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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-26269

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** November 6, 2008
- **Citation:** 73 FR 66106

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XD76
Taking Marine Mammals Incidental to Specified Activities; Seismic Surveys in the Beaufort and Chukchi Seas

AGENCY:

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

ACTION:

Notice of Issuance of an Incidental Harassment Authorization.

SUMMARY:

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

DATES:

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

ADDRESSES:

SOI's IHA application and the IHA are available by writing to Mr. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. A copy of the application (containing a list of the references used in this document), the 2008 Supplemental Environmental Assessment (S-EA) and related documents may be obtained by writing to this address or by telephoning the contact listed here and are also available at:
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha
. Documents cited in this document, that are not available through standard public library access methods, may be viewed, by appointment, during regular business hours at the address provided here.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.
) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

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

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

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

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

Summary of Request

On October 16, 2007, NMFS received an application from SOI for the taking, by harassment, of several species of marine mammals incidental to conducting a marine seismic survey program during the open water season between August 1, 2008, and July 31, 2009 (referred to in this document as 2008/2009). SOI proposed to conduct a variety of programs in the Chukchi and Beaufort Seas during the 2008/2009 open water seasons, including a: (1) Chukchi Sea deep 3-D seismic survey; (2) Beaufort Sea deep 3-D seismic survey; and (3) Beaufort Sea marine surveys, which includes three activities: (a) site clearance and shallow hazards surveys; (b) an ice-gouge survey; and (c) a strudel scour survey.

The deep seismic survey components of the program will be conducted from WesternGeco's vessel, the
M/V Gilavar
. Detailed specifications on this seismic survey vessel are provided in Attachment A of SOI's IHA application. These specifications include: (1) complete descriptions of the number and lengths of the streamers which form the hydrophone arrays; (2) airgun size and sound propagation properties; and (3) additional detailed data on the
M/V Gilavar
's characteristics. In summary, the
M/V Gilavar
will tow two source arrays, comprising three identical subarrays each, which will be fired alternately as the ship progresses downline in the survey area. The
M/V Gilavar
will tow up to 6 streamer cables up to 5.4 kilometers (km)(3.4 mi) long. With this configuration each pass of the
M/V Gilavar
can record 12 subsurface lines spanning a swath of up to 360 meters (1181 ft). The seismic acquisition vessel will be supported by the
M/V Gulf Provider
, or a similar vessel. The
M/V Gulf Provider
will serve as a crew change, resupply, fueling support of acoustic and marine mammal monitoring, and seismic chase vessel. It will not deploy seismic acquisition gear.

As SOI's 2007 IHA for open water seismic activities in the Chukchi and Beaufort Seas was valid until August 1, 2008 (subsequently amended to run through August 18, 2008), this IHA request is intended, therefore, for the open water seasons between August 19, 2008 through August 18, 2009.

As marine mammals may be affected by seismic and vessel noise, SOI has requested an authorization under section 101(a)(5)(D) of the MMPA to take marine mammals by Level B harassment while conducting seismic surveys and related activities.

Plan for Seismic Operations

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

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

3-D Deep Seismic Surveys

Chukchi Sea 3-D Deep Seismic Surveys

SOI and its geophysical (seismic) contractor, WesternGeco, are conducting a marine geophysical (deep 3-D seismic) survey program during the open water season on various Minerals Management Service's (MMS) Outer Continental Shelf (OCS) lease blocks in the northern Chukchi Sea (see Figure 1 in SOI's IHA application). The Chukchi Sea 3-D Deep Seismic survey will be conducted on leases obtained under Lease Sale (LS) 193. The exact locations where operations will occur within that sale area were not known at the time of SOI's IHA application, but NMFS presumes they will take place on lease blocks obtained as a result of the sale. However, in general SOI notes that the seismic data acquisition will occur at least 25 mi (40 km) offshore of the coast and in waters with depths averaging about 40 m (131 ft).

The deep 3-D seismic survey will be conducted from WesternGeco's vessel
M/V Gilavar
, described previously. Two “chase boats” will accompany the seismic vessel. These two chase boats will provide the following functions: (1) re-supply, (2) marine mammal monitoring, (3) ice scouting, and (4) general support for the
M/V Gilavar
. The chase boat vessels for use in 2008 are the
M/V Theresa Marie
and the
M/V Torsvik
. These vessels will not deploy any seismic gear. In addition, a crew change vessel, the
M/V Gulf Provider
or similar vessel and a landing craft, such as the
M/V Maxime
or similar vessel, will support the
M/V Gilavar
, and the two chase boats in the Chukchi Sea. The crew change vessel will be used to move personnel and supplies from the seismic vessel, and two chase boats to the nearshore areas. In turn, the landing craft will move personnel and supplies from the crew change vessel, when it is located in nearshore areas, to the beach (most likely this will be at Barrow). Lastly, the Marine Mammal Monitoring and Mitigation Program (4MP) will have a separate vessel for the 2008 4MP Program. The landing craft also will be used to move personnel and equipment from the 4MP vessel to the near shore areas.

Beaufort Sea Deep 3-D Seismic Surveys

The same seismic vessel (
M/V Gilavar
), seismic equipment, and chase boats that are described for the Chukchi Sea Deep 3-D Seismic survey, will be used to conduct deep 3-D seismic surveys in the central and eastern Beaufort Sea (see Figure 2 in SOI's IHA application). The focus of this activity will be on SOI's existing leases, but some activity in the Beaufort Sea may occur outside of SOI's existing leases. The landing craft, which will be used to move personnel and supplies from vessels in the near shore to docking sites will most likely use West Dock, or Oliktok Dock. Smaller vessels such as the Alaska Clean Seas (ACS) bay boats, or similar vessels, may be used to assist in the movement of people and supplies and support of the 4MP in the Beaufort Sea. The specific geographic region for SOI's deep seismic program in the Beaufort Sea will be in OCS waters including SOI leases beginning east of the Colville River delta to west of the village of Kaktovik (see Figure 2 in SOI's application). According to SOI's IHA application, the Beaufort Sea program is planned to occur for a maximum of 60 days (excluding downtime due to weather and unforeseen delays) during open-water from mid-August to the end of October; however, recent communications with SOI indicates that the Beaufort Sea seismic program will not start until September 2008. This timing of activities in the fall will avoid any conflict with the Beaufort Sea bowhead whale subsistence hunt conducted by the Beaufort Sea villages, because it is anticipated that the fall bowhead whale hunt will have ended by that time.

Description of Marine 3-D Seismic Data Acquisition

In the seismic method, reflected sound energy produces graphic images of seafloor and sub-seafloor features. The seismic system consists of sources and detectors, the positions of which must be accurately measured at all times. The sound signal comes from arrays of towed energy sources. These energy sources store compressed air which is released on command from the towing vessel. The released air forms a bubble which expands and contracts in a predictable fashion, emitting sound waves as it does so. Individual sources are configured into arrays. These arrays have an output signal, which is more desirable than that of a single bubble, and also serve to focus the sound output primarily in the downward direction, which is useful for the seismic method. This array effect also minimizes the sound emitted in the horizontal direction.

The downward propagating sound travels to the seafloor and into the geologic strata below the seafloor. Changes in the acoustic properties between the various rock layers result in a portion of the sound being reflected back toward the surface at each layer. This reflected energy is received by detectors called hydrophones, which are housed within submerged streamer cables which are towed behind the seismic vessel. Data from these hydrophones are recorded to produce seismic records or profiles. Seismic profiles often resemble geologic cross- sections along the course traveled by the survey vessel.

Description of WesternGeco's Air-Gun Array

In 2008, SOI used WesternGeco's 3147-in
3
Bolt-Gun Array for its 3-D seismic survey operations in the Chukchi and Beaufort Seas. WesternGeco's source arrays are composed of 3 identically tuned Bolt-gun sub-arrays operating at an air pressure of 2,000 psi. In general, the signature produced by an array composed of multiple sub-arrays has the same shape as that produced by a single sub-array while the overall acoustic output of the array is determined by the number of sub-arrays employed.

The airgun arrangement for each of the three 1049-in
3
sub-array is detailed in SOI's application. As indicated in the application's diagram, each sub-array is composed of six tuning elements; two 2-airgun clusters and four single airguns. The standard configuration of a source array for 3-D surveys consists of one or more 1049-in
3
sub-arrays. When

more than one sub-array is used, as here, the strings are lined up parallel to each other with either 8 m or 10 m (26 or 33 ft) cross-line separation between them. This separation was chosen so as to minimize the areal dimensions of the array in order to approximate point source radiation characteristics for frequencies in the nominal seismic processing band. For the 3147-in
3
array the overall dimensions of the array are 15 m (49 ft) long by 16-m (52.5-ft) wide.

Characteristics of Airgun Pulses

A discussion of the characteristics of airgun pulses was provided in several previous
Federal Register
documents (see 69 FR 31792 (June 7, 2004) or 69 FR 34996 (June 23, 2004)) and is not repeated here. Additional information can be found in the NMFS/MMS Draft PEIS (see
ADDRESSES
). Reviewers are encouraged to read these earlier documents for additional background information.

Marine Surveys

Marine surveys (shallow hazards and other activities) were conducted by SOI in the Beaufort Sea in 2008. Acoustic systems similar to the ones being used by SOI during its marine surveys have been described by NMFS previously (see 66 FR 40996 (August 6, 2001), 70 FR 13466 (March 21, 2005)). NMFS encourages readers to refer to these documents for additional information on these systems. A summary of SOI's marine survey activities is described next.

Beaufort Sea Marine Surveys

SOI conducted three marine survey activities in 2008 in the U.S. Beaufort Sea: (1) Site Clearance and Shallow Hazards (2) Ice Gouge Surveys, and (3) Strudel Scour Surveys. Marine surveys for site clearance and shallow hazards, ice gouge, or strudel scour in the Beaufort Sea was accomplished by the
M/V Henry Christofferson
. No other vessels, such as chase boats, were necessary to accomplish this marine survey work. Any necessary crew changes or 4MP coordinated activities under this activity utilized the same crew change, landing craft, or 4MP vessel mentioned under the Beaufort Sea Deep 3-D Seismic survey.

Site Clearance and Shallow Hazards

Marine surveys include site clearance and shallow hazards surveys of potential exploratory drilling locations. These surveys gather data on: (1) bathymetry, (2) seabed topography and other seabed characteristics (e.g., boulder patches), (3) potential geohazards (e.g., shallow faults and shallow gas zones), and (4) the presence of any archeological features (e.g., shipwrecks).

The focus of this activity was on SOI's existing leases in the central and eastern Beaufort Sea, but some activity may have occurred outside of SOI's existing leases. Actual locations of site clearance and shallow hazard surveys occurred within the area outlined in Figure 2 of SOI's IHA application.

The
M/V Henry Christofferson
was used by SOI for the site clearance and shallow hazards surveys. This vessel is a diesel-powered tug as described in Attachment A to SOI's IHA application. The following acoustic instrumentation was used for this work. This is the same equipment that was used on the
M/V Henry Christofferson
during 2007:

(1) Dual frequency subbottom profiler Datasonics CAP6000 Chirp II (2 to7 kiloHertz [kHz] or 8 to 23 kHz) or similar;

(2) Medium penetration subbottom profiler, Datasonics SPR-1200 Bubble Pulser (400 (hertz [Hz]) or similar;

(3) High resolution multi-channel 2D system, 20 cubic inches (in
3
) (2 by 10 in
3
) gun array (0 to 150 Hz) or similar;

(4) Multi-beam bathymetric sonar, Seabat 8101 (240 Hz); or similar; and

(5) Side-scan sonar system, Datasonics SIS-1500 (190 to 210 kHz) or similar.

Ice Gouge Survey

Ice gouge surveys are a type of marine survey to determine the depth and distribution of ice gouges in the sea bed. Ice gouge is created by ice keels which project from the bottom of moving ice that gouge into seafloor sediment. Remnant ice gouge features are mapped to aid in predicting the prospect of, orientation, depth, and frequency of future ice gouge. These surveys focused on the potential, prospective pipeline corridor between the Sivulliq Prospect in Camden Bay and the nearshore Point Thomson area. The Sivulliq area was surveyed to gather geotechnical and seafloor hazard information as well as data on ice gouges.

SOI used the acoustic instrumentation described previously in this document, namely multi-beam bathymetric sonar, side scan sonar and subbottom profiling. The locations of the ice gouge surveys occurred within the area outlined in Figure 2 of SOI's IHA application.

Strudel Scour Survey

During the early melt on the North Slope, the rivers begin to flow and discharge water over the coastal sea ice near the river deltas. That water rushes down holes in the ice (“strudels”) and scours the seafloor. These eroded areas are called “strudel scours”. Information on these features is required for prospective pipeline planning. Two activities are required to gather this information.

First, an aerial survey is conducted via helicopter overflights during the melt to locate the strudels; and strudel scour marine surveys to gather bathymetric data. The overflights investigate possible sources of overflood water and will survey local streams that discharge in the vicinity of Point Thomson including the Staines River, which discharges to the east into Flaxman Lagoon and the Canning River, which discharges to the east directly into the Beaufort Sea.

Second, areas that have strudel scour identified during the aerial survey were surveyed with a marine vessel after the breakup of nearshore ice. This operation was conducted in the shallow water areas near the coast in the vicinity of Point Thomson. The diesel-powered
M/V Anika Marie
used the following equipment to conduct this work:

(1) Multi-beam bathymetric sonar, Seabat 8101 (240 Hz); or similar sonar; and

(2) Side-scan sonar system, Datasonics SIS-1500 (190 to 210 kHz) or similar sonar.

The multi-beam bathymetric sonar and the side-scan sonar systems both operate at frequencies greater than 180 kHz, the highest frequency considered by knowledgeable marine mammal biologists to be of possible influence to marine mammals. Because no taking of marine mammals will occur from this equipment, no measurements of those two sources are planned by SOI, and no exclusion zones for seals or whales would be established during operation of those two sources. The acoustic instrumentation used on the seismic vessels are described in SOI's IHA application.

Chukchi Sea Marine Surveys

Marine surveys planned for the Chukchi Sea were to include site clearance and shallow hazards surveys of potential exploratory drilling locations as required by MMS regulations. These surveys were to gather data on: (1) bathymetry, (2) seabed topography and other seabed characteristics (e.g., boulder patches), (3) potential geohazards (e.g., shallow faults and shallow gas zones), and (4) the presence of any archeological features (e.g., shipwrecks). Marine surveys for site clearance and shallow hazards can be accomplished by one vessel with acoustic sources.

The Chukchi Sea marine surveys were to be conducted on leases acquired in

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

Additional Information

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

Comments and Responses

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

Activity Concerns

Comment 1:
The NSB notes that AES has applied for an IHA for site clearance and shallow hazards surveys in the Chukchi Sea. AES surveys will be conducted for Shell. How do Shell's proposed marine surveys relate to AES? Are both organizations applying for IHAs for the same work? If so, this creates a tremendous amount of unnecessary duplicative work.

Response:
At the time of its IHA application, AES planned to conduct shallow hazard work in the Chukchi Sea on behalf of several clients who had obtained leases as a result of Lease Sale 193. One of those clients was SOI. However, the Chukchi Sea shallow hazards survey work for SOI was not conducted this year. NMFS continues to encourage the offshore oil industry to combine seismic/shallow hazard survey efforts onto one or two vessels whenever possible to reduce potential noise impacts on marine mammals. Subsequent to NMFS processing IHA applications for SOI and other companies, SOI determined that in order to ensure that their proposed shallow hazard survey in the Chukchi Sea was conducted this year, it proposed to move a vessel stationed in the Beaufort Sea into the Chukchi Sea to conduct this work, if the AES was unable to do this work. NMFS believes that, while there was duplication this year, if, in future years, these operations can be combined onto a single vessel, those efforts would be beneficial to marine mammals.

MMPA Concerns

Comment 2:
EarthJustice and the NSB state that because the proposed seismic activity carries the real potential to cause injury or death to marine mammals, neither an IHA, nor an LOA (because NMFS has not promulgated regulations for mortality by seismic activities) can be issued for SOI's proposed seismic survey activities.

Response:
Section 101(a)(5)(D) of the MMPA authorizes Level A (injury) harassment and Level B (behavioral) harassment takes. While NMFS' regulations indicate that a LOA must be issued if there is a potential for serious injury or mortality, NMFS does not believe that SOI's seismic surveys require issuance of a LOA. As explained throughout NMFS' proposed IHA
Federal Register
Notice (73 FR 36044, June 25, 2008) and this
Federal Register
Notice, it is highly unlikely that marine mammals would be exposed to sound pressure levels (SPLs) that could result in serious injury or mortality. The best scientific information indicates that an auditory injury is unlikely to occur as apparently sounds need to be significantly greater than 180 dB for injury to occur (Southall
et al.
, 2007).

NMFS has determined that exposure to several seismic pulses at received levels near 200-205 dB (rms) might result in slight temporary threshold shift (TTS) in hearing in a small odontocete, assuming the TTS threshold is a function of the total received pulse energy. Seismic pulses with received levels of 200-205 dB or more are usually restricted to a radius of no more than 200 m (656 ft) around a seismic vessel operating a large array of airguns. To understand this better, one must recognize that (1) the 180-dB zone is approximately 2500 m (8202 ft) beam-fire and 210 m (689 ft) for/end fire direction (Tables 3, 4 in MacGillivray
et al.
(2007)). The seismic airgun array is approximately 490 m (1608 ft) off the stern of the
M/V Gilavar
. Each of the
Gilavar
's two airgun arrays is 15 m (49 ft) long and 16 m (52.5 ft) wide. The hydrophone cable array is approximately 500 m (1640 ft) wide and 4200 m (2.6 mi) active length. In addition, the
M/V Gilavar
is approximately 85 m (279 ft) long, 18 m (59 ft) wide. Therefore, NMFS believes that in order for a marine mammal to incur an auditory injury, it would be necessary for the marine mammal to be undeterred by seismic, ship, or hydrophone (turbulence) noises, and not be sighted by Marine Mammal Observers (MMOs) within this area. NMFS believes it is highly unlikely that marine mammals would intentionally enter into the turbulent area behind a moving vessel between the vessel, the seismic airgun array and the hydrophone array with supporting cables, wires and separators (although bottlenose dolphins have been reported on occasion by MMOs to approach and rub against the outside streamers). As a result, no marine mammals would likely incur either TTS or PTS, simply because they are likely to avoid the area directly behind the vessel. Furthermore, the dimensions of the ship also tends to preclude marine mammal entry into the area immediately ahead of the airguns. Essentially, bridge-stationed MMOs need to see only about 157 m (515 ft) abeam (to the side) of the vessel in order to ensure that no marine mammals enter the 200-m (656-ft) area for potential Level B harassment (TTS) zone

(presuming that 205 dB rms is about 200 m (656 ft) from the array). It is highly likely that MMOs would be able to detect marine mammals approaching this area and order a power-down or shut-down of the seismic array.

Moreover, Smultea and Holst (2003) and Holst (2004) report on two tests of the effectiveness of monitoring using night-vision devices (NVDs). Results of those tests indicated that the Night Quest NQ220 NVD is effective at least to 150 to 200 m (492 to 656 ft) away under certain conditions, but not at distances greater than 200 m (656 ft). However, it is in this smaller 200-m zone, where the received level is well above 180 dB, where the detection of any marine mammals that are present would be of particular importance. This zone for potential TTS and PTS is therefore sufficiently within the range of the NVDs to allow detection of marine mammals within the area of potential TTS during night-time seismic operations.

For baleen whales, while there are no data, direct or indirect, on levels or properties of sound that are required to induce TTS, there is a strong likelihood that baleen whales (bowhead and gray whales) would avoid the approaching airguns (or vessel) before being exposed to levels high enough for there to be any possibility of onset of TTS. For pinnipeds, information indicates that for single seismic impulses, sounds would need to be higher than 190 dB rms for TTS to occur while exposure to several seismic pulses indicates that some pinnipeds may incur TTS at somewhat lower received levels than do small odontocetes exposed for similar durations. Consequently, NMFS has determined that it was in full compliance with the MMPA when it issued an IHA to SOI for the 2008/2009 seismic survey program.

Comment 3:
The NSB states that the activities proposed by SOI are not sufficiently described in either the
Federal Register
Notice or SOI's IHA application. Stating the dates and durations of activities in uncertain terms also makes it impossible for NMFS to assess whether SOI's activities will interfere with the subsistence hunting seasons. Because SOI has not sufficiently specified the geographic location, date, and duration of activities, NMFS cannot lawfully issue the IHA.

Response:
NMFS disagrees with the statement. In regard to dates of SOI's seismic survey activities, SOI made clear in its IHA application that the “dates and duration of the activity” is for a one-year period during the open water period of 2008 and 2009. This statement meets the requirements of the MMPA. As a result of discussions with SOI, the NSB and the AEWC are aware that because of measures taken to protect the spring whale harvests in the Chukchi Sea, the start of seismic surveys cannot begin prior to July 20th in the Chukchi Sea and cannot move into the Beaufort Sea before ice conditions allow (around mid August). However, in regards to 2008, SOI has stated to the NSB that they will leave the Chukchi Sea on September 1st (as required by the CAA) and will not start shooting 3D seismic in the Beaufort Sea until the bowhead whale subsistence hunt at Kaktovik and Nuiqsut ends. SOI planned to return to the Chukchi Sea after about 20 days of shooting seismic or when weather conditions curtail seismic surveys in the Beaufort Sea, whichever is earlier. However, it was unable to collect seismic data and ended its 2008 seismic season on or about October 15, 2008.

In regards to the requirement that the activity area be specified, NMFS defines “specified geographical region” as “an area within which a specified activity is conducted and which has certain biogeographic characteristics” (50 CFR 216.103). In regard to how specific one must be to define a “specific geographic region” within which the activity would take place, House Report 97-228 states:

The specified geographic region should not be larger than is necessary to accomplish the specified activity, and should be drawn in such a way that the effects on marine mammals in the region are substantially the same. Thus, for example, it would be inappropriate to identify the entire Pacific coast of the North American continent as a specified geographic region, but it may be appropriate to identify particular segments of that coast having similar characteristics, both biological and otherwise, as specified geographical regions.

NMFS believes that the U.S. Beaufort and Chukchi Seas meet Congressional intent and NMFS' definition because these two regions have similar geographic, physiographic (e.g., topography, temperature, sea ice), biologic (e.g., marine fauna (fish and marine mammals)), and sociocultural characteristics. Therefore, NMFS believes that SOI's description of the activity and the locations for conducting seismic surveys meet the requirements of the MMPA. Within the Chukchi Sea, SOI intends to conduct seismic activity within those areas contained in Lease Sale 193 area that were awarded to it by the MMS (shown in Figure 1 in SOI's IHA application). These areas were awarded after SOI submitted its IHA application, so they were unknown to SOI at the time of its IHA application. Regardless, the general Lease Sale 193 area more than meets the definition of “specific geographic region” as defined by NMFS. Also, more specific locations may be considered proprietary, depending upon whether the location is a potential future lease area. In the Beaufort Sea, the areas of seismic operations are shown in Figure 2 in SOI's IHA application. These are fairly specific regions and, therefore, NMFS believes that SOI has provided a well defined area within which certain biogeographic characteristics occur in compliance with the MMPA and Congressional intent.

Comment 4:
The AEWC states that the MMPA does not guarantee a company a 12-month term when it applies for an IHA. If a company seeks authorization to operate for longer than a single season, it should be required to apply for an LOA for the term of years it wishes to work.

Response:
Section 101(a)(5)(D)(i) of the MMPA states that: “Upon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specific geographic region, the Secretary shall authorize, for periods of not more than 1 year, subject to such conditions as the Secretary may specify, the incidental, but not intentional, taking by harassment of small numbers of marine mammals of a species or population stock by such citizens while engaging in that activity within that region....”

As noted, the MMPA does not limit the issuance of an IHA to a single open water season (~July 20 to ~November 15 in the U.S. Beaufort and Chukchi Seas), a period of less than 4 months, and even less available time if an applicant's activity is located in an area subject to area closure due to native subsistence hunting. Moreover, an IHA that is effective over the course of two open water seasons does not necessarily result in an IHA that exceeds 1 year. For example, in the current case, SOI's IHA spans the course of two seismic seasons, but expires in the middle of the 2009 open water season. Provided the IHA application includes an analysis of the specified activities during the timeframe proposed by the applicant, NMFS will consider issuing an IHA that extends into a portion of the following year. NMFS agrees that, if industry wants a multi-year LOA for a period of 2 or even 3 years, it can apply under section 101(a)(5)(A) of the MMPA.

Comment 5:
The NSB and EarthJustice are concerned that NMFS has not made separate findings for both small numbers and negligible impact. EarthJustice states that not withstanding the unlawful regulation, the proposed IHA fails to support a non-arbitrary finding that only “small numbers” of

marine mammals will be harassed by SOI's planned activities. The NSB states a similar concern.

Response:
NMFS believes that the small numbers requirement of the MMPA has been satisfied. The species most likely to be harassed during seismic surveys in the Arctic Ocean area is the ringed seal, with a total “best estimate” of 13,256 animals being “exposed” to sound levels of 160 dB or greater (6,951 animals in the Chukchi Sea and 6,305 animals in the Beaufort Sea)(see Table 1). This does not mean that this is the number of ringed seals that will be “taken” by Level B harassment, it is simply the best estimate of the number of animals that potentially could have a behavioral modification due to the noise (for example Moulton and Lawson (2002) indicate that most pinnipeds exposed to seismic sounds lower than 170 dB do not visibly react to that sound; pinnipeds are not likely to react to seismic sounds unless they are greater than 170 dB re 1 microPa (rms)). In addition, these estimates are calculated based upon line miles of survey effort, animal density and the calculated zone of influence (ZOI). While this methodology is valid for seismic surveys that transect long distances, for bostrophodontical surveys that is, remain within a relatively small area, transiting back and forth while shooting seismic, the numbers tend to be highly inflated. As a result, NMFS believes that these exposure estimates are conservative and may actually affect much fewer animals.

Although it might be argued that the estimated number of ringed seals behaviorally harassed is not small in absolute numbers, the number of exposures is relatively small, representing approximately 5 percent of the regional stock size of that species (249,000) if each “exposure” at 160 dB represents an individual ringed seal that has reacted to that sound.

For beluga and bowhead whales, the estimated number of sound exposures during SOI's seismic surveys in the Arctic will be 297 beluga (63 in the Chukchi Sea, 234 in the Beaufort Sea) and 1,540 bowheads (9 in the Chukchi Sea and 1,531 in the Beaufort Sea). The Level B harassment “take” estimate represents less than 1 percent of the combined Beaufort and Chukchi Seas beluga stock size of 42,968 (39,258 in the Beaufort Sea; 3,710 in the Chukchi Sea), a relatively small number. For bowhead whales, this Level B harassment “take” estimate represents between 12 percent (based on 13,326 bowheads which assumes a 3.4 percent annual population growth rate from the 2001 estimate) and 14 percent of the Bering-Chukchi-Beaufort Seas bowhead population (based on the 2001 population estimate of 10,545 animals). While these exposure numbers represent a sizeable portion of their respective population sizes, NMFS believes that the estimated number of exposures by bowheads and belugas greatly overestimate actual takings for the following reasons: (1) The proposed seismic activities would occur early and late in the year in the Chukchi Sea when bowheads are fewer in number as they are concentrated in the Canadian Beaufort Sea at those times; (2) bowheads and belugas may be absent or widely distributed and likely occur in fairly low numbers within the seismic activity area in the Chukchi Sea; (3) seismic surveys are not authorized in the Beaufort Sea during that portion of the bowhead whale's westward migration that occurs during the subsistence harvest of bowheads; and (4) SOI will continue late-fall seismic surveys in the Chukchi Sea after most bowheads are presumed to have migrated through the area heading towards the Russian coast or Bering Straits. As a result, NMFS has determined it is very likely that even fewer numbers of bowhead whales will be taken than originally estimated (12-14 percent), thereby resulting in a smaller percentage of the stock size being exposed to SOI's activities. Therefore, NMFS believes that the number of bowhead whales that may be exposed to sounds at or greater than 160 dB re 1 microPa (rms) would be small.

Based on the fact that only small numbers of each species or stock will possibly be impacted and mitigation and monitoring measures will reduce the number of animals likely to be exposed to seismic pulses and therefore avoid injury and mortality, NMFS finds that SOI's seismic surveys in the Chukchi and Beaufort Seas will have a negligible impact on the affected marine mammal species or stocks.

Comment 6:
The Commission recommends that, before issuing an IHA, NMFS conduct a more extensive analysis of the potential effects of SOI's proposed operations that considers (1) the direct effects of the proposed operations; (2) the potential or likely effects of other currently authorized and proposed oil and gas activities, climate change, and additional anthropogenic risk factors (e.g., industrial operations); and (3) possible cumulative effects of all of these activities over time.

Response:
NMFS is required to base its determinations under section 101(a)(5)(D) of the MMPA on the best scientific information available. Provided NMFS can make a reasonable determination that the taking by the IHA applicant's activity will result in no more than a small number of marine mammals taken, have a negligible impact on affected marine mammal species/stocks, and will not have an unmitigable adverse impact on subsistence uses of marine mammals, the MMPA directs the Secretary to issue the IHA. There is no provision in the MMPA to delay issuance of the IHA in order to conduct additional analyses provided those determinations can be made.

In that regard, NMFS believes that MMS addressed the Commission's concerns in its 2006 Final Programmatic Environmental Assessment (Final PEA) for Arctic Ocean Seismic Activities. This Final PEA contained analyses of the above mentioned potential impacts on marine mammals by the offshore oil and gas seismic exploration. The analyses contained in that document have been updated where necessary by NMFS' 2008 Final Supplemental EA (SEA) for Arctic Seismic Surveys. That document, NMFS' 2008 SEA, and other supporting documents used the best information available for this analysis. As NMFS recognizes that there is a lack of information on certain aspects of the marine mammals in Arctic waters and the potential impacts on marine mammal species and stocks from offshore oil exploration, SOI and other offshore companies have developed and implemented a monitoring program to address data gaps.

Comment 7:
The NSB states that in Shell's IHA application and NMFS's
Federal Register
notice, the level of 160 dB is emphasized. Shell estimates how many marine mammals they will take through seismic activities only at industrial sound levels down to 160 dB. There is clear evidence that bowhead whales respond to industrial sound level much lower than 160 dB (Miller
et al.
, 1999; Richardson, 2007; etc.). It is not clear why Shell and NMFS promote 160 dB and appear to ignore or de-emphasize the impact of industrial sounds a much lower levels than 160 dB. With regard to bowhead whales, “NMFS believes that it cannot scientifically support adopting any single sound pressure level value below 160 dB.” It appears NMFS needs “conclusive” evidence of harm before it will find more than a negligible impact from Shell's activity. In effect, this leads to a determination that largely ignores clear evidence that bowhead whales respond to industrial sound level much lower than 160 dB (Miller
et al.
, 1999; Richardson 2007; etc.). NMFS must consider impacts from the much quieter

(i.e. lower than 160 dB) industrial sounds in the discussion, analysis, conclusions, and decisions surrounding Shell's IHA application.

NMFS must also consider the views of the International Whaling Commission (IWC) scientific committee, which felt strongly that the lack of deflection by feeding whales in Camden Bay (during Shell seismic) likely shows that whales will tolerate and expose themselves to potentially harmful levels of sound when needing to perform a biologically vital activity, such as feeding (mating, giving birth, etc.). Requiring “conclusive” evidence of harm is not the standard, and a negligible impact finding influenced by such an unlawful standard will not pass muster. Overall, NMFS' determination that only “small numbers” of marine mammals will be affected by Shell's activities, and that only a “negligible impact” will occur, is not supported by science nor by anything in the IHA application or notice.

Response:
NMFS considers a take to occur when there is a significant behavioral response on the part of an animal, not when there is some minor reaction to a sound such as a pinniped lifting its head in response to a sound, or a whale shortening its surface interval by a few seconds or minutes (this is different however, than the significant dive profile changes noted by beaked whales in response to some high-intensity military sonars). For bowhead whales, when these species deflect in a manner that is not detectable by MMOs, but only after computer analysis, NMFS does not believe that this results in a significant behavioral effect on the animal (although it may have a significant effect on subsistence uses of that species if that deflection is not mitigated). Discussion on potential bowhead whale impacts are addressed later in this document.

Comment 8:
EarthJustice believes that the MMPA requires NMFS to find that the specified activities covered by the IHA “will not have an unmitigable adverse impact on the availability of [marine mammal populations] for taking for subsistence uses....” NMFS must ensure that Shell's activities do not reduce the availability of any affected population or species to a level insufficient to meet subsistence needs. Moreover, in making this determination, NMFS must factor in ongoing authorized activities that may also affect the availability of subsistence resources, and measure the effect of Shell's activities against the baseline of the effects of other activities on subsistence activities (see 54 Fed Reg. 40,338 at 40,342 (1989)).

Response:
NMFS has defined unmitigable adverse impact as an impact resulting from the specified activity: (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met (50 CFR 216.103). NMFS has determined that, provided the mitigation and monitoring measures outlined herein and in the IHA are implemented, there will not be an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence uses. This determination is supported by having the 2008 CAA signed by all but one offshore oil company and by the AEWC and the Whaling Captains' Association members.

With respect to the cumulative impact assessment referenced in the cited
Federal Register
final rule, NMFS notes that the discussion in that document pertains to authorizations under section 101(a)(5)(A) of the MMPA, not section 101(a)(5)(D) of the MMPA. In the preamble to that joint-agency final rule, NMFS and the U.S. Fish and Wildlife Service were focusing on the potential for serious injury and mortality (as noted by the use of the word “removal”), not simply incidental harassment. Provisions for issuing authorizations under section 101(a)(5)(D) were not promulgated until 1991 (see 61 FR 15884, April 10, 1996). NMFS addresses impacts on subsistence uses of marine mammals later in this document.

Marine Mammal Biology Concerns

Comment 9:
The NSB (citing pages 23-24 in SOI's IHA application) notes that Shell and NMFS do not do an adequate job of describing the uncertainty surrounding the distribution, abundance and habitat use of marine mammals in the Chukchi Sea. There are few estimates of population size or habitat use of marine mammals. There are some data available from 15 to 20 years (or older) ago, but few recent data. This lack of recent data and uncertainty must be acknowledged by NMFS and integrated into the mitigation and monitoring measures because a great deal has changed in the Arctic environment in the past 15 to 20 years. Global warming has caused the sea ice thickness, extent and timing to decrease markedly. Changes in sea ice have likely caused substantial changes in marine mammal use of the Chukchi and Beaufort seas. For example, it is likely that an increased number of gray whales are using the Chukchi and western Beaufort seas than occurred 20 years ago. The uncertainty in the information must be considered to avoid negative impacts to marine mammal populations or the subsistence harvest of marine mammals.

Response:
The uncertainty of the data was addressed in significant detail in MMS' 2006 Final PEA prepared under NEPA, and incorporated by reference in NMFS' 2008 SEA. However, as demonstrated in Table 1 later in this
Federal Register
document, even using the maximum density for gray whales, approximately 734 gray whales might be exposed to seismic sounds by SOI's activity. With a population estimate for the eastern North Pacific population of gray whales at 18,813 (Table 4-1), approximately 4 percent of the gray whale stock might be affected by a relatively short-term behavioral modification. Considering that almost 100 percent of this stock migrates through the coastal waters of the Southern California Bight twice a year, where heavy shipping, recreational boating and industrial activity traffic create a significant noise signature, without apparent long-term effect to the stock (however, some gray whales have diverted their migration offshore outside the Channel Islands to avoid this area), NMFS believes that the relatively short-term impact of seismic noise on only 4 percent of the population will have a negligible impact. NMFS notes that the mitigation and monitoring mentioned by the commenter was reviewed by the commenter and, as they did not recommend alternative mitigation or monitoring to address their concern, NMFS is unsure what measures they suggest industry undertake. However, the IHA issued to SOI requires vessel surveys to ensure that large groups of gray whales (and bowhead whales) are not being significantly impacted.

Comment 10:
The NSB states that the estimated takes for beluga and gray whales are likely low. Two stocks, numbering more than 40,000 animals, of belugas migrate through the Chukchi Sea. It is likely that more than 1200 animals will be exposed to sounds greater than 160 dB. Recent satellite tracking data for gray whales (Bruce Mate, pers. comm.) suggests that perhaps half of the population uses the northern Chukchi Sea for foraging.

Depending on the location of the seismic operations, more than 734 gray whales will likely be harassed. The spotted seal estimate is also likely low. There are thousands of spotted seals that use the northern Chukchi Sea during late July and August, including offshore areas. It is likely that many more than 804 spotted seals will be harassed by Shell's seismic activities.

Response:
SOI used marine mammal density information obtained in 2006 and 2007 by vessel and aerial surveys to supplement published information (e.g., Stock Assessment Reports (SARs) in order to calculate noise “exposure” estimates. As a result, NMFS believes that this information is the best information available. In regard to gray whales, NMFS would welcome receipt of this information once it is published.

Comment 11:
EarthJustice states that NMFS has no idea of the actual population status of several of the species subject to the proposed IHA. For example, in the most recent SARs (Stock Assessment Reports) prepared pursuant to the MMPA, NMFS acknowledges it has no accurate information on the status of spotted seals, bearded seals, and ringed seals. See 2006 Alaska SAR at 42 and 43. Without this data, NMFS cannot make a rational “negligible impact” finding. This is particularly so given there is real reason to be concerned about the status of these populations. Such concerns were raised in a recent letter to NMFS from the Marine Mammal Commission following the Commission's 2005 annual meeting in Anchorage, Alaska. With respect to these species, the Commission cautioned against assuming a stable population. Because the status of the spotted seals, ringed seals, bearded seals and other stocks is unknown, NMFS cannot conclude that surveys which will harass untold numbers of individuals of each species will have no more than a “negligible effect” on the stocks.

Response:
As required by the MMPA implementing regulations at 50 CFR 216.102(a), NMFS has used the best scientific information available in making its determinations required

under the MMPA. While recent stock assessments are lacking for several species of ice seals, for reasons stated elsewhere in this
Federal Register
Notice, no ice seals are expected to be killed or seriously injured as a result of SOI's seismic and shallow hazards survey work and the number of takings by Level B behavioral harassments will be small relative to the best estimate of population size. Therefore, NMFS believes that SOI's activity would not result in a decrease in population sizes of any of the ice seal species. As a result of our analysis, NMFS believes that the proposed 3D and shallow hazard surveys by SOI is not expected to have adverse impacts on ice seals.

It is expected that approximately 13,256 ringed, 592 bearded seals, 422 spotted seals and 2 ribbon seals would be affected by Level B behavioral harassment as a result of the proposed combined 3D seismic and shallow hazard and site clearance surveys in the Chukchi and Beaufort Seas. No serious injury or mortality is expected, so this activity is not expected to affect population numbers, or the ability of these species to increase in abundance. For ringed, bearded and spotted seals these takes by Level B harassments represent less than 6 percent each, of the Alaska stocks of these species. Although ribbon seals could also be taken by Level B behavioral harassment as a result of the proposed marine surveys in the Chukchi Sea, the probability of take is very low since their presence is very rare within the proposed project area.

Comment 12:
The NSB states that additional information is needed about fin, minke and humpback whales. All three of these species occur in the Chukchi or Beaufort Seas. Acoustic and visual surveys in the past have documented these species. NMFS' National Marine Mammal Laboratory has been conducting surveys in the Chukchi Sea in late June/early July 2008. They have already seen a fin whale in the Chukchi Sea where the animal might be exposed to seismic sounds. Shell and NMFS must evaluate impacts to these marine mammals.

Response:
SOI and NMFS recognized that humpback, fin and minke whale presence is possible in the waters off northern Alaska. As a result, SOI requested take of these species incidental to conducting offshore seismic and shallow-hazard surveys in these waters and NMFS evaluated the potential impacts of seismic operation on these species. However, the relatively few animals sighted supports SOI's estimate of the small number of animals of these species potentially affected by SOI's seismic surveys.

Comment 13:
The NSB states that many of the estimates in Table 4-1 are outdated or are unreliable (i.e., estimates for belugas and all pinnipeds).

Response:
The SOI IHA application provides information (including data limitations) and references for its estimates of marine mammal abundance. As the NSB has not provided information contrary to the data provided by SOI and NMFS does not have information that these estimates are not reliable, NMFS considers this data to be the best available.

Comment 14:
The NSB states that the IHA application (p.15) suggests that belugas do not occur in the central Beaufort Sea during the summer. This is not accurate. Belugas are rarely seen in nearshore areas of the central Beaufort Sea in summer. However, the eastern Chukchi Sea stock uses the shelf break of the central Beaufort Sea during summer. Thus, vessel traffic or sounds propagating from Shell's activities could harass belugas during the summer.

Response:
NMFS does not agree that SOI's IHA application suggests that belugas do not occur in the central Beaufort Sea in the summer. As stated in SOI's IHA application, a large portion of the Beaufort Sea seasonal population spend most of the summer in offshore waters of the eastern Beaufort Sea and Amundsen Gulf (Davis and Evans, 1982; Harwood
et al.
,1996). Belugas are rarely seen in the central Alaskan Beaufort Sea during the summer. During late summer and autumn, most belugas migrate far offshore near the pack ice front (Hazard, 1988; Clarke
et al.
, 1993; Miller
et al.
, 1998) and may select deeper slope water independent of ice cover (Moore
et al.
, 2000). Small numbers of belugas are sometimes observed near the north coast of Alaska during the westward migration in late summer and autumn (Johnson, 1979), but the main fall migration corridor of beluga whales is greater than 100 km (62 miles) north of the coast. Aerial- and vessel-based seismic monitoring programs conducted in the central Alaskan Beaufort Sea from 1996 through 2001 observed only a few beluga whales migrating along or near the coast (LGL and Greeneridge, 1996;
et al.
1998, 1999). The vast majority of belugas seen during those projects were far offshore. However, NMFS notes that these statements do not affect the calculation of Level B incidental harassment, which are partially based on density estimates obtained by MMOs in 2006.

Comment 15:
The NSB states that Shell's IHA application suggests that harbor porpoises will not occur in the areas they plan to conduct seismic surveys. This is not consistent with the information they provide in Table 6-1 (in SOI's IHA application). Harbor porpoises were the second most abundant cetacean seen during Shell's 2007 surveys in the Chukchi Sea.

Response:
Table 6-1 provides a population estimate of 47,356 (CV = 0.223) (Angliss and Outlaw, 2005) for harbor porpoise in Bristol Bay in 1998-1999. There is no information available that this stock moves to the Chukchi Sea

in summer, but a portion may do so. However, NMFS does not believe that this population size is relevant for estimating potential takes in the Chukchi Sea, as SOI estimates density of a species based on sightings during non-seismic survey operations. The most commonly recorded cetacean species in 2007 in the Chukchi Sea was the gray whale (32 sightings), followed by harbor porpoise (10 sightings), bowhead whale (6 sightings), unidentified mysticete whale (6 sightings), unidentified whale (3 sightings), minke whale (3 sightings), humpback whale (2 sightings), one killer whale and one unidentified odontocete whale (Table 3.4). Harbor porpoise densities contained in SOI's 2008 IHA application were estimated from seismic industry data collected during 2006 activities in the Chukchi Sea, as 2007 data was not available at the time SOI submitted its 2007 IHA application. NMFS expects SOI will update its density and Level B harassment take levels in its 2009 IHA application.

Comment 16:
The NSB states that SOI's IHA application (Pg. 18) in regard to the spotted seal is not sufficient. For example, spotted seals also haul out in Dease Inlet. Shell references a study (Johnson
et al.
, 1999) for information about how many spotted seals use the Colville River Delta. That study was not intended for specifically surveying spotted seals. These seals haul out based on tides and other environmental conditions not considered by Johnson
et al.
(1999). It is very feasible that many more seals, more than 20, use the Colville River Delta. Furthermore, based on satellite tracking data, spotted seals only use a haul out about 10 percent of the time (Lowry
et al.
, 1994). Thus, a sighting of 20 seals may actually represent about 200 animals. Shell's activities in Harrison Bay will likely expose every spotted seal that uses the Colville River haul out to loud seismic sounds. Shell should be required by NMFS to collect data on spotted seals using surveys that are specifically designed for spotted seals.

Response:
NMFS does not believe that an IHA application needs to be a compendium of information on a species. NMFS and others recognize that an IHA application is only a single source of information. As noted in SOI's IHA application, a small number of spotted seal haul-outs are documented in the central Beaufort Sea near the deltas of the Colville River and, previously, the Sagavanirktok River. Historically, these sites supported as many as 400 to 600 spotted seals, but in recent times less than 20 seals have been seen at any one site (Johnson
et al.
, 1999). Previous studies from 1996 to 2001 indicate that few spotted seals (a few tens) utilize the central Alaskan Beaufort Sea (Moulton and Lawson, 2002; Treacy, 2002a, b) very few, if any, occurring in the eastern portion of the Beaufort Sea.

Moreover, in 2008, SOI is focusing its seismic and shallow hazards activities in areas significantly east of Harrison Bay. As a result, it is unlikely that this haul-out will be significantly affected. As the spotted seals from the Colville River Delta move into the area(s) of planned seismic activities, the potential Level B harassment take is calculated as they will become part of the overall density calculation discussed on page 25. NMFS addresses the suggested research on spotted seals later in this document.

Marine Mammal Impact Concerns

Comment 17:
EarthJustice notes that the monitoring records from seismic surveys conducted in 2006 and 2007 establish that, despite the exclusion zones, scores of marine mammals were exposed to seismic pulses loud enough to potentially cause permanent hearing loss.

Response:
First, as described previously in this document, auditory injury is unlikely to occur unless the animal was significantly closer to the seismic airguns than the distance to the 180 dB (cetaceans) or 190 dB (pinnipeds) zone. Second, NMFS believes that EarthJustice has misinterpreted the findings of the 2006 CPAI and SOI monitoring reports. When all data are considered, sighting rates are greater for all marine mammal groups during non-seismic than seismic periods. This is largely due to the high sighting rates from the chase vessel which were all considered to be unaffected by seismic activities. An overall higher sighting rate for all marine mammal groups during non-seismic periods compared to periods of seismic is expected if one presumes that marine mammals will deflect from the airgun array noise and therefore, not be within detection range from either the seismic or support vessel(s).

Comment 18:
The NSB states that available data show that bowheads show avoidance at sounds much lower than 160 dB contrary to Shell's statement that bowheads will show disturbance only if they receive airgun sounds at levels >160 dB. How can NMFS justify using sound levels only down to 160 dB? As mentioned above, there are many data that show that bowheads react to much lower levels of industrial sounds than 160 dB. Miller
et al.
(1999) showed that bowheads were excluded from a 20-km (12.4-mi) area around active seismic operations. The approximate received sound level at this distance was approximately 120 dB. Exclusion from a 20-km (or sim;120 dB) zone around active seismic is substantial harassment. Therefore, NMFS must require that estimated takes of bowhead whales be calculated down to at least the 120-dB level.

Response:
First, the best information available to date for reactions by bowhead whales to noise, such as seismic, is based on the results from the 1998 aerial survey (as supplemented by data from earlier years) as reported in Miller
et al.
(1999). In 1998, bowhead whales below the water surface at a distance of 20 km (12.4 mi) from an airgun array received pulses of about 117 135 dB re 1 microPa rms, depending upon propagation. Corresponding levels at 30 km (18.6 mi) were about 107-126 dB re 1 microParms. Miller
et al.
(1999) surmise that deflection may have begun about 35 km (21.7 mi) to the east of the seismic operations, but did not provide SPL measurements to that distance, and noted that sound propagation has not been studied as extensively eastward in the alongshore direction, as it has northward, in the offshore direction. Therefore, while this single year of data analysis indicates that bowhead whales may make minor deflections in swimming direction at a distance of 30-35 km (18.6-21.7 mi), there is no indication that the SPL where deflection first begins is at 120 dB, it could be at another SPL lower or higher than 120 dB. Miller
et al.
(1999) also note that the received levels at 20-30 km (12.4-18.6 mi) were considerably lower in 1998 than have previously been shown to elicit avoidance in bowheads exposed to seismic pulses. However, the seismic airgun array used in 1998 was larger than the ones used in 1996 and 1997. Therefore, NMFS believes that it cannot scientifically support adopting any single SPL value below 160 dB and apply it across the board for all species and in all circumstances.

Second, it should be pointed out that these minor course changes are during migration and, as indicated in MMS' 2006 Final PEA, have not been seen at other times of the year and during other activities.

Third, as we have stated previously, NMFS does not believe that minor course corrections during a migration across the Beaufort Sea rises to a level of being a significant behavioral response as explained previously. To show the contextual nature of this minor behavioral modification, recent monitoring studies of Canadian seismic operations indicate that when, not

migrating, but involved in feeding, bowhead whales do not move away from a noise source at an SPL of 160 dB. Therefore, while bowheads may avoid an area of 20 km (12.4 mi) around a noise source, when that determination requires a post-survey computer analysis to find that bowheads have made a 1 or 2 degree course change, NMFS believes that does not rise to a level of a “take.” NMFS therefore continues to estimate “takings” under the MMPA from impulse noises, such as seismic, as being at a distance of 160 dB (re 1 microPa). However, NMFS needs to point out that while this might not be a “taking” in the sense that there is not a significant behavioral response by the bowheads, that minor course deflection by bowheads can have a significant impact on the subsistence uses of bowheads. As a result, NMFS still requires mitigation measures to ensure that the activity does not have an unmitigable adverse impact on subsistence uses of bowheads.

Comment 19:
The NSB states that it is not clear how Shell estimated how many bowheads would be taken at the 120-dB level. Sound from the seismic surveys attenuates to 160 dB at about 8 km (5 mi) and to the 120 dB level at approximately 60 km (37.3 mi) or greater. Even though the area ensonified to 120 dB is much larger than the 160 dB area, the number of takes of bowheads has only doubled. This does not make sense. Additional information is needed as to how Shell calculated how many bowheads, especially migrating bowheads, will be exposed to industrial sounds down to 120 dB.

Response:
Bowhead whale exposure estimates were not calculated using the density x area method as these animals are expected to be migrating and detailed information on their migration is available allowing more precise estimates to be made for this species than for other marine mammal species in the Beaufort and Chukchi Seas. Thus, the assumption that the number of bowhead whales exposed at the 120-dB level would be proportional to the larger area exposed to that level is not correct. The number of bowheads estimated to be exposed to seismic sounds at or above 120 dB was estimated in the same manner as described in the IHA application for the 160 dB level. That is, the proportion of the bowhead population expected to pass within each depth bin during the planned 14 days of survey activity was multiplied by the proportion of each depth bin that was expected to be exposed to seismic sounds at or above 120 dB.

Comment 20:
The NSB asserts that the estimated take for bowhead whales in the Beaufort Sea is also an underestimate. The ensonified zone around seismic operations, down to 120 dB, has the potential to deflect and harass perhaps the majority of bowhead whales that migrate through the Beaufort Sea. Estimating a take of only 1582 is too low. It is likely that many thousands of bowheads will be deflected from Shell's seismic operations. It is likely that many thousands of bowheads will also be deflected due to Shell's planned drilling operations in the Camden Bay of the Beaufort Sea (if it is allowed to proceed). Given these two large projects, a large percentage of the bowhead population will be harassed during the summer/autumn of 2009. The potential for population-level effects exists, especially if many bowheads miss feeding opportunities and expend more energy because they are deflected.

Response:
First, please see previous responses in regard to bowhead whales not having a significant behavioral response at levels below 160 dB. Second, NMFS is required by the MMPA to make the determinations required under section 101(a)(5)(D) of the MMPA, independent of other activities. Third, SOI cancelled its 2008 drilling program in the Beaufort Sea and the IHA issued to SOI on August 19, 2008, for seismic and shallow hazard surveys will expire on August 18, 2009, prior to the fall migratory period of the Beaufort Sea bowhead whales. Fourth, in the Beaufort Sea, mitigation measures required under SOI's IHA prohibit seismic surveys from operating within areas where 12 or more bowhead or gray whales are detected or operating during the fall bowhead subsistence hunt.

In conclusion, as the NSB has not provided specific information contradicting the data and information provided by SOI, NMFS believes that the numbers of bowhead whales being exposed to seismic sounds is based on the best scientific information as provided in SOI's IHA application.

Comment 21:
The NSB notes that Shell states that, ”...impacts would be temporary and short term displacement of seals and whales from within ensonified zones.” This conclusion is not supported by data. Impacts to seals and belugas are unknown. Further, duration of impacts to bowhead whales are unknown. There are not sufficient data to evaluate the duration of impacts to marine mammals or the biological significance of these impacts. NMFS should require Shell to specifically investigate impacts from seismic to beluga whales, the duration of impacts to all marine mammals and the biological significance of these impacts.

Response:
To date, there have not been any reported large scale impacts attributable to offshore oil and gas development in the Arctic. NMFS would expect that villagers who hunt and fish in the offshore waters would notice changes in marine life. In regard to study of the beluga whale, SOI's monitoring program for assessing impacts to marine mammals by offshore industry activities is developed through input from the AEWC, the NSB, and the public. The 2008 monitoring program is discussed later in this document.

Comment 22:
The NSB states that SOI's IHA application indicates that Richardson
et al.
(1999) showed that bowheads returned to original migratory path shortly after being deflected because of seismic sounds. The statement is false. Richardson
et al.
(1999) were not able to investigate the duration of effects to bowhead whales from seismic sounds. One of the goals of the monitoring plan is to investigate the duration of deflection. The statement that bowheads are only deflected for a short period of time is not supported by data and should be disregarded by NMFS and decision makers in this section of Shell's application as well as other sections.

Response:
NMFS agrees that the reference does not support the statement and has not been considered in making our statutory determinations.

Comment 23:
The NSB states that during the period of seismic acquisition, some species may be dispersed (as claimed by Shell) while other species may not be dispersed. Bowheads will not be dispersed during migration. Belugas are not dispersed during migration, and seem to be aggregated along the shelf break during the summer. Spotted seals aggregate at haulout areas along the Chukchi and Beaufort seas coasts. Thus, the conclusion that there will be few impacts to marine mammals is not supported by data. NMFS must require extensive mitigation and monitoring of Shell if they allow Shell to incidentally take marine mammals. Shell must collect data that can be used to evaluate impacts to marine mammals. Further, NMFS must ensure that Shell is complying with mitigation measures.

Response:
The statement by SOI is that “During the period of seismic acquisition (mid-July through mid-November), most marine mammals would be dispersed throughout the area.” The document goes on to provide species specific information (where available) to allow estimates of Level B harassment.

SOI's mitigation and monitoring program was reviewed by the public

during the public comment period on SOI's IHA application and during the Open Water Meeting held in Anchorage, AK in April, 2008. The NSB was an active participant in critiquing those plans and providing valuable information to SOI and others for improvements in its design. Finally, NMFS has no reason to believe that SOI would not carry out the mitigation and monitoring requirements stated in its IHA and in its submitted monitoring plan.

Comment 24:
The NSB notes that Shell states, “ impacts would be temporary and short term displacement of seals and whales from within ensonified zones .” This conclusion is not supported by data. Impacts to seals and belugas are unknown. Further, duration of impacts to bowhead whales are unknown. There are not sufficient data to evaluate the duration of impacts to marine mammals or the biological significance of these impacts. NMFS should require Shell to specifically investigate impacts from seismic to beluga whales, the duration of impacts to all marine mammals and the biological significance of these impacts.

Response:
NMFS agrees that there is some uncertainty on the current status of some marine mammal species in the Beaufort and Chukchi Seas and on impacts on marine mammals from seismic surveys. NMFS is currently proposing to conduct new population assessments for Arctic pinniped species and current information is available on-line through its SARS program. In regard to impacts, there is no indication that seismic survey activities are having a long-term impact on marine mammals. For example, apparently, bowhead whales continued to increase in abundance during periods of intense seismic in the Chukchi Sea in the 1980s (Raftery
et al.
, 1995; Angliss and Outlaw, 2007), even without implementation of current mitigation requirements. As a result, NMFS believes that seismic survey noise in the Arctic will have no more than a short-term effect on marine mammals in the Beaufort and Chukchi Seas.

In regards to impacts on beluga whales, impact assessments on marine mammal species from offshore seismic activities have been ongoing since 2006 through the industry's 4MP. NMFS along with the AEWC, the NSB, oil exploration companies and others have developed an off-seismic vessel monitoring program to help address the potential impact of seismic activities on marine mammals and subsistence uses of marine mammals. This program is described later in this document (see Joint Industry Studies Program). If the NSB wishes to s
et al.
ernative priorities for this impact assessment program, it should make that concern known to NMFS and SOI as soon as possible.

Comment 25:
The NSB states that NMFS refers to Shell's estimates as being inflated due to accounting for multiple exposures to one animal. While this may show inflation in the number of the animals affected, it understates the number of animals that may suffer more prolonged or serious injury due to multiple exposures to anthropogenic sounds. NMFS recognizes that for pinnipeds, exposure to several seismic pulses may cause temporary threshold shift (TTS) (temporary hearing loss) at somewhat lower received levels than would be required for a single seismic pulse to cause TTS. Relationships between TTS and PTS (permanent threshold shift) have not been studied in marine mammals, but repeated exposure to seismic pulses may result in hearing damage that could lead to PTS. NMFS has previously recognized that permanent hearing loss (also known as PTS) is considered a serious injury to marine mammals, and has explained that “if [an] acoustic source at its maximum level had the potential to cause PTS in a marine mammal's hearing ability, that activity would be considered capable of causing serious injury to a marine mammal and would therefore not be appropriate for an incidental harassment authorization.” If NMFS argues that take estimates are inflated due to accounting for multiple exposures, NMFS must also examine the possibility that those multiple exposures will cause PTS in marine mammals. If this is a possibility, an IHA cannot be issued.

Response:
As explained in detail elsewhere in this
Federal Register
notice, marine mammals will need to be significantly closer to the seismic source and be exposed to sound pressure levels greater than 180 dB to be injured or killed by the seismic airgun array. For large airgun arrays, this distance may be within 200 m (656 ft) of the vessel. In order for a marine mammal to receive multiple exposures (and thereby incur PTS), the animal would (1) need to be close to the vessel and not detected during that period of multiple exposure, (2) be swimming in approximately the same direction and speed as the vessel, and (3) not be deflected away from the vessel as a result of the noise from the seismic array. Preliminary model simulations for seismic surveys in the Gulf of Mexico, indicate that marine mammals are unlikely to incur single or multiple exposure levels that could result in PTS, as the seismic vessel would be moving at about 4-5 knots, while the marine mammals would not likely be moving within the zone of potential auditory injury in the same direction and speed as the vessel, especially for those marine mammals that take measures to avoid areas of seismic noise. .

Comment 26:
EarthJustice states that they referenced the scientific literature linking seismic surveys with marine mammal stranding events in its comments to MMS on the Draft PEA. NMFS' failure to address these studies, and the threat of serious injury or mortality to marine mammals from seismic surveys renders NMFS' conclusionary determination that serious injury or morality will not occur from SOI's activities arbitrary and capricious.

Response:
The MMS briefly addressed the humpback whale stranding in Brazil on page 127 in the Final PEA. Marine mammal strandings are also discussed in the NMFS/MMS Draft PEIS. Detailed response to the cited strandings have been provided in several previous IHA issuances for seismic surveys (see for example: 69 FR 74905 (December 14, 2004), 71 FR 49418 (August 23, 2006), 71 FR 50027 (August 24, 2006), 73 FR 45969 (August 7, 2008), and 73 FR 46774 (August 11, 2008). The statement here by EarthJustice simply repeats the information it has provided in the past regarding these strandings to which NMFS has responded (as here). As NMFS has stated, the evidence linking marine mammal strandings and seismic surveys remains tenuous at best. Two papers, Taylor
et al.
(2004) and Engel
et al.
(2004) reference seismic signals as a possible cause for a marine mammal stranding. Taylor
et al.
(2004) noted two beaked whale stranding incidents related to seismic surveys. The statement in Taylor
et al.
(2004) was that the seismic vessel was firing its airguns at 1300 hrs on September 24, 2004, and that between 1400 and 1600 hrs, local fishermen found live stranded beaked whales some 22 km (12 nm) from the ship's location. A review of the vessel's trackline indicated that the closest approach of the seismic vessel and the beaked whales stranding location was 18 nm (33 km) at 1430 hrs. At 1300 hrs, the seismic vessel was located 25 nm (46 km) from the stranding location. What is unknown is the location of the beaked whales prior to the stranding in relation to the seismic vessel, but the close timing of events indicates that the distance was not less than 18 nm (33 km). No physical evidence for a link between the seismic survey and the stranding was obtained. In addition, Taylor
et al.

(2004) indicates that the same seismic vessel was operating 500 km (270 nm) from the site of the Galapagos Island stranding in 2000. Whether the 2004 seismic survey caused to beaked whales to strand is a matter of considerable debate (see Cox
et al.
, 2004). However, these incidents do point to the need to look for such effects during future seismic surveys. To date, follow up observations on several scientific seismic survey cruises have not indicated any beaked whale stranding incidents.

Engel
et al.
(2004), in a paper presented to the International Whaling Commission (IWC) in 2004 (SC/56/E28), mentioned a possible link between oil and gas seismic activities and the stranding of 8 humpback whales (7 off the Bahia or Espirito Santo States and 1 off Rio de Janeiro, Brazil). Concerns about the relationship between this stranding event and seismic activity were raised by the International Association of Geophysical Contractors (IAGC). The IAGC (2004) argues that not enough evidence is presented in Engel
et al.
(2004) to assess whether or not the relatively high proportion of adult strandings in 2002 is anomalous. The IAGC contends that the data do not establish a clear record of what might be a “natural” adult stranding rate, nor is any attempt made to characterize other natural factors that may influence strandings. As stated previously, NMFS remains concerned that the Engel
et al.
(2004) article appears to compare stranding rates made by opportunistic sightings in the past with organized aerial surveys beginning in 2001. If so, then the data are suspect.

Second, marine mammal strandings do not appear to be related to seismic survey work the Arctic Ocean. Moreover, NMFS notes that in the Beaufort Sea, aerial surveys have been conducted by MMS and industry during periods of industrial activity (and by MMS during times with no activity). No strandings or marine mammals in distress have been observed during these surveys, that appear to be related to seismic survey activity, and none have been reported by NSB inhabitants (although dead marine mammals are occasionally sighted). Finally, if bowhead and gray whales react to sounds at very low levels by making minor course corrections to avoid seismic noise and mitigation measures require Shell to ramp-up the seismic array to avoid a startle effect, strandings, similar to what was observed in the Bahamas in 2000, are unlikely to occur in the Arctic Ocean. In conclusion, NMFS does not expect any marine mammals will incur serious injury or mortality as a result of Arctic Ocean seismic surveys in 2008/2009.

Comment 27:
EarthJustice mentions a recent stranding of a large number of melon-headed whales in an area off Madagascar where seismic surveys were being conducted.

Response:
Information available to NMFS at this time indicates that the seismic airguns were not active around the time of the stranding. Scientists continue to investigate this stranding and a determination of cause is expected early in 2009.

Comment 28:
EarthJustice states that NMFS's assertion that there is no evidence that marine mammal strandings in the Arctic that are related to seismic surveys only reflects the fact that efforts have not been made to determine the cause of such strandings.

Response:
NMFS maintains a nationwide marine mammal stranding database. While a small number of Arctic marine mammal species may have stranded within various parts of their range, there are no records of strandings in the northern Chukchi and Beaufort Seas attributable to offshore seismic and/or shallow hazard surveys.

Comment 29:
The NSB states that while Shell's IHA application and NMFS'
Federal Register
notice mention the various transit routes through U.S. waters in the Bering, Chukchi and Beaufort Seas that the numerous vessels associated with Shell's seismic surveys will take, there is no discussion nor analysis of the take that will occur from these vessels along the way. Shell needs to adequately specify the activities and impacts of these vessels.

Response:
The specified activity that has been proposed and for which an IHA has been requested is the use of seismic airguns to conduct oil and gas exploration. While the support vessels play a role in facilitating seismic operations, NMFS does not expect these operations to result in the incidental take of marine mammals. NMFS believes that normal shipping and transit operations do not rise to a level requiring an authorization under the MMPA, unless they are conducting an activity that has noise levels significantly greater than normal shipping, such as towing oil rigs or heavy ice breaking, or operations during the spring or fall bowhead subsistence whaling season. To require IHAs for standard shipping would require NMFS to seek IHA applications from activities, such as barge companies supplying North Slope villages and shoreside facilities. This would also potentially affect NMFS' ability to review activities that have a potential to cause harm to marine mammal species or population stocks.

Fish and Zooplankton Concerns

Comment 30:
The NSB is concerned about the potential impacts of SOI's seismic survey to the food sources of marine mammals (fish and zooplankton). Additional information is needed about impacts from seismic surveys to marine mammal prey and the resulting impacts to the marine mammals themselves. The NSB recommends an effort be made to monitor potential fish death behind the seismic boat by using some type of net to sample for these casualties.

Response:
NMFS does not expect the proposed action to have a substantial impact on biodiversity or ecosystem function within the affected area. The potential for the SOI's activity to affect ecosystem features and biodiversity components, including fish and invertebrates, is fully analyzed in MMS'2006 Final PEA and incorporated by reference into the NMFS' 2008 SEA. MMS/NMFS' evaluation in the 2006 Final PEA indicates that any direct, indirect, or cumulative effects of the action would not result in a substantial impact on biodiversity or ecosystem function. In particular, the potential for effects to these resources are considered in the Final PEA with regard to the potential effects on biological diversity and ecosystem functions in the Beaufort and Chukchi Seas that may serve as essential components of marine mammal habitat. Most of the potential effects on marine mammal food sources (fish and invertebrates) are considered to be short term and unlikely to rise to a level that may affect normal ecosystem function or predator/prey relationships; therefore, NMFS believes that there will not be a substantial impact on marine life biodiversity or on the normal function of the nearshore or offshore Beaufort Sea ecosystems.

During the seismic survey, only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short term, and fish would return to their pre-disturbance behavior once the seismic activity in a specific area ceases. Thus, the proposed survey would have little, if any, impact on the ability of marine mammals to feed in the area where seismic work is conducted.

Some mysticetes, including bowhead whales, feed on concentrations of zooplankton. Some feeding bowhead whales may occur in the Alaskan Beaufort Sea in July and August, and others feed intermittently during their westward migration in September and October (Richardson and Thomson

[eds.], 2002; Lowry
et al.
, 2004). A reaction by zooplankton to a seismic impulse would only be relevant to whales if it caused concentrations of zooplankton to scatter. Pressure changes of sufficient magnitude to cause that type of reaction would probably occur only very close to the acoustic source, if any would occur at all. Impacts on zooplankton behavior are predicted to be negligible, and that would translate into negligible impacts on availability of mysticete prey. Therefore, no impacts to mysticete feeding are anticipated.

Little mortality to fish and/or invertebrates is anticipated. The proposed Chukchi and Beaufort seas seismic survey are predicted to have negligible to low physical effects on the various life stages of fish and invertebrates. Though these effects do not require authorization under an IHA, the effects on these features were considered by NMFS with respect to consideration of effects to marine mammals and their habitats, and NMFS finds that these effects from the survey itself on fish and invertebrates are not anticipated to have a substantial effect on biodiversity and/or ecosystem function within the survey area.

Subsistence Concerns

Comment 31:
The Commission recommends that the issuance of the requested IHA be contingent upon NMFS establishing specific mitigation measures for bowhead and beluga whales that will ensure that the proposed activities do not affect the subject species in ways that will make them less available to subsistence hunters. Such measures should reflect the provisions of any CAA as well as meeting the requirements of the MMPA.

Response:
NMFS has required SOI, through the IHA, to implement mitigation measures for conducting seismic surveys that are designed to avoid, to the greatest extent practicable, impacts on coastal marine mammals and thereby, meet the needs of those subsistence communities that depend upon these mammals for sustenance and cultural cohesiveness. For the 2008 season, these mitigation measures are similar to those contained in the CAA signed by SOI on July 21, 2008 (and subsequently amended by SOI and the AEWC), and include a prohibition on shooting seismic before July 20, 2008, in the Chukchi Sea; black out areas during the subsistence hunt for bowhead whales; coastal stand-off distances for seismic and vessel transiting activities; coastal community communication stations; and emergency assistance to whalers, among other measures.

Comment 32:
The AEWC notes that SOI signed the 2008 CAA on July 21, 2008, with minor modifications set forth in the addendum to the CAA. To help mitigate the impacts of offshore geophysical operations on marine mammals and subsistence hunting, the whaling captains of the AEWC have agreed to an understanding and put into the CAA that only two geophysical operations will occur at any one time in either the Beaufort or the Chukchi Seas. The industry participants conducting geophysical operations agree to coordinate the timing and location of such operations so as to reduce, by the greatest extent reasonably possible, the level of noise energy entering the water from such operations at any given time and at any given location. The AEWC points out that this does not limit the number of geophysical operations that may be permitted, planned or conducted in a single season, only on the number of active geophysical operations being conducted simultaneously.

Response:
While NMFS agrees that limiting the number of geophysical operations in either the Chukchi or Beaufort Seas would reduce impacts on marine mammals, this condition is unnecessary for a determination on whether there will be an unmitigable adverse impact on subsistence uses of marine mammals because SOI's geophysical operations will not occur during the spring and fall bowhead whale subsistence hunt, and additional mitigation measures have been imposed to ensure that coastal subsistence hunters are not affected.

NMFS understands that, under the terms of an OCS lease, the lessee is required to make progress on exploration and development on its leases in order to hold that lease beyond the initial lease term. Ancillary activities (such as seismic and shallow hazard surveys) are those activities conducted on a lease site to obtain data and information to meet MMS' regulations to explore and develop a lease. If a limit is placed by NMFS on the number of ancillary activities authorized for a planning area in a given year, NMFS may preclude the lessee from complying with MMS regulations to proceed in a timely manner on exploring or developing its OCS leases. Therefore, based on both practicability and that it is not necessary, NMFS has not adopted this suggested mitigation measure. However, NMFS encourages industry participants to work together to reduce seismic sounds in the Arctic Ocean through cooperative programs in data collection to reduce impacts on marine mammals.

Comment 33:
In light of increasing offshore oil and gas production (and exploration), the AEWC believes it is in the interest of all stakeholders for our federal government, especially NMFS, to continue to support the CAA process and its reliance on the AEWC's leadership in promoting sound management of offshore oil and gas development.

Response:
NMFS believes that the CAA is a means to ensure that there is not an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses. However, the CAA is a document entered into between two entities (industry applicants and native community stakeholders). NMFS is neither a signatory to the CAA, nor does it play any formal role in the development of the CAA other than by requiring industry applicants to develop a Plan of Cooperation (POC) pursuant to 50 CFR 216.104(a)(12). Although NMFS has a limited role in this process, NMFS supports the continuation of the CAA process to help ensure that native subsistence harvests are successful.

Comment 34:
EarthJustice notes that NMFS fails to provide any meaningful assessment of the effectiveness of the vaguely identified mitigation measures. It does not appear that NMFS has made any effort to discern whether seismic surveying activities in the Chukchi or Beaufort Seas in 2006 or 2007 had an adverse impact on the availability of seal and whale species for subsistence uses. Before authorizing another year of surveys, NMFS must at least evaluate the effect of recent surveys, assess the effectiveness of mitigation measures used during those surveys, and make the results of such assessment available to the affected public.

Response:
The MMPA does not prohibit an activity from having an adverse impact on the availability of marine mammals for subsistence uses; rather, the MMPA requires NMFS to ensure the activity does not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence uses. NMFS provided the definition for “unmitigable adverse impact” previously in this
Federal Register
document.

Second, specific mitigation measures contained in the 2008 CAA relevant to mitigating impacts on subsistence hunting of marine mammals are required to be implemented, including a prohibition on vessel transits prior to July 1st, a prohibition on conducting seismic surveys in the Chukchi Sea prior to July 20th, an agreement by vessel operators for vessel transits to remain as far offshore as safe transit

allows; not creating new leads that might attract bowhead or beluga whales away from subsistence communities, blackout periods in the Beaufort and Chukchi Seas and coastal standoff distances for survey vessels and for transiting vessels to avoid impact potential subsistence harvests of coastal marine mammals. NMFS believes that implementation of all of these measure ensures that SOI's seismic survey program will not have an unmitigable adverse impact on subsistence uses of marine mammals. However, it should be recognized that mitigation measures designed to reduce impacts on subsistence uses of marine mammals are not quantifiable as no seismic survey activity occurs during these periods. As a result, NMFS must use alternative methods for assessing effectiveness. One way is to review annual marine mammal harvests and determine effectiveness.

A second measure is more timely and that is through SOI's Com-Centers established to ensure conflicts are at the lowest level practicable. NMFS notes that it has not received any direct communication, either during the public review period on the issuance of IHAs for 2008, through the Com Centers established to address subsistence use concerns, or independently from subsistence hunters, that document any significant impact that could potentially relate to SOI's 2006, 2007, or 2008 seismic program.

Comment 35:
EarthJustice states that NMFS has not analyzed the impacts of SOI's surveying activity against the background of the many seismic surveys planned for the Chukchi and Beaufort Seas in the summer of 2008, l
et al.
ne provided adequate mitigation of the effects of this activity on subsistence activities.

Response:
Potential cumulative impacts on subsistence uses of marine mammals have been addressed in MMS' 2006 PEA and NMFS' 2008 SEA. The 2006 PEA addressed the potential impacts from 4 seismic survey activities in the Beaufort Sea and 4 seismic survey activities operating at the same time. The activity level in 2008 is less than the level analyzed in the 2006 PEA. As a result, NMFS believes that by requiring all participants in seismic/shallow hazard surveys in 2008 in the Chukchi and Beaufort Seas to conduct appropriate mitigation measures, such as vessel standoff distances from shore, limiting startup dates for seismic, and blackout areas during the bowhead whale subsistence hunt, NMFS believes that there will not be a unmitigable adverse impact on subsistence uses of marine mammals in 2008 by oil and gas surveys.

Comment 36:
EarthJustice notes that SOI proposes to mitigate impacts to subsistence activities via measures developed through a POC with the AEWC and a variety of meetings and consultations. There is no guarantee that these processes will result in enforceable limits that ensure SOI's activities will not have an unmitigable adverse impact on the availability of marine mammals for taking for subsistence purposes. As a result, NMFS has deferred its MMPA determination until after such a POC has been developed. The NSB notes that POC meetings consist of companies telling NSB communities what oil and gas activities will occur in the Beaufort and Chukchi Seas. There is little opportunity for detailed and meaningful dialogue and the POC is not appropriate for negotiating means to avoid conflicts between company activities and subsistence hunts.

Response:
First, it should be understood that the POC is not the same document as the CAA. While these are two different documents, the POC meetings will likely aide in developing the CAA. It should also be understood that the POC is required by NMFS regulations to be submitted as part of the industry's IHA application; so it is logical that NMFS' MMPA determinations would be made after submission of the POC. The POC is required by NMFS regulations in order to bring industry and the village residents together to discuss planned offshore activities and to identify potential problems. To be effective, NMFS and SOI believe the POC must be a dynamic document which will expand to incorporate the communications and consultation that will continue to occur throughout 2008. Outcomes of POC meetings are included in quarterly updates attached to the POC and distributed to Federal, state, and local agencies as well as local stakeholder groups.

In its Interim Rule for Arctic Activities (61 FR 1588, April 10, 1996), NMFS clarified that if either a POC or information required by 50 CFR 216.104(a)(12) is not submitted, and, if during the comment period, evidence is provided indicating that an adverse impact to subsistence needs will result from the activity, an authorization may be delayed in order to resolve this disagreement. The requirements for meeting this requirement are clearly stated in 50 CFR 216.104(12).

In any event, SOI and the AEWC and Whaling Captains Associations signed a CAA in July 2008, which contains measures agreed to by the parties. Many of these subsistence-related measures (as they pertain to marine mammals and the related subsistence harvests) have been included in the IHA and are enforceable.

Comment 37:
EarthJustice claims that NMFS has failed its basic duty under the MMPA and its own regulations to make a proposed determination available to the public to scrutinize and comment on. Absent specification of the restrictions and mitigation measures that will result from these processes, NMFS cannot reasonably conclude that they will be effective, which it must in order to determine that they will eliminate the potential for substantial impacts to subsistence activities.

Response:
NMFS does not agree with the statement. NMFS published a notice of receipt of SOI's IHA application for conducting seismic and shallow hazard surveys in the Chukchi and Beaufort Seas in 2008/2009 on June 25, 2008 (73 FR 36044) and provided a 30-day public comment period on that application and NMFS' preliminary determinations that the proposed action would result in taking by harassment of small numbers of marine mammals of a species or population stock; (2) the harassment would have a negligible impact on affected marine mammal species or stocks; and (3) the harassment would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence uses. The preliminary determination in regard to subsistence uses of marine mammals was provided in this document, including statements on mitigation measures likely to be required to ensure that there will not be an unmitigable adverse impact on the availability of marine mammals for taking for subsistence uses, including dates of seismic operation to avoid spring and fall bowhead hunts and the application of procedures established in a CAA between the seismic operators and the AEWC and the Whaling Captains' Associations of Kaktovik, Nuiqsut, Barrow, Pt. Hope and Wainwright. The IHA application (and
Federal Register
notice) clearly noted that the times and locations of seismic and other noise producing sources are likely to be curtailed during times of active bowhead whale scouting and actual whaling activities within the traditional subsistence hunting areas of the potentially affected communities. Unless NMFS believes that the measures recommended by the applicant are insufficient to result in an unmitigable adverse impact to subsistence uses of marine mammals, it is not necessary to add additional mitigation measures.

Additional practicable mitigation measures can be added at the IHA stage either through comment on the proposed IHA notice, negotiations between industry and the communities, or final review by NMFS of its preliminary determination. There is no requirement in the MMPA to have its final determination, including mitigation measures subject to additional public review.

Comment 38:
EarthJustice states that “Pursuant to the MMPA an IHA must prescribe “means of effecting the least practicable impact . . . on the availability of [an affected species or stock] for subsistence uses . . . .” NMFS fails to set forth its determination that the mitigation measures identified in the
Federal Register
notice will ensure the least practicable adverse impact on the availability of marine mammals to subsistence users. Because NMFS has failed to impose several practicable mitigation measures that would reduce potential impacts on the availability of marine mammals for subsistence uses, the agency has failed to satisfy the “stringent standard” imposed by Congress in the MMPA.

Response:
EarthJustice's citation was taken out of context. The complete statement reads: “The authorization for such activity shall prescribe, where applicable-

(I)permissible methods of taking by harassment pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for subsistence uses pursuant to subsection (b) of this section or section 1379 (f) of this title or pursuant to a cooperative agreement under section 1388 of this title.”

In regards to reducing potential impacts on the availability of marine mammals for subsistence purposes, NMFS believes that the mitigation measures described in the
Federal Register
notice on SOI's IHA application, discussed previously in this document, and analyzed elsewhere in this
Federal Register
document meet the intent of this paragraph of the MMPA.

Comment 39:
EarthJustice states that NMFS has failed to impose mitigation measures that would reduce potential disturbance and biological impacts to essential subsistence resources such as bowhead whales, seals and beluga whales. For example, NMFS has failed to impose a mandatory 120-dB bowhead cow/calf pair monitoring zone for all of Shell's activities. NMFS should require such monitoring, at the least. NMFS can and should impose a safety zone for bowhead cow-calf pairs exposed to 107 dB or more. Similar measures should be taken with respect to beluga whales, which are also sensitive to sound over great distances, and can be found in large groups at certain times.

Response:
Section 101(a)(5)(D)(ii) states that: “The authorization for such activity shall prescribe, where applicable-(I) permissible methods of taking by harassment pursuant to such activity, and other means of effecting the least practicable impact on such species or stock... .” As discussed elsewhere in this
Federal Register
document, implementation of mitigation measures (e.g., shutdowns) such as to 107 dB for bowhead cow/calf pairs, 120 dB for bowhead cow/calf pairs and beluga whales, and to an unstated dB level for seals, are neither practicable nor warranted. Safety zones to 107 dB would extend significant distances with little ability to monitor effectively without a fleet of aircraft and practical only when within safe flight distances from shore in the Beaufort Sea. Aircraft safety factors also prevent the use of aircraft in offshore waters of the Chukchi Sea where weather may prevent an aircraft from returning safely to land. Also, distances north of seismic vessel operations could not be observed without significant modifications to currently available aircraft due to flight (fuel) limitations and other safety factors that must be considered.

Second, please see response to comment 18 previously in this document in regards to shutdowns for bowhead whale cow/calf paris within the 120-dB zone. As indicated in that response, while a single year of data analysis indicates that bowhead whales may make minor deflections in swimming direction at a distance of 30-35 km (18.6-21.7 mi), there is no indication that the SPL where deflection first begins is at 120 dB, it could be at another SPL lower or higher than 120 dB. As a result, NMFS believes that it cannot scientifically support adopting any single SPL value below 160 dB and apply it across the board for all species and in all circumstances.

Comment 40:
EarthJustice states that another practicable mitigation measure that NMFS fails to discuss, l
et al.
ne impose, is a mandatory limit on the number of concurrent seismic and/or shallow hazard surveys in the Chukchi and Beaufort Seas. At all times, but especially during the fall bowhead migration, NMFS should prohibit the simultaneous operations of multiple vessels within the Chukchi and Beaufort Seas. Moreover, it should require that no two vessels operate within 100 km (62 mi) of one another. Given the large size of the 120-dB zone, closer simultaneous operation would pose a real risk of disrupting the bowhead whale migration and the behaviors of beluga and gray whales.

Response:
EarthJustice has not provided NMFS with any data to support its argument that multiple seismic vessels should not be permitted in the Beaufort and Chukchi Seas or that no more than 2 vessels be allowed to operate within 100 km (62 mi) of one another. In regard to limiting seismic and shallow hazard vessels to no more than 2 vessels, please see response to comment 32. In regard to a 100-km (62-mi) vessel separation distance, NMFS believes that the 100-km separation distance for the 120-dB zone between vessels is not scientifically supportable. The distance where the received level reaches 120 dB re 1 microPa is dependent upon the source level and oceanographic conditions. For the same oceanographic conditions, the higher the source level, the longer the distance where the received level would reach 120 dB. Therefore, at this time, there is no basis upon which to limit effort to no more than 2 vessels within 100 km (62 mi) of one another.

Finally, the MMS 2006 Final PEA, which NMFS adopted in 2006 and incorporated into its 2008 SEA, provided a thorough analysis on the maximum number of eight seismic activities that could occur in the Chukchi and Beaufort Seas. The analysis lead NMFS and MMS to conclude that up to a maximum of eight seismic surveys would not result in significant impacts to the quality of the human environment. In addition, NMFS' 2008 SEA, which analyzed the effect of multiple seismic surveys also lead NMFS to conclude that the SOI survey would not result in a significant impacts.

Comment 41:
The NSB asks how will SOI not impact the summer, open-water beluga hunt in Wainwright and protect the subsistence hunts of other marine mammals in the Chukchi Sea?

Response:
Wainwright residents hunt beluga whales in the spring and early summer. While bowhead and beluga whale hunting is likely to have concluded by the time that seismic operations begin, NMFS recognizes that seismic noise and vessel traffic disturbance could have effects on this harvest. As a result, the IHA (and the CAA) contain time restrictions and coastal standoff distances for transiting vessels to avoid an unmitigable adverse impact on coastal subsistence hunts for marine mammals.

Cumulative Impact Concerns

Comment 42:
The NSB states that, cumulative impacts are largely ignored by the SOI IHA action, even though SOI's proposal is only one of numerous oil industry activities recently occurring, planned or on-going in the U.S. portion of the Chukchi and Beaufort Seas. As stated previously, the cumulative impacts of all industrial activities must be factored into any negligible impact determination. NMFS has not done so for 2008, and, therefore, the proposed IHA should not be issued until a cumulative impact assessment is conducted.

Response:
Section 101(a)(5)(D) of the MMPA requires NMFS to make a determination that the taking by the activity is taking small numbers of marine mammals, has a negligible impact on marine mammals, and does not result in an unmitigable adverse impact on the subsistence uses of those species and stocks. The MMPA does not instruct NMFS to make these determinations by taking into account other events (subsistence hunting, Arctic warming, and other human activities) or over time periods more than a year, if a request for take has been made under section 101(a)(5)(D) of the MMPA. Cumulative impact assessments have been addressed by MMS (and NMFS) in the 2006 Final PEA and NMFS in its 2007 and 2008 Supplemental EAs. Because these documents are part of NMFS' Administrative Record on this matter, the information contained within them do not need to be repeated. Please refer to these documents for that assessment.

The proposed monitoring plans were provided to the NSB and others for review and comment in October, 2007 and during the public review period for SOI's proposed IHA application. SOI's monitoring plans were also reviewed at the April, 2008 Open Water Meeting in Anchorage, AK. A critical component of those reviews was to ensure that the monitoring plans address the issue of cumulative impacts.

Mitigation and Monitoring Concerns

Comment 43:
EarthJustice contends that the MMPA authorizes NMFS to issue a small take authorization only if it can first find that it has required adequate monitoring of such taking and all methods and means of ensuring the least practicable impact have been adopted. The proposed IHA largely ignores this statutory requirement. While the proposed IHA lists various monitoring measures, it contains virtually nothing by way of mitigation measures. The specific deficiencies of the “standard” MMS mitigation measures as outlined in the 2006 PEA are described in detail in our NEPA comments. The problems with the mitigation measures as explained for NEPA purposes are even more compelling with regard to the substantive standards of the MMPA. Because the MMPA explicitly requires that “means effecting the least practicable impact” on a species, stock or habitat be included, an IHA must explain why measures that would reduce the impact on a species were not chosen. Neither the proposed IHA, Shell's application, the 2006 PEA, nor the 2007 DPEIS attempt to do this.

Response:
In the proposed IHA notice, NMFS describes those mitigation measures that SOI proposed to implement in 2008/2009. There is no requirement for NMFS to propose additional mitigation measures at that time as long as NMFS can make its preliminary determinations required under the MMPA that the taking will (1) have no more than a negligible impact on affected species and stocks of marine mammals; (2) be small relative to the stock or population size; and (3) not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence uses. It is only at the time that it has completed its review of SOI's proposed activity (which may have been modified since the time of the application), the comments received during the public comment period, and any recent information on the activity, potential impacts on affected marine mammal stocks, and/or subsistence uses of marine mammals, that it will determine what mitigation measures are practicable to ensure that impacts are at the lowest level practicable. NMFS has conducted that review and analysis in this
Federal Register
document and has analyzes a variety of mitigation and monitoring measures in its 2008 SEA.

Comment 44:
EarthJustice notes that while NMFS has not performed any analysis of why additional mitigation measures are not “practicable,” the proposed IHA contains information to suggest that many such measures are in fact practicable. For example, in 2006 NMFS required monitoring of a 120-dB safety zone for bowhead cow/calf pairs and large groups >12 individuals). The IHA and
Federal Register
notice are somewhat ambiguous as to whether the 120-dB safety zone will be required in the Chukchi Sea. NMFS should require Shell to employ the 120-dB safety zone for all operations in both oceans, including shallow hazard and ice gouge surveys in the Beaufort Sea, to ensure the least practicable adverse impact on marine mammals.

Response:
In its final determination and the IHA issued to SOI, NMFS required SOI to establish a 160-dB safety zone whenever an aggregation of 12 or more bowhead whales or gray whales are observed, whether in the Chukchi or Beaufort Seas. If an aggregation of 12 or more bowhead or gray whales is observed within the 160-dB safety zone around the seismic activity, the seismic and shallow hazard operations will not commence, or will shut-down, until surveys indicate they are no longer present within the 160-dB safety zone of seismic-surveying operations. In addition, the IHA issued to SOI established a 120-dB seismic shut-down zone whenever 4 or more migrating bowhead whale cow/calf pairs are within that safety zone in the Beaufort Sea. Seismic and shallow-hazard surveys cannot resume until two aerial surveys indicate that there are 3 or fewer migrating bowhead whale cow/calf pairs within that safety zone.

However, NMFS has not imposed a requirement to conduct aerial monitoring of the 120-dB safety zone for the occurrence of four ore more cow-calf pairs in the Chukchi Sea because it is not practicable. First, NMFS determined that monitoring the 120-dB safety zone was not necessary in the Chukchi Sea because there would not be the level of effort by 3D seismic survey operations found in 2006. This provides cow/calf pairs with sufficient ability to move around the seismic source without significant effort. Second, aerial surveys are not required in the Chukchi Sea because they have currently been determined to be impracticable due to lack of adequate landing facilities, the prevalence of fog and other inclement weather in that area, potentially resulting in an inability to return to the airport of origin, thereby resulting in safety concerns.

Comment 45:
EarthJustice states that because the 120-dB safety zone is possible for aggregations of bowheads, means that such a zone is also possible for other marine mammals, such as belugas which are also subject to disturbance at similar levels. The failure to require such, or at least analyze it, violates the MMPA.

Response:
Implementing a safety/shutdown zone for marine mammal species, other than migrating bowhead whale cow/calf aggregations, is neither practicable, necessary, nor warranted. NMFS notes that EarthJustice has not provided information that it is necessary to implement such a mitigation measure. First, as noted elsewhere in this
Federal Register
document, the best

scientific information available indicates that the marine mammal species found in these waters will not have a significant behavioral response at SPLs as low as 120 dB (including non-migratory bowhead whales). Second, implementing a shutdown requirement at 120-dB for all marine mammal species would significantly reduce the ability of SOI to conduct seismic surveys without significant, and costly delays. This could result in SOI needing multiple years to acquire the data necessary for exploratory drilling. Third, for reasons discussed elsewhere in this
Federal Register
notice, a 120-dB safety zone has not been implemented for the Chukchi Sea for safety reasons. As a result, NMFS does not believe that implementing a shutdown requirement for all marine mammal species at 120 dB is warranted.

Comment 46:
EarthJustice believes that, because it is practicable, NMFS should also require Shell to suspend operations if BWASP (Bowhead Whale Aerial Survey Project) aerial surveys detect the requisite number of whales. In 2007, the BWASP surveys appear to have been more effective than Sh

[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%3AE8-26269. Public record. Not legal advice.