Small Takes of Marine Mammals Incidental to Specified Activities; Open-water Marine Survey Program in the Chukchi Sea, Alaska, During 2009-2010, 55368-55412 [E9-25545]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 206 (Tuesday, October 27, 2009)]
[Notices]
[Pages 55368-55412]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-25545]



[[Page 55367]]

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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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Small Takes of Marine Mammals Incidental to Specified Activities; Open-
water Marine Survey Program in the Chukchi Sea, Alaska, During 2009-
2010; Notice

Federal Register / Vol. 74, No. 206 / Tuesday, October 27, 2009 / 
Notices

[[Page 55368]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XP00


Small Takes of Marine Mammals Incidental to Specified Activities; 
Open-water Marine Survey Program in the Chukchi Sea, Alaska, During 
2009-2010

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

ACTION:  Notice; issuance of an incidental take authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to Shell Offshore Inc. and 
Shell Gulf of Mexico Inc., collectively known as Shell, to take, by 
harassment, small numbers of 12 species of marine mammals incidental to 
an open-water marine survey program, which includes shallow hazards and 
site clearance work and strudel scour surveys, in the Chukchi Sea, 
Alaska, during the 2009/2010 Arctic open-water season.

DATES: Effective August 19, 2009, through August 18, 2010.

ADDRESSES: A copy of the application containing a list of the 
references used in this document, two addenda to the application, NMFS' 
Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI), and the IHA may be obtained by writing to the address 
specified above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the Internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    Documents cited in this notice may be viewed, by appointment, 
during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 713-2289 or Brad Smith, NMFS, Alaska Region, 
(907) 271-3023.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``... an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. Except 
with respect to certain activities not pertinent here, the MMPA defines 
``harassment'' as:

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

    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorization 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 December 15, 2008, NMFS received an application from Shell for 
the taking, by Level B harassment only, of small numbers of several 
species of marine mammals incidental to conducting an open-water marine 
survey program during the 2009/2010 Arctic open-water season in the 
Chukchi Sea. Shell plans to conduct site clearance and shallow hazards 
surveys and a strudel scour survey in the Chukchi Sea. These surveys 
are a continuation of those conducted by Shell in the Chukchi Sea in 
2008. Shell's December 2008, application also requested MMPA coverage 
for site clearance and shallow hazards surveys, an ice gouge survey, 
and a strudel scour survey in the Beaufort Sea and an ice gouge survey 
in the Chukchi Sea for the 2009/2010 season. However, in an addendum to 
the IHA application submitted to NMFS on March 10, 2009, Shell 
indicated that it cancelled all survey programs for the Beaufort Sea 
and the ice gouge survey for the Chukchi Sea in 2009. Shell submitted a 
second application addendum on May 19, 2009, indicating that Shell will 
utilize an array of 4 x 10 in\3\ guns (40 in\3\ total discharge volume) 
instead of the 2 x 10 in\3\ array (20 in\3\ total discharge volume).
    Site clearance and shallow hazards surveys will evaluate the 
seafloor and shallow sub-seafloor at prospective exploration drilling 
locations, focusing on the depth to seafloor, topography, the potential 
for shallow faults or gas zones, and the presence of archaeological 
features. The types of equipment used to conduct these surveys use low 
level energy sources focused on limited areas in order to characterize 
the footprint of the seafloor and shallow sub-seafloor at prospective 
drilling locations.

Description of the Specified Activity

Chukchi Site Clearance and Shallow Hazards Surveys

    Site clearance and shallow hazards surveys of potential proposed 
locations for exploration drilling will be executed as required by the 
Minerals Management Service's (MMS) regulations. 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). Site clearance and 
shallow hazards surveys can be accomplished by one vessel with acoustic 
sources. A detailed overview of the activities of this survey was 
provided in the Notice of Proposed IHA (74 FR 26217, June 1, 2009). 
Since publication of that notice, Shell updated two pieces of 
information. First, the R/V Mt. Mitchell will be utilized as the source 
vessel for the site clearance and shallow hazards surveys. The R/V Mt. 
Mitchell is a diesel powered vessel, 70 m (231 ft) long, 12.7 m (42 ft) 
wide, with a 4.5 m (15 ft) draft. Second, the specific prospects within 
Outer Continental Shelf (OCS) Lease Sale (LS) 193 have been identified. 
Shell will conduct the surveys at the Burger and Crackerjack prospects 
and, if time and weather conditions permit, at SW Shoebill. Additional 
information is also

[[Page 55369]]

contained in Shell's application and application addenda, which are 
available for review (see ADDRESSES).

Chukchi Strudel Scour Survey

    During the early melt, 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 
erosional areas are called ``strudel scours''. Information on these 
features is required for prospective pipeline planning. Two proposed 
activities are required to gather this information: aerial survey via 
helicopter overflights during the melt to locate the strudels and 
strudel scour marine surveys to gather bathymetric data. Additional 
information was provided in the Notice of Proposed IHA (74 FR 26217, 
June 1, 2009) and Shell's application (see ADDRESSES).

Comments and Responses

    A notice of receipt of Shell's MMPA application and NMFS' proposal 
to issue an IHA to Shell published in the Federal Register on June 1, 
2009 (74 FR 26217). That notice described, in detail, Shell's proposed 
activity, the marine mammal species that may be affected by the 
activity, and the anticipated effects on marine mammals. During the 30-
day public comment period, NMFS received six comment letters from the 
following: the Marine Mammal Commission (MMC); Ocean Conservancy and 
Oceana; the Alaska Eskimo Whaling Commission (AEWC); the Inupiat 
Community of the Arctic Slope (ICAS); the North Slope Borough (NSB) 
Office of the Mayor and NSB Department of Wildlife Management 
(collectively ``NSB''); and Alaska Wilderness League (AWL), Center for 
Biological Diversity, Defenders of Wildlife, Earthjustice, Natural 
Resources Defense Council, Northern Alaska Environmental Center, 
Pacific Environment, Sierra Club, The Wilderness Society, and World 
Wildlife Fund (collectively ``AWL''), along with an attached letter 
from David E. Bain, Ph.D.
    Both AEWC and NSB submitted several journal articles as attachments 
to their comment letters. NMFS acknowledges receipt of these documents 
but does not intend to address the specific articles themselves in the 
responses to comments. AEWC also submitted an unsigned, final version 
of the 2009 Conflict Avoidance Agreement (CAA). However, Shell signed 
the CAA on June 24, 2009. Some of NSB's comments were specific to the 
application and do not have a bearing on NMFS' determinations for 
issuing an IHA. For example, NSB pointed out that Figure 1 in Shell's 
application failed to identify the Alaska Maritime National Wildlife 
Refuge north of Point Lay and asked that the figure be revised. Those 
comments have been passed on to Shell for consideration in future IHA 
applications. Any application specific comments that address the 
statutory and regulatory requirements or findings NMFS must make to 
issue an IHA are addressed in this section of the Federal Register 
notice. Additionally, some of NSB's comments concerned the Beaufort Sea 
operations or ice gouge surveys. As noted above and in the Notice of 
Proposed IHA (74 FR 26217, June 1, 2009), Shell notified NMFS that it 
did not intend to conduct these activities; therefore, no marine 
mammals will be taken. Comments on the Beaufort operations and Chukchi 
ice gouge survey are not addressed in this document.

General Comments

    Comment 1: AWL believes that NMFS should not issue incidental take 
authorizations for oil and gas-related seismic surveying until NMFS and 
other agencies complete a comprehensive review of both the industrial 
activities and the marine resources of the Arctic. This review should 
ensure that critical information gaps relating to the Arctic are filled 
and that decisions made about Arctic activities are made in the context 
of a comprehensive plan for the region. In the interim, NMFS should not 
facilitate further potentially harmful seismic activity.
    Response: In order to issue an authorization pursuant to Section 
101(a)(5)(D) of the MMPA, NMFS must determine that the authorized 
activity will take only small numbers of marine mammals, will have a 
negligible impact on affected species or stocks, and will not have an 
unmitigable adverse impact on affected species or stocks for 
subsistence uses. If NMFS is able to make these findings, the Secretary 
is required to issue an IHA. In the case of Shell's activities for 
2009/2010 (as described in the application, the Notice of Proposed IHA 
(74 FR 26217, June 1, 2009) and this document), NMFS determined that 
the authorized activity met the requirements of Section 101(a)(5)(D) of 
the MMPA. Additionally, as described later in this section and 
throughout this document, NMFS has determined that Shell's activities 
will not result in injury or mortality of marine mammals.
    Comment 2: AWL, ICAS, and Ocean Conservancy and Oceana note that 
Shell's activities will occur on leases that were acquired in OCS LS 
193, which was conducted pursuant to MMS' 2007-2012 Five-Year Leasing 
Program. This leasing program is part of on-going litigation. NMFS 
should not issue IHAs for activities on these leases until the 
litigation is resolved.
    Response: NMFS is aware of the litigation in the U.S. Court of 
Appeals for the D.C. Circuit, but we disagree with the commenter's 
assertion that NMFS should not issue IHAs for activities on these 
leases until the litigation is resolved. Although the court issued an 
opinion vacating and remanding the 5-yr lease program to MMS, it also 
issued an order (on July 28, 2009) staying its mandate. MMS informed 
the court that it would complete remand proceedings as soon as possible 
and that, in the meantime, it would continue to review and act upon 
exploration plans for Chukchi Sea leases. MMS stated, however, that it 
would suspend activities under any approved plan pending the Secretary 
of the Interior's reconsideration decision on the remanded program, 
thereby halting all but data gathering ancillary activities on Chukchi 
Sea leases. Shell's 2009 operations are unaffected by the litigation 
because they are data gathering ancillary activities. Therefore, NMFS 
has concluded it was appropriate to issue an IHA to Shell for its 2009 
seismic operations.
    Comment 3: ICAS points out that Native communities in Alaska have 
long been ignored in the race to find and develop offshore oil and gas 
resources and that the U.S. Government has consistently failed to 
comply with legal requirements that require consultation with local 
Native communities as proposals are being developed that affect native 
environments. Instead, both Federal agencies and the entities they 
permit make only token gestures at consultations with Native groups 
offering them only the opportunity for involvement after proposals are 
developed and after local knowledge would serve a useful purpose.
    Response: Regulations at 50 CFR 216.104(a)(12) require applicants 
for IHAs in Arctic waters to submit a Plan of Cooperation (POC), which, 
among other things, requires the applicant to meet with affected 
subsistence communities to discuss the proposed activities. 
Additionally, for many years, NMFS has conducted the Arctic Open-water 
Meeting, which brings together the Federal agencies, the oil and gas 
industry, and affected Alaska Native organizations to discuss the 
proposed activities and monitoring plans. Local knowledge is considered 
at these times, and it is not too late for that knowledge to serve a 
useful purpose.

[[Page 55370]]

    Comment 4: Executive Order 13175 requires Federal agencies to 
conduct government-to-government consultation when undertaking to 
formulate and implement policies that have tribal implications. Despite 
this explicit requirement, ICAS believes that NMFS has failed to 
consult with governing bodies of Native people who will be and have 
been affected by the decisions NMFS is making under the MMPA. NMFS must 
meet with ICAS and local Native villages on a government-to-government 
basis to discuss the proposed IHA, as well as appropriate mitigation 
and monitoring requirements.
    Response: NMFS recognizes the importance of the government-to-
government relations and has taken steps to ensure that Alaska Natives 
play an active role in the management of Arctic species. For example, 
NOAA and the AEWC co-manage bowhead whales pursuant to a cooperative 
agreement. This agreement has allowed the AEWC to play a significant 
role in the management of a valuable resource by affording Alaska 
Natives the opportunity to protect bowhead whales and the Eskimo 
culture and to promote scientific investigation, among other purposes.
    In addition, NMFS works closely with Alaska Natives when 
considering whether to permit the take of marine mammals incidental to 
oil and gas operations. NMFS has met repeatedly over the years with 
Alaska Native representatives to discuss concerns related to NMFS' MMPA 
program in the Arctic, and has also taken into account recommended 
mitigation measures to reduce the impact of oil and gas operations on 
bowhead whales and to ensure the availability of marine mammals for 
taking for subsistence uses. Finally, NMFS has participated in Alaska 
Native community meetings in the past and will continue to do so, when 
feasible. NMFS will continue to ensure that it meets its government-to-
government responsibilities and will work closely with Alaska Natives 
to address their concerns.
    Comment 5: Ocean Conservancy and Oceana believe that Shell's 
activities could substantially affect marine mammals in an area already 
impacted by climate change and particularly vulnerable to ocean 
acidification. Approving an IHA in these circumstances would be 
contrary to NMFS' responsibilities under the law.
    Response: NMFS believes that it has made all of the necessary 
determinations in order to issue an IHA pursuant to Section 
101(a)(5)(D) of the MMPA. NMFS has determined that Shell's activities 
will affect only small numbers of marine mammals, will have a 
negligible impact on the affected species and stocks, and will not have 
an unmitigable adverse impact on the availability of such species or 
stock for taking for subsistence purposes, provided the mitigation 
measures described later in this document are implemented. NMFS 
completed an EA to analyze the impacts of cumulative activities on the 
affected species in the action area, including climate change.
    Comment 6: AEWC and NSB expressed three concerns with the timing of 
IHA applications. First, they ask that only one authorization be issued 
per calendar year or per operating season for work associated with a 
specific project. Secondly, NMFS should ensure that IHA applications 
are submitted at least 1 month prior to the April Open-water Meeting or 
comparable peer review meetings that may ultimately replace such 
meetings. This will allow Native communities to receive draft POCs and 
proposed mitigation measures sufficiently in advance of these meetings 
to allow for meaningful discussion of any identified major flaws, 
evaluation of suggested improvements that draw upon our particular 
local expertise, and consideration of appropriate peer reviewers. 
Lastly, they request that NMFS change the expiration date for 
authorizations so that a single calendar year is authorized rather than 
activities in the latter part of one calendar year and the early part 
of the following year.
    Response: Regarding the first and third points, Section 
101(a)(5)(D) of the MMPA allows NMFS to issue IHAs ``for periods of not 
more than 1 year.'' There is no requirement that the period of 
effectiveness of an IHA fall within 1 calendar year or operating 
season. In instances where the period of effectiveness of an IHA would 
cover more than one operating season (i.e., there is considerable 
downtime between the start and finish of the operations), NMFS analyzes 
impacts for the entire extent of the operations when issuing the IHA. 
Regarding the second point about distribution of applications, NMFS 
cannot guarantee that all applications will be submitted to NMFS at 
least 1 month prior to the meeting. NMFS has a unique relationship with 
AEWC pursuant to a cooperative agreement. Pursuant to this agreement, 
NOAA is required to consult with AEWC on any action undertaken or 
proposed to be undertaken that may affect the bowhead whale and/or 
subsistence whaling. To that end, NMFS will make every effort to 
provide the AEWC with as much information as possible prior to the 
Open-water Meeting or comparable peer review meeting. However, it is 
NMFS' practice not to release applications for MMPA authorizations 
until NMFS deems them complete and a proposed IHA notice or notice of 
receipt of an application for rulemaking has published in the Federal 
Register.
    Comment 7: NSB notes that Shell's application indicates that 
several vessels will be involved in the 2009-2010 period, involving 
various transit routes that are to be used to reach the Arctic survey 
sites. There is an absence of discussion of impacts and ``takes'' that 
may occur upon these transit routes. Shell needs to consider and state 
the impacts sufficiently. Additionally, Shell should consider other 
stocks of belugas beyond the Beaufort and Chukchi sea stocks, as 
impacts may occur in Bristol Bay during ship transit.
    Response: As has been stated in several Federal Register notices in 
the past, normal shipping and transit operations do not rise to a level 
requiring an authorization under the MMPA. To require IHAs and Letters 
of Authorization (LOAs) for standard shipping would reduce the ability 
of NMFS to review activities that have a potential to cause harm to 
marine mammal populations. For example, in the Arctic Ocean, NMFS would 
need to issue authorizations for barging operations that supply the 
North Slope villages in addition to various onshore and offshore oil 
and gas projects. However, on this matter, Shell will (in keeping with 
the CAA signed by Shell) follow transit routes contained in the CAA to 
avoid conflicts with subsistence hunters.
    Comment 8: NSB states that NMFS should not issue Shell an IHA for 
the strudel scour surveys in 2010, as they are substantially different 
from the shallow hazards and site clearance surveys. Additionally, it 
is not clear what other activities might be occurring in 2010, so it is 
not possible to evaluate the potential cumulative impacts from multiple 
activities that might occur in 2010. If NMFS does issue Shell an IHA 
for that survey, estimated takes and monitoring are needed. Additional 
information is needed from Shell about the possible impacts to marine 
mammals, monitoring plans, and mitigation measures from helicopter 
surveys over the sea ice. NMFS needs to make this additional 
information available to the public and decision makers for review and 
comment before it issues an IHA to Shell for strudel scour surveys in 
2010. NSB also notes that the number of days of operation for

[[Page 55371]]

the strudel scour surveys is not consistent throughout the application.
    Response: The activities for the strudel scour survey are described 
in Shell's application and the proposed IHA in order to describe the 
full scale of Shell's operations. However, NMFS has determined that the 
activities for the strudel scour survey will not result in take of 
marine mammals. While the sonar equipment proposed to be used for this 
project generates high sound energy, the equipment operates at 
frequencies (>100 kHz) beyond the effective hearing range of most 
marine mammals likely to be encountered during strudel scour 
operations. Given the direct downward beam pattern of these sonar 
systems coupled with the high-frequency characteristics of the signals, 
the horizontal received levels of 180 and 190 dB re 1 microPa (rms) 
would be much smaller when compared to those from the low-frequency 
airguns with similar source levels. Therefore, NMFS has determined that 
marine mammals will not have a significant behavioral response (i.e., a 
``take'') to the strudel scour surveys. However, Shell needs to 
coordinate these activities with the Native Alaskan communities to 
ensure that there is no unmitigable adverse impact to subsistence 
hunts. As described in the application, two separate activities will 
occur to complete the strudel scour surveys: helicopter overflights and 
marine vessel work. The overflights will take approximately 4 days to 
complete and will occur in mid-May or early June. The marine vessel 
portion of the survey will take approximately 10 days to complete and 
will occur sometime in July or early to mid-August.
    Comment 9: NSB incorporated by reference a December 18, 2008, 
letter sent to the Acting Assistant Administrator for Fisheries, as 
well as NMFS' February 19, 2009, response, asking for suspension and 
review of Shell's 2008-2009 IHA, wherein Shell was allowed to proceed 
with seismic activities despite what was acknowledged by NMFS to be a 
potentially flawed survey design. At that time, NSB asked that no more 
IHAs be issued until compliance with the MMPA could be demonstrated. 
Based on NSB's review of NMFS' current proposed IHA, NSB does not see a 
demonstration of compliance and thus does not support issuance of an 
IHA at this time.
    Response: As was stated in NMFS' February letter responding to 
NSB's concerns, NMFS determined that Shell was in substantial 
compliance with their IHA during the 2008 seismic survey season. No 
additional information has been provided to NMFS to indicate that Shell 
was not in compliance with the IHA. Additionally, NMFS believes that 
Shell will comply with the monitoring and mitigation measures required 
in the 2009 IHA.

MMPA Concerns

    Comment 10: AWL, NSB, and AEWC state that NMFS cannot issue an IHA 
or a LOA (because NMFS has not promulgated regulations for mortality by 
seismic activities) to Shell for its activities since they carry the 
potential for serious injury or death to marine mammals. AEWC also 
believes that because Level A harassment is possible, an LOA is needed.
    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 
Shell's surveys will result in serious injury or mortality, thus 
obviating the need for a LOA. As explained throughout 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). Based on the analysis contained in the ``Potential Effects of 
Survey Activities on Marine Mammals'' section in the Notice of Proposed 
IHA (74 FR 26217, June 1, 2009), NMFS has determined that an IHA can 
lawfully be issued to Shell for their activities since the already 
unlikely potential for serious injury or mortality will be reduced even 
further through the incorporation of the mitigation and monitoring 
measures described later in this document and required by the IHA.
    Comment 11: AEWC notes their disappointment in NMFS for releasing 
for public comment an incomplete application from Shell that fails to 
provide the mandatory information required by the MMPA and NMFS' 
implementing regulations. AEWC requests that NMFS return Shell's 
application as incomplete, or else the agency risks making arbitrary 
and indefensible determinations under the MMPA. The following is the 
information that AEWC believes to be missing from Shell's application: 
(1) a POC ``or information that identifies what measures have been 
taken and/or will be taken to minimize any adverse effects on the 
availability of marine mammals for subsistence uses'' (50 CFR 
216.104(a)(12)); (2) a scheduled meeting ``with the affected 
subsistence communities to discuss proposed activities and to resolve 
potential conflicts'' (50 CFR 216.104(a)(12)(ii)); (3) a ``description 
of what measures the applicant has taken and/or will take to ensure 
that proposed activities will not interfere with subsistence whaling or 
sealing'' (50 CFR 216.104(a)(12)(iii)); (4) suggested means of learning 
of, encouraging, and coordinating any research related activities (50 
CFR 216.104(a)(14)); (5) a description of the specified activities and 
specified geographic region (16 U.S.C. 1371(a)(5)(D)(i)); and (6) a 
description of the ``age, sex, and reproductive condition'' of the 
marine mammals that will be impacted (50 CFR 216.104(a)(6)). AWL and 
NSB also note their concern about the lack of specificity regarding the 
timing and location of the site clearance and shallow hazards and 
strudel scour surveys.
    Response: NMFS does not agree that it released an incomplete 
application for review during the public comment period. After NMFS' 
initial review of the application, NMFS submitted questions and 
comments to Shell on its application. After receipt and review of 
Shell's responses, which were submitted as an addendum to the original 
application, NMFS made its determination of completeness and released 
the application, addenda, and the proposed IHA notice (74 FR 26217, 
June 1, 2009). Regarding the six specific pieces of information 
believed to be missing by AEWC, Shell's original application included a 
description of the pieces of information that are required pursuant to 
50 CFR 216.104(a)(12). The application noted that Shell was planning to 
meet with subsistence communities in 2009 and described measures to 
ensure that the applicant's proposed activities will not interfere with 
subsistence whaling or sealing. The proposed IHA notice (74 FR 26217, 
June 1, 2009) also noted meetings that had already taken place in the 
villages of Barrow, Point Hope, Point Lay, Wainwright, and Kotzebue. 
Moreover, on May 15, 2009, Shell distributed its draft POC for the 2009 
activities to NMFS, other government agencies, and affected stakeholder 
communities.
    Information required pursuant to 50 CFR 216.104(a)(14) was also 
included in Shell's application. Shell provided a list of researchers 
who could potentially receive results of their research activities who 
may find the data useful in their own research. Additionally, Shell and 
ConocoPhillips will be

[[Page 55372]]

working together in 2009 to deploy an intensive array of acoustic 
recorders around both the Burger and Klondike prospects in the Chukchi 
Sea.
    NMFS also determined that Shell's application provides descriptions 
of the specified activities and specified geographic region. 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. Chukchi Sea meets Congressional intent 
and NMFS' definition because the region has similar geographic, 
physiographic (e.g., topography, temperature, sea ice), biologic (e.g., 
marine fauna (fish and marine mammals)), and sociocultural 
characteristics. Shell's application noted that the applicant would 
conduct activities on some of its prospects gained during LS 193, which 
itself is considered a ``specified geographic region.'' Since that 
time, Shell has informed NMFS of the specific areas within the lease 
holdings on which Shell intends to conduct the site clearance and 
shallow hazards surveys. They are the Burger and Crackerjack prospects, 
as well as SW Shoebill if time and weather conditions allow. At this 
time, more specificity on the location of the in-water portion of the 
strudel scour surveys cannot be provided. Until areas with strudel 
scour are revealed during helicopter overflights, it is uncertain the 
exact location along the Chukchi Sea coast where marine vessel 
operations will occur. However, as previously mentioned, the Chukchi 
Sea itself is considered a ``specified geographic region.'' Shell also 
provided a description of the types of equipment that would be used and 
time frame for conducting its activities. Therefore, NMFS believes that 
Shell's description of the activity and the locations for conducting 
their surveys meet the requirements of the MMPA.
    Lastly, 50 CFR 216.104(a)(6) requires that an applicant submit 
information on the ``age, sex, and reproductive condition (if 
possible)'' (emphasis added) of the number of marine mammals that may 
be taken. In the application, Shell described the species expected to 
be taken by harassment and provided estimates of how many of each 
species were expected to be taken during their activities. In most 
cases, it is very difficult to estimate how many animals, especially 
cetaceans, of each age, sex, and reproductive condition will be taken 
or impacted by seismic or site clearance and shallow hazards surveys. 
In conclusion, NMFS believes that Shell provided all of the necessary 
information to proceed with publishing a proposed IHA notice in the 
Federal Register.
    Comment 12: AEWC and NSB state that Shell did not disclose the full 
spectrum of activities in which it will engage. For example, Shell 
mentions support vessels and other equipment in its application but 
such machinery is not disclosed among Shell's activities. Additionally, 
Shell changed the airgun array it planned to use after submitting its 
application but did not conduct any new analysis of the impacts from 
this change, thus negating its analysis of the impacts from the 
original airgun array. Shell needs to adequately specify the activities 
and impacts of all the actions that will be undertaken in the Chukchi. 
AEWC also states that NMFS relied on surveys conducted in 2008 by Shell 
to calculate the area of ``water exposed to received levels at or above 
160 dB.'' The 2008 surveys, however, were based on signals from ``four 
10 in\3\ airguns,'' and not the 40 in\3\ airguns that Shell now intends 
to use. Thus, for this reason as well, Shell's application must be 
returned.
    Response: NMFS determined that Shell's application and application 
addenda fully described the activities in which Shell will engage. In 
previous years, when Shell conducted its larger, 3D seismic surveys, 
several support vessels were needed to carry out operations. However, 
for this smaller survey, all work will be conducted from the single 
source vessel. All acoustic equipment that will be used to conduct the 
surveys is listed in the application. Shell did change the number of 
airguns and submitted this information to NMFS in their second 
application addendum. In assessing the new airgun array, NMFS 
determined that the potential impacts to marine mammals would be the 
same if the total discharge volume was 20 in\3\ or 40 in\3\. Shell 
submitted revised take estimates based on the new discharge volume and 
ensonified zones. The analysis of impacts from airguns and the revised 
take estimates were contained in the proposed IHA notice (74 FR 26217, 
June 1, 2009). Therefore, NMFS determined that Shell adequately 
specified the activities and impacts of all the actions that will be 
undertaken in the Chukchi Sea.
    The modeled radii that Shell submitted were from sound source 
verification tests conducted in the Chukchi Sea during the 2008 open-
water season by JASCO. JASCO modeled three different airgun 
configurations: 4 x 10 in\3\ airgun array; 2 x 10 in\3\ airgun array; 
and 1 x 10 in\3\ airgun. For 2009, Shell intends to use the 4 x 10 
in\3\ airgun array and not the 40 in\3\ airguns, as noted by AEWC. 
Therefore, this modeling was accurately used by Shell in its submission 
to NMFS.
    Comment 13: NSB and AWL expressed concern that the IHA will cover a 
full year, as the assessment of effects on bowhead whales apparently 
relies in part on the surveys ending before the peak of the bowhead 
fall migration through the Chukchi Sea. Shell indicates that it will 
require a maximum of 50 days of active data acquisition, but it is 
noteworthy that this estimate expressly excludes any unplanned 
downtime. Consequently, Shell could need to survey well into the month 
of October, and the IHA as proposed would allow it to do so. A 1-year 
IHA is clearly not compelled by the MMPA, and an authorization that 
includes a portion of the next open-water season only invites later 
confusion. Although NMFS' analysis of impacts to marine mammals appears 
to consider the entire 50 days of active surveying, the process leaves 
open the possibility of an unjustifiably segmented evaluation of survey 
activity, looking only at a portion of the surveying that will take 
place in a single season. NMFS should take steps to avoid such results.
    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 (approximately July 20 to approximately 
November 15 in the U.S. Beaufort and Chukchi Seas), a period of less 
than 4 months, and even less

[[Page 55373]]

available time if an applicant's activity is located in an area subject 
to area closure due to native subsistence hunting. Provided the IHA 
application includes an analysis of the specified activities during the 
time frame proposed by the applicant, NMFS will consider issuing an IHA 
that extends into a portion of the following year. NMFS evaluated the 
effects of Shell's activities for the full requested time frame, 
including evaluating effects into the following season. Additionally, 
NMFS believes that even if Shell must conduct activities into the 
middle or end of October, the mitigation and monitoring measures 
required by the IHA (described later in this document) will not 
increase the level of impact to marine mammals in the area.
    Comment 14: AEWC and NSB state that NMFS failed to issue a draft 
authorization for public review and comment. The plain language of both 
the MMPA and NMFS' implementing regulations require that NMFS provide 
the opportunity for public comment on the ``proposed incidental 
harassment authorization'' (50 CFR 216.104(b)(1)(i); 16 U.S.C. 1371 
(a)(5)(D)(iii)) and not just on the application itself as NMFS has done 
here. Without a complete draft authorization and accompanying findings, 
AEWC and NSB cannot provide meaningful comments on Shell's proposed 
activities, ways to mitigate the impacts of those activities on marine 
mammals, and measures that are necessary to protect subsistence uses 
and sensitive resources. For example, AEWC cannot ensure that the 
authorization will comport with the requirements of the applicable CAA.
    Response: The June 1, 2009 proposed IHA notice (74 FR 26217) 
contained all of the relevant information needed by the public to 
provide comments on the proposed authorization itself. The notice 
contained the permissible methods of taking by harassment, means of 
effecting the least practicable impact on such species (i.e., 
mitigation), measures to ensure no unmitigable adverse impact on the 
availability of the species or stock for taking for subsistence use, 
requirements pertaining to the monitoring and reporting of such taking, 
including requirements for the independent peer review of the proposed 
monitoring plan. The notice provided detail on all of these points, 
allowing the public to provide meaningful comments. Additionally, the 
notice contained NMFS' preliminary findings of negligible impact and no 
unmitigable adverse impact.
    The signing of a CAA is not a requirement to obtain an IHA. 
Additionally, the CAA is a document that is negotiated between and 
signed by the industry participant, AEWC, and the Village Whaling 
Captains' Associations. NMFS has no role in the development or 
execution (other than, where appropriate, to include marine mammal-
related measures from the CAA in the IHA) of this agreement. While 
signing a CAA helps NMFS to make its no unmitigable adverse impact 
determination for bowhead and beluga whales, it is not a requirement.
    Comment 15: NSB states that based on the limited information 
provided by NMFS, there is no way to determine whether Shell's 
monitoring and reporting plans were subjected to independent peer 
review, as required by the MMPA. Unless NMFS can demonstrate compliance 
with the MMPA and its own regulations, it cannot issue an IHA to Shell. 
AEWC also notes that NMFS cannot issue an IHA to any company whose 
monitoring plan has not been cleared through independent peer review.
    Response: On May 6, 2009, NMFS contacted representatives from AEWC, 
NSB, MMC, and Shell about nominating people to participate in an 
independent peer review of Shell's monitoring plan. NMFS received 
nominations from all of the contacted parties and selected and 
contacted reviewers from these lists. Two of the contacted individuals 
provided detailed comments on Shell's monitoring and reporting plan. 
NMFS provided Shell with the comments and recommendations of the 
reviewers. The reviewers' comments and changes to the monitoring plan 
are addressed later in this document (see ``Monitoring Plan Independent 
Peer Review'' section later in this document). NMFS complied with the 
requirements under the MMPA and the implementing regulations for 
issuing IHAs, and therefore can legally issue an IHA to Shell to 
conduct their operations.
    Comment 16: AEWC states that because of the critical information 
provided through the direct observations of AEWC hunters, the peer 
review process must include AEWC representatives.
    Response: NMFS' proposed rule for implementing the 1994 amendments 
to the MMPA described the process for conducting an independent peer 
review of monitoring plans where the proposed activity may affect the 
availability of a species or stock for taking for subsistence uses (60 
FR 28379, May 31, 1995). While panelists for the independent peer 
review are selected by NMFS in consultation with the MMC, AEWC and/or 
other Alaska native organizations as appropriate, and the applicant, 
selected ``panelists are experts who are not currently employed or 
contracted by either the affected Alaskan native organization or the 
applicant'' (60 FR 28381, May 31, 1995). Therefore, it was NMFS' intent 
not to include AEWC representatives in the independent peer review 
process. However, AEWC representatives are afforded the opportunity to 
provide information based on their direct observations and experiences 
at the annual Open-water Meeting and through the public comment process 
on the proposed IHA.
    Comment 17: AEWC specifically requests that NMFS release its 
response to comments at the earliest possible time and that NMFS not 
allow seismic activities to begin until the whaling captains have had a 
chance to review NMFS' response. We note that in 2008, NMFS did not 
publish its response to comments on Shell's IHA for seismic operations 
in the Beaufort Sea until well after the fall subsistence hunt at Cross 
Island had concluded and seismic operations had already taken place. 
There can be no excuse for allowing seismic operations to take place 
directly within one of the most important subsistence hunting areas in 
the Arctic Ocean prior to NMFS explaining to the local communities and 
whaling captains why it was issuing an IHA over their well-reasoned 
objections, which were presented during the public comment period. The 
fact that NMFS would not release its response to comments until after 
the activities had taken place casts serious doubt on the validity of 
NMFS' public involvement process and the underlying analysis of impacts 
to subsistence activities and marine mammals.
    Response: NMFS publishes its responses to public comments in the 
Federal Register notice of issuance or denial. There is no provision 
requiring an applicant to wait to begin operations until after review 
of NMFS' responses to comments by members of the public. No public 
comment period is required on the Federal Register notice announcing 
NMFS' final decision. For the issuance of Shell's 2008 and 2009 IHAs, 
NMFS reviewed and considered all of the comments submitted before 
making its final determinations. Additionally, NMFS summarized and 
presented all of the significant issues raised by the commenters to the 
decision maker before signing the IHA.
    Comment 18: AEWC notes that by regulation, Shell must include with 
its application a POC that ensures potential conflicts with subsistence 
uses are resolved/mitigated prior to the issuance of an IHA. It is 
AEWC's view that

[[Page 55374]]

signing and following the CAA meets the POC requirement as it pertains 
to bowhead whales. AEWC states that Shell must agree to all the terms 
of the 2009 Open-water CAA in order to mitigate the effects of its 
proposed operations. In fact, the CAA was in use prior to NMFS' 
issuance of its regulations, and the POC requirement was included in 
the regulatory language to point operators to the CAA. In addition to 
the CAA setting forth mitigation measures agreed to by the operators 
and hunters, a schedule of meetings in preparation for each upcoming 
season, and post-season review meetings to evaluate the effectiveness 
of mitigation measures employed during a certain season, an operator's 
adherence to the terms of the CAA enables the Secretary to make the no 
unmitigable adverse impact finding required by Congress in the MMPA. 
NMFS is well-advised to heed the long-standing practice of relying on 
the CAA to enable the Secretary to make the required finding, as the 
agency has no other basis upon which to determine whether a specified 
set of mitigation measures will enable hunters to retain access to 
migrating marine mammals without increasing the risks associated with 
an already high-risk practice.
    Response: NMFS believes that the CAA is an important mechanism to 
ensure that there is not an unmitigable adverse impact on the 
availability of bowhead whales for taking for subsistence uses. 
However, the CAA is a document entered into between two entities 
(industry applicants and native community stakeholders). NMFS is 
neither a signatory to the CAA, nor does it play any formal role in the 
development of the CAA other than by requiring industry applicants to 
develop a POC pursuant to 50 CFR 216.104(a)(12). Moreover, the CAA is 
only one way to make the no unmitigable adverse impact to subsistence 
uses finding. Although NMFS has a limited role in this process, NMFS 
supports the continuation of the CAA process to help ensure that native 
subsistence harvests are successful.
    Comment 19: AEWC and NSB state that the conclusion that Shell's 
proposed activities will only take small numbers of marine mammals and 
will have no more than a negligible impact is not justified by the 
information provided. AEWC believes that without knowing more about the 
status and number of species present in the Chukchi Sea, this 
conclusion cannot be supported. NSB believes that NMFS has not 
adequately considered whether marine mammals may be harassed at 
received levels significantly lower than 160 dB and has not considered 
the possible serious injuries associated with authorizing the proposed 
activities.
    Response: NMFS believes that it provided sufficient information in 
its proposed IHA notice (74 FR 26217, June 1, 2009) to make the small 
numbers and negligible impact determinations and that the best 
scientific information available was used to make those determinations. 
The available information was sufficient to make the necessary 
findings. While some published articles indicate that certain marine 
mammal species may avoid seismic vessels at levels below 160 dB, NMFS 
does not believe that these responses rise to the level of a 
significant behavioral response. While studies, such as Miller et al. 
(1999), have indicated that some bowhead whales may have started to be 
deflected from their migratory path 35 km (21.7 mi) from the seismic 
vessel, it should be pointed out that these minor course changes are 
during migration and, as described in MMS' 2006 Final Programmatic 
Environmental Assessment (PEA), have not been seen at other times of 
the year and during other activities. To show the contextual nature of 
this minor behavioral modification, recent monitoring studies of 
Canadian seismic operations indicate that feeding, non-migratory 
bowhead whales do not move away from a noise source at an SPL of 160 
dB. Therefore, while bowheads may avoid an area of 20 km (12.4 mi) 
around a noise source, when that determination requires a post-survey 
computer analysis to find that bowheads have made a 1 or 2 degree 
course change, NMFS believes that does not rise to a level of a 
``take.'' NMFS therefore continues to estimate ``takings'' under the 
MMPA from impulse noises, such as seismic, as being at a distance of 
160 dB (re 1 microPa).
    NMFS has determined that Shell's activities will not cause serious 
injury to marine mammals. As explained throughout this Federal Register 
Notice, it is highly unlikely that marine mammals would be exposed to 
SPLs that could result in serious injury or mortality. The best 
scientific information indicates that an auditory injury is unlikely to 
occur, as apparently sounds need to be significantly greater than 180 
dB for injury to occur (Southall et al., 2007). The 180-dB radius for 
the airgun array to be used by Shell is 160 m (525 ft). Therefore, if 
injury were possible from Shell's activities, the animal would need to 
be closer than 160 m (525 ft). However, based on the configuration of 
the airgun array and streamers, it is highly unlikely that a marine 
mammal would be that close to the seismic vessel. Mitigation measures 
described later in this document will be implemented should a marine 
mammal enter this small zone around the airgun array.
    Comment 20: AEWC notes that based on the density estimates, Shell 
is predicting that an average of 692 and a maximum of 1,078 ringed 
seals may be exposed to seismic sounds. These are by no means ``small 
numbers'' of marine mammals that will be subjected to impacts as a 
result of Shell's operations. NSB notes that Shell's application states 
that approximately 2 percent of the Bering-Chukchi-Beaufort stock of 
bowhead whales will be exposed to sounds greater than or equal to 160 
dB (rms). This is a large percentage of the population.
    Response: NMFS determined that the small numbers requirement has 
been satisfied. Shell has predicted that an average of 692 ringed seals 
will be exposed to SPLs of 160 dB or greater during operations. This 
does not mean that this is the number of ringed seals that will 
actually exhibit a disruption of behavioral patterns in response to the 
sound source; rather, 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, and, therefore, pinnipeds are not likely to react 
to seismic sounds unless they are greater than 170 dB re 1 microPa 
(rms).
    The Level B harassment take estimate of 692 ringed seals is a small 
number, at least in relative terms, in that it represents only 0.3 
percent of the regional stock size of that species (249,000), if each 
``exposure'' at 160 dB represents an individual ringed seal. The 
percentage would be even lower if a higher SPL is required for a 
behavioral reaction (as is expected) or, if as expected, animals move 
out of the seismic area. As a result, NMFS determined that these 
``exposure'' estimates are conservative, and seismic surveys will 
actually affect less than 0.3 percent of the Chukchi Sea ringed seal 
population.
    Regarding bowhead whales, this percentage is a remnant from when 
Shell was going to conduct its full suite of surveys in both the 
Beaufort and Chukchi Seas. As mentioned earlier in this document, the 
Beaufort Sea surveys and the Chukchi Sea ice gouge survey were 
cancelled for the 2009/2010 season. Shell's Chukchi Sea site clearance 
and shallow hazards surveys are estimated to take only one bowhead 
whale, representing less than 0.01

[[Page 55375]]

percent of the Bering-Chukchi-Beaufort stock of bowhead whales.
    Comment 21: AEWC states that Shell should be required to engage in 
monitoring activities that are separate and apart from its oil and gas 
activities (see 50 CFR 216.104(a)(14)). These activities must be 
separate from Shell's proposed oil and gas related operations, since 
any data from such operations is skewed in light of marine mammals' 
avoidance of the vessels and seismic noise.
    Response: In 2009, Shell and ConocoPhillips are jointly funding an 
extensive acoustic monitoring program in the Chukchi Sea. A total of 44 
recorders will be distributed both broadly across the Chukchi lease 
area and nearshore environment and intensively on the Burger and 
Klondike lease areas. The broad area arrays are designed to capture 
both general background soundscape data and marine mammal call data 
across the lease area. Shell hopes to gain insights into large-scale 
distribution of marine mammals, identification of marine mammal species 
present, movement and migration patterns, and general abundance data. 
Many of these recorders will be placed tens of miles away from the site 
clearance and shallow hazards surveys. Additionally, these recorders 
will remain deployed after completion of Shell's survey work in 2009.
    Pursuant to 50 CFR 216.104(a)(14), an applicant must include 
``suggested means of learning of, encouraging, and coordinating 
research opportunities, plans, and activities relating to reducing such 
incidental taking and evaluating its effects.'' There is no requirement 
that this information or monitoring be conducted separate and apart 
from the authorized activities, since the research is supposed to 
evaluate the effects of the taking.

Marine Mammal Impact Concerns

    Comment 22: AWL, NSB, and AEWC noted that NMFS has acknowledged 
that permanent threshold shift (PTS) qualifies as a serious injury. 
Therefore, if an acoustic source at its maximum level has the potential 
to cause PTS and thus lead to serious injury, it would not be 
appropriate to issue an IHA for the activity (60 FR 28381, May 31, 
1995). AEWC states that therefore an LOA is required here. While the 
airguns proposed by Shell are smaller than those associated with 
typical 2D/3D deep marine surveys, the noise they produce is still 
considerable, as evidenced by the estimated 120 dB radius that extends 
out to 24 km (15 mi). These groups state that in the proposed IHA, NMFS 
did not rule out the possibility of animals incurring PTS (74 FR 26222, 
June 1, 2009). Although NMFS characterizes the possibility as unlikely, 
it nevertheless relies on mitigation measures, such as ramp-ups and 
exclusion zones, to ``minimize'' the ``already-minimal'' probability of 
PTS.
    Response: In the proposed rule implementing the process to apply 
for and obtain an IHA, NMFS stated that authorizations for harassment 
involving the ``potential to injure'' would be limited to only those 
that may involve non-serious injury (60 FR 28380, May 31, 1995). 
However, NMFS goes on to say that ``if the review of an application for 
incidental harassment indicates there is a potential for serious injury 
or death, NMFS proposes that it would either (1) determine that the 
potential for serious injury can be negated through mitigation 
requirements that could be required under the authorization or (2) 
deny'' (Ibid) the IHA and require the applicant to petition for 
regulations and LOA. As stated several times in this document and 
previous Federal Register notices for seismic activities, there is no 
empirical evidence that exposure to pulses of airgun sound can cause 
PTS in any marine mammal, even with large arrays of airguns (see 
Southall et al., 2007). PTS is thought to occur several decibels above 
that inducing mild temporary threshold shift (TTS), the mildest form of 
hearing impairment (a non-injurious effect). NMFS (1995, 2000) 
concluded that cetaceans and pinnipeds should not be exposed to pulsed 
underwater noise at received levels exceeding, respectively, 180 and 
190 dB re 1 microPa (rms). The established 180- and 190-dB re 1 microPa 
(rms) criteria are the received levels above which, in the view of a 
panel of bioacoustics specialists convened by NMFS before TTS 
measurements for marine mammals started to become available, one could 
not be certain that there would be no injurious effects, auditory or 
otherwise, to marine mammals. As summarized later in this document, 
data that are now available imply that TTS is unlikely to occur unless 
bow-riding odontocetes are exposed to airgun pulses much stronger than 
180 dB re 1 Pa rms (Southall et al., 2007). Additionally, while the 
Federal Register notice cited by the commenters states that NMFS 
considered PTS to be a serious injury (60 FR 28380, May 31, 1995), our 
understanding of anthropogenic sound and the way it impacts marine 
mammals has evolved since then, and NMFS no longer considers PTS to be 
a serious injury. NMFS has defined ``serious injury'' in 50 CFR 216.3 
as ``...any injury that will likely result in mortality.'' There are no 
data that suggest that PTS would be likely to result in mortality, 
especially the limited degree of PTS that could hypothetically be 
incurred through exposure of marine mammals to seismic airguns at the 
level and for the duration that are likely to occur in this action.
    The extent of the 120-dB radius does not indicate that animals may 
be seriously injured. Additionally, NMFS has required monitoring and 
mitigation measures to negate the possibility of marine mammals being 
seriously injured as a result of Shell's activities. In the proposed 
IHA, NMFS determined that no cases of TTS are expected to result from 
Shell's activities. Based on this determination and the explanation 
provided here, PTS is also not expected. Therefore, an IHA is 
appropriate.
    Comment 23: AEWC and NSB state that research is increasingly 
showing that marine mammals may remain within dangerous distances of 
seismic operations rather than leave a valued resource such as a 
feeding ground (see Richardson, 2004). The International Whaling 
Commission (IWC) scientific committee has indicated that the lack of 
deflection by feeding whales in Camden Bay (during Shell seismic 
activities) likely shows that whales will tolerate and expose 
themselves to potentially harmful levels of sound when needing to 
perform a biologically vital activity, such as feeding (mating, giving 
birth, etc.). Thus, the noise from Shell's proposed operations could 
injure marine mammals if they are close enough to the source.
    Response: If marine mammals, such as bowhead whales, remain near a 
seismic operation to perform a biologically vital activity, such as 
feeding, depending on the distance from the vessel and the size of the 
160-dB radius, the animals may experience some Level B harassment. 
Depending on the distance of the animals from the vessel and the number 
of individual whales present, certain mitigation measures are required 
to be implemented. If an aggregation of 12 or more mysticete whales are 
detected within the 160-dB radius, then the airguns must be shutdown 
until the aggregation is no longer within that radius. Additionally, if 
any whales are sighted within the 180-dB radius of the active airgun 
array, then either a power-down or shutdown must be implemented 
immediately. For the reasons stated throughout this document, NMFS has 
determined that Shell's operations will not injure marine mammals.

[[Page 55376]]

    Comment 24: AWL and NSB state that the standard for determining 
whether an IHA is appropriate is exceptionally protective. If there is 
even the possibility of serious injury, NMFS must establish that the 
``potential for serious injury can be negated through mitigation 
requirements'' (60 FR 28380, May 31, 1995; emphasis added). Reports 
from previous surveys, however, indicate that, despite monitored 
exclusion zones, marine mammals routinely stray too close to the 
airguns. AEWC states that the safety radii proposed by Shell do not 
negate injury.
    Perhaps, more importantly, the documented exposures were recorded 
only because conditions were such that the marine mammals could be 
observed, but this only represents a fraction of the time that airguns 
are operating. Marine mammal observers (MMOs) cannot see animals at the 
surface when it is dark or during the day because of fog, glare, rough 
seas, the small size of animals such as seals, and the large portion of 
time that animals spend submerged. Shell has acknowledged that reported 
sightings are only ``minimum'' estimates of the number of animals 
potentially affected by surveying. AWL, NSB, and AEWC note that 
although NMFS recognizes that infra-red goggles and night-vision 
binoculars are of ``limited'' effectiveness when visibility is low, its 
only response for Shell's 2009 surveying is that MMOs are relieved of 
monitoring the exclusion zones at night, except during periods before 
and during ramp-ups.
    NMFS appears to simply presume that marine mammals will naturally 
avoid airguns when they are operating at full strength, removing the 
need for monitoring when conditions prevent MMOs from effectively 
watching for intrusions into the exclusion zones. That premise is not 
supported by the survey data, indicating that shutdowns and power-downs 
have repeatedly proven necessary. The requirement for ramp-up rests on 
the same foundation that marine mammals will leave an affected area as 
a result of increasing noise. Yet, as the Joint Subcommittee on Ocean 
Science & Technology report noted, although ramp-up is a widely imposed 
practice, ``there has never been a demonstration that it works as 
intended.'' Because NMFS has not negated the possibility of serious 
injury from Shell's 2009 seismic surveying, it may not issue an IHA.
    Response: As has already been stated several times in this 
document, recent literature has indicated that sounds need to be 
significantly higher than 180 dB to cause injury to marine mammals (see 
Southall et al., 2007). Therefore, the 180- and 190-dB safety zones are 
conservative. The survey reports indicate that mitigation measures 
(i.e., power-downs or shutdowns) were implemented, thus preventing the 
animals from being exposed to more than one or two seismic pulses. 
Additionally, Shell's operations will occur in an area where periods of 
darkness do not begin until early September. Beginning in early 
September, there will be approximately 1-3 hours of darkness each day, 
with periods of darkness increasing by about 30 min each day. By the 
end of the survey period, there will be approximately 8 hours of 
darkness each day.
    The source vessel will be traveling at speeds of about 1-5 knots 
(1.9-9.3 km/hr). With a 180-dB safety range of 160 m (525 ft), the 
vessel will have moved out of the safety zone within a few minutes. As 
a result, during underway survey operations, MMOs are instructed to 
concentrate on the area ahead of the vessel, not behind the vessel 
where marine mammals would need to be voluntarily swimming towards the 
vessel to enter the 180-dB zone. In fact, in some of NMFS' IHAs issued 
for scientific seismic operations, shutdown is not required for marine 
mammals that approach the vessel from the side or stern in order to 
ride the bow