# Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to an Exploration Drilling Program Near Camden Bay, Beaufort Sea, Alaska > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-11084 ## Record - **Collection:** Federal Register - **Document type:** Notice - **Published:** May 9, 2012 - **Citation:** 77 FR 27284 ## Text DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA804 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to an Exploration Drilling Program Near Camden Bay, Beaufort Sea, Alaska AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment 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 marine mammals, by harassment, incidental to offshore exploration drilling on Outer Continental Shelf (OCS) leases in the Beaufort Sea, Alaska. DATES: Effective July 1, 2012, through October 31, 2012. ADDRESSES: A copy of the issued IHA, application with associated materials, and NMFS' Environmental Assessment (EA) and Finding of No Significant Impact may be obtained by writing to Tammy Adams, Acting Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT ), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address. FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected Resources, NMFS, (301) 427-8401. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” 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. 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. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [“Level A harassment”]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [“Level B harassment”]. Summary of Request NMFS received an application on May 10, 2011, from Shell for the taking, by harassment, of marine mammals incidental to offshore exploration drilling on OCS leases in the Beaufort Sea, Alaska. NMFS reviewed Shell's application and identified a number of issues requiring further clarification. After addressing comments from NMFS, Shell modified its application and submitted a revised application on September 2, 2011. NMFS carefully evaluated Shell's application, including their analyses, and deemed the application complete. The September 2, 2011, application was the one available for public comment (see ADDRESSES ) and considered by NMFS for this IHA. NMFS published a Notice of Proposed IHA in the Federal Register on November 7, 2011 (76 FR 68974). That notice contained in depth descriptions and analyses that are generally not repeated in this document. Only in cases where descriptions or analyses changed is that information updated here. The most notable changes include: (1) The description of the sound characteristics of the drillship Kulluk based on the installation of quieting technologies; (2) modifications to the acoustic and aerial monitoring programs presented in the marine mammal monitoring plan; (3) take estimates from exposure to sound from the Kulluk with the reduced sound isopleths based on the installation of quieting technologies; and (4) updated information regarding Shell's Oil Spill Response Plan (OSRP). These changes are described in greater detail in the applicable sections later in this document. Shell plans to drill two exploration wells at two drill sites in Camden Bay, Beaufort Sea, Alaska, during the 2012 Arctic open-water season (July through October). Impacts to marine mammals may occur from noise produced by the drillship, zero-offset vertical seismic profile (ZVSP) surveys, and supporting vessels (including icebreakers) and aircraft. Shell requested authorization to take nine marine mammal species by Level B harassment. However, narwhals ( Monodon monoceros ) are not expected to be found in the activity area. Therefore, NMFS has authorized take of eight marine mammal species, by Level B harassment, incidental to Shell's offshore exploration drilling program in Camden Bay. These species include: beluga whale ( Delphinapterus leucas ); bowhead whale ( Balaena mysticetus ); gray whale ( Eschrichtius robustus ); harbor porpoise ( Phocoena phocoena ); bearded seal ( Erignathus barbatus ); ringed seal ( Phoca hispida ); spotted seal ( P. largha ); and ribbon seal ( Histriophoca fasciata ). Description of the Specified Activity and Specified Geographic Region Shell plans to conduct an offshore exploration drilling program on U.S. Department of the Interior (DOI), Bureau of Ocean Energy Management (BOEM, formerly the Minerals Management Service) Alaska OCS leases located north of Point Thomson near Camden Bay in the Beaufort Sea, Alaska, during the 2012 open-water season. During the 2012 drilling program (July through October), Shell plans to complete two exploration wells at two drill sites, one well each on the Torpedo prospect (NR06-04 Flaxman Island lease block 6610, OCS-Y-1941 [Flaxman Island 6610—Torpedo “H” or “J” drill site]) and the Sivulliq prospect (NR06-04 Flaxman Island lease block 6658, OCS- Y 1805 [Flaxman Island 6658—Sivulliq “N” or “G” drill sites]). See Figure 1-1 in Shell's application for the lease block and drill site locations (see ADDRESSES ). All drilling is planned to be vertical. The Notice of Proposed IHA (76 FR 68974, November 7, 2011) contained a full description of Shell's planned operations. That notice describes the equipment to be used for the different operational activities, the timeframe of activities, and the sound characteristics of the associated equipment. Except to clarify changes to the information contained in the proposed IHA notice, the information is not repeated here; therefore, please refer to the proposed IHA for the full description of the specified activity and specified geographic region. Drilling Vessels The Notice of Proposed IHA (76 FR 68974, November 7, 2011) noted that Shell plans to use one of two drilling vessels for its 2012 Camden Bay exploratory drilling program: the Kulluk (owned by Shell and operated by Noble Drilling [Noble]); or the Discoverer (owned and operated by Noble). Only one of these drilling vessels would be used for the Camden Bay program, not both. Information on each vessel can be found in Attachment A of Shell's IHA application (see ADDRESSES ). Since publication of that notice, Shell has continued to refine the details of its program. Shell intends for the Kulluk to be the primary choice of drillship to be used for the Camden Bay program. The Discoverer is Shell's second choice for use as the drillship and will only be used for the 2012 Camden Bay program if the primary drillship ( i.e., the Kulluk ) is unavailable. Exploratory Drilling Program Sound Characteristics Potential impacts to marine mammals could occur from the noise produced by the drillship and its support vessels (including the icebreakers), aircraft, and the airgun array during ZVSP surveys. The drillship produces continuous noise into the marine environment. NMFS currently uses a threshold of 120 dB re 1 µPa (rms) for the onset of Level B harassment from continuous sound sources. This 120 dB threshold is also applicable for the icebreakers when actively managing or breaking ice. The airgun array to be used by Shell for the ZVSP surveys produces pulsed noise into the marine environment. NMFS currently uses a threshold of 160 dB re 1 µPa (rms) for the onset of Level B harassment from pulsed sound sources. The Notice of Proposed IHA (76 FR 68974, November 7, 2011) contains information regarding sound characteristics of the Kulluk and Discoverer, other vessels, aircraft, and airguns. That information is not repeated here. However, Shell conducted a retrofit of the Kulluk following publication of the Notice of Proposed IHA. The purpose of the retrofit is to reduce transmission of noise from the vessel into the water. A brief description of the retrofit is provided here. Two primary noise-reducing technologies have been installed on the Kulluk in its main engine room that houses the new engine-driven generators (gensets). These technologies are surface acoustic insulation and resilient engine mounts upon which the new gensets were recently installed. Both technologies reduce the amount of mechanical vibrations transmitted from the water. The surface insulation is expected to reduce transmission of airborne sound energy into the deck and bulkheads and subsequently through the vessel hull into the water. The resilient engine mounts provide vibrational isolation of the genset engines from the deck to reduce mechanical vibrations that would otherwise be conducted into the deck and subsequently through the vessel structure and hull into the water as sound. The use of modern generators is itself expected to result in some vibration reduction. Because measurements of the drilling vessel's acoustic source levels have not yet been made with quieting technologies installed, the actual sound emission reductions cannot yet be quantified with certainty. Once on location in Camden Bay, Shell plans to take measurements of the drillship to quantify the absolute sound levels produced by drilling and to monitor their variations with time, distance, and direction from the drilling vessel. However, Shell estimated the reductions based on applications of similar technologies applied elsewhere. A comprehensive review of noise reducing technologies provides ranges of achieved reductions by several different technologies (Spence et al., 2007; see Table 1 here). One should not assume that the reductions are additive because one transmission pathway could dominate, and improvement of the other pathway would have little benefit. NMFS acoustic experts reviewed the information provided by Shell regarding the quieting technologies and additional sources and determined that a 5 dB reduction of modeled noise source is a reasonable estimate of the effectiveness of the quieting techniques being implemented. Therefore, for purposes of calculating potential takes by harassment from the Kulluk, NMFS has assumed a 5 dB reduction, which alters the 120-dB isopleth by a factor of 1.6. Additional information on sound radii and take estimates are provided later in this document. EN09MY12.003 Comments and Responses A Notice of Proposed IHA published in the Federal Register on November 7, 2011 (76 FR 68974) for public comment. During the 30-day public comment period, NMFS received nine comment letters from the following: the Alaska Eskimo Whaling Commission (AEWC); Inupiat Community of the Arctic Slope (ICAS); the Marine Mammal Commission (MMC); State of Alaska Department of Natural Resources; Consumer Energy Alliance; Resource Development Council; the North Slope Borough (NSB); Shell; and Alaska Wilderness League (AWL), Audubon Alaska, Center for Biological Diversity, Defenders of Wildlife, Earthjustice, Natural Resources Defense Council, Northern Alaska Environmental Center, Oceana, Pacific Environment, Resisting Environmental Destruction on Indigenous Lands, Sierra Club, the Wilderness Society, and World Wildlife Fund (collectively “AWL”), along with an attached letter from David E. Bain, Ph.D. AWL submitted several journal articles and documents as attachments to their comment letter. NMFS acknowledges receipt of these articles and documents but does not intend to address each one specifically in the responses to comments. All of the public comment letters received on the Notice of Proposed IHA (76 FR 68974, November 7, 2011) are available on the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Following is a summary of the public comments and NMFS' responses. General Comments Comment 1: Shell notes that NMFS stated in the Notice of Proposed IHA (76 FR 68975, November 7, 2011) that either drillship will be “attended by 11 vessels.” Shell states that the actual number of support vessels may vary due to operational needs and therefore did not note 11 as an absolute number in the IHA application. Response: NMFS acknowledges this comment and understands that there might be slight variation in the number of vessels. However, this does not change the analysis provided in the Notice of Proposed IHA (76 FR 68975, November 7, 2011). Comment 2: The State of Alaska Department of Natural Resources, Consumer Energy Alliance, and Resource Development Council all urge NMFS to finalize Shell's IHA since NMFS has issued the proposed IHA. Response: After careful evaluation of all comments and the data and information available regarding potential impacts to marine mammals and their habitat and to the availability of marine mammals for subsistence uses, NMFS has issued the final authorization to Shell to take marine mammals incidental to conducting an exploration drilling program in Camden Bay during the 2012 Arctic open-water season. Comment 3: ICAS incorporates the comments made by the AEWC into its letter by reference and urges NMFS to address the concerns of AEWC and its whaling captains. Response: All comments made by the AEWC are addressed in this document. Comment 4: The MMC and AWL question the source levels and harassment zones for the two drillships. If the source levels for the Kulluk and Discoverer are nearly identical, then why is there a four-fold difference in the size of the corrected harassment zones for the two drilling vessels? Response: Differences in sound propagation from the two rigs are real and are caused by differences in the design of the two vessels. While the broadband source levels for the Discoverer and Kulluk may be similar, their spectral properties differ considerably. Acoustic modeling considers the source levels in 1/3-octave frequency bands. Figures 1 and 2 show the band levels for both drillships during drilling. Of key importance are the significantly lower levels of the Discoverer in the 50 to 500 Hz bands that propagate well in the relatively shallow waters of these drilling operations. While the Discoverer apparently has higher band levels below 50 Hz, this energy is more rapidly attenuated than higher frequency sound energy. This characteristic of sound propagation in shallow waters leads to predominantly mid-frequency sounds (50-500 Hz) dominating the acoustic field at distance from the drillships. A further consideration is that the Kulluk source levels are known to include contributions from support vessels, and much of the mid-high frequency band energy in its source levels may not originate entirely from the drillship itself, as acknowledged by Greene (1987). The Discoverer source level measurements by Austin and Warner (2010) were made at closer distances and do not include significant contributions from other vessels. The Kulluk' s modeled sound footprint may be an overestimate as a result, but we cannot quantify by how much since the relative contribution of vessel noise to its source level measurements is unknown. The source level for the Discoverer was measured, though not in the Beaufort Sea, and those measurements were used to model propagation in the Beaufort Sea environment. Regardless of which drill rig is used by Shell in the Beaufort Sea in 2012, the IHA requires Shell to conduct sound source verification (SSV) and characterization tests on all equipment used. EN09MY12.004 EN09MY12.005 Comment 5: The NSB stated in their letter that comments made previously on Shell's IHA applications for seismic and drilling are still applicable and are incorporated by reference into their letter dated December 7, 2011. Response: NMFS has responded to comments on Shell's seismic IHA requests in previous Federal Register notices. Those responses are incorporated into this document by reference ( e.g., 73 FR 66106, November 6, 2008; 74 FR 55368, October 27, 2009; 75 FR 49710, August 13, 2010). The NSB submitted letters regarding Shell's proposed Camden Bay exploration drilling programs for the years 2007, 2008, and 2010. NMFS has only provided responses to comments contained in the 2007, 2008, and 2010 letters that are different from comments in the NSB's 2011 letter on this IHA. Additionally, some of the comments in those three earlier letters are no longer relevant to Shell's program as currently proposed in this document. MMPA Statutory Concerns Comment 6: The AEWC, NSB, AWL, and MMC state that the requested take does not meet the MMPA standard of “small numbers” and that the proposed IHA does not demonstrate that Shell's activities will have only a negligible impact on the species or stock. The NSB states that NMFS fails to distinguish between these two standards. AWL states that the proposed IHA does not include a specific “small numbers” finding for bowhead whales. Additionally, AEWC, MMC, and AWL ask NMFS to clarify how the statutory standard of “least practicable impact” is being met if the Kulluk is permitted for use instead of the Discoverer, which will have a smaller zone of impact. Response: First, NMFS is not required to publish a preliminary finding regarding “small numbers” at the proposed IHA stage. The MMPA implementing regulations indicate that NMFS will publish any preliminary finding of “negligible impact” or “no unmitigable adverse impact” for public comment along with the proposed IHA if preliminary findings have been made at that time. 50 CFR 216.104(c). In this instance, at the proposed IHA stage NMFS was still evaluating the available information and believed it would be beneficial to review information and comments submitted by the public before making determinations regarding whether Shell's proposed action will have a negligible impact on the affected species or stocks of marine mammals and no unmitigable adverse impact on the availability of such species or stocks for taking for subsistence uses. There is no requirement to include a finding of “small numbers” as part of a proposed IHA. Based on our review, we have made the requisite findings of small numbers, negligible impact, and no unmitigable adverse impact on the availability of the taking of marine mammals for subsistence uses. NMFS is required to authorize the take of “small numbers” of a species or stock if the taking by harassment will have a negligible impact on the affected species or stocks and will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence purposes. See 16 U.S.C. 1371(a)(5)(D). In determining whether to authorize “small numbers” of a species or stock, NMFS determines whether the taking will be small relative to the estimated population size and relevant to the behavior, physiology, and life history of the species or stock. With the exception of bowhead whales, less than 1% of each species stock or population would be taken by harassment, regardless of which drillship is utilized by Shell. With respect to the type of take, NMFS is authorizing only Level B behavioral harassment of bowhead whales and does not anticipate any injury or mortality. The Bering-Chukchi-Beaufort (BCB) stock of bowhead whales is estimated at approximately 15,232 individuals based on a 2001 population of 10,545 (Zeh and Punt, 2005) and a continued annual growth rate of 3.4% (Allen and Angliss, 2011). Although modeling results indicate that up to 23% of the BCB bowhead whale population (which is lower than the estimate provided in the Notice of Proposed IHA based on the retrofit of the Kulluk ) could potentially be exposed to received sound levels ≥120 dB re 1 μPa, NMFS is confident that takes resulting from Shell's activities will constitute only a “small number” of bowheads for the following reasons: (1) The modeling results do not mean that 23% of the BCB bowhead whale population will actually be “taken” by Level B behavioral harassment. Bowheads may engage in avoidance behavior preventing their exposure to these levels of sound, and, even if exposed, may not exhibit a behavioral reaction. (2) In reviewing information submitted by Shell regarding the modeling of the number of bowheads potentially affected, NMFS considered the fact that Shell's estimates included an inflation factor of the sound radii, meaning that the actual number of animals exposed to sound levels ≥120 dB will almost certainly be lower than the projections described here; and (3) With the exception of the subsistence mitigation measure of shutting down during the Nuiqsut and Kaktovik fall bowhead whale hunts, the modeling results do not take into account the implementation of mitigation measures, which will lower the number of animals taken even further. Finally, the MMPA requires that NMFS prescribe mitigation measures to ensure the least practicable impact on marine mammal species or stocks. NMFS' evaluation of mitigation measures includes consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation. In this instance, NMFS is authorizing only Level B behavioral harassment and has concluded the take from the specified activity will have a negligible impact on marine mammals, regardless of whether the Kulluk or the Discoverer is used. Even if the determination of which drill rig to use could properly be characterized as a “mitigation measure,” Shell has submitted information indicating that a requirement to use the Discoverer in the Beaufort during its 2012 drilling program would not constitute a practicable mitigation measure. Determining which drill rig to use is based upon a complex combination of technical factors. One of the most important factors is that of being the optimum vessel to operate under the specific conditions that exist at the specific location. Shell indicates that the company specifically acquired the Kulluk for nearshore operations in the Beaufort Sea, and since that time has invested hundreds of millions of dollars in upgrading and maintaining the vessel. The vessel has a proven track record, as it has been used successfully for such work in both the Alaskan and Canadian Beaufort Sea nearshore waters, including, most recently, five wells in or in the immediate vicinity of Camden Bay. Because the Kulluk is the rig most capable of operating under ice conditions, it is the most appropriate rig to operate in the Beaufort Sea where ice conditions may be subject to quick change. Though Shell does not intend to operate under conditions of ice closure, use of the Kulluk in the Beaufort Sea provides the greatest margin of safety. It is not practicable for Shell to forfeit an investment of hundreds of millions of dollars in order to provide only marginal reductions to impacts that NMFS has already determined will be negligible. Comment 7: The AEWC and AWL state that NMFS cannot make a negligible impact determination without considering other activities planned for this year and future years in the U.S. Arctic Ocean and Russian and Canadian waters. AWL states that NMFS should also evaluate the potential impacts of future activities in both oceans and the acknowledged uncertainty regarding the effects of noise in the marine environment in the context of subsistence hunting. Response: NMFS considered the cumulative effects analysis contained in NMFS' Draft Environmental Impact Statement (EIS) on the “Effects of Oil and Gas Activities in the Arctic Ocean” (NMFS, 2011), NMFS' EA for the “Issuance of Incidental Harassment Authorizations for the Take of Marine Mammals by Harassment Incidental to Conducting Exploratory Drilling Programs in the U.S. Beaufort and Chukchi Seas,” and other relevant data to inform its MMPA determination here. Pursuant to NEPA, those documents contained a cumulative impacts assessment, as well as an assessment of the impacts of the proposed exploratory drilling program on marine mammals and other protected resources. Section 101(a)(5)(D) of the MMPA and its implementing regulations require NMFS to consider a request for the taking of marine mammals incidental to a specified activity within a specified geographical region and, assuming certain findings can be made, to authorize the taking of small numbers of marine mammals while engaged in that activity. NMFS has defined “specified activity” in 50 CFR 216.103 as “any activity, other than commercial fishing, that takes place in a specified geographical region and potentially involves the taking of small numbers of marine mammals.” When making a negligible impact determination, NMFS considers the total impact during each 1-year period resulting from the specified activity only and supports its determination by relying on factors such as: (1) The number of anticipated mortalities from the activity; (2) the number and nature of anticipated injuries from the activity; (3) the number, nature, intensity, and duration of Level B harassment resulting from the activity; (4) the context in which the takes occur; (5) the status of the species or stock; (6) environmental features that may significantly increase the potential severity of impacts from the proposed action; (7) effects on habitat that could affect rates of recruitment or survival; and (8) how the mitigation measures are expected to reduce the number or severity of takes or the impacts to habitat. When making its finding that there will be no unmitigable adverse impact on the availability of the affected species or stock for taking for subsistence uses, NMFS analyzes the measures contained in the applicant's Plan of Cooperation (POC). Additionally, Shell signed the 2012 Conflict Avoidance Agreement (CAA) with the AEWC. NMFS included all necessary measures from both documents in the IHA to ensure no unmitigable adverse impacts to subsistence. NMFS considered the impacts analyses ( i.e., direct, indirect, and cumulative) contained in the previously mentioned EIS and EA in reaching its conclusion that any marine mammals exposed to the sounds produced by the drillship, ice management/icebreaking vessels, support vessels and aircraft, and airguns would be disturbed for only a short period of time and would not be harmed or killed. Furthermore, the required mitigation and monitoring measures are expected to reduce the likelihood or severity of any impacts to marine mammals or their habitats over the course of the activities. Moreover, NMFS gave careful consideration to a number of other issues and sources of information. In particular, NMFS relied upon a number of scientific reports, including the 2010 U.S. Alaska Marine Mammal Stock Assessment Reports (SARs) to support its findings. The SARs contain a description of each marine mammal stock, its geographic range, a minimum population estimate, current population trends, current and maximum net productivity rates, optimum sustainable population levels and allowable removal levels, and estimates of annual human-caused mortality and serious injury through interactions with commercial fisheries and subsistence harvest data. NMFS also used data from the annual and final Bowhead Whale Aerial Survey Program (BWASP) reports. After careful consideration of the proposed activities, the context in which Shell's proposed activities would occur, the best available scientific information, and all effects analyses (including cumulative effects), NMFS has determined that the specified activities: (1) Would not result in more than the behavioral harassment ( i.e., Level B harassment) of small numbers of marine mammal species or stocks; (2) taking by harassment would not result in more than a negligible impact on affected species or stocks; and (3) taking by harassment would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence uses. Therefore NMFS has decided to issue an IHA to Shell to take, by no more than Level B harassment, small numbers of marine mammals incidental to its Camden Bay exploratory drilling program. Comment 8: The MMC recommends that NMFS require Shell to evaluate the source levels of the available drilling rigs at the proposed drilling locations, recalculate the 120-dB re 1 µPa harassment zones and estimated takes as appropriate, and use the rig best suited for the proposed drilling locations based, in part, on consideration of the size of the harassment zones and the requirements of the MMPA to reduce impacts of the proposed activity to the least practicable level. Response: As conditioned in the IHA, Shell is required to conduct SSV and characterization of the equipment to be used, including the drilling rig. Shell is required to report received levels down to 120 dB re 1 µPa. Upon completion of those tests, Shell will then use the new sound radii for estimating take throughout the season. While new take estimates will not be calculated to replace those in the application, Shell will use the new radii for reporting estimated take levels in the 90-day report. See the response to Comment 6 regarding use of the different drilling rigs in Camden Bay. Comment 9: The NSB and AWL state that NMFS must consider whether the increase in vessel presence and vessel noise around the drill sites and during transit across the Arctic have the potential to disturb marine mammals. Response: Shell's application and NMFS' Notice of Proposed IHA (76 FR 68974, November 7, 2011) outline all of the vessels intended for use to support the exploratory drilling program. While the application and proposed IHA do not include source levels or take estimates for those vessels, their presence is considered and accounted for in several of the mitigation measures. For example, vessel speed and maneuvering conditions apply to all vessels, not just the drill ship and icebreakers. Therefore, while NMFS contemplated the use of all vessels during activities and has included mitigation measures during operation of these vessels to reduce potentially disturbing marine mammals in the vicinity, NMFS does not consider the transit or operation of these vessels to rise to a level that would result in take. Comment 10: The NSB states that there is a general lack of information regarding behavior of animals that have previously been exposed to industrial sounds and that no studies have looked at long-term impacts on survival or reproduction. With limited information available, NMFS cannot make a rational negligible impact finding. The NSB (in its 2008 letter) and AWL state that a lack of adequate information precludes NMFS from complying with the MMPA standards. AWL states that NMFS should defer all oil and gas-related IHAs while the necessary information is gathered. Response: As required by the MMPA implementing regulations at 50 CFR 216.102(a), NMFS has used the best scientific information available in assessing potential impacts and whether the activity will have no more than a negligible impact on the affected marine mammal species or stock (please see response to Comment 7 ). However, while NMFS agrees that there may be some uncertainty regarding behavior of animals that have been previously exposed to industrial sounds and how that may impact survival and reproduction, the best available information supports our findings. Industrial activities have been occurring (at varying rates) in the U.S. Arctic Ocean for decades, and the available measurable indicators do not suggest that these activities are having long-term impacts. For example, 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. Additionally, industry has been collecting data and conducting monitoring in the region for many years and will continue to do so under this IHA. Therefore, NMFS has determined that a negligible impact finding is rational. Comment 11: AWL and the NSB (in its 2008 letter) note that Shell's activities have the potential to result in serious injury. AWL also states that in the proposed IHA, NMFS conflated two different regulatory provisions governing the issuance of IHAs when it stated that for there to be the potential for serious injury or mortality an activity must be “reasonably expected or likely” to result in serious injury or mortality. AWL's letter states: “There is no indication that NMFS considered the dire consequences of a spill when determining whether the `potential' for serious harm exists * * * NMFS must carefully consider these risks and apply the appropriate MMPA standard.” Response: As analyzed in the proposed IHA, NMFS has determined that Shell's activities are not likely to result in injury, serious injury, or mortality. The activities for which Shell is authorized to take marine mammals would most likely result in behavioral harassment. The mitigation and monitoring measures analyzed in the proposed IHA and required in the authorization are designed to ensure the least practicable impact on marine mammals and their habitat and the availability of marine mammals for subsistence uses. AWL cites to NMFS' definition of “negligible impact” to argue that the agency has improperly conflated separate regulatory standards. “Negligible impact is an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). NMFS believes its decision-making should be informed by whether impacts are actually reasonably likely to occur. This principle is recognized in multiple contexts, and this does not represent the conflation of separate regulatory standards (in this instance, “negligible impact” and “potential to result in serious injury or mortality”). It is well recognized in the cases interpreting NEPA. For example see Ground Zero Ctr. for Non-Violent Action v. United States Dept of the Navy, 383 F.3d 1082, 1090-91 (9th Cir. 2004) (concluding that where Navy had concluded that risk was extremely remote, “such remote possibilities do not in law require environmental evaluation.”) As explained later in this document, this interpretation reflects NMFS' longstanding practice of issuing IHAs in cases where the agency found that the potential for serious injury or mortality was “highly unlikely” (See 73 FR 40512, 40514, July 15, 2008; 73 FR 45969, 45971, August 7, 2008; 73 FR 46774, 46778, August 11, 2008; 73 FR 66106, 66109, November 6, 2008; 74 FR 55368, 55371, October 27, 2009). Interpreting “potential” to include impacts with any probability of occurring ( i.e., speculative or extremely low probability events) would be administratively unworkable and inconsistent with Congressional intent. NMFS' proposed IHA considered the risks of an oil spill in its analysis and used that analysis to make the final determinations here. Comment 12: AWL states that if Shell is unable to commence drilling in the Chukchi Sea in 2012 and therefore can use the Discoverer in the Beaufort Sea, for purposes of this MMPA review, NMFS should assume that the Kulluk is used in the Beaufort Sea in order to capture the full extent of the potential effects. Response: In conducting this MMPA review, NMFS assumed that either vessel could be used and presented a range of estimated takes and potential impacts. Additionally, in the EA, NMFS assumed use of the Discoverer in the Chukchi Sea and the Kulluk in the Beaufort Sea in order to assess the combined higher level of potential takes. Marine Mammal Impact Concerns Comment 13: AWL states that NMFS' uniform marine mammal harassment thresholds do not consider documented reactions of specific species in the Arctic to much lower received levels. The letter notes reactions of bowhead and beluga whales to certain activities below 160 dB. The letter also states: “At a minimum, the proposed IHA cannot apply thresholds that fail to accurately capture potential marine mammal harassment, as required by the standards imposed by the MMPA.” Response: For continuous sounds, such as those produced by drilling operations and during icebreaking activities, NMFS uses a received level of 120-dB (rms) to indicate the onset of Level B harassment. For impulsive sounds, such as those produced by the airgun array during the ZVSP surveys, NMFS uses a received level of 160-dB (rms) to indicate the onset of Level B harassment. Therefore, while a level of 160-dB was used to estimate take for a portion of the operations that will only occur for a total of 10-28 hours during the entire 4-month open-water season, a threshold of 120-dB was used to estimate potential takes for all species from the drilling operations and ice management/icebreaking activities. While some published articles indicate that certain marine mammal species may avoid seismic airguns (an impulsive sound source) 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 21.7 mi (35 km) from the seismic source vessel, it should be pointed out that these minor course changes are during migration and 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 a sound pressure level (SPL) of 160 dB. Therefore, while bowheads may avoid an area of 12.4 mi (20 km) 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 does not consider that deviation to 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). 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 a reaction would be considered a take. According to experts on marine mammal behavior, whether a particular stressor could potentially disrupt the migration, breathing, nursing, breeding, feeding, or sheltering, etc., of a marine mammal, i.e., whether it would result in a take, 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: 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). 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 appropriate metric to guide our evaluation of anthropogenic noise impacts on marine mammals. Therefore, 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). However, as mentioned earlier, NMFS used the lower threshold of 120-dB to estimate potential Level B harassment takes of marine mammals from the continuous sounds of the drillship and ice management/icebreaking vessels. Comment 14: AWL and Dr. Bain indicate that a large-scale disruption to bowhead whales feeding near Camden Bay would exceed the negligible impact standard of the MMPA. Additionally, an assumption that displacement to another part of the range is harmless does not have sound basis. Dr. Bain also states that excluding whales from feeding areas effectively reduces the carrying capacity, which in turn reduces the rate of population increase and is equivalent to removing individuals from the population. Response: Recent articles and reports have noted bowhead whales feeding in several areas of the U.S. Beaufort Sea. The Barrow area is commonly used as a feeding area during spring and fall, with a higher proportion of photographed individuals displaying evidence of feeding in fall rather than spring (Mocklin, 2009). A bowhead whale feeding “hotspot” (Okkonen et al., 2011) commonly forms on the western Beaufort Sea shelf off Point Barrow in late summer and fall. Favorable conditions concentrate euphausiids and copepods, and bowhead whales congregate to exploit the dense prey (Ashjian et al., 2010, Moore et al., 2010; Okkonen et al., 2011). Surveys have also noted bowhead whales feeding in the Camden Bay area during the fall (Koski and Miller, 2009; Quakenbush et al., 2010). As noted by AWL's and Dr. Bain's letters, displacement from feeding grounds with high prey density to ones with low prey density would reduce food intake. However, there is nothing to indicate the prey densities are lower off Point Barrow than in Camden Bay. The 2006-2008 BWASP Final Report (Clarke et al., 2011a) and the 2009 BWASP Final Report (Clarke et al., 2011b) note sightings of feeding bowhead whales in the Beaufort Sea during the fall season. During that 4 year period, the largest groups of feeding whales were sighted between Smith Bay and Point Barrow (hundreds of miles to the west of Camden Bay), and none were sighted feeding in Camden Bay (Clarke et al., 2011a, b). In 2007, a small group of whales were seen feeding off of Kaktovik, which is just to the east of Camden Bay (Clarke et al., 2011a). Clarke and Ferguson (undated) examined the raw BWASP data from the years 2000-2009. They noted that feeding behavior was noted more often in September than October and that while bowheads were observed feeding throughout the study area (which includes the entire U.S. Beaufort Sea), sightings were less frequent in the central Alaskan Beaufort than they were east of Kaktovik and west of Smith Bay. Additionally, Clarke and Ferguson (undated) and Clarke et al. (2011b) refer to information from Ashjian et al. (2010), which describes the importance of wind-driven currents that produce favorable feeding conditions for bowhead whales in the area between Smith Bay and Point Barrow. Increased winds in that area may be increasing the incidence of upwelling, which in turn may be the reason for increased sightings of feeding bowheads in the area. Clarke and Ferguson (undated) also note that the incidence of feeding bowheads in the eastern Alaskan Beaufort Sea has decreased since the early 1980s. Therefore, NMFS' statement about sufficient feeding grounds being available outside of Camden Bay is based on recent data. Moreover, while some whales may avoid Camden Bay because of the increased sound levels while operations are ongoing, there has also been evidence that some bowheads continued feeding in close proximity to seismic sources ( e.g., Richardson, 2004). The sounds produced by the drillship are of lower intensity than those produced by seismic airguns. Therefore, if animals remain in ensonified areas to feed, their feeding opportunity would not be missed, and they would be in areas where the sound levels are not high enough to cause injury (as discussed in greater detail later in this document). Lastly, Shell will cease operations in Camden Bay on August 25 and will not resume until the close of the fall bowhead whale hunts conducted by the communities of Kaktovik and Nuiqsut. Those hunts typically end in mid-September but could remain open until as late as the end of September. Therefore, early migrating whales will be afforded the opportunity to feed in Camden Bay without any operations going on in the vicinity. Based on this information and the proposed shutdown, NMFS does not anticipate that whales will be excluded from feeding opportunities in Camden Bay in numbers sufficient to reduce carrying capacity or the rate of population increase. Comment 15: AWL states that the proposed IHA fails to adequately address impacts to bowhead whale cow/calf pairs during the spring and fall migrations. Response: NMFS discussed potential impacts to bowhead whales, including cow/calf pairs in the Notice of Proposed IHA (76 FR 68974, November 7, 2011). In the section that discussed potential impacts to marine mammals from the specified activity, NMFS described data from studies that included observations and reactions (or lack thereof) of cow/calf pairs to different anthropogenic activities. Additionally, NMFS included discussion of cow/calf pairs in the negligible impact analysis section of that document. Mitigation measures are required in the IHA during vessel transits ( e.g., speed restrictions, avoiding multiple changes in direction when within 300 yards [274 m] of whales) through the Chukchi and Beaufort Seas as the vessels mobilize to Camden Bay. These measures will ensure that potential impacts are reduced to the lowest level practicable. Moreover, Shell will not enter the Chukchi Sea prior to July 1, after the conclusion of the spring bowhead whale migration. Comment 16: AWL states that NMFS must consider whether Shell's ice management efforts have the potential to seriously injure or kill ringed seals resting on pack ice. Response: NMFS considered the potential impacts of Shell's ice management efforts to ringed seals resting on pack ice in the Notice of Proposed IHA (76 FR 68974, November 7, 2011) in the section regarding anticipated effects on marine mammal habitat. AWL also references the MMS 2008 Draft EIS for the Beaufort Sea and Chukchi Sea Planning Areas Oil and Gas Lease Sales 209, 212, 217, and 221 (MMS, 2008), which includes a reference to Reeves (1998). Reeves (1998) noted that some ringed seals have been killed by icebreakers moving through fast-ice breeding areas. In the proposed IHA analysis, NMFS considered this information and noted that since Shell's use of the icebreakers would occur outside of the ringed seal breeding and pupping seasons in the Beaufort Sea, serious injury or mortality from use of the icebreakers would not occur. Limited ice breaking might be needed to assist the fleet in accessing/exiting the project area if large amounts of ice pose a navigational hazard. Ice seals have variable responses to ice management activity. Alliston (1980, 1981) reported icebreaking activities did not adversely affect ringed seal abundance in the Northwest Territories and Labrador. Brueggeman et al. (1992) reported ringed seals and bearded seals diving into the water when an icebreaker was 0.58 mi (0.93 km) away. However, Kanik et al. (1980) reported that ringed seals remained on sea ice when an icebreaker was 0.62-1.24 mi (1-2 km) away. The drill site is expected to be mostly ice-free during July, August, and September, and the need for ice management should be infrequent. The presence of an icebreaker is primarily a safety precaution to protect the drill ship from damage. Ice seals could be on isolated floes that may need to be managed for safety. Any ice seals on floes approaching the drill ship may be disturbed by ice management activities. Ringed seals on an ice floe are anticipated to enter the water before the icebreaker contacts the ice, remain in the water as the ice moves past the drill ship, and could reoccupy ice after it has moved safely past the drill ship. As was discussed in the proposed IHA, NMFS determined that this activity and these reactions would result in Level B harassment. NMFS did not determine that there was a potential for serious injury or morality to occur from Shell's ice management efforts. Comment 17: AWL states that NMFS should consider and impose limits on the location and timing of the drilling to ensure that impacts are reduced. Response: The IHA requires, and Shell will implement, a cessation of activity on August 25 through the completion of the fall bowhead whale hunts conducted by the communities of Kaktovik and Nuiqsut in order to ensure no unmitigable adverse impact on the availability of bowhead whales for subsistence uses. NMFS determined that this was the only time/area closure needed to make the requisite findings under Section 101(a)(5)(D) of the MMPA. Comment 18: Dr. Bain states that noise exposure can lead to stress, which can impair the immune system and result in an increase in mortality from disease. He also notes that impairing the energy balance can slow growth, delay onset of sexual maturity, and increase the interval between successful births, all of which can cause a reduction in the number of animals recruited to the population. Dr. Bain concludes that these impacts in Camden Bay, which serves as a resting and feeding area for bowhead whales, will create the need for greater energy expenditure, leading to the impacts noted here. Response: While deflection may cause animals to expend extra energy, there is no evidence that deflecting around oil and gas activities (or other anthropogenic activities) 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; Allen and Angliss, 2011). Additionally, as mentioned in the response to Comment 14, observations of feeding bowheads during aerial surveys from 2000-2009 have been made more often in the areas east of Kaktovik and from Smith Bay to Point Barrow than in Camden Bay (Clarke and Ferguson, undated; Clarke et al., 2011a,b). Therefore, deflection around the drilling area is not anticipated to result in significantly reduced feeding opportunities of bowhead whales. Regarding recruitment of calves to the population, the count of 121 calves during the 2001 census was the highest yet recorded and was likely caused by a combination of variable recruitment and the large population size (George et al., 2004). The calf count provides corroborating evidence for a healthy and increasing population. Based on this information, NMFS does not expect Shell's activities to impact annual rates of recruitment or survival within the Western Arctic bowhead stock. Comment 19: Dr. Bain states: “Disturbance has the effect of causing the population to behave as though it is closer to carrying capacity than it would in the absence of disturbance.” Even though the bowhead population increased in the face of industry activity in the 1990s, an increase in disturbance now (while it appears close to carrying capacity) could result in slowed growth or a loss of individuals. Response: Based on information provided in the responses to earlier comments in this section, NMFS does not agree that population growth would be slowed as a result of Shell's proposed activity or increase the numbers of individuals lost. There are no data indicating that the population cannot continue to grow (as it has for over a decade) in the face of such activities. Shell's activities will occur in a small portion of the bowhead's range. Additionally, activities will cease for the first few weeks of the fall migration, allowing for some individuals to pass without any potential for disturbance. Comment 20: Dr. Bain states that the increase in vessel traffic associated with Shell's project increases the risk of ship strike. Response: NMFS acknowledges that there is always some risk of a ship strike whenever a vessel transits the ocean. However, the IHA requires Shell to implement several mitigation measures applicable to vessel operation ( e.g., speed restrictions in the presence of marine mammals or in inclement weather, avoiding multiple changes in direction when within 300 yards [274 m] of whales) to reduce further the low probability of a ship strike. Comment 21: Dr. Bain notes that masking of beluga whale echolocation signals by noise and temporary and permanent threshold shifts will impair the ability of belugas to find food. This mechanism is in addition to impaired abilities to find food due to displacement from high quality feeding areas. Response: As noted in the proposed IHA, beluga whale echolocation signals have peak frequencies from 40-120 kHz, which are far above the frequency range of the sounds produced by the devices to be used by Shell during the Camden Bay exploratory drilling program. Therefore, those industrial sounds are not expected to interfere with echolocation. Additionally, the source levels of the drillships are lower than the thresholds used by NMFS for the onset of auditory injury. Shutdown and power-down measures are required in the IHA when the airguns are in use to help reduce further the extremely low likelihood of temporary threshold shift (a Level B harassment). Lastly, there are no data indicating that Camden Bay is an important feeding area for beluga whales. Comment 22: Dr. Bain states: “Support vessel traffic will be disturbing to the part of the beluga population using lagoons and other nearshore habitats.” Response: For Shell's Camden Bay exploratory drilling program, transfer of supplies will occur either from the Deadhorse/West Dock shorebase or Dutch Harbor. For much of the early part of the operational season, belugas will not be present in high numbers in the Beaufort Sea. Transits through the Chukchi Sea to help support the Camden Bay, Beaufort Sea, program will occur further offshore, and support vessels will not enter the lagoons used by belugas in the Chukchi Sea. Moreover, as mentioned earlier in this document, Shell is required to implement several vessel mitigation measures to reduce impacts to marine mammals. NMFS analyzed the entirety of Shell's operations (including support vessel activities) and has included measures to reduce potential disturbance from all aspects of the operations. Comment 23: Dr. Bain states that hearing loss or masking from exposure to high levels of noise would impair bowhead whales' ability to hear vocalizations. He also states that hearing loss and masking would increase vulnerability to predation or ship strike, which in turn could increase mortality. Response: As noted in the response to Comment 21, the source levels of the drillships are lower than the thresholds used by NMFS for the onset of auditory injury. Shutdown and power-down measures are required in the IHA when the airguns are in use to help reduce further the extremely low likelihood of temporary threshold shift (a Level B harassment). As noted in the proposed IHA, masking effects are anticipated to be limited. Annual acoustic monitoring near BP's Northstar production facility during the fall bowhead migration westward through the Beaufort Sea has recorded thousands of calls each year (for examples, see Richardson et al., 2007; Aerts and Richardson, 2008). To compensate for and reduce masking, some mysticetes may alter the frequencies of their communication sounds (Richardson et al., 1995a; Parks et al., 2007). Additionally, if some individuals avoid the drilling area, impacts from masking will be even lower. There is no evidence to suggest that any masking would increase the likelihood of death. Acoustic Issues/Concerns Comment 24: AWL and Dr. Bain question the radius of the 120 dB isopleth for the Kulluk. AWL states that the 120 dB distance is not conservative enough and therefore understates potential impacts to marine mammals. Dr. Bain indicates that the problems arise from differences in empirical data and that the modeling used does not capture the most efficient mode of propagation. Response: The commenters cite to a study conducted by Hall et al. (1994) in noting that Shell did not use a conservative enough 120-dB radius for the Kulluk. Blackwell and Greene (unpub.) conducted an assessment of Hall et al. (1994) in comparison to Greene (1987). That assessment is summarized here. Blackwell and Greene (unpub.) found that there are two main issues with the information presented in the Hall et al. (1994) report. First, the authors did not characterize the sounds produced by the Kulluk during specific activities, such as drilling, but then assume that the sounds recorded tens or even more than 100 km away are indeed those of the Kulluk. In other words, they have no way of demonstrating that the sounds they recorded at tens of km from the Kulluk are actually made by the Kulluk or whether those sounds are made by other sources, such as vessels unrelated to the drilling project. Second, the authors use propagation models that do not take into account scattering and absorption losses, which become important at distances of tens of km. The authors then use these models to make or support extrapolations to large distances, up to 120 km from the drilling operation. Also, as noted in the response to Comment 4, the source levels for the Kulluk used by the modeling study are considered an overestimate since they include the contributions of support vessels. Greene (1987), from which these measurements were taken, points out that measurements at 1 km from the drillship are a composite of the sounds emitted from the drillship and other vessels. Based on this information, NMFS has determined that an appropriate 120-dB radius was considered when assessing impacts to marine mammals. Comment 25: AWL states that the proposed IHA is inadequate because it relies on modeling for the Sivulliq prospect to estimate the Kulluk's drilling noise despite the fact that sounds are “expected to propagate shorter distances at the Sivulliq site.” In contrast, NMFS took a “precautionary approach” when estimating the effects of drilling with the Discoverer, using the greater Torpedo site distance. Response: Modeled predictions were performed for the drillship Explorer operating at both Sivulliq (site K) and Torpedo (site N) and for the Kulluk operating at Sivulliq only. It is true that the maximum propagation distance to the 120 dB re 1 µPa for the Explorer was greater at the Torpedo site, but the difference was less than 3% (the distances were 2.99 mi [4.81 km] and 3.06 mi [4.93 km] at Sivulliq and Torpedo, respectively). This is likely due to the fact that Torpedo is approximately 3.7 mi (6 km) further offshore, and sound from this location reaches into deeper water, even though the wellsite depths are almost identical (108.3 ft [33 m] at Torpedo vs. 111.5 ft [34 m] at Sivulliq). Remodeling of the Kulluk operation at Torpedo was deemed unnecessary due to the similarity of the predicted noise footprints at these two sites and because any variability would be conservatively accounted for by the use of the 1.5 correction factor. Additionally, as noted previously, Shell will conduct SSV measurements of all equipment once on location. Comment 26: Dr. Bain states that the correction factor of 1.5 applied to the distance to the 120 dB contour is inadequate to conservatively account for the variability. Response: The concern raised here is that the sound speed profile used for acoustic modeling of drill rig noise may not account for changes to the salinity and temperature profile that could influence and create variability in sound propagation, and the resulting variability might lead to conditions in which model estimates would not be conservative. While significant structure can form in the sound speed profile, the profile used for this modeling study was taken from the GDEM database for the corresponding locations and timing (month of September was used). The specific profile chosen (see Figure 3) has increasing sound speed with depth over the full water column. This profile leads to upward acoustic refraction that causes propagating sounds to bend up, thereby reducing interactions with the seabed. This situation generally reduces acoustic transmission loss as a result of acoustic energy being lost due to reflection and scattering from the bottom. It is believed to produce longer propagation distances than the stratified profile that sometimes forms with warmer high speed water overlying cooler water. That profile would be downward-refracting and would lead to more bottom interaction and sound energy loss. Therefore, a correction factor of 1.5 is appropriate in this circumstance. Marine Mammal Biology Concerns Comment 27: AWL states that information on the essential spatial and temporal habitat needs of beluga whales is limited, severely compromising the ability to assess the impacts of Shell's proposal. Response: As noted in responses to earlier comments in this document, as required by the MMPA implementing regulations at 50 CFR 216.102(a), NMFS has used the best scientific information available in assessing potential impacts and whether the activity will have no more than a negligible impact on the affected marine mammal species or stock. However, while NMFS agrees that there may be some uncertainty regarding spatial and temporal habitat needs of belugas, the best available information supports our findings. EN09MY12.006 Comment 28: AWL states that any final IHA must analyze potential effects of all of Shell's operations on ribbon, ringed, spotted, and bearded seals and must do so considering the distinct habitats and life histories for each. AWL also notes that portions of the ringed and bearded seal populations are proposed for listing under the Endangered Species Act (ESA) and that those listings were prompted, in part, by the effects of climate change on ice seal habitat. The added stress of diminishing habitat should be considered in NMFS' analysis here. Response: NMFS has considered the potential effects of Shell's activities on all four ice seal species in the context of the distinct habitats and life histories for each. In the proposed IHA, NMFS acknowledged the importance of sea ice to various life functions, such as breeding, pupping, and resting. Several of these species perform these functions on sea ice outside of the Camden Bay area. The ringed seal, which does construct subnivean lairs in the Beaufort, does not pup during the time when Shell would be operating. NMFS' EA for this action considers the impacts of climate change on ice seals in the region. Comment 29: AWL notes the recent outbreak of skin lesions and sores among ringed seals. The letter states that NMFS should consider the weakened state of the population as part of the analysis. They also note that some spotted and bearded seals have shown symptoms as well. Response: NMFS began receiving reports of the outbreak in summer 2011 and declared an unusual mortality event in December 2011. An investigative team was established, and testing has been underway. Testing has ruled out numerous bacteria and viruses known to affect marine mammals, including Phocine distemper, influenza, Leptospirosis, Calicivirus, orthopoxvirus, and poxvirus. Foreign animal diseases and some domestic animal diseases tested for and found negative include foot and mouth disease, VES, pan picornavirus, and Rickettsial agents. Last month, preliminary radiation testing results were announced which indicate radiation exposure is likely not a factor in the illness. Further quantitative radionuclide testing is occurring this spring. Results will be made publicly available as soon as the analyses are completed. Reports from the NSB indicate that hunters during early winter observed many healthy bearded and ringed seals. The seals behaved normally: They were playful, curious but cautious, and maintained distance from boats. No lesions were observed on any seals. During December 2011 and January 2012, 20-30 adult ringed seals were harvested from leads in the sea ice in the NSB. Based on local reports, these seals had neither hair loss nor lesions. However, during late February 2012, a young ringed seal with nodular and eroded flipper lesions but no hair loss was harvested. Additionally, necropsy results of the internal organs were consistent with animals with this disease that continues to affect ice seals in the NSB and Bering Strait regions. Chukotka hunters did not report any sightings or harvest of sick and/or hairless seals in December 2011 and January 2012. NMFS has considered this information as part of its analysis in making the final determinations for this IHA. The data available to date do not indicate that this has weakened the population. Moreover, Shell's activities are anticipated to take less than 1% of the population of all of the stocks of all three species noted by the commenter. The sound that will be produced by Shell's activities is of a low level. Therefore, even if the population were weakened from this outbreak it would not change our evaluation of the impacts of this activity at the population level. Comment 30: Dr. Bain states that work will be underway during the peak of the beluga calving season, and mothers with calves under 6 months of age are most likely to occur near the drill sites and are the most vulnerable to harm from the project. Response: While Shell's exploratory drilling program will overlap temporally with the beluga calving season, it will not overlap spatially. Tagging data from the 1990s indicates that belugas from the eastern Beaufort Sea stock will be in Canadian waters ( i.e., Mackenzie Delta and Amundsen Gulf) in the summer (July and August) and do not start migrating through the Beaufort Sea until September but do so far offshore (Richard et al., 2001; DFO, 2000). In the summer months, belugas from the eastern Chukchi Sea stock are typically found in Kasegaluk Lagoon and Kotzebue Sound (Suydam et al., 2001). Shell will transit far offshore so as not to disturb the summer beluga hunts conducted in Kasegaluk Lagoon and therefore will avoid interactions with mothers and calves. Tagging data of belugas from this stock have also indicated that they travel far offshore in the Beaufort Sea to Canadian waters later in the summer (Suydam et al., 2001). Based on this information, it is unlikely that many beluga mother/calf pairs will pass within the 120-dB isopleths of Shell's Camden Bay exploratory drilling program. Mitigation and monitoring measures will ensure that impacts to any belugas that do occur in the vicinity of the program will be at the lowest level practicable. Comment 31: Dr. Bain states the population censuses for the eastern Chukchi Sea and Beaufort Sea stocks of belugas have not been conducted in the last 10 years and that population trends are unknown. No evidence of population growth was seen when censuses were still being conducted. Response: In accordance with NMFS' implementing regulations at 50 CFR 216.102(a), NMFS used the best available science to make the requisite findings for issuance of the IHA. That science indicates that only small numbers of belugas will be taken and that those incidental takings will have no more than a negligible impact on the affected beluga stocks and will not have an unmitigable adverse impact on the availability of those belugas for taking for subsistence uses. Density and Take Estimate Concerns Comment 32: Shell states that the value of 38 as the maximum estimated take of beluga whales was incorrect in the IHA application. The maximum estimated take of beluga from the Kulluk drilling sounds should be 65, not 38. The miscalculation was a result of a cell reference error in the “Total” table (Table 6-12 in Shell's IHA application). Response: NMFS agrees that it continued this error in the proposed IHA by not adding in the potential takes from ice management/icebreaking and the ZVSP airguns. Therefore, NMFS has increased the estimated take of beluga whales from Shell's operations ( i.e., use of the Kulluk, ice management/icebreaking, and ZVSP airgun usage) to 65. This changes the percentage of stock or population potentially taken from 0.1% to 0.2%. Comment 33: The NSB and Dr. Bain state that because some bowhead whales have shown responses to noise below 120 dB and only individuals within the 120 dB isopleth were considered taken, NMFS' estimate of take by harassment is likely biased low. Response: As indicated in the response to Comment 13, 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 a reaction would be considered a take. According to experts on marine mammal behavior, whether a particular stressor could potentially disrupt the migration, breathing, nursing, breeding, feeding, or sheltering, etc., of a marine mammal, i.e., whether it would result in a take, is complex and context specific, and it depends on several variables in addition to the received level of the sound by the animals. The 120-dB acoustic criteria is a generalized threshold based on the available data that is intended to assist in the accurate assessment of take while acknowledging that sometimes animals will respond at received levels below that and sometimes they will not respond in a manner considered a take at received levels above 120 dB. NMFS, therefore, does not agree that the estimates of take by harassment are biased low. Comment 34: AWL states that there is no indication that the proposed IHA considered marine mammal movement during the time period over which the activities will occur. The letter also states that despite the fact that belugas will be migrating in the area, the proposed IHA does not consider their movement when calculating take, citing to the lower beluga densities and a lack of detailed data. Dr. Bain also notes that density and ensonified area can be used to calculate the number of individuals present at any given moment, but different individuals will be present at different times. Response: During migration, there are clear changes in the density of animals that pass through a particular area of ocean, and “take” estimates attempt to consider this. In other situations, it is difficult to account for the movements of individuals within a relatively small area of ocean. Using densities provides the best estimate of animals though it assumes that animals are distributed evenly in the environment, which is not correct. This approach has, however, been used for most statistical approaches to dealing with animals in such situations, and NMFS determined that it is an appropriate and robust approach to use in this instance. In most cases, it overestimates the number of animals actually “taken” by the activities because it assumes no avoidance of the area by individuals. Comment 35: AWL states that NMFS must first account for the movement of marine mammals during the time over which ice management/icebreaking will occur. Also, any final IHA must also assess exactly when Shell's ice management/icebreaking will occur and also consider the effects of both ice management vessels operating simultaneously but at some distance apart. It cannot be assumed that such activities will be neatly confined to the beginning and end of Shell's operations. Response: See the response to Comment 34 regarding accounting for the movement of marine mammals. Because it cannot be predicted with absolute certainty as to when ice may be present in the area that could pose a risk to drilling operations, it is difficult to state with absolute certainty when Shell's ice management/icebreaking will occur. Using data on Arctic sea ice presence from recent years, Shell estimated the most likely times that such activities would be required. Shell will also implement an Ice Management Plan (IMP) to ensure real-time ice and weather forecasting is conducted in order to identify conditions that might put operations at risk and will modify activities accordingly. The description of Shell's activities in the proposed IHA indicated that both ice management vessels could be operating simultaneously at different locations and was considered in the analysis. Comment 36: Dr. Bain states that Shell's Camden Bay drill sites are in a location where the migration corridor is narrow and that this will require nearly all bowheads passing by a drill site while it is active to be exposed to biologically significant levels of noise. Response: While some bowhead whales show behavioral reactions ( e.g., avoidance, increase swim speed, etc.) to drilling and other industry activities, not all behavioral reactions rise to the level of biological significance (NRC, 2000, 2005). Many of the animals that migrate past Shell's operations will do so on the outer edge of the 120-dB isopleth, NMFS' threshold for Level B (behavioral) harassment, where reactions are likely to be less severe. Additionally, Shell will cease operations on August 25 and will not resume until the close of the fall bowhead whale hunts conducted by the communities of Kaktovik and Nuiqsut (which is typically mid- to late September). Therefore, those whales that pass through the migration corridor during the first few weeks of the migration period will do so during a period of time without any activity being conducted by Shell. Subsistence Use Concerns Comment 37: The AEWC and ICAS state that they have expressed concerns about direct impacts to the subsistence hunts resulting from deflection of bowhead whales by vessel traffic and underwater noise, as well as from icebreaking and geophysical exploration. The letters note that concerns about direct and indirect threats to hunting arise from discharge and associated impacts on water quality, the risk of an oil spill, and the cumulative impacts from the sum of all commercial and industrial activities occurring in our waters. Under the MMPA, NMFS has an obligation to ensure that any proposed activities do not have an unmitigable adverse impact on our subsistence activities. Response: NMFS analyzed the potential impacts from the activities noted here in the proposed IHA and the EA. Potential impacts to the availability of marine mammals for subsistence uses were included in those analyses. Based on the mitigation measures contained in the IHA to ensure the availability of marine mammals for subsistence uses (including a temporary shutdown of activities during the fall bowhead hunt and collection of drilling muds and certain waste streams), NMFS determined that Shell's activities would not have an unmitigable adverse impact on the availability of marine mammal species or stocks for taking for subsistence uses. Additionally, Shell worked independently with the AEWC to develop and sign a CAA, which also includes measures to reduce impacts to bowhead whaling from their drilling operations and other activities. Comment 38: The AEWC expressed concern about potential impacts to the subsistence hunt in the Chukchi and Bering Seas communities from end of season transits and asks that NMFS address this issue in its response to comments, determining whether vessel transit could impact the fall subsistence hunt in Wainwright, Point Lay, and Point Hope, or the Bering Sea communities. The AEWC also requests that NMFS and Shell amend the Communications Plan in a way that allows Chukchi and Bering Sea communities to be notified when Shell's vessels are approaching subsistence use areas. In the past, whaling captains have asked that Shell begin to transit out of the Chukchi Sea by October 31 for vessels heading to Dutch Harbor or points south. Response: Shell signed the 2012 CAA with the AEWC on March 26, 2012. In the signed 2012 CAA, Shell agreed to establish Communication Centers in the Chukchi and Bering Sea communities and will conduct such communications in the manner laid out in the CAA. The CAA also requires that vessel transits through the Chukchi Sea should remain as far offshore as weather and ice conditions allow and at all times at least 5 mi (8 km) offshore during transit. Because Shell will abide by these measures, as indicated in the signed CAA and included in the IHA, NMFS has determined that fall vessel transits through the Chukchi Sea will not impact the hunts at Wainwright, Point Lay, and Point Hope. Shell's IHA is valid for drilling operations through October 31. Therefore, demobilization and transit out of the area must begin by that date. Information shared with NMFS from hunters on St. Lawrence Island in 2011 noted that the fall bowhead whale hunts typically occur the week of Thanksgiving. Shell will begin to demobilize and transit south towards Dutch Harbor beginning on October 31 and will avoid being in the area when hunters from Gambell and Savoonga (on St. Lawrence Island) are actively hunting bowhead whales. Comment 39: The AEWC asks that NMFS require Shell to disclose through the Communications Plan the location of its oil spill response fleet and oil spill tanker in order to ensure that Shell does not station the vessels in a location that could potentially interfere with the fall hunt in Barrow, which often continues after the conclusion of the Nuiqsut and Kaktovik hunts. Response: As agreed to in the signed CAA, Shell will move the drillship and other related vessels to a location that will not cause interference with the hunts in Kaktovik, Nuiqsut, and Barrow. Comment 40: The MMC states that negotiating and completing a CAA related to bowhead whales is useful but also prompts the question as to why such agreements are not being developed with subsistence hunters taking other species that might be affected by oil and gas operations. With that in mind, the MMC recommends that NMFS issue the requested IHA contingent upon the successful negotiation of a CAA between Shell and the AEWC and the bowhead whale hunters it represents. Similarly, the MMC recommends that NMFS facilitate the development of more comprehensive CAAs that involve other species and potentially affected communities and co-management organizations and take into account all potential adverse effects on all marine mammal species taken for subsistence purposes. Response: 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 to some extent beluga) whales, the signing of it is not a requirement. Regulations promulgated pursuant to the 1986 MMPA amendments require that for an activity that will take place near a traditional Arctic hunting ground, or may affect the availability of marine mammals for subsistence uses, an applicant for MMPA authorization must either submit a POC or information that identifies the measures that have been taken to minimize adverse impacts on subsistence uses. Shell submitted a POC with its IHA application, which was available during the public comment period. Additionally, as indicated earlier in this document, Shell signed the 2012 CAA with the AEWC on March 26, 2012. NMFS (or other Federal agencies) has no authority to require agreements between third parties, and NMFS would not be able to enforce the provisions of CAAs because the Federal government is not a party to the agreements. Regarding the CAA signed with the AEWC, NMFS has reviewed that document, as well as Shell's POC. The majority of the conditions are identical between the two documents. NMFS has also included measures from the 2012 CAA between Shell and the AEWC relevant to ensuring no unmitigable adverse impact on the availability of marine mammals for subsistence uses. NMFS has also determined that the measures in the POC related to species other than the bowhead whale are sufficient to ensure no unmitigable adverse impact on the availability of those species for subsistence uses. In the recently released Draft EIS on the Effects of Oil and Gas Activities in the Arctic Ocean (NMFS, 2011), NMFS began to examine both the CAA and POC processes. There are strengths and weaknesses in how both processes are currently executed. NMFS is committed to working with the AEWC, Alaska Beluga Whale Committee, and Ice Seal Committee and other stakeholders to improve upon and combine these processes, as appropriate. Comment 41: The NSB appreciates Shell's effort to mitigate impacts to the bowhead hunt; however, Shell's proposed activities may adversely impact subsistence hunting of other species. Mitigation measures are needed to protect eastern Chukchi Sea belugas and beluga hunters. Restricting transit through the Chukchi Sea until the hunt is completed at Point Lay would be an effective measure. NMFS must also evaluate impacts to seals from the transit of vessels associated with Shell's planned activities and how that may impact seal hunts. Response: In the proposed IHA, NMFS evaluated potential impacts to subsistence hunts of all species in the project area. Beluga whales and ice seals are not typically hunted in Camden Bay from July through October. The primary periods during which sealing takes place occur outside of Shell's operating time frame, and some of the more established seal hunts that do occur in the Beaufort Sea, such as the Colville delta area hunts, are located a significant distance (in some instances 100 mi [161 km] or more) from Shell's drill sites. NMFS understands the NSB's concerns regarding vessel transit and how that may affect hunts in the Chukchi Sea communities, especially the summer beluga hunt at Point Lay. Shell has committed to transiting offshore of the hunt and to communicating with Point Lay via the Communication Center regarding vessel transits to ensure that they remain outside of the hunting areas. These measures were part of Shell's POC and are included in the IHA. Therefore, NMFS has determined that there will not be an unmitigable adverse impact on the availability of beluga whales and ice seals for taking for subsistence uses. Mitigation and Monitoring Concerns Comment 42: Shell states that the 1,500 ft (457 m) flight altitude restriction mitigation measure applies to all “non-marine mammal observation” flights, thus allowing for observer flights to fly lower as needed to afford the best possible marine mammal sightings and identifications. Response: NMFS concurs. The measure was written in two different ways in several parts of the proposed IHA. One way only exempted takeoffs, landings, and emergency situations from the 1,500 ft (457 m) altitude restriction, while in other parts of the document marine mammal monitoring flights were also exempted. NMFS has eliminated the discrepancy in the final IHA. The exemption now applies to takeoffs, landings, emergency situations, and marine mammal monitoring flights. Comment 43: The MMC asks how Shell will monitor the large harassment zone of the drill rig to estimate actual numbers of takes? The MMC recommends that NMFS require Shell to develop and employ a more effective means to monitor the entire corrected 120-dB re 1 µPa harassment zone for the presence and movement of bowhead whales and other marine mammals and for estimating the actual number of takes that occur. Monitoring only a portion of the harassment zone and then extrapolating to estimate the total number of takes is reasonable only if the company and NMFS have a basis for making assumptions about the composition and distribution of marine mammals throughout the areas potentially affected. Response: While the 120-dB harassment zone from the drill rig will likely extend beyond what the observers can effectively see from the drill rig, Shell will place Protected Species Observers (PSOs) on all vessels used for the drilling operations. Many of these vessels will be located several kilometers from the drill rig, thus expanding the visual observation zone. Moreover, Shell will supplement its vessel-based operations with marine mammal aerial observations, thus expanding the visual observation zone. PSOs will be stationed on the vessels to observe from the best vantage points available and will be equipped with “Big-eyes” and other binoculars to aid in detection. Additionally, NMFS does not contend that PSOs will be able to see every marine mammal within the harassment zone. Using the vessel-based and aerial platforms to detect and count marine mammal sightings and then to use those observations in conjunction with sightings from other surveys such as BWASP is reasonable for estimating maximum take. Comment 44: The MMC recommends that NMFS track and enforce Shell's implementation of mitigation and monitoring measures to ensure that they are executed as expected. Response: During Shell's operating season, NMFS will meet weekly with staff from BOEM, the Bureau of Safety and Environmental Enforcement (BSEE), and the U.S. Fish and Wildlife Service (USFWS) to review and analyze proprietary operations reports, including PSO logs to ensure environmental and regulatory compliance. Additionally, BSEE will have inspectors on the drilling platform 24 hours a day/7 days a week. Comment 45: The NSB, MMC, and AWL state that NMFS should require Shell to make monitoring data available to the public. The NSB states that in addition to the monitoring data, locations and activities of drill rigs, icebreakers, and support vessels should also be made publicly available. Response: In accordance with an agreement between NOAA, Shell, ConocoPhillips, and Statoil, data from Shell sponsored science and monitoring efforts and from those that are jointly funded by the signatory parties will be made available to NOAA and to the public. The manner of release, format of released data, site(s) of data repository, and rights of data use are currently being addressed by a working group. Public access to these data is being addressed through this process and would not be enhanced by conditions imposed through the IHA. Shell has committed to the support and operation of communication centers in Kaktovik, Nuiqsut, Barrow, Wainwright, Point Lay, Point Hope, Kivalina, Kotzebue, St. Lawrence Island, and Wales. As required by the CAA (which Shell signed on March 26, 2012), all Shell vessels operating in the Beaufort and Chukchi Sea will contact the nearest communication center every 6 hours and provide the following information: (A) Vessel name, operator of vessel, charter or owner of vessel, and the project the vessel is working on; (B) Vessel location, speed, and direction; and (C) Plans for vessel movement between the time of the call and the time of the next call. The final call of the day will include a statement of the vessel's general area of expected operations for the following day, if known at that time. The vessels will also contact the nearest communications center in the event that operations change significantly from those projected during the prior 6 hour reporting period. The communication centers will be generally open and available to the public and will provide a capability for direct communications between subsistence hunters and Shell vessels. Shell will operate these centers for the entire duration of operations in the Chukchi and Beaufort Seas, rather than limiting operations to the periods of the bowhead subsistence hunt. Since 2010, NMFS has required operators in the Arctic to provide vessel tracks during the season as a part of the required 90 day report. Given that the potentially impacted public are provided with multiple avenues with which they can acquire vessel location and activity data, and that vessel tracks will be made available to the general public at the end of the season, there is no additional need for real-time public access to vessel location information. Further, given that there are current and legitimate concerns with respect to security of vessels, crew, and operations, public access to vessel locations and activities may not be in the best interest of safe marine operations. Cumulative Impact Concerns Comment 46: The MMC noted that it is important to consider that some of the animals may already be in a compromised state as a result of climate disruption, stochastic variation in food resources, or variation in physiological state due to normal life history events ( e.g., molting or reproduction in pinnipeds). Response: In the Notice of Proposed IHA (76 FR 68974, November 7, 2011), NMFS considered others factors, including when pinnipeds and cetaceans conduct varying life history functions and whether or not those activities overlap in time and space with Shell's Camden Bay exploratory drilling program. Pupping and breeding for most ice seals do not occur in Camden Bay. Pupping of ringed seals, which do build subnivean lairs in the Beaufort Sea, occurs outside of Shell's operating time frame in the Beaufort Sea. Additionally, in the EA for this action, NMFS analyzed impacts of other activities and factors, such as climate disruption. Based on this information, NMFS determined that the taking by harassment from Shell's activities would have no more than a negligible impact on the affected marine mammal species or stocks. Comment 47: Dr. Bain states that cumulative effects are of concern and that the drilling in the Beaufort Sea cannot be considered separately from other planned activities, including similar activities in the Chukchi Sea. Further, if exploratory drilling results in future production, the cumulative effect of production in the core of the migration route needs to be considered. Response: NMFS analyzed the combination of both of Shell's proposed 2012 drilling programs in its EA, as well as other seismic exploration and vessel transportation in the Beaufort and Chukchi Seas. Additionally, NMFS' response to Comment 7 explains how other factors were taken into consideration when analyzing this proposal under the MMPA. Because it is unknown if Shell will successfully find oil during its exploratory drilling program, it is premature and speculative to discuss potential impacts from building a production facility in Camden Bay. If Shell finds oil, it would be several years before construction of a production facility would begin. Additional environmental analyses would be required at that time. ESA Statutory Concerns Comment 48: AWL notes that the proposed IHA indicates that NMFS will initiate ESA section 7 consultation for three listed marine mammal species but then cites to the Chukchi Sea Notice of Proposed IHA (76 FR 70007, November 9, 2011). NMFS, however, should not overlook bearded and ringed seals in its consultation. Response: The Notice of Proposed IHA (76 FR 68974, November 7, 2011) for this action noted that NMFS would initiate ESA section 7 consultation for the bowhead whale. However, NMFS has included ringed and bearded seals in the Biological Opinion prepared for this action, which analyzes effects to ESA-listed species, as well as species proposed for listing. Comment 49: AWL states that the conclusions reached in NMFS' 2008 and 2010 Biological Opinions for oil and gas activities in the Arctic regarding effects of oil spills must be reconsidered. Response: NMFS' Office of Protected Resources Permits and Conservation Division requested consultation under section 7 of the ESA with the NMFS Alaska Regional Office Endangered Species Division. A new Biological Opinion has been prepared for this IHA. In April, 2012, NMFS finished conducting its section 7 consultation and issued a Biological Opinion, and concluded that the issuance of the IHA associated with Shell's 2012 Beaufort Sea drilling program is not likely to jeopardize the continued existence of the endangered bowhead whale, the Arctic sub-species of ringed seal, or the Beringia distinct population segment of bearded seal. No critical habitat has been designated for these species, therefore none will be affected. NEPA Statutory Concerns Comment 50: The AEWC and NSB state that NMFS must include information regarding upcoming oil and gas activities planned for the Beaufort and Chukchi Seas in 2012 in U.S., Russian, and Canadian waters, as well as reasonably foreseeable future drilling activities. Both letters request that NMFS develop a method for assessing impacts from multiple drilling operations and to ascertain the significance of multiple exposures to underwater noise, ocean discharge, and air pollution and vessel traffic. Response: NMFS' EA contains information on upcoming activities in U.S., Russian, and Canadian waters for the 2012 season, as well as reasonably foreseeable future drilling activities in the project area. The EA qualitatively describes how marine mammals could be impacted from multiple activities in a given season and what the results of those exposures might be. Comment 51: NSB states that NMFS should be required to prepare an EIS, not an EA, to adequately consider the potentially significant impacts of the proposed IHAs, including the cumulative impacts of Shell's proposed activities. Response: NMFS' 2012 EA was prepared to evaluate whether significant environmental impacts may result from the issuance of IHAs to Shell for the take of marine mammals incidental to conducting exploratory drilling programs in the U.S. Beaufort and Chukchi Seas, 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 52: The NSB states that NMFS should consider the cumulative impact of discharge and whether bioaccumulation of contaminants could have lethal or sub-lethal effects on bowhead whales and other marine mammals. NMFS should then synthesize that information into a health impact assessment looking at the overall combined effect to the health of the local residents. Response: As explained by the Council on Environmental Quality, an EA is a concise document and should not contain long descriptions or detailed data which the agency may have gathered. Rather, it should contain a brief discussion of the need for the proposal, alternatives to the proposal, the environmental impacts of the proposed action and alternatives, and a list of agencies and persons consulted. See NEPA's Forty Most Asked Questions, 46 FR 18026 (March 23, 1981); 40 CFR 1508.9(b). The EA prepared for this action contains a discussion of water quality, including contaminants, in sections 3.1.5.2 and 4.2.1.5 and incorporates additional material by reference. It also notes that contaminants have the potential to bioaccumulate in marine mammals, but that monitoring has shown that oil and gas developments in the Alaskan Beaufort Sea “are not contributing ecologically important amounts of petroleum hydrocarbons and metals to the near-shore marine food web of the area” (EA at 4.2.2.3). Given that the studies done so far have detected no bioaccumulation of contaminants as a result of oil and gas activity in the Beaufort Sea, it is only a remote and highly speculative possibility that discharges from Shell's exploration drilling program could contribute to cumulative impacts from contaminants that could ultimately result in health impacts to local residents. Agencies are not required to consider such remote or speculative impacts in an EA (see Ground Zero Ctr. for Non-Violent Action v. United States Dept of the Navy, 383 F.3d 1082, 1090 (9th Cir. 2004)). However, NMFS acknowledges the importance of this issue to residents of the North Slope Borough, and has included a more extensive discussion of environmental contamination and its potential effects in the Draft EIS on Effects of Oil and Gas Activities in the Arctic Ocean (NMFS, 2011). Comment 53: AWL states that it would be illegal for NMFS to approve the IHA without completing the EIS that is in progress. NSB also states that it would be shortsighted to allow Shell to proceed on a 1-year IHA when the impacts could negatively affect arctic resources and preclude options that could be developed in the forthcoming EIS. Response: While the Final EIS is still being developed, NMFS conducted a thorough analysis of the affected environment and environmental consequences from exploratory drilling in the Arctic in 2012 and prepared an EA specific to the two exploratory drilling programs proposed to be conducted by Shell. The analysis contained in that EA warranted a Finding of No Significant Impact. The analysis contained in the Final EIS will apply more broadly to multiple Arctic oil and gas operations over a period of 5 years. NMFS' issuance of IHAs to Shell for the taking of several species of marine mammals incidental to conducting its exploratory drilling operations in the Beaufort and Chukchi Seas in 2012, as analyzed in the EA, is not expected to significantly affect the quality of the human environment. Additionally, the EA contained a full analysis of cumulative impacts. Oil Spill Concerns Comment 54: The NSB and MMC state that Shell's application and NMFS' Notice of Proposed IHA (76 FR 68974, November 7, 2011) do not contain adequate information regarding effects of a major oil spill. The MMC notes that NMFS is too dismissive of the potential for a large oil spill. The NSB requests clarification on how NMFS considers the risk of an oil spill when issuing MMPA authorizations for exploratory drilling activities and contends that NMFS must analyze the potential harm to marine mammals and subsistence activities. The NSB also states that Shell's application lacks any information about potential take resulting from a release of oil in any amount. Response: NMFS' Notice of Proposed IHA contained information regarding measures Shell has instituted to reduce the possibility of a major oil spill during its operations, as well as potential impacts on cetaceans and pinnipeds, their habitats, and subsistence activities ( see 76 FR 68992-68996, 69001, and 69024, November 7, 2011). NMFS' EA also contains an analysis of the potential effects of an oil spill on marine mammals, their habitats, and subsistence activities. Much of that analysis is incorporated by reference from other NEPA documents prepared for activities in the region. There is no information regarding potential take from a release of oil because an oil spill is not a component of the “specified activity.” DOI's BOEM and BSEE are the agencies with expertise in assessing risks of an oil spill. In reviewing Shell's Camden Bay Exploration Plan and Regional OSRP, BOEM and BSEE determined that the risk was low and that Shell will implement adequate measures to minimize the risk. Shell's OSRP: identifies the company's prevention procedures; estimates the potential discharges and describes the resources and steps that Shell would take to respond in the unlikely event of a spill; and addresses a range of spill volumes, ranging from small operational spills to the worst case discharge calculations required to account for the unlikely event of a blowout. Additionally, NOAA's Office of Response and Restoration reviewed Shell's OSRP and provided input to DOI requesting changes that should be made to the plan before it should be approved. Shell incorporated NOAA's suggested changes, which included updating the trajectory analysis and the worst case discharge scenario. Based on these revisions, NOAA Ocean Service's Office of Response and Restoration believes that Shell's plans to respond to an offshore oil spill in the U.S. Arctic Ocean are satisfactory, as described in a memorandum provided to NMFS by the Office of Response and Restoration. Lastly, in the unlikely event of an oil spill, Shell will conduct response activities in accordance with NOAA's Marine Mammal Oil Spill Response Guidelines. Comment 55: The MMC notes that the risk of an oil spill is not simply a function of its probability of occurrence; it also must take into account the consequences if such a spill occurs. Those consequences are, in part, a function of the spill's characteristics and the ability of the industry and government to mount an effective response. The MMC states: “The assertion that Shell would be able to respond adequately to any kind of major spill is simply unsupported by all the available evidence.” The MMC asserts that the OSRP is still inadequate for addressing a large oil spill in the Arctic. Response: As noted in the response to Comment 54, DOI approved Shell's OSRP on March 28, 2012. That approval came after an extensive review process and changes were made to the plan based on comments from DOI, NOAA, and other Federal agencies. The plan calls for Shell to have several response assets near the drill sites for immediate response, while also having additional equipment available for quick delivery, if needed. DOI will also continue to provide oversight with exercises, reviews, and inspections. NMFS' EA and recent BOEM NEPA analyses assess impacts to the environment from an oil spill. Comment 56: The MMC recommends that NMFS require Shell to cease drilling operations in mid- to late September to reduce the possibility of having to respond to a large oil spill in ice conditions. AWL also states that NMFS should consider restrictions on late-season drilling. Response: NMFS has determined that such a requirement is unnecessary. Shell requested an IHA to conduct drilling operations through October 31. NMFS analyzed potential impacts to marine mammals, their habitat, and the availability of marine mammals for subsistence uses from Shell's activities being conducted from early July through October. NMFS has concluded that those activities will result in the take of small numbers of marine mammals and that take will have no more than a negligible impact on the affected marine mammal species or stocks and will not have an unmitigable adverse impact on the availability of marine mammals for subsistence uses. Additionally, for its Camden Bay exploratory drilling program, Shell will cease operations on August 25 for the fall bowhead whale hunts conducted by the communities of Kaktovik and Nuiqsut and will not resume until those hunts are deemed closed (which typically occurs in mid- to late September). During this hunting shutdown period, Shell will monitor ice conditions at the drill sites. If those data indicate that it would be too dangerous to return to the drill sites after the close of the hunts, then Shell will cease operations in Camden Bay for the remainder of the season. Additionally, BOEM will have inspectors on the drill rig 24 hours a day/7 days a week and can call for a shutdown of operations, if necessary. Comment 57: The MMC recommends that NMFS require Shell to develop and implement a detailed, comprehensive and coordinated Wildlife Protection Plan that includes strategies and sufficient resources for minimizing contamination of sensitive marine mammal habitats and that provides a realistic description of the actions that Shell can take, if any, to respond to oiled or otherwise affected marine mammals. The plan should be developed in consultation with Alaska Native communities (including marine mammal co-management organizations), state and Federal resource agencies, and experienced non-governmental organizations. Response: As noted in the response to Comment 54, Shell will operate any needed oil spill response activities in accordance with NOAA's Marine Mammal Oil Spill Response Guidelines. These guidelines were released to the public as part of NMFS' Programmatic EIS on the Marine Mammal Health and Stranding Response Program and were available for public review at that time. Those guidelines also underwent legal and peer review before being released. Those guidelines are currently being updated based on lessons learned from the Deepwater Horizon spill in the Gulf of Mexico. Comment 58: AWL states that NMFS should further examine the potential impacts of a major oil spill on bowhead whales. For example, although the proposed IHA notes that a late-season spill could contaminate the spring lead system, it does not appear to consider whether a spill in October could affect both fall and spring migrants ( see 76 FR 68995). Response: NMFS' Notice of Proposed IHA (76 FR 68974, November 7, 2011) contains analysis of potential impacts from a late season spill on both fall and spring migrants. The information regarding whales migrating past the Camden Bay drill sites in the fall is found on the same page in the Federal Register notice noted by AWL in its comment. That analysis notes that the fall migration would not be completed if a spill were to occur in the fall and that some animals migrate close to shore. If fall migrants were moving through leads in the pack ice or were concentrated in nearshore waters, some bowhead whales might not be able to avoid oil slicks and could be subject to prolonged contamination. However, the autumn migration past Camden Bay extends over several weeks, and some of the whales travel along routes north of the area, thereby reducing the number of whales that could approach patches of spilled oil. Additionally, vessel activity associated with spill cleanup efforts may deflect whales traveling near Camden Bay farther offshore, thereby reducing the likelihood of contact with spilled oil. Also, during years when movements of oil and whales might be partially confined by ice, the bowhead migration corridor tends to be farther offshore (Treacy, 1997; LGL and Greeneridge, 1996a; Moore, 2000). Comment 59: AWL states that NMFS should also revisit the proposed IHA's conclusions as to the effects of an oil spill on beluga whales. It is unclear why the Beaufort Sea stock's migration into the Beaufort Sea in the spring results in the conclusion that an oil spill in summer would “not be expected to have major impacts.” Response: The migration patterns and recorded locations of beluga whales from the Beaufort Sea stock indicate that the majority of these animals are not located in the U.S. Beaufort Sea in July and August, although some individuals may remain in the area. Therefore, if a spill were to happen after Shell is on location in Camden Bay (after July 1) in July or August, few (if any) beluga whales would be in the vicinity. Based on this, NMFS determined that major impacts would not be expected if a spill occurred at this time and were cleaned up before the animals began migrating back through the U.S. Beaufort Sea. Proposed IHA Language Concerns The comments and concerns contained in this grouping relate to the language that was contained in the Notice of Proposed IHA (76 FR 69024-69027, November 7, 2011) in the section titled “Proposed Incidental Harassment Authorization.” The commenters requested clarification or changes to some of the specific wording of the conditions that would be contained in the issued IHA. The referenced condition in the proposed IHA is noted in the comments here. Numbers of the conditions match the proposed IHA and may differ slightly from the issued IHA. Comment 60: Regarding Condition 1, Shell asks that the IHA become effective on July 1 instead of July 10 since the company will begin transiting into the Chukchi Sea on July 1 (but not before), if weather permits, and could therefore arrive on location at the Torpedo or Sivulliq prospects before July 10. Response: NMFS has made the requested change. Changing the date from July 10 to July 1 does not alter any of the analyses contained in the proposed IHA. Comment 61: Regarding Condition 2, Shell asks that the language of the IHA not limit the incidental takings from authorized sound sources to those made while only on Shell lease holdings because ice management activities may occur beyond the lease boundaries and the continuous noise of the drillship may extend beyond the limits of Shell's lease holdings. Response: NMFS has retained the first sentence of Condition 2, as originally proposed, which states that only activities associated with Shell's 2012 Camden Bay exploration plan are covered by the IHA. Because the exploration plan describes the locations of activities, NMFS has determined that language is legally sufficient. NMFS understands, and did analyze, that ice management may at times occur 25 mi (40 km) from the actual drill site. Additionally, NMFS analyzed the propagation and sound isopleths of the drill rig, which may attenuate beyond the actual lease holding itself. Comment 62: Regarding Condition 3(a), Shell requests that narwhal be included in the list of species for which incidental take is authorized. Response: As noted in the Notice of Proposed IHA (76 FR 68974, November 7, 2011), NMFS determined that presence of narwhal in the U.S. Beaufort Sea is rare and extralimital. Encounters are unlikely. Comment 63: Regarding Condition 7(a), Shell asks whether the response they provided to NMFS on July 29, 2011, for a definition of “group” is consistent with the intent meant by NMFS in the Federal Register notice. As a general practice, Shell will adopt a definition of a group as being three or more whales observed within a 547-yd (500-m) area and displaying behaviors of directed or coordinated activity ( e.g., group feeding). Response: NMFS agrees with this definition and will add the following sentence to Condition 7(a): “For purposes of this Authorization, a group is defined as being three or more whales observed within a 547-yd (500-m) area and displaying behaviors of directed or coordinated activity ( e.g., group feeding).” Comment 64: Shell requests that Condition 7(e) be modified to match with the language contained in Condition 9(e), which allows marine mammal monitoring flights to also fly below the 1,500 ft (457 m) altitude restriction. In the proposed IHA, those two conditions contradicted on another. Response: NMFS agrees that Condition 7(e) should be rewritten to match Condition 9(e). The condition now reads as follows: “Aircraft shall not fly within 1,000 ft (305 m) of marine mammals or below 1,500 ft (457 m) altitude (except during marine mammal monitoring, takeoffs, landings, or in emergency situations) while over land or sea.” Comment 65: Regarding Condition 7(f), Shell asks if the length of daily duty restrictions included in the measure apply only to the drillship and ice management vessels or to all vessels, including smaller support vessels. Shell's view is that the remainder of support vessels, not included as “sound sources,” will have fewer observers than either the drillship or ice management vessels (mainly due to bunk space), which will be sufficient to cover marine mammal observations. Response: NMFS concurs that the watch requirements were meant to apply to the drillship and two ice management vessels. PSOs will be required to be stationed on the other support vessels. However, they will not need to be on watch 24 hours a day, as those vessels are not always active 24 hours a day. PSOs will need to be on watch when the smaller support vessels are active, such as for supply transport. Comment 66: Regarding Condition 7(g)(iv), Shell requests that the requirement to measure water temperature be removed as a stipulation under this measure given that it lacks material value to the recording of marine observations and adherence to other more salient mitigation measures. Response: NMFS included the recording of water temperature along with other more salient data collection parameters in the proposed IHA because it was included in Shell's original 4MP. After further discussion with Shell, NMFS agrees that it is not necessary to record water temperature each time a marine mammal is sighted and has removed the requirement from the IHA, and Shell has removed it from its monitoring plan. Comment 67: Shell acknowledges that they have voluntarily elected to institute Condition 9(f) as a subsistence mitigation measure. However, they do not concur with the implied assertion in the heading of Condition 9 “Subsistence Mitigation Measures” that this measure is a necessity “to ensure no unmitigable adverse impact on subsistence uses of marine mammals.” Response: NMFS will move this condition from section 9 of the IHA (“Subsistence Mitigation Measures”) to section 7 (“General Mitigation and Monitoring Requirements”). NMFS acknowledges that collection of drilling mud and cuttings and certain other waste streams is a voluntary decision on the part of Shell. While the inclusion of this measure was part of NMFS' analysis and used in making the negligible impact and no unmitigable adverse impact to subsistence uses findings, the absence of such a measure likely would not have altered the conclusion for those two findings. Comment 68: The AEWC requests that Condition 10(c)(i) include a date certain for Shell to carry out the SSV. Shell requests that this condition, as well as Condition 11(a), include language reflecting the flexibility of providing the drilling sounds on a “rolling” basis. Shell states that SSVs for the drilling vessel will necessitate that recordings of the various sounds of the drilling program continue throughout the drilling season. Hence, all drilling program sounds will not be available within 5 days of initiating drilling. Instead, Shell volunteers to provide to NMFS a “rolling” transmission of recorded drilling program sounds throughout the drilling program. Response: NMFS concurs that a “rolling” transmission of sound signatures is appropriate based on the fact that different activities will be conducted at various times throughout the open-water season. In order to capture all of the different sound signatures and for that data to be transmitted to NMFS, it is not appropriate to do it all in the first 5 days but rather to collect the data on a real-time basis. Spectrograms will be calculated daily, and all information will be included in a weekly report that discusses the drillship and vessel activities that occurred during the week. Language has been included in the IHA to reflect this weekly reporting requirement. Comment 69: Regarding Condition 10(c)(ii), Shell asks that the phrase “to the extent practical” precede the last sentence of the measure. Shell fully intends to deploy and execute the study as designed. However, conditional temporal and spatial factors, such as ice at the locations for deployment of acoustic recorders could cause some recorders to not be deployed or to be deployed at alternate locations. Response: NMFS has made the requested language change to the condition. Comment 70: Regarding Condition 11(d), Shell requests that the IHA stipulate that the comprehensive report be due 240 days from the end of the drilling season instead of 240 days from the date of issuance, since the IHA is being issued months before the start of the program. Response: NMFS agrees and has rewritten the condition to state that the comprehensive report is due 240 days from the date of expiration of the IHA ( i.e., 240 days from October 31, 2012). Description of Marine Mammals in the Area of the Specified Activity The Beaufort Sea supports a diverse assemblage of marine mammals, including: Bowhead, gray, beluga, killer ( Orcinus orca ), minke ( Balaenoptera acutorostrata ), and humpback ( Megaptera novaeangliae ) whales; harbor porpoises; ringed, ribbon, spotted, and bearded seals; narwhal; polar bears ( Ursus maritimus ); and walruses ( Odobenus rosmarus divergens; see Table 4-1 in Shell's application). The bowhead and humpback whales are listed as “endangered” under the ESA and as depleted under the MMPA. Certain stocks or populations of gray, beluga, and killer whales and spotted seals are listed as endangered or are proposed for listing under the ESA; however, none of those stocks or populations occur in the activity area. On December 10, 2010, NMFS published a notice of proposed threatened status for subspecies of the ringed seal (75 FR 77476) and a notice of proposed threatened and not warranted status for subspecies and distinct population segments of the bearded seal (75 FR 77496) in the Federal Register . Neither of these two ice seal species is considered depleted under the MMPA. Additionally, the ribbon seal is considered a “species of concern” under the ESA. Both the walrus and the polar bear are managed by the USFWS and are not considered further in this IHA. Of these species, eight are expected to occur in the area of Shell's proposed operations. These species include: the bowhead, gray, and beluga whales, harbor porpoise, and the ringed, spotted, bearded, and ribbon seals. The marine mammal species that is likely to be encountered most widely (in space and time) throughout the period of the drilling program is the ringed seal. Bowhead whales are also anticipated to occur in the project area more frequently than the other cetacean species; however, their occurrence is not expected until later in the season. Even though harbor porpoise and ribbon seals are not typically sighted in Camden Bay, there have been recent sightings in the Beaufort Sea near the Prudhoe Bay area, so their occurrence could not be completely ruled out. Additional information about species occurrence in the project area was provided in the Notice of Proposed IHA (76 FR 68974, No [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-11084. Public record. Not legal advice.