Small Takes of Marine Mammals Incidental to Specified Activities; Seismic Surveys in the Beaufort and Chukchi Seas off Alaska, 50027-50045 [06-7121]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 164 (Thursday, August 24, 2006)]
[Notices]
[Pages 50027-50045]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-7121]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 020306A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Seismic Surveys in the Beaufort and Chukchi Seas off Alaska

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

ACTION: Notice of Issuance of an Incidental Harassment Authorization.

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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 on pre-lease areas in the Northern 
Chukchi Sea has been issued to Shell Offshore, Inc. (Shell) and 
WesternGeco, Inc.

DATES: Effective from July 10, 2006 through December 31, 2006.

ADDRESSES: The application, a list of references used in this document, 
and the IHA are available by writing to 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, or by telephoning one of the contacts 
listed here. A copy of the application and/or the research monitoring 
plan (LGL, 2006) is also available at: https://www.nmfs.noaa.gov/pr/
permits/incidental.htm#iha. Documents cited in this document, that are 
not available through standard public (inter-library loan) access, may 
be viewed, by appointment, during regular business hours at this 
address.
    A copy of the Minerals Management Service's (MMS) Programmatic 
Environmental Assessment (PEA) is available on-line at: https://
www.mms.gov/alaska/ref/pea_be.htm.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead or Jolie 
Harrison, Office of Protected Resources, NMFS, (301) 713-2289.

SUPPLEMENTARY INFORMATION:

Background

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

[[Page 50028]]

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 issuance of the authorization.

Summary of Request

    On November 16, 2005, NMFS received two applications from Shell for 
the taking, by Level B harassment, of several species of marine mammals 
incidental to conducting a marine seismic survey program during 2006 in 
the mid- and eastern-Beaufort and northern Chukchi seas. The deep 
seismic survey component of the program will be conducted from 
WesternGeco's vessel the M/V Gilavar. Detailed specifications on this 
seismic survey vessel are provided in Shell's application (Seismic 
Survey, Overview/Description). These specifications include: (1) 
complete descriptions of the number and lengths of the streamers which 
form the airgun and 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 sails downline in the survey area. The M/
V Gilavar will tow up to 6 hydrophone streamer cables up to 5.4 
kilometers (km)(3.4 mi) long. With this configuration each pass of the 
Gilavar can record 12 subsurface lines spanning a swath of up to 360 
meters (m; 1181 ft). The seismic data acquisition vessel will be 
supported by the M/V Alex Gordon, which will serve to resupply and re-
fuel the M/V Gilavar. The M/V Alex Gordon is also capable of ice 
management should that be required. The M/V Alex Gordon will not deploy 
seismic acquisition gear.

Plan for Seismic Operations

    It is planned that the M/V Gilavar will be in the Chukchi Sea in 
early July to begin deploying the acquisition equipment. Seismic 
acquisition will not begin before July 15, 2006. The approximate areas 
of operations are shown in Appendix 4 in Shell's IHA application. 
Acquisition will continue in the Chukchi Sea until ice conditions 
permit a transit into the Beaufort Sea around early August. Seismic 
acquisition is planned to continue in the Beaufort at one of three 3-D 
areas until early October depending on ice conditions. These 3-D areas 
are shown in Appendix 5 in Shell's application. For each of the 3-D 
areas, the M/V Gilavar will traverse the area multiple times until data 
on the area of interest has been recorded. At the conclusion of seismic 
acquisition in the Beaufort Sea, the M/V Gilavar will return to the 
Chukchi Sea and resume recording data there until all seismic lines are 
completed or weather prevents data collection.
    The proposed Beaufort Sea deep seismic, site clearance, shallow 
hazard surveys and geotechnical activities are proposed to commence in 
August (if ice conditions allow) and continue until weather precludes 
further seismic work. In addition to deep seismic surveys, Shell plans 
to conduct site clearance and shallow hazard surveys of potential 
exploratory drilling locations within Shell's lease areas in the 
Beaufort Sea. The M/V Henry Christoffersen will be conducting the 
shallow-hazard seismic survey program in the Beaufort Sea while the M/V 
Gilavar conducts the deep seismic survey. The site clearance surveys 
are confined to very small specific areas within defined lease blocks. 
Also, very small and limited geophysical survey energy sources will be 
employed to measure bathymetry, topography, geo-hazards and other 
seabed characteristics. On the M/V Henry Christoffersen, the following 
acoustic instrumentation will be used: (1) a dual frequency subbottom 
profiler (Datasonics CAP6000 Chirp II (2-7kHz or 8-23kHz)); (2) a 
medium penetration subbottom profiler (Datasonics SPR-1200 Bubble 
Pulser (400Hz)); (3)a hi-resolution multi-channel seismic system (240cu 
in (4X60) gun array (0-150 Hz)); (4) a multi-beam bathymetric sonar 
(Seabat 8101 (240 kHz)); and (5) a side-scan sonar system (Datasonics 
SIS-1500 (190kHz - 210 kHz)). The timing is scheduled to avoid any 
conflict with the Beaufort Sea subsistence hunting conducted by the 
Alaska Eskimo Whaling Commission's (AEWC) villages.
    In summary, the proposed Chukchi deep seismic survey will occur in 
two phases. Phase 1 will commence sometime after July 15, 2006, as sea 
ice coverage conditions allow and will continue through July to early 
August, 2006. Phase 2 of the Chukchi deep seismic survey will occur 
upon completion of the Beaufort Sea survey sometime after mid-October 
and continue until such time as sea ice and weather conditions preclude 
further work, probably sometime in mid- to late-November, 2006. Shell 
plans to run approximately 5556 km (3452 mi) of surveys in the Chukchi 
Sea and a similar survey length in the Beaufort Sea.
    Alternatively, if ice conditions preclude seismic operations in the 
Beaufort Sea, Shell proposes to continue its seismic program in the 
Chukchi Sea through mid- to late-November, 2006, or approximately 5.5 
months. This scenario takes into account that approximately twice as 
many seismic line miles would be completed during this time in the 
Chukchi Sea. Under this scenario approximately 6000 nm (6905 stat mi; 
11,112 km) of seismic line miles could be completed in the Chukchi Sea.
    A detailed description of the work proposed by Shell for 2006 is 
contained in the two applications which are available for review (see 
ADDRESSES).

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

    Shell will use WesternGeco's 3147 in\3\ Bolt-Gun Array for its 3-D 
seismic survey operations in the Chukchi and

[[Page 50029]]

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 gun arrangement for each of the three 1049-in\3\ sub-array is 
detailed in Shell's application. As indicated in the application's 
diagram, each sub-array is composed of six tuning elements; two 2-gun 
clusters and four single guns. The standard configuration of a source 
array for 3D 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.
    Shell's application provides illustrations of the time series and 
amplitude spectrum for the far-field signature and the computed 
acoustic emission pattern for the vertical inline and crossline planes 
for the 3147 in\3\ array with guns at a depth of 6 m (20 ft). The 
signature for this array was first computed using GSAP, WesternGeco's 
in house signature modeling software.
    Subsequent to submitting its application, Shell contracted with 
JASCO to model sound source characteristics using a different model 
than the one used in the application. The JASCO parabolic equation 
model is believed by Shell and NMFS to be superior in these waters 
because it accounts for bathymetry effects, water properties, and the 
geoacoustic properties of seabed layers. The JASCO-modeled radii are 
based on the worst case model predictions. For this model, the proposed 
180-dB and 190-dB radii are 1.5 km (0.9 mi) and 0.5 km (0.3 mi), 
respectively. This model will be used by Shell and NMFS to estimate 
preliminary sound level isopleths and radii for rms sound level 
thresholds between 120 and 190 dB at six proposed survey locations for 
the proposed airgun arrays. In addition, these modeled radii estimates 
will be multiplied by a safety margin of 1.5 to obtain conservative 
exclusion radii for marine mammal safety until empirical sound field 
verification measurements are completed within the first few days of 
seismic shooting and new safety radii are calculated and used for 
implementing safety zones.
    An explanation for the indicated sound pressure levels (SPLs) is 
provided later in this document (see Impacts to Marine Mammals).

Characteristics of Airgun Pulses

    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 MMS Final PEA. Reviewers are 
encouraged to read these earlier documents for additional information.

Site Clearance Surveys

    In addition to deep seismic surveys in the Beaufort Sea, Shell also 
plans to conduct site clearance and shallow hazards surveys of 
potential exploratory drilling locations within Shell's lease areas as 
required by MMS regulations. The site clearance surveys are confined to 
very small specific areas within defined OCS blocks. Shell has 
contracted for the M/V Henry Christoffersen to conduct the site 
clearance/shallow hazards surveys, and geotechnical borings. This 
survey will be conducted contemporaneously with the deep seismic survey 
program in the Beaufort Sea. Very small and limited geophysical survey 
energy sources will be employed to measure bathymetry, topography, geo-
hazards and other seabed characteristics. These include: (1) a dual 
frequency subbottom profiler (Datasonics CAP6000 Chirp II (2-7kHz or 8-
23kHz)); (2) a medium penetration Subbottom profiler (Datasonics SPR-
1200 Bubble Pulser (400Hz)); (3) a hi-resolution multi-channel seismic 
system (240cu in (4X60) gun array (0-150 Hz)); (4) a multi-beam 
bathymetric sonar (Seabat 8101 (240 kHz)); and (5) a side-scan sonar 
system (Datasonics SIS-1500 (190kHz - 210 kHz)). The actual locations 
of site clearance and shallow hazard surveys in the U.S. Beaufort Sea 
have not been released by Shell for proprietary reasons. That 
information will be supplied to NMFS and MMS prior to commencement of 
operations in the Beaufort Sea. The vessels conducting the site 
clearance and shallow hazard surveys, and geotechnical borings will 
also operate in accordance with the provisions of a Conflict Avoidance 
Agreement (CAA), between the seismic industry, the AEWC and the Whaling 
Captains Associations regarding times and areas in order to avoid any 
possible conflict with the bowhead subsistence whale hunts by the 
Kaktovik and Nuiqsut.
    Offshore site clearance surveys use various geophysical methods and 
tools to acquire graphic records of seafloor and sub-seafloor geologic 
conditions. The data acquired and the type of investigations outlined 
in this document are performed routinely for most exploratory drilling 
and production platforms, submarine pipelines, port facilities, and 
other offshore projects. High-resolution geophysical data such as two- 
dimensional, high-resolution multi-channel seismic, medium penetration 
seismic, subbottom profiler, side scan sonar, multibeam bathymetry, 
magnetometer and possibly piston core soil sampling are typical types 
of data acquired. These data are interpreted to define geologic and 
geotechnical conditions at the site and to assess the potential 
engineering significance of these conditions. The following section 
provides a brief description of those instruments used for site 
clearance that may impact marine mammals. Information on the data 
acquisition methodology planned by Shell can be found in the Shell 
application.

Geophysical Tools for Site Clearance

High-Resolution seismic profiling
    Reflected sound energy, often called acoustic or seismic energy, 
produces graphic images of seafloor and sub-seafloor features. These 
systems transmit the acoustic energy from various sources called 
transducers that are attached to the hull of the vessel or towed 
astern. Part of this energy is reflected from the seafloor and from 
geologic strata below the seafloor. This reflected energy is received 
by the hydrophone or streamer and is recorded to produce seismic 
records or profiles. Seismic profiles often resemble geologic cross-
sections along the course traveled by the survey vessel.
    In most Beaufort Sea site surveys, Shell will operate several high- 
resolution profiling systems simultaneously to obtain detailed records 
of seafloor and near seafloor conditions. The survey will include data 
acquisition using a shallow penetration profiler or subbottom profiler 
(1 - 12.0 kHz, typically 3.5 kHz), medium penetration system or boomer/
sparker/ airgun (400-800 Hz) and a deep penetrating hi-resolution 
multi-channel seismic system (20-300 Hz) not to be confused with the 
deep seismic used for hydrocarbon exploration. These profiling systems 
complement each other since each system achieves different degrees of 
resolution and depths of sub-seafloor penetrations.

[[Page 50030]]

Side Scan Sonar
    Unlike seismic profiling systems, which produce a vertical profile 
along the vessel's path, side scan sonar systems provide graphic 
records that show two-dimensional (map) views of seafloor topography 
and of objects on the seafloor. The sonar images provide a swath 
display/record covering an area on the seafloor up to several hundred 
feet on both sides of the survey trackline. The side scan sonar 
transmits very high-frequency acoustic signals (100 - 410 kHz) and 
records the reflected energy from the seafloor. Signals reflected from 
the seafloor are displayed on a continuous record produce by a two-
channel recorder. Reflected signals normally appear as dark areas on 
the record whereas shadows behind objects appear as light or white 
areas. The intensity and distribution of reflections displayed on the 
sonar image depend on the composition and surface texture of the 
reflecting features, on their size, and on their orientation with 
respect to the transducers in the towfish. Line spacing and display 
range are designed to ensure 100 percent coverage of the proposed 
survey area in the prime survey line direction, with additional tie-
lines acquired in an orthogonal direction.
    Side scan sonar data are useful for mapping areas of boulders, rock 
outcrops, and other areas of rough seafloor, and for determining the 
location and trends of seafloor scarps and ice gouges. These data are 
also used to locate shipwrecks, pipelines, and other objects on the 
seafloor.
Multi-beam Bathymetry
    Multi-beam bathymetric systems are either hull mounted or towed 
astern of the survey vessel. The system transmits acoustic signals 
(200-500 kHz) from multiple projectors propagating to either side of 
the vessel at angles that vary from vertical to near horizontal. The 
locations of the soundings cover a swath whose width may be equal to 
many times the waterdepth. By adjusting the spacing of the survey 
tracklines such that adjacent swaths are overlapping, Shell obtains 
depth information for 100 percent of the bottom in the survey area. The 
time it takes to receive the signals as well as signal intensity, 
position, and other characteristics for echoes received across the 
swath are used to calculate depth of each individual beam transmitted 
across the swath.
    Acoustic systems similar to the ones proposed for use by Shell have 
been described in detail 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.

Comments and Responses

    A notice of receipt of Shell's MMPA application and NMFS' proposal 
to issue an IHA to Shell was published in the Federal Register on May 
3, 2006 (71 FR 26055). That notice described, in detail, Shell's 
proposed activity, the marine mammal species that may be affected by 
the activity, and the anticipated effects on marine mammals. During the 
30-day public comment period on Shell's application, comments were 
received from Shell, the Marine Mammal Commission (Commission), the 
Center for Biological Diversity (CBD) on behalf of several 
environmental organizations, the Northern Alaska Environmental Center 
(NAEC), the Alaska Oil and Gas Association (AOGA), the Alaska Eskimo 
Whaling Commission (AEWC), the North Slope Borough (NSB), Village of 
Point Hope (NVPH), and the Alaska Nanuuq Commission (Nanuuq 
Commission). The AOGA submitted a copy of the comments it submitted on 
the MMS PEA and the CBD attached the comments submitted by the Natural 
Resources Defense Council on the PEA. With the exception of some 
comments relevant to this specific action which are addressed here, 
comments on the Draft PEA have been addressed in Appendix D of the 
Final PEA and are not repeated. Some comments providing additional 
information for NMFS' consideration have been incorporated into this 
document without further reference.

Activity Concerns

    Comment 1: Shell notes that it was awarded 84 OCS leases in the 
Western Beaufort Sea Planning Area by the MMS in 2005 pursuant to the 
MMS Lease Sale 195 held March 30, 2005. Shell made plans and signed 
contracts to perform seismic surveys in the Chukchi and Beaufort Seas 
during the open water season of 2006, beginning in July. The 2006 
seismic surveys are critical in assessing hydrocarbon potential and 
site conditions necessary to conduct drilling operations in subsequent 
open water seasons. Shell notes that the 2006 seismic operations in the 
Chukchi Sea will be very surgical in nature, be at least 50 mi (80.5 
km) from shore, and cover less than 2 percent of the lease sale area. 
In the Beaufort Sea, Shell's seismic operations will be limited to the 
areas near its lease blocks and cover less than 1 percent of the lease 
sale area. As Shell's IHA application included a much broader area for 
seismic operations; the take estimates in its application are inflated 
and should be recalculated.
    Response: While NMFS recognizes that Shell will be concentrating 
seismic activity in relatively small areas, the Level B harassment 
estimates are calculated as ``exposures'' to sound and, therefore, 
while the survey may result in fewer marine mammals being exposed, 
those animals may be exposed more frequently than if the seismic vessel 
track were linear.

MMPA Concerns

    Comment 2: The CBD states that an IHA is only available if the 
activity has no potential to result in serious injury or mortality to a 
marine mammal. If injury or mortality to a marine mammal is possible, 
take can only be authorized pursuant to a Letter of Authorization (LOA) 
consistent with regulations promulgated pursuant to 16 U.S.C. 1371 
(a)(5)(D)(i) and 50 CFR 216.107. Because NMFS has not promulgated 
regulations related to incidental takes for seismic surveys, and 
because such surveys carry the real potential of injury or death to 
marine mammals, neither an IHA nor an LOA can be issued for Shell's 
proposed activities.
    Response: For reasons discussed later in this document, NMFS does 
not believe that there is any potential for marine mammal mortality to 
occur incidental to conducting seismic surveys in the Chukchi and 
Beaufort seas in 2006. IHAs can authorize takings by Level A (injury) 
and Level B harassment (behavioral harassment). As documented by 
Richardson [ed] (1998), aerial and vessel monitoring of marine mammals 
under previous incidental take authorizations did not indicate more 
than behavioral harassment takings would occur.
    Comment 3: The CBD believes that NMFS cannot issue an IHA to Shell 
because it has not complied with the MMPA's specific geographic region 
requirement.
    Response: 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). NMFS believes 
that Shell's description of the activity and the locations for 
conducting seismic surveys meet the requirements of the MMPA. Within 
the Chukchi Sea, Shell intends to conduct seismic activity within the 
area designated for Lease Sale 97 (shown in Appendix 4 in Shell's IHA 
application). More specific locations within the Lease Sale area are 
considered proprietary. In the Beaufort Sea, the areas of seismic 
operations are shown in Appendix 5 in

[[Page 50031]]

Shell's IHA application. Shell has provided a well-defined area within 
which certain biogeographic characteristics occur.
    Comment 4: The CBD states that Shell's application fails to specify 
the ``dates and duration'' of these activities as required by 50 CFR 
216.103(a)(2), or even who will perform them or in what manner. For 
example, CBD notes the various dates listed by Shell for beginning 
seismic. The CBD notes that the proposed IHA (notice) states that 
seismic acquisition is planned to begin on or about July 10, 2006, 
while a couple of paragraphs later states that ``Phase I will commence 
sometime after June 15, 2006; elsewhere the proposed IHA (notice) 
states that seismic operations will not begin until after July 1, 2006. 
The CBD believes NMFS' ``small numbers'' and ``negligible impacts'' 
conclusions are highly suspect given NMFS' confusion as to when and 
where Shell will actually be operating.
    Response: The application shows that Shell plans to pick up crew 
members and refuel near the end of June in Dutch Harbor and sail for 
the Chukchi Sea upon completion of resupply. Seismic surveys would 
begin no earlier than July 10, depending upon ice conditions in the 
Chukchi Sea. To avoid bowhead whales migrating in the spring leads, 
seismic survey work cannot begin prior to July 1, as explained in the 
PEA and as stipulated in Shell's permit from MMS. More recently, 
agreements with Alaskan natives restricted seismic operations prior to 
July 15, 2006. Sound exposure calculations are based on miles of 
seismic lines to be run and the average and maximum density of marine 
mammals expected to be exposed. Minor variations in dates would be due 
mostly to ice conditions in either the Chukchi or Beaufort Seas would 
not affect noise exposure estimates. However, to avoid further 
confusion, NMFS has modified the IHA to indicate that seismic data 
collection cannot begin prior to July 1, 2006.
    Comment 5: The CBD states that Shell's application and NMFS' notice 
fail to provide information on the ``dates and duration of the 
activities and provide only boilerplate descriptions of typical 
activities.
    Response: NMFS has determined that the activity descriptions in 
Shell's application, including the Appendixes, provide information 
necessary to make its determinations under the MMPA. The duration of 
the activity is highly dependent upon logistics, weather, mechanical 
problems, shut-downs and power-downs. However, Shell provided estimates 
of expected line miles of survey effort they expect to run which is 
used in part for calculating incidental harassment estimates.
    Comment 6: To protect bowhead whales, other marine mammals, and 
subsistence use of marine mammal resources, the AEWC states that NMFS 
must ensure that the planned activities, if authorized, conform to the 
statutory requirements of the MMPA. In that regard, the AEWC states 
that while not all acoustic takes threaten an impact that is greater 
than negligible, the MMPA requires that NMFS take special care to 
protect whales engaged in biologically significant behaviors such as 
feeding, mating, calving, and tending to young.
    Response: NMFS takes into account biological activities in its 
analyses and in determining appropriate mitigation and monitoring 
requirements. We recognize there is uncertainty in the distribution and 
abundance of marine mammal stocks in the Chukchi Sea. As a result, NMFS 
has required additional monitoring and mitigation measures for this 
year's survey. NMFS anticipates the industry research program will 
answer some of the uncertainties involving distribution and abundance 
of marine mammals in the Chukchi Sea.
    Comment 7: The CBD states that because the MMPA explicitly requires 
that NMFS prescribe the ``means effecting the least practicable 
impact'' on the affected species, stock or habitat, an IHA [notice] 
must explain why measures that would reduce the impact on a species 
were not chosen (i.e., why they were not practicable). Neither the 
proposed IHA [notice], Shell's application, nor the PEA do this. The 
AEWC made a similar comment on the context of biologically significant 
behaviors.
    Response: Neither the MMPA nor NMFS regulations implementing the 
incidental take program require NMFS to itemize and discuss all 
measures that were determined to be impractical. Such an effort can 
quickly become a matter of speculation. For example, drones, manned 
balloons, and satellites are currently considered impractical for 
technological and safety reasons and usually need not be discussed in 
issuing IHAs (although drones may become available for non-military 
activities within a few years). Helicopters and other aircraft may be 
practical depending upon distance between landing and activity 
location, weather and safety and are usually discussed if safety zones 
cannot be visually monitored effectively. Also, active and passive 
acoustics are often discussed when issuing an IHA if the safety zone 
cannot be visually monitored effectively. Time and area closures or 
restrictions are discussed when appropriate. In many cases, monitoring 
larger zones to reduce the Level B harassment take, is viewed as 
secondary to effectively monitoring the Level A harassment zone to 
prevent marine mammal injury. A final mitigation measure mentioned by 
commenters to the Draft PEA of using vibroseis technology in winter 
instead of open water seismic is not practical do to human safety 
concerns and must be limited to extremely shallow water depths.
    Comment 8: The CBD notes that while NMFS has not performed an 
analysis of why additional mitigation measures are not ``practicable,'' 
the proposed IHA [notice] contains information to conclude that many 
such measures are in fact practicable. For example, during periods when 
conflict with subsistence hunting is most likely, Shell proposes 
additional ``special'' monitoring and mitigation measures from August 
15 until the end of the bowhead hunting season. While these measures 
are designed to avoid impacts to bowheads so as not to affect the 
subsistence hunt, there is no reason, and certainly no explanation of, 
why these measures cannot be instituted for the entirety of the seismic 
survey. The MMPA requires minimizing all impacts on marine mammals, not 
only avoiding impacts on the subsistence hunt.
    Response: The ``special'' monitoring and mitigation measures 
proposed by Shell during the bowhead subsistence hunt were: (1) An 
aerial monitoring program during the bowhead subsistence hunt as 
described elsewhere in this document, and (2) time/area closures to 
prevent the survey from potentially having an unmitigable adverse 
impact. Only the latter is considered a measure that could potentially 
lower the impact on bowhead whales and other marine mammal species in 
the central Beaufort Sea. Since the CAA had not been developed at the 
time of Shell's application or NMFS' Federal Register notice for Shell, 
what those mitigation conditions might be would have been speculation. 
However, in general the imposition of additional time/area closures in 
the Beaufort Sea (and to some extent in the Chukchi Sea) are 
impractical for reasons of cost effectiveness and the limited ice-free 
time in Arctic Ocean waters. Overlooking costs, time/area closures are 
not practical in the Beaufort Sea if seismic had to occur over multiple 
years in an effort to obtain seismic data that could have been obtained 
with possibly a single-year of effort. For that reason, NMFS limits 
time/area closures as a

[[Page 50032]]

mitigation measure in Arctic waters only to protect subsistence hunting 
or marine mammal life stages that could significantly affect survival 
and reproduction.

Marine Mammal Impact Concerns

    Comment 9: The CBD states that the tables in the proposed IHA 
notice provide no support for NMFS' conclusion on small numbers. For 
Shell's proposed seismic surveys in the Chukchi, the number of bowheads 
likely to be exposed to sounds of 160 dB or greater and therefore 
harassed'' according to NMFS' operative thresholds, range from 403 to 
3226. In absolute terms these numbers cannot be considered small. Even 
relative to population size, the higher estimate represents a third of 
the estimated population of bowheads. CBD makes a similar comment 
regarding beluga whales.
    Response: NMFS believes that the small numbers requirement has been 
satisfied. The species most likely to be harassed during seismic 
surveys in the Arctic Ocean area is the ringed seal, with a ``best 
estimate'' of 7,335 animals in the Beaufort Sea and 13,610 animals in 
the Chukchi Sea being exposed to sound levels of 160 dB or greater, for 
a total of 20,945 animals. This does not mean that this is the number 
of ringed seals that will be taken by Level B harassment, it is 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 those surveys that ``mow the 
lawn'' (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 less than 10 
percent of the regional stock size of that species (249,000) if each 
``exposure'' represents an individual ringed seal. In addition, it 
should be recognized that because Shell will spend most of the time 
surveying small areas in the Chukchi Sea, fewer ringed seals would 
likely be harassed but these animals could be affected more often, 
unless they habituate to the sounds (see ``Ringed, Largha and Bearded 
Seals later in this document).
    For beluga and bowhead whales, the estimated number of sound 
exposures during Shell's seismic surveys in the Arctic will be 1702 and 
3226, respectively. While these exposure numbers represent a sizable 
portion of their respective population sizes (46 percent of the beluga 
population (3710) and 31 percent of the bowhead population (10545)), 
NMFS believes that the estimated number of exposures by bowheads and 
belugas greatly overestimate actual exposures for the following 
reasons: (1) The proposed seismic activities would occur in the Chukchi 
Sea when bowheads are concentrated in the Canadian Beaufort Sea; (2) 
bowheads and belugas may be absent or widely distributed and likely 
occur in very low numbers within the seismic activity area in the 
Chukchi Sea; (3) seismic surveys are not authorized in the Beaufort Sea 
during the bowhead westward migration; (4) Shell proposes to conduct 
seismic in the Beaufort Sea after the bowhead whales have migrated out 
of the Beaufort Sea; and (5) Shell will conduct late-fall seismic 
surveys in the Chukchi Sea after most bowheads have migrated out of the 
area, 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.
    Comment 10: The CBD states that NMFS' failure to address the 
scientific literature linking seismic surveys with marine mammal 
stranding events, and the threat of serious injury or mortality renders 
NMFS' conclusionary determination that serious injury or mortality will 
not occur from Shell's activities arbitrary and capricious.
    Response: First, 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). NMFS believes that 
scientifically, these events do not constitute evidence that seismic 
surveys have an effect similar to that of mid-frequency tactical sonar. 
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, strandings have not been recorded for those marine mammal 
species expected to be harassed by seismic in the Arctic Ocean. Beaked 
whales and humpback whales, the two species linked in the literature 
with stranding events with a seismic component are not located in the 
Beaufort and Chukchi seas seismic

[[Page 50033]]

areas. 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 are highly 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 2006.
    Comment 11: In submitted comments on the MMS Draft PEA, (and 
referenced by CBD), the NRDC states that the decibel thresholds 
selected for pinnipeds and cetaceans are based on old data which has 
since been ``superseded by science,'' and that pinnipeds should be 
included with cetaceans in the 180-db Level A harassment threshold.
    Response: New acoustic guidelines will be implemented by NMFS upon 
completion of a planned EIS on this subject. If NMFS were to implement 
new criteria at this time, it would need to be species-specific and 
safety zones would fluctuate depending upon the species believed to be 
affected by the action. Considering that the 180/190 dB safety zones 
were established based on onset TTS, a non-injurious (Level B 
harassment) level, the current safety zones of 180 dB rms for cetaceans 
and 190 dB rms for pinnipeds is conservative and will protect marine 
mammals from injury (Level A harassment).
    Comment 12: In submitted comments on the MMS Draft PEA, (and 
referenced by CBD), the NRDC states that harassment of marine mammals 
can occur at levels below the 160 dB threshold for Level B harassment, 
and that NMFS should reassess its harassment thresholds for acoustic 
impacts.
    Response: The 160-dB rms isopleth is based on work by Malme et al. 
(1984) for migrating gray whales along the California coast. Clark et 
al. (2000) replicating the work by Malme et al. (1984) indicated that 
this response is context dependent, as gray whales did not respond to 
simulated airgun noise when the acoustic source was removed from the 
gray whale migratory corridor. This indicates to NMFS that establishing 
a 160-dB isopleth for estimating a ZOI for low-frequency hearing 
specialists when exposed to a low frequency source is conservative. For 
mid- or high-frequency hearing specialists, a 160-dB ZOI for a low-
frequency source is likely overly conservative. In this action, 
empirical research indicates that bowhead whales respond to sounds at 
levels lower than 160 dB during periods of important biological 
behavior (migration) but possibly not during other important periods 
(feeding). As a result, to reduce the uncertainty over whether these 
same avoidance characteristics will occur in the Chukchi Sea as they 
appear to have in the Beaufort Sea, MMS and NMFS have established 
conservative ZOIs where additional mitigation measures could be imposed 
to further protect these species during critical periods in Arctic 
waters.
    Comment 13: In submitted comments on the MMS Draft PEA, (and 
referenced by CBD), NRDC states that MMS' calculations of PTS may be 
based on an improper model (i.e. traditional, linear models 
underestimate harm) and that MMS should lower its estimate for auditory 
injury. They cite Kastak et al. (2005) for this contention.
    Response: Kastak et al. (2005) note the non-linear growth of TTS 
for relatively small magnitude shifts ( <6 dB) and the inadequacy of a 
linear model using only these data in predicting the growth of TTS with 
exposure level for a wider range of exposures. It is well known that 
the TTS growth function is sigmoidal and thus it is misleading to 
describe it solely based on exposures that generate only small-
magnitude TTS (where the slope of the growth function is relatively 
shallow). For a wide range of exposures, however, there is a steeper, 
linear portion of the sigmoidal function and a fairly consistent 
relationship between exposure magnitude and growth of TTS. The slope of 
this relationship is relatively well-known for humans (on the order of 
1.6 dB TTS/dB noise (Ward et al., 1958; 1959)). While it is not well-
understood for marine mammals (because studies to date have yet to 
induce sufficiently large TTS values to properly assess it), the slope 
of this portion of the function predicted by the Kastak et al.(2005) 
data fit with the curvilinear approximation (based on Maslen, 1981), 
and was found to be comparable. Therefore, estimations of PTS from TTS 
onset that use a linear growth function with the steepest slope from a 
curvilinear function are very likely appropriate and in fact a 
conservative approximation, based on the information available at this 
time.
    Comment 14: In a footnote to the above comment, NRDC notes that 
NMFS adopted a higher criterion for pinnipeds (190 dB rms) despite the 
1997 HESS (High Energy Seismic Survey) Workshop declining to set this 
higher criterion. The NRDC claims that this is in violation of the 
Administrative Procedure Act and the Data Quality Act.
    Response: The 190 dB threshold for pinnipeds was not based on the 
HESS Workshop but came out of a follow-up workshop on acoustics in 1998 
(Gentry, 1998). Workshop participants included the same scientists as 
the HESS Workshop.
    Comment 15: With regard to bowhead whales, the CBD says NMFS' 
requires conclusive evidence of harm before it will find more than a 
negligible impact from Shell's activity. This is not the standard.
    Response: NMFS believes that CBD is referring to a sentence which 
reads: ``Additionally, Shell cites Richardson and Thomson [eds]. (2002) 
that there is no conclusive evidence that exposure to sounds exceeding 
160 db have displaced bowheads from feeding activity.'' This statement 
was made by Shell, not NMFS. However, empirical information cannot be 
ignored when making the required determinations under the MMPA.
    Comment 16: The Commission continues to question NMFS' definition 
of temporary threshold shift (TTS) in marine mammal hearing as 
constituting Level B Harassment. Clearly an animal's survival depends 
on its ability to detect and protect itself from threats. If because of 
temporarily compromised hearing it is unable to display a normal 
behavioral reaction to events in its environment (e.g., to detect 
predators or respond to warnings of danger from conspecifics, it is at 
a significantly greater risk of being seriously injured or killed. 
Therefore, the Commission reiterates its recommendation that NMFS 
revise its definition of TTS to include the potential for Level A 
harassment due to secondary effects of temporary hearing loss.
    Response: This issue has been addressed several times by NMFS in 
the past (see 70 FR 48675, August 19, 2005; 66 FR 22450, May 4, 2001). 
As stated in those documents, NMFS is using the best scientific 
information available on this subject. The Commission's argument for 
considering TTS as both Level A harassment and Level B harassment is 
based on conjecture on what might occur if a marine mammal with 
compromised hearing was at a disadvantage for survival. As noted 
previously, it is likely that marine mammals evolved certain behavioral 
responses to address natural loud noises in the environment (for 
example, billions of lightning strikes per year on the ocean at about 
260 dB peak), by changes in conspecific spatial separation.

Cumulative Effects Concerns

    Comment 17: The Commission questions whether there is a sufficient 
basis for concluding that the cumulative

[[Page 50034]]

effects of the proposed activities, coupled with past and prospective 
activities in the Beaufort and Chukchi seas, will be negligible for 
bowhead whales and other marine mammal species. The CBD. citing 
Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004), believes that 
individual IHA review and not a cumulative impact review is 
inappropriate and should address impacts from multi-activities over 
multi-years, both onshore and offshore Alaska. The CBD also states that 
NMFS' failure to address global warming as a cumulative effect renders 
its negligible findings invalid.
    Response: Under section 101(a)(5)(D) of the MMPA, NMFS is required 
to determine whether the taking by the IHA applicant's specified 
activity will have a negligible impact on the affected marine mammal 
species or population stocks. Cumulative impact assessments are NMFS' 
responsibility under NEPA, not the MMPA. In that regard, the MMS' Final 
PEA addresses cumulative impacts, as did its Draft PEA. The PEA's 
cumulative activities scenario and cumulative impact analysis focused 
on oil and gas-related and non-oil and gas-related noise-generating 
events/activities in both Federal and State of Alaska waters that were 
likely and foreseeable. Other appropriate factors, such as Arctic 
warming, military activities and noise contributions from community and 
commercial activities were also considered. Appendix D of that PEA 
addresses similar comments on cumulative impacts, including global 
warming. That information is incorporated in this document by citation. 
NMFS has adopted the MMS Final PEA and it is part of NMFS' 
Administrative Record. Finally, the proposition for which CBD cites 
Anderson was in the context of the court's analysis under NEPA, not 
MMPA section 101(a)(5)(D), which was not at issue in Anderson.
    Comment 18: The Commission notes that NMFS should consider the 
cumulative effects of the University of Texas at Austin's (UTA) seismic 
survey planned for this summer in the northern Chukchi Sea in 
combination with the three seismic surveys proposed by the oil industry 
and require similar, comprehensive monitoring and mitigation measures 
for that program as well.
    Response: See previous response on cumulative impacts. The UTA 
program is a separate action that was under internal NMFS review 
following the public comment period at the time the Shell IHA decision 
was issued (see 71 FR 27997, May 15, 2006). Essentially, seismic survey 
is significantly further north in the Chukchi Sea than are the oil 
company surveys, is for a shorter period of time during the summer, 
will have completed its work weeks prior to the bowhead migration and 
establishes very conservative safety zones to protect marine mammals.

Subsistence Concerns

    Comment 19: The Nanuuq Commission requests that someone from MMS or 
NMFS attend the Ice Seal Committee's July meeting to share information 
on the proposed seismic surveys and to respond to questions from the 
Committee. Issues for discussion include mitigation and monitoring for 
long-term effects on marine mammals and subsistence hunting due to 
increased vessel traffic in the area.
    Response: NMFS understands that the July meeting was cancelled. The 
next meeting is scheduled for October. NMFS plans to attend this 
meeting.
    Comment 20: The NVPH objects to any oil and gas activities as 
referenced in Resolution 06-05, based on concerns relating to NEPA, 
consultation and cooperation with the oil industry, and impacts on 
marine mammal resources. The CBD notes that the Villages of Kaktovik 
and Point Hope have passed resolutions opposing the proposed seismic 
surveys due to impacts on the subsistence hunt of bowheads and other 
species. In light of the positions of these communities, the CBD does 
not see how NMFS can lawfully make the findings required under the MMPA 
for Shell's proposed IHA.
    Response: NMFS acknowledges that these villages have passed 
resolutions objecting to offshore oil development. However, the village 
whaling captains of these villages (in addition to villages of Nuiqsuk 
and Wainwright and the AEWC) have signed a Programmatic CAA indicating 
to NMFS that there will not be an unmitigable adverse impact on 
subsistence uses of marine mammals. (see Impact on Subsistence).
    Comment 21: The AEWC states that under the MMPA, NMFS must impose 
mitigation measures sufficient to ensure that authorized activities 
will not have ``an unmitigable adverse impact'' on the availability of 
marine mammals for taking for subsistence uses. To accomplish this 
level of protection, NMFS must evaluate the activities within the 
context of the many other industrial operations expected this year, 
including (1) seismic operations in the Canadian Beaufort Sea, (2) 
vessel traffic associated with NPRA, and (3) ongoing operations at 
Northstar.
    Response: While acknowledging increasing industrialization of the 
Arctic Ocean and resultant impacts on the subsistence lifestyle of its 
inhabitants, section 101(a)(5)(D)(i) limits the scope of this 
determination to the specified activity. However, NMFS works 
cooperatively with the AEWC to ensure that activities that might result 
in marine mammal harassment and have an impact on their availability 
for subsistence uses are fully analyzed for their impacts on 
subsistence and are the subject of a CAA.
    Comment 22: The AEWC is also concerned that Chukchi Sea seismic 
operations to the west of Barrow, combined with Shell's proposed 
Beaufort Sea operations and other Beaufort Sea industrial operations, 
including FEX barging and work at Oooguruk could combine to drive the 
fall migration offshore, out of reach of whalers before the whales 
reach Barrow.
    Response: See previous response. Shell's Chukchi Sea proposed 
seismic operation locations are at least one hundred miles southwest of 
Barrow and, therefore, are unlikely to impact the fall Barrow 
subsistence hunt. Incidentally, FEX signed a CAA with the AEWC to 
restrict barging operations during the subsistence hunt. Shell and the 
other seismic companies also signed a CAA that prohibits most seismic 
operations in the Beaufort Sea during the subsistence hunt and limits 
activities affecting hunts in the Chukchi Sea.
    Comment 23: The AEWC notes that it has attempted through a CAA to 
craft mitigation measures to protect the fall bowhead whale subsistence 
hunt. The whaling captains of the Villages of Barrow, Nuiqsut and 
Kaktovik have established operating limitations applicable to seismic 
operations during the fall bowhead whale migration and subsistence 
hunt. The AEWC hopes these operating limitations will be effective 
despite the extraordinary level of industrial activity planned during 
the bowhead migration, in Alaskan as well as Canadian Arctic. The AEWC 
notes that if these mitigation measures are not adequate to protect the 
subsistence hunt, the AEWC will work with seismic operators and NMFS to 
address the concerns of the subsistence hunters.
    Response: As noted in the AEWC letter, the signed CAA excludes 
seismic operations in the near-shore polyna (although it will be 
necessary in future years for CAAs to address the Alaska Current). 
Also, Shell has agreed not to commence seismic operations in the 
Chukchi Sea before July 15, to reduce impacts on the beluga hunt. 
Additional mitigation requirements are addressed later in this document 
(see Plan of Cooperation).

[[Page 50035]]

Monitoring Concerns

    Comment 24: The Commission recommends that if NMFS decides to issue 
the IHA it should require all practical monitoring and mitigation 
measures to protect bowhead and other marine mammals from behavioral 
disturbance and to ensure their availability to Alaska Natives for 
subsistence purposes. To ensure additional protection to bowhead 
whales, and other marine mammals, and to obtain as much information as 
possible on the effects of the proposed (seismic) studies on marine 
mammals, the Commission recommends that NMFS also require: (1) The use 
of passive acoustic arrays from the seismic and/or support vessels and 
a passive net array along the Chukchi Sea coast as recommended by 
participants at NMFS' open water meeting in Anchorage, AK on April 19-
20, 2006; and (2) pre- and post-operation aerial surveys to supplement 
real-time monitoring for the presence of bowhead whales and other 
marine mammal species within the proposed action areas, out to the 120-
dB isopleth. Finally, the Commission notes that it will be important to 
assess the efficacy of such surveys to determine their value and 
reliability in monitoring potential effects.
    Response: NMFS considered these recommendations and discusses the 
required monitoring and mitigation programs required under the IHAs in 
this Federal Register notice.
    Comment 25: The CBD states that the MMPA authorizes NMFS to issue 
an incidental 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 (notice) largely ignores this statutory requirement.
    Response: NMFS believes Shell and the other seismic survey 
operators in the Chukchi and Beaufort seas will be implementing a 
comprehensive monitoring and marine mammal research program that is 
fully capable of providing information on impacts from the seismic 
surveys and supporting NMFS' determinations that the activity will 
result in takes of small numbers of marine mammals, have a negligible 
impact on affected species and stocks and not have an unmitigable 
impact on the availability of marine mammals for subsisence. Mitigation 
measures were addressed previously (see previous comments 7 and 8; also 
see the Mitigation and Monitoring sections later in this document).
    Comment 26: The CBD notes that the proposed IHA notice suggests 
NMFS will require additional measures of Shell so as to be able to 
comply with NEPA, such as expanded safety zones for bowhead and gray 
whale, and having those zones monitored effectively in order to remain 
within the scope of the PEA. While in agreement, CBD notes that such 
additional measures are also required to comply with the MMPA. As such 
they should be explicitly spelled out in the proposed IHA (notice) and 
subject to public comment.
    Response: A detailed description of the monitoring program 
submitted by Shell was provided in Shell's application and cited in the 
Federal Register notice of the proposed IHA. That notice also provided 
a description of ongoing discussions regarding improvements to Shell's 
monitoring program including aerial monitoring and using passive 
acoustics. As a result of a dialogue on monitoring by scientists and 
stakeholders attending NMFS' public meeting in Anchorage in April, the 
industry expanded on its monitoring program in order to fulfill its 
responsibilities under the MMPA. The only addition to the monitoring 
program that was not offered for public review at the time was a 
research component designed to provide baseline data on marine mammals 
for future operations planning. This research program includes: (1) an 
acoustic program to measure sounds produced by seismic vessels 
(mentioned in the proposed IHA notice); (2) aerial monitoring and 
reconnaissance of marine mammals available for subsistence harvest 
along the Chukchi Sea coast; (3) research vessel surveys of the Chukchi 
Sea, including a towed hypdrophone passive acoustic monitoring (PAM) 
system to collect data on the distribution and abundance of marine 
mammals; and (4) deployment of, and later analysis of data from, 
bottom-founded autonomous acoustic recorder arrays along the coast of 
the Chukchi Sea to record ambient sound levels, vocalizations of marine 
mammals, and received levels of seismic operations should they be 
detectable. As a result of the workshop discussions a draft monitoring 
program was provided to workshop participants around April 26, 2006 and 
a revised plan distributed in mid-May. Scientists from NMFS and the NSB 
are continuing discussions to ensure that the research effort obtains 
the best scientific information possible.
    The proposed joint-industry research plan (which is a separate plan 
from the individual applicant monitoring plans) was not available prior 
to publication of the proposed IHA Federal Register notice on May 3, 
2006 (71 FR 26055) and could not be detailed without significantly 
delaying the public comment period on Shell's application. It should be 
noted that this research monitoring program follows the guidance of the 
Commission's recommended approach for monitoring seismic activities in 
the Arctic (Hofman and Swartz, 1991), that additional research might be 
warranted when impacts to marine mammals would not be detectable as a 
result of vessel observation programs.
    Comment 27: The AEWC notes the MMPA requires that authorizations 
for incidental take in Arctic waters include: ``requirements for the 
monitoring and reporting of such taking by harassment, including the 
requirements for independent peer review of proposed monitoring plans. 
`` The MMPA and NMFS' regulations are clear that any monitoring plan 
accompanying an IHA for activities in Arctic waters and potentially 
affecting subsistence uses of marine resources shall be subject to 
independent peer review. The agency has no discretion in this regard. 
Since Shell has not prepared a legally adequate monitoring plan, 
independent peer review of such a plan has not been possible. Given the 
strict requirements governing timing of agency and public review of an 
IHA application, such independent peer review will not occur as part of 
this process.
    Response: Shell submitted its monitoring plans for the Beaufort and 
Chukchi seas as part of its application. NMFS noted the availability of 
the application and monitoring plans on May 3, 2006 (71 FR 26055). 
Shell also made its application available to the AEWC and the NSB and 
its Department of Wildlife at the time of its application to NMFS and 
held meetings on its activity with affected communities beginning in 
the spring, 2006. Shell's Beaufort and Chukchi Sea monitoring plans 
were the subject of discussion at the NMFS' peer-review workshop in 
April, 2006. This workshop is the means used by NMFS to meet the 
requirement for peer-review. As a result of discussions at the April, 
2006 workshop, Shell and others proposed conducting additional 
monitoring and research. That proposal was completed on April 26, 2006, 
and reviewed by NSB and NMFS scientists. Comments were submitted by the 
NSB Department of Wildlife Management on May 18, 2006. A revised 
research plan was released on June 9, 2006 and is currently being 
reviewed by scientists.

[[Page 50036]]

Mitigation Concerns

    Comment 28: The CBD recommends NMFS deny an IHA to Shell unless and 
until NMFS can ensure that mitigation measures are in place to truly 
avoid adverse impacts to all species and their habitats.
    Response: NMFS is required to prescribe means of effecting the 
least practicable (adverse) impact (i.e., mitigation), not to ensure 
that no adverse impacts occur. NMFS believes that the mitigation 
measures required under Shell's IHA will reduce levels to the lowest 
level practicable. Inherent in implementing these mitigation measures 
is some level of uncertainty on the distribution and abundance of 
cetaceans in the Chukchi Sea and on whether the acoustic impacts 
observed in the Beaufort Sea also occur in the Chukchi Sea.
    Comment 29: The CBD believe