Taking Marine Mammals Incidental to Specified Activities; Seismic Surveys in the Beaufort and Chukchi Seas, 66106-66142 [E8-26269]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 216 (Thursday, November 6, 2008)]
[Notices]
[Pages 66106-66142]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-26269]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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

Federal Register / Vol. 73, No. 216 / Thursday, November 6, 2008 / 
Notices

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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.

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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 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: https://
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

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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

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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

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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

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(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

[[Page 66111]]

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

[[Page 66112]]

(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.

[[Page 66113]]

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

[[Page 66114]]

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 m