines hearing is based on species (or hearing groups) instead of age groups. Therefore, it is incorrect to assume that juvenile whales hear sounds of higher frequencies because of their small size, regardless of species and functional hearing groups. In addition, the reason that juvenile animals (including humans) have slightly better high-frequency hearing is related to age rather than size (the principle behind it is a biological phenomenon called presbycusis, or aging ear).

Regarding point (2) concerning “normal” frequency, which was not defined in the comment, NMFS assumes that Dr. Bain refers to the frequenc(ies) outside the manufacturers' specs for their acoustic devices. Although these outlier noises could be a concern for high-frequency acoustic sources, especially if the frequencies are within the sensitive hearing range of marine mammals, NMFS does not believe these noises have high acoustic intensities in most cases. Nevertheless, NMFS requested that Shell provide frequency spectra and source characteristics for all of its acoustic devices. Shell reported back that it was unable to obtain such specifications from manufacturers. However, Shell will be required to conduct measurements of power density spectra (frequency spectra) of its high frequency active acoustic sources (operating frequency >180 kHz) that will be used in its marine surveys against ambient background noise levels. The power density spectra of these high frequency active acoustic sources will be reported in 1/3-octave band and 1-Hz band from 10 Hz to 180 kHz. The purpose for this measurement is to determine whether there is any acoustic energy within marine mammal hearing ranges that would be generated from operating these high frequency acoustic sources.

If significant acoustic energy (broadband source level >160 dB re 1 μPa @ 1 m in frequency band below 180 kHz) from these high frequency active acoustic sources exists within marine mammal hearing ranges, Shell is required to implement mitigation measures (such as establishing disturbance zones). Therefore, NMFS believes it unlikely that a marine mammal would be taken by this activity.

In regard to point (3), in order to produce “beat frequency,” not only do the two sources have to be very close to each other, they also have to be perfectly synchronized. In the case of Shell's high-frequency sonar, these two interfering frequencies will need to be produced by one device to use the non-linearity of water to purposefully generate the different frequency between two high frequencies. Even so, it is a very inefficient way to generate the beat frequency, with only a low percentage of the original intensity with very narrow beamwidth. Therefore, NMFS does not consider this to be an issue of concern.

NMFS is aware that no direct measurements of hearing exist for these animals, and theories regarding their sensory capabilities are consequently speculative (for a detailed assessment by species using the limited available information,

see

Erbe 2002). In these species, hearing sensitivity has been estimated from behavioral responses (or lack thereof) to sounds at various frequencies, vocalization frequencies they use most, body size, ambient noise levels at the frequencies they use most, and cochlear morphometry and anatomical modeling (Richardson

et al.

1995; Wartzok and Ketten 1999; Houser

et al.

2001; Erbe 2002; Clark and Ellison 2004; Ketten

et al.

2007). Though detailed information is lacking on the species level, the combined information strongly suggests that mysticetes are likely most sensitive to sound from perhaps tens of Hz to ~10 kHz (Southall

et al.

2007). Although hearing ranges for toothed whales (mid- and high-frequency cetaceans) fall between 100s Hz to over 100 kHz, their most sensitive frequency lie between 10 to 90 kHz, and sensitivity falls sharply above 100 kHz.

Comment 21:

Dr. Bain states that changes in behavior resulting from noise exposure could lead to indirect injury in marine mammals in the wild. He presented several examples to suggest that marine mammals repeatedly exposed to Level B harassment could result in Level A takes: (1) Harbor porpoise were observed traveling at high speeds during exposure to mid-frequency sonar in Haro Strait in 2003 and that exhaustion from rapid flight could lead to mortality; (2) citing MMS' (2004) Environmental Assessment on Proposed Oil and Gas Lease Sale 195 in the Beaufort Sea Planning Area (OCS EIS/EA MMS 2004-028) that feeding requires a prey density of 800 mg/m

3

and his own observation, Dr. Bain is concerned displacement from highly productive feeding areas would negatively affect individual whales and that small cetaceans such as harbor porpoise would face a risk of death if they are unable to feed for periods as short as 48-72 hours, or they may move into habitat where they face an increased risk of predation; and (3) individual killer whales have been observed splitting from their pod when frightened by sonar and that other killer whales' separation from their social units has resulted in death.

Response:

NMFS agrees that it is possible that changes in behavior or auditory masking resulting from noise exposure could lead to injury in marine mammals under certain circumstances in the world, such as those examples/hypotheses raised by Dr. Bain. However, the assumption that Dr. Bain made that “exhaustion from rapid flight leading to heart or other muscle damage” could account for mortality merely because of exposure to airgun noise has no scientific basis. Also, it is not likely that received SPLs from the site clearance and shallow hazards surveys would cause drastic changes in behavior or auditory masking in marine mammals in the vicinity of the action area. First, marine mammals in the aforementioned examples and hypotheses were exposed to high levels of non-pulse intermittent sounds, such as military sonar, which has been shown to cause flight activities (

e.g.,

Haro Strait killer whales); and continuous sounds such as the vessel, which could cause auditory masking when animals are closer to the source. The sources produced by the acoustic equipment and airguns for Shell's site clearance and shallow hazards surveys are impulse sounds used in seismic profiling, bathymetry, and seafloor imaging. Unlike military sonar, seismic pulses have an extremely short duration (tens to hundreds of milliseconds) and relatively long intervals (several seconds) between pulses. Therefore, the sound energy levels from these acoustic sources and small airguns are far lower in a given time period. Second, the intervals between each short pulse would allow the animals to detect any biologically significant signals, and thus avoid or prevent auditory masking. Although airgun pulses at long distances (over kilometers) may be “stretched” in duration and become non-pulse due to multipath propagation, the intervals between the non-pulse noises would still allow biologically important signals to be detected by marine mammals. Especially due to the relatively small source being used for the site clearance and shallow hazard surveys, the received levels at such long distances would be even lower (

e.g.,

modeled received levels at 15 km are expected to be under 120 dB re 1 μPa). In addition, NMFS requires mitigation measures to ramp-up acoustic sources at a rate of no more than 6 dB per 5 min.

This ramp-up would prevent marine mammals from being exposed to high level noises without warning, thereby eliminating the possibility that animals would dramatically alter their behavior (

i.e.

from a “startle” reaction). NMFS also believes that long-term displacement of marine mammals from a feeding area is not likely because the seismic vessel is constantly moving, and the maximum 160-dB ensonified radius is about 1.22 km, which would create an area of ensonification of approximately 7.3 km

2

at any given moment, which constitutes a very small portion of the Beaufort Sea (0.0016 percent). In reality, NMFS expects the 160-dB ensonified zone to be smaller due to absorption and attenuation of acoustic energy in the water column.

Comment 22:

Citing research on long term adverse effects to whales and dolphins from whale watching activities (Trites and Bain 2000; Bain 2002; Lusseau

et al.

2009), Dr. Bain states that Level B behavioral harassment could be the primary threat to cetacean populations.

Response:

Although NMFS agrees that long-term, persistent, and chronic exposure to Level B harassment could have a profound and significant impact on marine mammal populations, such as described in the references cited by Dr. Bain, those examples do not reflect the impacts of seismic surveys to marine mammals for Shell's project. First, whale watching vessels are intentionally targeting and making close approaches to cetacean species so the tourists onboard can have a better view of the animals. Some of these whale/dolphin watching examples cited by Dr. Bain occurred in the coastal waters of the Northwest Pacific between April and October and for extended periods of time (“[r]ecreational and scientific whale watchers were active by around 6 a.m., and some commercial whale watching continued until around sunset”). Thus multiple vessels have been documented to be in relatively close proximity to whales for about 12 hours a day, six months a year, not counting some “out of season” whale watching activities and after dark commercial filming efforts. In addition, noise exposures to whales and dolphins from whale watching vessels are probably significant due to the vessels' proximity to the animals. To the contrary, Shell's proposed open-water shallow hazard and site clearance surveys, along with existing industrial operations in the Arctic Ocean, do not intentionally approach marine mammals in the project areas. Shell's survey locations are situated in a much larger Arctic Ocean Basin, which is far away from most human impacts. Therefore, the effects from each activity are remote and spread farther apart, as analyzed in NMFS' 2010 EA, as well as the MMS 2006 PEA. Shell's site clearance and shallow hazards activities would only be conducted between July and October for 60 days, weather permitting. In addition, although studies and monitoring reports from previous seismic surveys have detected Level B harassment of marine mammals, such as avoidance of certain areas by bowhead and beluga whales during the airgun firing, no evidence suggests that such behavioral modification is biologically significant or non-negligible (Malme

et al.

1986; 1988; Richardson

et al.

1987; 1999; Miller

et al.

1999; 2005), as compared to marine mammals exposed to chronic sound from whale watching vessels, as cited by Dr. Bain. Therefore, NMFS believes that potential impacts to marine mammals in the Chukchi Sea by site clearance and shallow hazards surveys would be limited to Level B harassment only, and due to the limited scale and remoteness of the project in relation to a large area, such adverse effects would not accumulate to the point where biologically significant effects would be realized.

Comment 23:

Dr. Bain notes that NMFS uses different thresholds for continuous and pulsed sounds. Dr. Bain thus assumes that the motivation for this was to tie impact to SEL measurements of sound (as opposed to RMS or peak-to-peak measurements), which correlated well with TTS. Dr. Bain states that there is no evidence linking SEL to behavioral changes, and citing his paper (Bain and Williams, in review), Mr. Bain claims he found peak-to-peak level measurements correlated best with behavioral changes.

Response:

First, Dr. Bain's assumption regarding NMFS' use of different behavioral thresholds for impulse and non-impulse noises are incorrect. The reason for the difference is not to tie impact to SEL measurements of sound to behavioral change, rather, this difference (received level at 160 dB re 1 μPa for pulse and 120 dB re 1 μPa for non-pulse) came from many field observations and analyses (

see

review by Richardson

et al.

1995; Southall

et al.

2007) on measured avoidance responses in whales in the wild. Specifically, the 160 dB re 1 μPa (rms) 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; Richardson

et al.

1986) responding when exposed to seismic airguns (impulsive sound source). The 120 dB re 1μPa (rms) threshold also originates from research on baleen whales, specifically migrating gray whales (Malme

et al.

1984; predicted 50% probability of avoidance) and bowhead whales reacting when exposed to industrial (

i.e.,

drilling and dredging) activities (non-impulsive sound source) (Richardson

et al.

1990).

Dr. Bain's attached paper (Bain and Williams, in review) reports the results of an examination of effects of large airgun arrays on behavior of marine mammals in the waters of British Columbia, Canada and Washington State, USA, using a small boat to monitor out to long ranges (1 to > 70 km from the seismic source vessel). The paper concludes that a significant relationship was observed between the magnitude of behavioral response and peak-to-peak received level and the long distances at which behavioral responses were observed (> 60 km for harbor porpoise), along with counter-productive behavior that occasionally brought individuals into higher-intensity acoustic zones. However, there are potential design flaws in the study. First, the paper states a launch carried aboard the seismic receiver vessel was placed in the water to perform received level measurements near marine mammals. When making acoustic measurements, the launch “travelled along a line at approximately 20 km/h until either marine mammals were closely approached, or the launch had travelled 10 km.” Therefore, it is highly likely that behavioral reactions from observed marine mammals were caused by the high-speed, close-approach of the launch, rather than from distant seismic airguns. This experiment design may explain the authors' observation of “counter-productive behavioral responses” that animals are moving into higher-intensity acoustic zones, which probably indicates that behavioral changes caused by Bain's launch greatly exceeded any behavioral change resulting from exposure to seismic airgun noise. Second, the authors of the paper also expressed “methodological concerns due to the subjectivity of observers.” Nevertheless, this study concludes that harbor seal individuals were generally moving away from the airguns at exposure levels above 170 dB re 1 μPa (p-p) and that gray whales were observed at received levels up to approximately 170 dB re 1 μPa (p-p) exhibiting no obvious behavioral response. These observations contradict Mr. Bain's earlier comments that major behavioral effects result from noise in the 105-125 dB range.

Finally, Bain and Williams (in review) also state that the study “found that while airguns concentrated their sound output at low frequencies, substantial

high frequency energy (to at least 100 kHz) was also present.” However, the paper provides no explanation as to how this conclusion was made. The accompanying power density spectrum (Figure 2 in Bain and Williams, in review) of the paper fails to show evidence that the frequencies above 1 kHz were mostly contributed from seismic airguns, and there was no indication at what distance this recording was made.

Subsistence Issues

Comment 24:

AEWC states that the nondiscretionary congressional directive that there will be no more than a negligible impact to marine mammals and no unmitigable adverse impact to the availability of marine mammals for subsistence taking is consistent with the MMPA's overall treatment of both marine mammal and subsistence protections. AEWC further states that Congress has set a “moratorium on the taking * * * of marine mammals,” 16 U.S.C. 1371(a), with the sole exemption provided for the central role of subsistence hunting by Alaska Natives. Thus, AEWC concludes that Congress has given priority to subsistence takes of marine mammals over all other exceptions to the moratorium, which may be applied for and obtained only if certain statutory and regulatory requirements are met. However, AEWC states that incidental harassment authorizations are available only for specified activities for which the Secretary makes the mandated findings. Thus, the pursuit of those activities is subordinated, by law, to the critical subsistence uses that sustain Alaska's coastal communities. NSB further states that NMFS has not adequately demonstrated that the proposed activities will not have “an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses.”

Response:

The MMPA does not prohibit an activity from having an adverse impact on the availability of marine mammals for subsistence uses; rather, the MMPA requires NMFS to ensure the activity does not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence uses. NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

For the determination of the unmitigable adverse impact analysis, NMFS, other government agencies, and affected stakeholder agencies and communities were provided a copy of the draft POC in March 2010, which outlined measures Shell would implement to ensure no unmitigable adverse impact to subsistence uses. The POC specifies times and areas to avoid in order to minimize possible conflicts with traditional subsistence hunts by North Slope villages for transit and open-water activities. Shell waited to begin activities until the close of the spring beluga hunt in the village of Point Lay. Shell has also developed a Communication Plan and will implement the plan before initiating the 2010 program to coordinate activities with local subsistence users as well as Village Whaling Associations in order to minimize the risk of interfering with subsistence hunting activities, and keep current as to the timing and status of the bowhead whale migration, as well as the timing and status of other subsistence hunts. The Communication Plan includes procedures for coordination with Communication and Call Centers to be located in coastal villages along the Beaufort and Chukchi Seas during Shell's program in 2010.

Based on the measures contained in the IHA (and described later in this document), NMFS has determined that mitigation measures are in place to ensure that Shell's operations do not have an unmitigable adverse impact on the availability of marine mammal species or stocks for subsistence uses.

Mitigation and Monitoring Concerns

Comment 25:

NSB is concerned that MMOs cannot

see

animals at the surface when it is dark or during the day because of fog, glare, rough seas, the small size of animals such as seals, and the large portion of time that animals spend submerged. NSB also notes that Shell has acknowledged that reported sightings are only “minimum” estimates of the number of animals potentially affected by surveying.

Response:

NMFS recognizes the limitations of visual monitoring in darkness and other inclement weather conditions. Therefore, in the IHA to Shell, NMFS requires that no seismic airgun can be ramped up when the entire safety zones are not visible. However, Shell's operations will occur in an area where periods of darkness do not begin until early September. Beginning in early September, there will be approximately 1-3 hours of darkness each day, with periods of darkness increasing by about 30 min each day. By the end of the survey period, there will be approximately 8 hours of darkness each day. These conditions provide MMOs favorable monitoring conditions for most of the time.

Comment 26:

AEWC notes that Shell intends to employ marine mammal observers (“MMO”) and a “190 and 180 dB safety radii for pinnipeds and cetaceans, respectively, and the 160 dB disturbance radii” to mitigate these effects. However, AEWC states that the safety radii proposed by Shell do not negate these impacts. The safety radii only function as well as the observers on the vessels can

see

and report marine mammals within the radii or the general vicinity of the vessel. AEWC notes that MMOs are human and suffer from human flaws, and that observers are bad at judging distances in the water—

i.e.,

whether a marine mammal is within the radii or not. AEWC further states that at night and during storms MMOs are particularly ineffective. Thus, AEWC concludes that Shell's proposed MMO program is not sufficient mitigation to prevent Shell from engaging in Level A harassment.

Response:

NMFS does not agree with AEWC's observation and conclusion, although AEWC is right that distance judging in the water is a challenging issue for MMOs. However, as noted in Shell's Marine Mammal Monitoring and Mitigation Plan (4MP), distances to nearby marine mammals will be estimated with binoculars (Fujinon 7 x 50) containing a reticle to measure the vertical angle of the line of sight to the animal relative to the horizon. In addition, MMOs may use a laser rangefinder to test and improve their abilities for visually estimating distances to objects in the water. The device was very useful in improving the distance estimation abilities of the observers at distances up to about 600 m (1,968 ft)—the maximum range at which the device could measure distances to highly reflective objects such as other vessels—while the isopleth to the 180 dB received level is expected to be at 125 m (410 ft) from the source vessel. Therefore, NMFS believes that marine mammal monitoring efforts that would be employed by Shell during its marine surveys are adequate.

In addition, mitigation measures such as ramp-up of airguns would warn any marine mammals that are missed during the pre-survey period to leave the survey vicinity. Lastly, recent studies show that it is unlikely a marine

mammal would experience TTS when exposed to a seismic pulse at a received level of 190 dB (

see

Finneran

et al.

2002). In order for a marine mammal to experience even a mild TTS, the animal has to be in a zone with intense noise for a certain duration to and be exposed to a sound level much greater than a single seismic impulse, and research on marine mammal behavior during TTS experiments indicates that animals will try to avoid areas where receive levels are high enough to cause TTS (

see

Finneran

et al.

2002).

Comment 27:

NSB and AEWC note that Shell asserts that mitigation measures are designed to protect animals from injurious takes, but it is not clear that these mitigation measures are effective in protecting marine mammals or subsistence hunters. AEWC states that data previously presented by Shell and ConocoPhillips from their seismic activities made clear that MMOs failed to detect many marine mammals that encroached within the designated safety zones. AEWC further notes that Shell admits that night vision devices “are not nearly as effective as visual observation during daylight hours.”

Response:

NMFS believes that the required monitoring and mitigation measures are effective and are an adequate means of effecting the least practicable impact to marine mammals and their habitat. Moreover, the safety zones for Shell's 2010 surveys are much smaller than those for the larger 3D seismic surveys in past years. The 180- and 190-dB safety zones are 125 m (410 ft) and 35 m (115 ft), respectively. The monitoring reports from 2006, 2007, 2008, and 2009 do not note any instances of serious injury or mortality (Patterson

et al.

2007; Funk

et al.

2008; Ireland

et al.

2009; Reiser

et al.

2010). Additionally, the fact that a power-down or shutdown is required does not indicate that marine mammals are not being detected or that they are incurring serious injury. As discussed elsewhere in this document and in the Notice of Proposed IHA (75 FR 27708; May 18, 2010), the received level of a single seismic pulse (with no frequency weighting) might need to be approximately 186 dB re 1 μPa

2

-s (

i.e.,

186 dB sound exposure level [SEL]) in order to produce brief, mild TTS (a non-injurious, Level B harassment) in odontocetes. Exposure to several strong seismic pulses that each have received levels near 175-180 dB SEL might result in slight TTS in a small odontocete, assuming the TTS threshold is (to a first approximation) a function of the total received pulse energy. For Shell's proposed survey activities, the distance at which the received energy level (per pulse) would be expected to be ≥175-180 dB SEL is the distance to the 190 dB re 1 μPa (rms) isopleth (given that the rms level is approximately 10-15 dB higher than the SEL value for the same pulse). Seismic pulses with received energy levels ≥175-180 dB SEL (190 dB re 1 μPa (rms)) are expected to be restricted to a radius of approximately 35 m (115 ft) around the airgun array.

For baleen whales, there are no data, direct or indirect, on levels or properties of sound that are required to induce TTS. The frequencies to which baleen whales are most sensitive are lower than those to which odontocetes are most sensitive, and natural background noise levels at those low frequencies tend to be higher. As a result, auditory thresholds of baleen whales within their frequency band of best hearing are believed to be higher (less sensitive) than are those of odontocetes at their best frequencies (Clark and Ellison 2004). From this, it is suspected that received levels causing TTS onset may also be higher in baleen whales.

In pinnipeds, TTS thresholds associated with exposure to brief pulses (single or multiple) of underwater sound have not been measured. Initial evidence from prolonged exposures suggested that some pinnipeds may incur TTS at somewhat lower received levels than do small odontocetes exposed for similar durations (Kastak

et al.

1999; 2005). However, more recent indications are that TTS onset in the most sensitive pinniped species studied (harbor seal, which is closely related to the ringed seal) may occur at a similar SEL as in odontocetes (Kastak

et al.

2004).

NMFS concluded that cetaceans and pinnipeds should not be exposed to pulsed underwater noise at received levels exceeding, respectively, 180 and 190 dB re 1 μPa (rms). The established 180- and 190-dB re 1 μPa (rms) criteria are not considered to be the levels above which TTS might occur. Rather, they are the received levels above which, in the view of a panel of bioacoustics specialists convened by NMFS before TTS measurements for marine mammals started to become available, one could not be certain that there would be no injurious effects, auditory or otherwise, to marine mammals. As summarized above, data that are now available imply that TTS is unlikely to occur unless bow-riding odontocetes are exposed to airgun pulses much stronger than 180 dB re 1 μPa rms (Southall

et al.

2007). No cases of TTS are expected as a result of Shell's proposed activities given the small size of the source, the strong likelihood that baleen whales (especially migrating bowheads) would avoid the approaching airguns (or vessel) before being exposed to levels high enough for there to be any possibility of TTS, and the mitigation measures proposed to be implemented during the survey described later in this document.

There is no empirical evidence that exposure to pulses of airgun sound can cause PTS in any marine mammal, even with large arrays of airguns (

see

Southall

et al.

2007). PTS might occur at a received sound level at least several decibels above that inducing mild TTS if the animal is exposed to the strong sound pulses with very rapid rise time.

It is highly unlikely that marine mammals could receive sounds strong enough (and over a sufficient duration) to cause permanent hearing impairment during a project employing the airgun sources planned here (

i.e.,

an airgun array with a total discharge volume of 40 in

3

). In the proposed project, marine mammals are unlikely to be exposed to received levels of seismic pulses strong enough to cause more than slight TTS. Given the higher level of sound necessary to cause PTS, it is even less likely that PTS could occur. In fact, even the levels immediately adjacent to the airgun may not be sufficient to induce PTS, especially because a mammal would not be exposed to more than one strong pulse unless it swam immediately alongside the airgun for a period longer than the inter-pulse interval. Baleen whales, and belugas as well, generally avoid the immediate area around operating seismic vessels. The planned monitoring and mitigation measures, including visual monitoring, power-downs, and shutdowns of the airguns when mammals are seen within the safety radii, will minimize the already-minimal probability of exposure of marine mammals to sounds strong enough to induce PTS.

NMFS acknowledges that night-time monitoring by using night vision devices is not nearly as effective as visual observation during daylight hours. Therefore, the IHA to Shell prohibits start up of seismic airguns when the entire safety zone can not be effectively monitored during the night-time hours. If Shell has a shutdown of its seismic airgun array during low-light hours, it will have to wait till daylight to start ramping up the airguns.

Comment 28:

The Commission believes that absent an evaluation by the oil and gas industry of its monitoring and mitigation measures, the effects of the industry's activities will remain uncertain. The Commission recommends that NMFS require Shell to collect information necessary to evaluate the effectiveness of the

mitigation measures adopted and to review and modify mitigation measures accordingly. The Commission notes that mitigation measures required for Shell's proposed marine surveys should be useful to a degree, but in some cases they are not sufficiently specific. For example, the Commission raised questions about the “power-down” and asks NMFS to specify what speed of reduction would be required when a marine mammal is observed within 274 m (300 yards) of a vessel. The Commission considers it vital that NMFS and the industry make every reasonable effort to evaluate the mitigation measures whenever possible, and that the evaluation should provide a basis for (1) Distinguishing between measures that do and do not have protective value, (2) improving those that are useful, and (3) finding alternatives for those that are not. Citing a report from the Joint Subcommittee on Ocean Science and Technology, NSB also questions the effectiveness of ramp-up measures.

Response:

In order to issue an incidental take authorization (ITA) under Sections 101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable, 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). For Shell's proposed open water marine surveys, a series of mitigation and monitoring measures are required under the IHA. These mitigation measures include: (1) Sound source measurements to determine safety zones more accurately, (2) establishment of safety and disturbance zones to be monitored by MMOs on the seismic vessel, (3) a power-down when a marine mammal is detected approaching a safety zone and a shutdown when a marine mammal is observed within a zone, (4) ramp-up of the airgun array, (5) establishing a 120-dB safety zone and prohibition of seismic surveys within that zone whenever it encompasses four or more bowhead whale mother-calf pairs, (6) establishing a 160-dB safety zone that would prohibit firing of the seismic airguns within the zone whenever it encompasses 12 or more bowhead or gray whales involved in non-migratory behavior (

e.g.,

feeding), and (7) a requirement that vessels reduce speed when within 274 m (300 yards) of whales and steer around those whales if possible.

The basic rational for these mitigation measures is (a) To avoid exposing marine mammals to intense seismic airgun noises at received levels that could cause TTS (for mitigation measures listed as (1) through (4)), (b) to avoid exposing large aggregations of bowhead whales and bowhead whale calves to elevated noise received levels (mitigation measures (5) and (6)), and (c) to avoid vessel strike of marine mammals (mitigation measure (7)). Although limited research in recent years shows that noise levels that could induce TTS in odontocetes and pinnipeds are much higher than current NMFS safety thresholds (

i.e.,

180 dB and 190 dB re 1 μPa (rms) for cetaceans and pinnipeds, respectively), mitigation measures listed in (1) through (3) provide very conservative measures to ensure that no marine mammals are exposed to noise levels that would result in TTS. The power-down measure listed in (3) requires Shell to reduce the firing airguns accordingly so that a marine mammal that is detected approaching the safety zone will be further away from the reduced safety radius (as a result of power-down).

Regarding mitigation measures requiring ramp-ups, while scientific research built around the question on whether ramp-up is effective has not been conducted, several studies on the effects of anthropogenic noise on marine mammals indicate that many marine mammals will move away from a sound source that they find annoying (

e.g.

Malme

et al.

1984; Miller

et al.

1999; others reviewed in Richardson

et al.

1995). In particular, three species of baleen whales have been the subject of tests involving exposure to sounds from a single airgun, which is equivalent to the first stage of ramp-up. All three species were shown to move away at the onset of a single airgun operation (Malme

et al.

1983; 1984; 1985; 1986; Richardson

et al.

1986; McCauley

et al.

1998; 2000). From this research, it can be presumed that if a marine mammal finds a noise source annoying or disturbing, it will move away from the source prior to sustaining an injury, unless some other over-riding biological activity keeps the animal from vacating the area. This is the premise supporting NMFS' and others' belief that ramp-up is effective in preventing injury to marine mammals. However, to what degree ramp-up protects marine mammals from exposure to intense noises is unknown. Thus, NMFS will require industry applicants that will conduct marine or seismic surveys in the 2010 open water season to collect, record, analyze, and report MMO observations during any ramp-up period, as recommended by the independent peer review panel convened in March 2010, to review Shell's monitoring plan (more information is available later in this document).

Mitigation measures (5) and (6) regarding four cow-calf pairs and an aggregation of 12 bowhead and/or gray whales, which were proposed in MMS' 2006 programmatic EA and were required in NMFS IHAs issued between 2006 to 2008, need to be further analyzed for their effectiveness and efficacy. NMFS is currently conducting a review of these mitigation measures through the Environmental Impact Statement process for the Arctic oil and gas activities.

Finally, regarding the speed reduction for vessels in the vicinity of marine mammals, NMFS clarifies that vessel speed must be reduced to less than 10 knots when a marine mammal is detected within 274 m (300 yards) of the vessel. This mitigation measure is to avoid vessel strike of marine mammals and is based on NMFS' ship strike rule for the north Atlantic right whale. NMFS will evaluate the efficacy of this mitigation. Although there has never been a vessel strike of marine mammals by vessels involved in seismic activities in the Arctic, NMFS is still taking this precaution.

Comment 29:

The Commission recommends that Shell be required to supplement its mitigation measures by using passive acoustic monitoring (PAM) to provide a more reliable estimate of the number of marine mammals taken during the course of the proposed seismic survey.

Response:

NMFS' 2010 EA for this action contains an analysis of why PAM is not required to be used by Shell to implement mitigation measures. Shell will deploy acoustic recorders to collect data on vocalizing animals. However, this information will not be used in a real-time or near-real-time capacity. Along with the fact that marine mammals may not always vocalize while near the PAM device, another impediment is that flow noise generated by a towed PAM will interfere with low frequency whale calls and make their detection difficult and unreliable. MMS sponsored a workshop on the means of acoustic detection of marine mammals in November 2009 in Boston, MA. The workshop reviewed various available acoustic monitoring technology (passive and active), its feasibility and applicability for use in MMS-authorized activities, and what additional developments need to take place to

improve its effectiveness. The conclusion is that at this stage, using towed passive acoustics to detect marine mammals is not a mature technology. NMFS may consider requirements for PAM in the future depending on information received as the technology develops further. Additionally, NMFS recommended to Shell that the company work to help develop and improve this type of technology for use in the Arctic.

Comment 30:

AWL states that NMFS should consider time and space limitations on surveying in order to reduce harm, and that there is a general consensus that spatial-temporal avoidance of high value habitat represents one of the best means to diminish potential impacts. In this case, AWL requests NMFS to evaluate the possibility of avoiding activities during the peak of the bowhead migration within the Beaufort migratory corridor before issuing an IHA. In addition, AWL requests NMFS to require Shell to complete its 30 days of shallow hazard surveying in July and August in an effort to avoid—as much as possible—the bulk of the bowhead migration.

Response:

In making its negligible determination for the issuance of an IHA to Shell for open water marine surveys, NMFS has conducted a thorough review and analysis on how to reduce any adverse effects to marine mammals from the proposed action, including the consideration of time and space limitations that could reduce impacts to the bowhead migration. As Shell indicates in its IHA application, the majority of the site clearance and shallow hazards surveys will be conducted during August and September to avoid the peak of the bowhead whale migration through the Beaufort Sea, which typically occurs in mid-September and October.

In addition, bowhead whales migrating west across the Alaskan Beaufort Sea in autumn, in particular, are unusually responsive to airgun noises, with avoidance occurring out to distances of 20-30 km from a medium-sized airgun source (Miller

et al.

1999; Richardson

et al.

1999). However, while bowheads may avoid an area of 20 km (12.4 mi) around a noise source, when that determination requires a post-survey computer analysis to find that bowheads have made a 1 or 2 degree course change, NMFS believes that does not rise to a level of a “take” and that such minor behavioral modification is not likely to be biologically significant.

Comment 31:

The Commission recommends that NMFS (1) Review the proposed monitoring measures to ensure that Shell is required to gather information on all the potentially important sources of noise and the complex sound field that the seismic survey activities create; (2) work with Shell and its contractors to engage acknowledged survey experts to review the survey design and planned analyses to ensure that Shell will provide relatively unbiased and reliable results; (3) work with Shell to coordinate a comparative analysis of the results of vessel-based, aerial, and passive acoustic monitoring methods to evaluate their relative strengths and weaknesses and determine if and how they could be improved for use with future surveys; (4) develop a plan for collecting meaningful baseline information—that is, information that provides a reliable basis for evaluating long-term effects on the marine mammal species and stocks that may be affected by oil and gas development and production in the Beaufort Sea area; and (5) work with Shell to determine how the data collected during the proposed activities can be made available to other scientific purposes.

Response:

NMFS largely agrees with the Commission's recommendations and has been working with the seismic survey applicants and their contractors on gathering information on acoustic sources, survey design review, and monitoring analyses. NMFS has contacted Shell and received information on all the active acoustic sources that would be used for its proposed open water marine surveys. The information includes source characteristics such as frequency ranges and source levels, as well as estimated propagation loss. In addition, at NMFS' request, Shell has provided power density spectra for all of its high-frequency sonar equipments.

Regarding the remaining points, NMFS convened an independent peer review panel to review Shell's 4MP for the Open Water Marine Survey Program in the Beaufort and Chukchi Seas, Alaska. The panel met on March 25 and 26, 2010, and provided their final report to NMFS on April 22, 2010. NMFS has reviewed the report and evaluated all recommendations made by the panel. NMFS has determined that there are several measures that Shell can incorporate into its 2010 open water Marine Survey Program 4MP to improve it, and is requiring those measures in the IHA. Additionally, there are other recommendations that NMFS has determined would also result in better data collection, and could potentially be implemented by oil and gas industry applicants, but which likely could not be implemented for the 2010 open-water season due to technical issues (

see

below). A detailed discussion about the panel review is presented later in this document. While it may not be possible to implement those changes this year, NMFS believes that they are worthwhile and appropriate suggestions that may require a bit more time to implement, and Shell should consider incorporating them into future monitoring plans should Shell decide to apply for IHAs in the future. Nevertheless, despite these recommendations, NMFS believes that Shell's 4MP will be sufficient for purposes of data gathering in 2010.

Comment 32:

The Commission recommends that the IHA require Shell to halt its seismic survey and consult with NMFS regarding any seriously injured or dead marine mammal when the injury or death may have resulted from Shell's activities.

Response:

NMFS concurs with the Commission's recommendation. NMFS has included a condition in the IHA which requires Shell to immediately shutdown the seismic airguns if a dead or injured marine mammal has been sighted within an area where the seismic airguns were operating within the past 24 hours so that information regarding the animal can be collected and reported to NMFS. In addition, Shell must report the events to the Marine Mammal Stranding Network within 24 hours of the sighting, as well as to the NMFS staff person designated by the Director, Office of Protected Resources, or to the staff person designated by the Alaska Regional Administrator. The lead MMO is required to complete a written certification, which must include the following information: species or description of the animal(s); the condition of the animal(s) (including carcass condition if the animal is dead); location and time of first discovery; observed behaviors (if alive); and photographs or video (if available). In the event that the marine mammal injury or death was determined to have been a direct result of Shell's activities, then operations will cease, NMFS and the Stranding Network will be notified immediately, and operations will not be permitted to resume until NMFS has had an opportunity to review the written certification and any accompanying documentation, make determinations as to whether modifications to the activities are appropriate and necessary, and has notified Shell that activities may be resumed.

If NMFS determines that further investigation is appropriate, once investigations are completed and determinations made, NMFS would use available information to help reduce the

likelihood that a similar event would happen in the future and move forward with necessary steps to ensure environmental compliance for oil and gas related activities under the MMPA.

Cumulative Impact Concerns

Comment 33:

NSB, AEWC, ICAS, and AWL state that NMFS must also consider the effects of disturbances in the context of other activities occurring in the Arctic. NSB states that NMFS should ascertain the significance of multiple exposures to underwater noise, ocean discharge, air pollution, and vessel traffic—all of which could impact bowhead whales and decrease survival rates or reproductive success. NSB notes that the cumulative impacts of all industrial activities must be factored into any negligible impact determination. NSB, AEWC, ICAS, and AWL list a series of reasonably foreseeable activities in the Arctic Ocean as: (1) GX Technology's Beaufort Sea seismic surveys; (2) Statoil's Chukchi Sea seismic surveys; (3) Seismic surveys planned in the Canadian Arctic; (4) U.S. Geological Survey's (USGS') seismic surveys; (5) BP's production operations at Northstar; and (6) Dalmorneftegeophysica (DMNG) Russian Far East offshore seismic surveys.

Response:

Under section 101(a)(5)(D) of the MMPA, NMFS is required to determine whether the taking by the applicant's specified activity will take only small numbers of marine mammals, will have a negligible impact on the affected marine mammal species or population stocks, and will not have an unmitigable impact on the availability of affected species or stocks for subsistence uses. Cumulative impact assessments are NMFS' responsibility under the National Environmental Policy Act (NEPA), not the MMPA. In that regard, MMS' 2006 Final PEA, NMFS' 2007 and 2008 Supplemental EAs, NMFS' 2009 EA, and NMFS' 2010 EA address cumulative impacts. The most recent NMFS' 2010 EA addresses cumulative activities and the cumulative impact analysis focused on oil and gas related and non-oil and gas related activities in both Federal and State of Alaska waters that were likely and foreseeable. The oil and gas related activities in the U.S. Arctic in 2010 include this activity; Statoil's proposed seismic survey in Chukchi Sea; ION Geophysical's proposed seismic survey in Beaufort Sea; and BP's production operations at Northstar. GX Technology's Beaufort Sea seismic surveys have been cancelled by the company. Seismic survey activities in the Canadian and Russian Arctic occur in different geophysical areas, therefore, they are not analyzed under the NMFS 2010 EA. Other appropriate factors, such as Arctic warming, military activities, and noise contributions from community and commercial activities were also considered in NMFS' 2010 EA. Please refer to that document for further discussion of cumulative impacts.

Comment 34:

Citing the peer review panel created for this year's open water meeting that Shell's activities “will create a complex sound field with potential effects beyond those that the applicant proposes to monitor,” and NRC's advice on assessing cumulative effects to the population from multiple effects to multiple individuals, the AWL recommends NMFS create a sound budget for the Arctic, limiting the total amount of sound introduced into the water. The AWL further states that instead of dismissing the impacts of relatively smaller sources of sound, NMFS should account for and regulate those sources, and a sound budget may be the most appropriate tool for doing so. The AWL states that even without a comprehensive sound budget, NMFS could impose limits on the total number of activities permitted in the Arctic during the open water season. Allowing only one or two noise generating activities each year could reduce the potential for take and would facilitate additional monitoring of the impacts of noise, since multiple noise sources make it very difficult to study the effect of specific sound sources.

Response:

NMFS agrees that assessing cumulative effects to the population from multiple effects to multiple individual marine mammals is an important approach to understanding overall impacts of industry activities to the species and the environment. NMFS is also considering the peer review panel's recommendation and is addressing sound budget issues in the marine environment through a series of workshops and a working group. In addition, Shell is required to provide sound source verification (SSV) tests before they start marine surveys. These acoustic measurements will be analyzed and provided in the 90-day report for Shell's marine surveys. Additional information on Arctic sound budget data are being collected by many researchers, including underwater recordings made by some of the passive acoustic arrays deployed on the Alaska north slope. These data will hopefully be analyzed to address overall ambient sound levels and a sound budget for the Arctic Ocean.

Further, NMFS also requested that Shell provide source characteristics for all active acoustic sources that are planned to be used in the proposed open water marine surveys. NMFS has reviewed these data and analyzed overall ambient sound levels in the Arctic Ocean based on current knowledge. The review and analysis showed that the short-term ensonification of a small region in the Beaufort and Chukchi Seas during the open water season is not likely to appreciably increase the ambient noise level and alter the local ocean soundscape. A description of the analysis is provided in NMFS' 2010 EA for Shell and Statoil's proposed open water marine and seismic surveys (NMFS 2010).

Finally, as NMFS is working on its Arctic EIS, limits on the total of oil and gas related activities to be allowed in the Arctic are being considered under separate alternatives. Nevertheless, NMFS does not agree with AWL's notion of “[a]llowing only one or two noise generating activities each year” as monitoring reports and studies from prior year industrial activities (

e.g.,

there were five seismic survey activities in the open water season of 2008) indicate that multiple activities can be authorized in the Arctic while still reaching a finding of no significant impact, provided that appropriate mitigation and monitoring measures are prescribed and implemented.

Comment 35:

In addressing cumulative effects, Dr. Bain points out a number of ways he believes that Statoil's seismic surveys in the Chukchi Sea could interact with Shell's marine surveys: (1) If the same individuals are exposed to both projects, this would increase the duration of exposure beyond those considered in the applications. Further, individuals would potentially be exposed multiple times, and multiple exposures are likely to result in increased stress levels; (2) if both projects operate in the Chukchi at the same time, individuals would be forced to simultaneously respond to both noise sources. Avoidance of one noise source could result in a marine mammal approaching the other noise source, resulting in unexpectedly high noise exposure. This negates the safety assumption that animals will move away prior to receiving harmful exposure; and (3) different individuals may be exposed to the two projects, which would put NMFS' assumption that its policies only allow small takes to occur into question.

Response:

In assessing the cumulative effects, NMFS has considered that animals could be exposed to multiple activities, multiple times. As described in detail in the proposed IHA (75 FR

27708; May 18, 2010), Shell's ice gouge survey in the Chukchi Sea is not expected to result in takes of marine mammals due to its high frequency and the low energy acoustic sources being used. In addition, even if marine mammals would be affected by the presence of the ice gouge survey activities being conducted concurrently with Statoil's 3D marine seismic survey, the affected areas represent a small fraction of the total habitat of the Chukchi Sea, therefore, it is not likely that marine mammals avoiding one source would run into the other, as suggested by Dr. Bain. The ensonified area with received levels above 160 dB in the Chukchi Sea is 531 km

2

(or 0.089 percent of the entire Chukchi Sea). Finally, considering different individuals may be exposed to two projects in both the Beaufort and Chukchi Seas, NMFS has provided the total number of individuals that could be taken by Level B harassment from both activities and concludes that the total take numbers are small, with the most potential takes being: 184 Eastern Chukchi Sea beluga whales (4.95% of the population), 539 B-C-B bowhead whales (3.78% population), and 6,629 Alaska ringed seals (2.87% population). Potential takes of all other species are estimated to be under 1% of the populations. Therefore, NMFS believes Dr. Bain's concerns are not warranted.

ESA Concerns

Comment 36:

AWL states that NMFS section 7 consultation under the ESA must consider the potential impact of potential future oil and gas activities, including (1) Shell's strudel scour and ice gouge surveying to enable pipeline construction for production on its proposed Chukchi and Beaufort drill sites; and (2) a shallow hazard survey in Harrison Bay to allow for later exploration drilling. AWL states that in both instances, NMFS must consider the effects of the entire agency action.

Response:

Under section 7 of the ESA, NMFS Office of Protected Resources has completed consultation with NMFS Alaska Regional Office on “Authorization of Small Takes under the Marine Mammal Protection Act for Certain Oil and Gas Exploration Activities in the U.S. Beaufort and Chukchi Seas, Alaska for 2010.” In a Biological Opinion issued on July 13, 2010, NMFS concluded that the issuance of the incidental take authorizations under the MMPA for seismic surveys are not likely to jeopardize the continued existence of the endangered humpback or bowhead whale. As no critical habitat has been designated for these species, none will be affected. The 2010 Biological Opinion takes into consideration all oil and gas related seismic survey activities that would occur in the 2010 open water season. This Biological Opinion does not include impacts from exploratory drilling and production activities, which are subject to a separate consultation. In addition, potential future impacts from oil and gas activities will be subject to consultation in the future when activities are proposed. NMFS has reviewed Shell's proposed action and has determined that the findings in the 2010 Biological Opinion apply to its 2010 Beaufort Sea site clearance and shallow hazards surveys. In addition, NMFS has issued an Incidental Take Statement (ITS) under this Biological Opinion for Shell's survey activities, which contains reasonable and prudent measures with implementing terms and conditions to minimize the effects of take of bowhead and humpback whales.

Comment 37:

AWL argues that NMFS' existing regional biological opinion is inadequate. AWL states that NMFS' 2008 Biological Opinion does not adequately consider site-specific information related to Shell's proposed drilling. AWL points out that Shell has proposed exploration drilling in Camden Bay in the Beaufort Sea, and that Camden Bay has been repeatedly identified as a resting and feeding area for migrating bowheads, which has been reaffirmed by the recent monitoring. AWL states that NMFS should re-examine the potential impacts of Shell's proposed drilling in light of its long-standing policy and the cautionary language contained in its 2008 opinion.

Response:

NMFS initiated a section 7 consultation under the ESA for the potential impacts to ESA-listed marine mammal species that could be adversely affected as a result of several oil and gas related activities in the 2010 open-water season. The 2010 Biological Opinion covered the activities by Shell, Statoil, and ION's proposed open water marine and seismic survey activities. However, as far as Shell's drilling activities are concerned, Shell has withdrawn these actions due to the moratorium on offshore drilling.

Comment 38:

AWL argues that NMFS' 2008 Biological Opinion does not adequately consider oil spills. AWL states that in the 2008 Biological Opinion, NMFS recognized the potential dangers of a large oil spill, and that whales contacting oil, particularly freshly-spilled oil, “could be harmed and possibly killed.” Citing NMFS's finding in its 2008 Biological Opinion that several “coincidental events” would have to take place for such harm to occur: (1) A spill; (2) that coincides with the whales' seasonal presence; (3) that is “transported to the area the whales occupy (

e.g.,

the migrational corridor or spring lead system)”; and (4) is not successfully cleaned up. AWL points out that this combination of events is not as remote as NMFS appears to have assumed because NMFS' analysis of whether a spill may occur relies in part on statistical probabilities based on past incidents. AWL states that there appears to have been a significant breakdown in the system that was intended to both prevent spills from occurring and require adequate oil spill response capabilities to limit the harm. AWL states that NMFS must take into account that there are likely gaps in the current regulatory regime, and that given those flaws, an analysis that relies on the safety record of previous drilling is doubtful as a predictive tool.

Response:

As discussed in the previous Response to Comment, no drilling is planned for Shell during the 2010 open water season, therefore, these activities will be considered in a separate consultation if and when Shell proposes to conduct exploratory drilling because seismic activities do not raise an oil-spill concern.

NEPA Concerns

Comment 39:

AEWC believes that NMFS, in direct contravention of the law, excluded the public from the NEPA process since NMFS did not release a draft EA for the public to review and provide comments prior to NMFS taking its final action.

Response:

Neither NEPA nor the Council on Environmental Quality's (CEQ) regulations explicitly require circulation of a draft EA for public comment prior to finalizing the EA. The Federal courts have upheld this conclusion, and in one recent case, the Ninth Circuit squarely addressed the question of public involvement in the development of an EA. In

Bering Strait Citizens for Responsible Resource Development

v.

U.S. Army Corps of Engineers

(524 F.3d 938, 9th Cir. 2008), the court held that the circulation of a draft EA is not required in every case; rather, Federal agencies should strive to involve the public in the decision-making process by providing as much environmental information as is practicable prior to completion of the EA so that the public has a sufficient opportunity to weigh in on issues pertinent to the agency's decision-making process. In the case of Shell's 2010 MMPA IHA request, NMFS involved the public in the decision-making process by distributing Shell's IHA application and addenda for a 30-

day notice and comment period. However, at that time, a draft EA was not available to provide to the public for comment. The IHA application and NMFS' Notice of Proposed IHA (75 FR 27708; May 18, 2010) contained information relating to the project. For example, the application included a project description, its location, environmental matters such as species and habitat to be affected, and measures designed to minimize adverse impacts to the environment and the availability of affected species or stocks for subsistence uses.

Comment 40:

AEWC notes that Shell's IHA application warrants review in an environmental impact statement (EIS) given the potential for significant impacts.

Response:

NMFS' 2010 EA was prepared to evaluate whether significant environmental impacts may result from the issuance of an IHA to Shell, which is an appropriate application of NEPA. After completing the EA, NMFS determined that there would not be significant impacts to the human environment and accordingly issued a FONSI. Therefore, an EIS is not needed for this action.

Comment 41:

AEWC, AWL, and NSB note that NMFS is preparing a Programmatic EIS (PEIS). Although MMS published a draft PEIS (PEIS; MMS 2007) in the summer of 2007, to date, a Final PEIS has not been completed. AWL also notes that NMFS and MMS have reaffirmed their previous determination that a programmatic EIS process is necessary to address the overall, cumulative impacts of increased oil and gas activity in the Arctic Ocean and intend to incorporate into that analysis new scientific information as well as new information about projected seismic and exploratory drilling activity in both seas. However, AWL and AEWC argue that NEPA regulations make clear that NMFS should not proceed with authorizations for individual projects like Shell's surveying until its programmatic EIS is complete. NSB states that it would be regretful for Shell to proceed on a one-year IHA when the impact of those activities could have a catastrophic impact on Arctic resources and foreclose management options to be developed in the forthcoming EIS.

Response:

While the Final PEIS will analyze the affected environment and environmental consequences from seismic surveys in the Arctic, the analysis contained in the Final PEIS will apply more broadly to Arctic oil and gas operations. NMFS' issuance of an IHA to Shell for the taking of several species of marine mammals incidental to conducting its open-water marine survey program in the Chukchi and Beaufort Seas in 2010, as analyzed in the EA, is not expected to significantly affect the quality of the human environment. Shell's surveys are not expected to significantly affect the quality of the human environment because of the limited duration and scope of Shell's operations. Additionally, the EA contained a full analysis of cumulative impacts.

Miscellaneous Issues

Comment 42:

The AEWC states that Shell was unable to reach an accord on the annual CAA with AEWC. AEWC states that the CAA has historically formed the basis for NMFS' statutorily required determination of no unmitigable adverse impacts to subsistence activities. Specifically, AEWC states that Shell was not able to reach agreement with AEWC on (1) provisions for zero discharge and (2) on the sound threshold for activities that should be subject to sound source verification procedures. AEWC requests NMFS to fulfill its Congressional mandate and ensure that Shell's activities do not have more than a negligible impact on marine mammal stocks or an unmitigable adverse impact on the subsistence activities. The Commission also recommends that NMFS require Shell to engage in consultations with Alaska Native communities that may be affected by the company's activities and, to the extent feasible, seek to resolve any Alaska Native concerns through negotiation of a CAA.

Response:

AEWC states that the CAA has historically formed the basis for NMFS' statutorily required determination of no unmitigable adverse impacts to subsistence activities, which is incorrect. Under sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361

et seq.

), an IHA or LOA shall be granted to U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if NMFS finds that the taking of marine mammals will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for certain subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. In other words, no marine mammal take authorizations may be issued if NMFS has reason to believe that the proposed exploration or development activities would have an unmitigable adverse impact on the availability of marine mammal species or stock(s) for Alaskan native subsistence uses. Although Federal laws do not require consultation with the native coastal communities until after offshore exploration and development plans have been finalized, permitted, and authorized, pre-permitting consultations between the oil and gas industry and the Alaskan coastal native communities are considered by NMFS when the agency makes a determination whether such activities would have an unmitigable adverse impact on the availability of marine mammal species or stock(s) for subsistence uses. For the proposed marine surveys, Shell has conducted POC meetings for its seismic operations in the Beaufort and Chukchi Seas in the communities and villages of Nuiqsut, Kaktovik, Barrow, Kotzebue, Wainwright, Point Lay, and Point Hope.

Shell has not signed the 2010 CAA with Alaska Natives and has informed NMFS that it does not intend to do so. NMFS has scrutinized all of the documents submitted by Shell (

e.g.,

IHA application, Plan of Cooperation and other correspondence to NMFS and affected stakeholders) and documents submitted by other affected stakeholders and concluded that harassment of marine mammals incidental to Shell's activities will not have more than a negligible impact on marine mammal stocks or an unmitigable adverse impact on the availability of marine mammals for taking for subsistence uses. This finding was based in large part on NMFS' definition of “negligible impact,” “unmitigable adverse impact,” the proposed mitigation and monitoring measures, the scope of activities proposed to be conducted, including time of year, location and presence of marine mammals in the project area, and Shell's Plan of Cooperation.

As described in Shell's IHA application, the source vessel will transit through the Chukchi Sea along a route that lies offshore of the polynya zone. This entry into the Chukchi Sea will not occur before July 1, 2010. In the event the transit outside of the polynya zone results in Shell having to move away from ice, the source vessel may enter into the polynya zone. If it is necessary to move into the polynya zone, Shell will notify the local communities of the change in the transit route through the Com Centers.

Shell has developed a Communication Plan and will implement the plan before initiating the 2010 program to coordinate activities with local subsistence users as well as Village Whaling Associations in order to minimize the risk of interfering with

subsistence hunting activities, and keep current as to the timing and status of the bowhead whale migration, as well as the timing and status of other subsistence hunts. The Communication Plan includes procedures for coordination with Communication and Call Centers to be located in coastal villages along the Beaufort and Chukchi Seas during Shell's program in 2010.

Shell will employ local Subsistence Advisors from the Beaufort and Chukchi Sea villages to provide consultation and guidance regarding the whale migration and subsistence hunt. There may be up to nine subsistence advisor-liaison positions (one per village), to work approximately 8 hours per day and 40-hour weeks through Shell's 2010 program. The subsistence advisor will use local knowledge to gather data on subsistence lifestyle within the community and advise as to ways to minimize and mitigate potential impacts to subsistence resources during program activities. Responsibilities include reporting any subsistence concerns or conflicts; coordinating with subsistence users; reporting subsistence-related comments, concerns, and information; and advising how to avoid subsistence conflicts. A subsistence advisor handbook will be developed prior to the operational season to specify position work tasks in more detail.

Shell will also implement flight restrictions prohibiting aircraft from flying within 1,000 ft (300 m) of marine mammals or below 1,500 ft (457 m) altitude (except during takeoffs and landings or in emergency situations) while over land or sea.

Besides bowhead whale hunting, beluga whales are hunted for subsistence at Barrow, Wainwright, Point Lay, and Point Hope, with the most taken by Point Lay (Fuller and George 1997). Harvest at all of these villages generally occurs between April and July with most taken in April and May when pack-ice conditions deteriorate and leads open up. Ringed, bearded, and spotted seals are hunted by all of the villages bordering the project area (Fuller and George 1997). Ringed and bearded seals are hunted throughout the year, but most are taken in May, June, and July when ice breaks up and there is open water instead of the more difficult hunting of seals at holes and lairs. Spotted seals are only hunted in spring through summer.

Therefore, the scheduling of the proposed marine surveys is expected to have minimum conflict between the industries and marine mammal harvests.

Finally, the required mitigation and monitoring measures are expected to reduce any adverse impacts on marine mammals for taking for subsistence uses to the extent practicable. These measures include, but are not limited to, the 180 dB and 190 dB safety (shut-down/power-down) zones; a requirement to monitor the 160 dB isopleths for aggregations of 12 or more non-migratory balaenidae whales and when necessary shut down seismic airguns; reducing vessel speed to 10 knots or less when a vessel is within 300 yards of whales to avoid a collision; utilizing communication centers to avoid any conflict with subsistence hunting activities; and the use of marine mammal observers.

Measures related to “zero volume discharge” do not affect NMFS' negligible determination on impacts of the species or stock(s) or the unmitigable adverse impact determination on the availability of the species or stock(s) for certain subsistence uses, as long as Shell's emission discharge is within the guidelines set by the Environmental Protection Agency (EPA). Regarding the sound source verification (SSV), NMFS requires Shell to conduct SSV tests for all its airgun and active acoustic sources and seismic and support vessels that will be involved in the proposed marine surveys.

Over the past several months, NMFS has worked with both Alaska Native communities and the industry, to the extent feasible, to resolve any Alaska Native concerns from the proposed open water marine and seismic surveys. These efforts include convening an open water stakeholders' meeting in Anchorage, AK, in March 2010, and multiple conference meetings with representatives of the Alaska Native communities and the industry. Lastly, as mentioned previously in this document, NMFS has included several measures from the CAA in the IHA issued to Shell.

Comment 43:

AEWC notes that, in 2009, NMFS did not publish its response to comments on proposed IHAs activities conducted during the open water season until well after the fall subsistence hunt at Cross Island had concluded and geophysical operations had already taken place. AEWC states that NMFS' failure to release its response to comments until after the activities had taken place casts serious doubt on the validity of NMFS' public involvement process and the underlying analysis of impacts to subsistence activities and marine mammals.

Response:

NMFS does not agree with AEWC's statement that NMFS' failure to release its response to comments until after the activities had taken place casts doubt on the validity of NMFS' public involvement process, or the underlying analysis of impacts to subsistence activities and marine mammals. As stated earlier, the decision to issue an IHA to Shell for its proposed marine surveys in the Beaufort and Chukchi Seas is based in large part on NMFS' definition of “negligible impact,” “unmitigable adverse impact,” the proposed mitigation and monitoring measures, the scope of activities proposed to be conducted, including time of year, location and presence of marine mammals in the project area, extensive research and studies on potential impacts of anthropogenic sounds to marine mammals, marine mammal behavior, distribution, and movements in the vicinity of Shell's proposed project areas, Shell's Plan of Cooperation, and on public comments received during the commenting period and peer-review recommendations by an independent review panel. The reason that NMFS was not able to publish its response to comments on proposed IHA activities in 2009 for Shell's shallow hazards and site clearance surveys until the end of the survey activities was due to the large amount of comments NMFS received. NMFS was able to review and analyze all comments it received and address their validity for the issuance of the IHA. However, due to the large volume of comments, NMFS was not able to organize them into publishable format to be incorporated into the

Federal Register

notice for publication on a timely basis. NMFS will strive to make sure that all comments are addressed in full and published by the time IHAs or LOAs are issued.

Comment 44:

AEWC states that Shell failed to provide plans for community engagement. AEWC states that Shell is required to include in its application a “schedule for meeting with affected subsistence communities to discuss proposed activities and to resolve potential conflicts regarding any aspects of either the operation or the plan of cooperation.” (50 CFR 216.104(a)(12)(ii)). However, AEWC notes that in its application, Shell only just mentions that it held a few meetings and “anticipates continued engagement.” AEWC argues that this vague intention to participate in more meetings with the affected communities is insufficient and does not satisfy the regulatory requirement. AEWC points out that Shell is also required to provide its plans for continuing to meet with communities. AEWC notes that while Shell mentions communicating with communities via its SA and Com and

Call Center program, which allows for the availability of back and forth communication, the company has described no actual, planned communication with the affected communities.

Response:

The information AEWC contained in the comment is outdated. Since the submission of Shell's IHA application, Shell indicated that it completed its pre-season Plan of Cooperation meetings for the 2010 season in early April 2010. Through the Subsistence Advisor (SA) and Com and Call Center (Com Center) program for 2010, Shell's SA and Shell representatives in the Com Centers will be available daily to the communities throughout the 2010 season. The SA and Com Center programs provide residents of the nearest affected communities a way to communicate where and when subsistence activities occur so that industry may avoid conflicts with planned subsistence activities.

Comment 45:

NSB states that NMFS should consider and address disproportionate impacts in analyzing the IHA application, that Federal agencies must “make achieving environmental justice part of * * * [their] mission[s].” Compared to many United States residents, NSB states that Alaskan Natives face significant impacts from oil and gas activities in the OCS. NSB requests that NMFS thus specifically address issues of environmental justice in considering this application and that NMFS must also work to ensure effective public participation and access to information, and must “ensure that public documents, notices, and hearings relating to human health or the environment are concise, understandable, and readily accessible to the public.”

Response:

Under section 101(a)(5)(D) of the MMPA, NMFS is required to determine whether the taking by the applicant's specified activity will take only small numbers of marine mammals, will have a negligible impact on the affected marine mammal species or population stocks, and will not have an unmitigable impact on the availability of affected species or stocks for subsistence uses. Environmental justice and other impacts to the human environment are NMFS' responsibility under the NEPA and applicable executive orders, not the MMPA. In that regard, NMFS' 2010 EA addresses the potential cumulative impacts to the socioeconomic environment, including traditional knowledge, community and ec

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