Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Open Water Marine Seismic Survey in the Beaufort and Chukchi Seas, Alaska, 49710-49758 [2010-19950]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 156 (Friday, August 13, 2010)]
[Notices]
[Pages 49710-49758]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-19950]



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Part V





Department of Commerce





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National Oceanic and Atmospheric Administration



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 Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to Open Water Marine Seismic Survey in the 
Beaufort and Chukchi Seas, Alaska; Notice

Federal Register / Vol. 75 , No. 156 / Friday, August 13, 2010 / 
Notices

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XV09


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Open Water Marine Seismic Survey in 
the Beaufort and Chukchi Seas, Alaska

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. 
(Shell) to take, by harassment, small numbers of 8 species of marine 
mammals incidental to a marine survey program, which includes site 
clearance and shallow hazards, ice gouge, and strudel scour surveys, in 
the Beaufort and Chukchi Seas, Alaska, during the 2010 Arctic open 
water season.

DATES: Effective August 6, 2010, through November 30, 2010.

ADDRESSES: Inquiry for information on the incidental take authorization 
should be addressed to Michael Payne, Chief, Permits, Conservation and 
Education Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. A 
copy of the application containing a list of the references used in 
this document, 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: Shane Guan, 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 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

    NMFS received an application on December 24, 2009, from Shell for 
the taking, by harassment, of marine mammals incidental to several 
marine surveys designed to gather data relative to site clearance and 
shallow hazards, ice gouge, and strudel scour in selected areas of the 
Beaufort Sea and ice gouge in the Chukchi Sea, Alaska. These surveys 
are continuations of those performed by Shell in the Beaufort Sea 
beginning in 2006, and in the Chukchi Sea in 2008. After addressing 
comments from NMFS, Shell modified its application and submitted a 
revised application on April 19, 2010. The April 19, 2010, application 
is the one available for public comment (see ADDRESSES) and considered 
by NMFS for this proposed IHA.
    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. Ice gouge surveys will determine the depth and 
distribution of ice gouges into the seabed. Ice gouge surveys use low-
level energy sources similar to the site clearance and shallow hazards.
    Shell intends to conduct these marine surveys during the 2010 
Arctic open-water season (July through October). Impacts to marine 
mammals may occur from noise produced by various active acoustic 
sources used in the surveys.

Description of the Specified Activity

    Shell plans to complete the following surveys during the 2010 open-
water season:

 Beaufort Sea Site Clearance and Shallow Hazards Surveys
 Beaufort Sea Marine Surveys
    [cir] Ice Gouge Survey
    [cir] Strudel Scour Survey
 Chukchi Sea Marine Surveys
    [cir] Ice Gouge Survey

    Each of these individual surveys will require marine vessels to 
accomplish the work. Shell states that these marine surveys will be 
conducted between July and October 2010, however, ice and weather 
conditions will influence the exact dates and locations marine vessel 
survey operations can be conducted.

1. Beaufort Sea Site Clearance and Shallow Hazards Surveys

    Shell's proposed site clearance and shallow hazards surveys are 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). Site clearance and 
shallow hazards surveys can be accomplished by one vessel with

[[Page 49711]]

acoustic sources. No other vessels are necessary to accomplish the 
proposed work.
    The focus of this activity will be on Shell's existing leases in 
Harrison Bay in the central Beaufort Sea. Actual locations of site 
clearance and shallow hazards surveys within Harrison Bay have not been 
definitively set as of this date, although these will occur on the 
Outer Continental Shelf (OCS) lease blocks in Harrison Bay located in 
the Beaufort Sea shown on Figure 1 of Shell's IHA application. The site 
clearance and shallow hazards surveys will be conducted within an area 
of approximately 216 mi\2\ (558 km\2\) north of Thetis Island more than 
3 mi (4.8 km) to approximately 20 mi (33 km) offshore. Approximately 63 
mi (162.7 km) of the data acquisition is planned within this general 
area. The survey track line is approximately 351.5 mi\2\ (565 km\2\). 
The average depth of the survey area ranges from 35 to 85 ft (10.7 to 
26 m).
    Ice and weather permitting, Shell is proposing to conduct site 
clearance and shallow hazards surveys within the timeframe of July 2010 
through October 2010. The actual survey time is expected to take 30 
days.
    The vessel that will be conducting this activity has not been 
determined at this point, but will be similar to the R/V Mt. Mitchell 
which is the vessel that was used for surveys in the Chukchi Sea in 
2009. 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.
    It is proposed that the following acoustic instrumentation, or 
something similar, be used.
     Deep Penetration Profiler, (40 cu-in airgun source with 
48-channel streamer) and Medium Penetration Profiler, (40 cu-in airgun 
source with 24-channel streamer):
    The deep and medium penetration profilers are the major active 
acoustic sources used in the site clearance and shallow hazards 
surveys. The modeled source level is estimated at 217 dB re 1 [mu]Pa 
rms. The 120, 160, 180, and 190 dB re 1 [mu]Pa rms received level 
isopleths are estimated at 14,900 m, 1,220 m, 125 m, and 35 m from the 
source, respectively.
     Dual-frequency side scan sonar, (100-400 kHz or 300-600 
kHz):
    Based on Shell's 2006 90-day report, the source level of this 
active acoustic source when operated at 190 and 240 kHz is 
approximately 225 dB re 1 [mu]Pa rms. Due to its high frequency range, 
NMFS does not consider its acoustic energy would be strong enough to 
cause impacts to marine mammals beyond a couple of hundred meters from 
the source.
     Single beam Echo Sounder, (high: 100-340 kHz, low: 24-50 
kHz):
    This echo sounder is a typical ``fathometer'' or ``fish-finder'' 
that is widely used in most recreational or fishing vessels. Source 
levels for these types of units are typically in the range of 180-200 
dB re 1 [mu]Pa rms. Using a spherical spreading model, the 160 dB 
isopleth is estimated at 100 m from the source for the lower range of 
the acoustic signals. For the higher range of the signal, due to the 
higher absorption coefficients, the 160 dB isopleth is expected to be 
under 100 m from the source.
     Multi-Beam Echo Sounder, (240 kHz):
    Since the output frequency from this echo sounder is above the 
upper-limit of marine mammal hearing range, NMFS believes it unlikely 
that a marine mammal would be taken by this activity.
     Shallow Sub-Bottom Profiler, (2-12 kHz):
    Information regarding this active acoustic source on two vessels 
(Alpha Helix and Henry C.) was provided in Shell's 2008 90-day open 
water marine survey monitoring report. For the Alpha Helix measurement, 
at 3.5 kHz, the source level for the shallow sub-bottom profiler was 
193.8 dB re 1 [mu]Pa rms, and its 120, 160, 180, and 190 dB re 1 [mu]Pa 
rms isopleths were determined to be 310 m, 14 m, 3 m, and 1 m from the 
source, respectively. For the Henry C. measurement, at 3.5 kHz, the 
source level of the similar profiler was measured at 167.2 dB re 1 
[mu]Pa rms, and its 120 and 160 dB re 1 [mu]Pa rms isopleths were 
determined to be 980 m and 3 m, respectively.

2. Beaufort Sea Marine Surveys

    Two marine survey activities are proposed for the Beaufort Sea: (1) 
Ice gouge survey, and (2) strudel scour survey. Shell continues to 
conduct these types of marine surveys annually over a few years to 
enhance baseline and statistical understanding of the formation, 
longevity, and temporal distribution of sea floor features and baseline 
environmental and biologic conditions. Marine surveys for ice gouge and 
strudel scour surveys can be accomplished by one vessel for each. No 
other vessels are necessary to accomplish the proposed work.
    The proposed ice gouge surveys will be conducted in both State of 
Alaska waters including Camden Bay, and the Federal waters of the OCS 
in the Beaufort Sea near Pt. Thomson ranging from near shore to 
approximately 37 mi (59.5 km) offshore. The water depth in the ice 
gouging survey area ranges between 15 to 120 ft (4.5 to 36.6 m), and 
the surveys will be conducted within an area of 1,950 mi\2\ (5,036 
km\2\) with a survey track line of approximately 1,276 mi (2,050 km, 
See Figure 2 of Shell's IHA application).
    The proposed strudel scour survey will occur in State of Alaska 
waters in Pt. Thomson ranging from near shore to 3 mi (4.8 km) 
offshore. The water depth ranges from 3 to 20 ft (0.9 to 6.1 m). The 
strudel scour survey will be conducted in an area of approximately 140 
mi\2\ (361.5 km\2\). The survey track line is approximately 124 mi (200 
km).
    Ice and weather permitting, Shell is proposing to conduct this work 
within the timeframe of July 2010 through October 2010. The actual 
survey time is expected to take 45 days.

Ice Gouge Survey

    As part of the feasibility study for Shell's Alaskan prospects a 
survey is required to identify and evaluate seabed conditions. Ice 
gouging is created by ice keels, which project from the bottom of 
moving ice and gouge into seafloor sediment. Ice gouge features are 
mapped, and by surveying each year, new gouges can be identified. The 
ice gouge information is used to aid in predicting the prospect of, 
orientation, depth, and frequency of future ice gouges. Ice gouge 
information is required for the design of potential pipelines and for 
the design of pipeline trenching and installation equipment.
    The 2010 ice gouge surveys will be conducted using the conventional 
survey method where the acoustic instrumentation will be towed behind 
the survey vessel, or possibly with the use of an Autonomous Underwater 
Vehicle (AUV). The same acoustic instrumentation will be used during 
both AUV and the conventional survey methods. The AUV is a self-
propelled autonomous vehicle that will be equipped with acoustic 
instrumentation and programmed for remote operation over the seafloor 
where the ice gouge survey is to be conducted, and the vehicle is 
launched and retrieved from a marine vessel.
    For the survey operations, the AUV will be launched from the stern 
of a vessel and will survey the seafloor close to the vessel. The 
vessel will transit an area, with the AUV surveying the area behind the 
vessel. The AUV also has a Collision Avoidance System and operates 
without a towline that reduces potential impact to marine mammals (such 
as entanglement). Using bathymetric sonar or multibeam echo sounder the 
AUV can record the gouges on the seafloor surface caused by ice keels. 
The sub-bottom profiler can

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record layers beneath the surface to about 20 feet (6 m). The AUV is 
more maneuverable and able to complete surveys more quickly than a 
conventional survey. This reduces the duration that vessels producing 
sound must operate. The proposed ice gouge survey in the Beaufort Sea 
is expected to last for 45 days.
    The vessel that will be used for ice gouging surveys has not been 
selected, but it is anticipated that the vessel would be similar to the 
R/V Mt. Mitchell, which is 70 m (231 ft) long, 12.7 m (42 ft) wide, and 
4.5 m (15 ft) draft.
    It is proposed that the following acoustic instrumentation, or 
something similar, be used.
     Dual Frequency sub-bottom profiler; (2 to 7 kHz or 8 to 23 
kHz):
    Information regarding this active acoustic source on Henry C. was 
provided in Shell's 2006 and 2007 90-day open water marine survey 
monitoring reports. In the 2006 report, at 2-7 and 8-23 kHz, the source 
level was estimated at 184.6 dB re 1 [mu]Pa rms, and its 120, 160, and 
180 dB re 1 [mu]Pa rms isopleths were determined to be 456 m, 7 m, and 
2 m from the source, respectively. In the 2007 report, at 2-7 kHz, the 
source level was estimated at 161.1 dB re 1 [mu]Pa rms, and its 120 and 
160 dB re 1 [mu]Pa rms isopleths were determined to be 260 m and 1 m, 
respectively.
     Multibeam Echo Sounder (240 kHz) and Side-scan sonar 
system (190 to 210 kHz):
    Since the output frequencies from these acoustic instruments are 
above the upper-limits of marine mammal hearing range, NMFS believes it 
unlikely that a marine mammal would be taken by this activity.

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 flows down holes in the ice (``strudels'') and scours the 
seafloor. These 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. 
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. These helicopter overflights will occur 
during late May/early June 2010 and, weather permitting, should take no 
more than two days. There are no planned landings during these 
overflights other than at the Deadhorse or Kaktovik airports.
    Areas that have strudel scour identified during the aerial survey 
will be verified and surveyed with a marine vessel after the breakup of 
nearshore ice. The vessel has not been determined, however, it is 
anticipated that it will be the diesel-powered R/V Annika Marie which 
has been utilized 2006 through 2008 and measures 13.1 m (43 ft) long, 
or similar vessel.
    This proposed activity is not anticipated to take more than 5 days 
to conduct. The operation is conducted in the shallow water areas near 
the coast in the vicinity of Point Thomson. This vessel will use the 
following equipment:
     Multibeam Echo Sounder (240 kHz) and Side-scan sonar 
system (190 to 210 kHz):
    Since the output frequencies from these acoustic instruments are 
above the upper-limits of marine mammal hearing range, NMFS believes it 
unlikely that a marine mammal would be taken by this activity.
     Single Beam Bathymetric Sonar:
    Source levels for these types of units are typically in the 180-230 
dB range, somewhat lower than multibeam or side scan sonars. A unit 
used during a previous survey had a source level (at high power) of 215 
dB re 1 [mu]Pa (0-peak) and a standard operating frequency of 200 kHz. 
Since the output frequencies from these acoustic instruments are above 
the upper-limits of marine mammal hearing range, NMFS believes it 
unlikely that a marine mammal would be taken by this activity.

3. Chukchi Sea Marine Survey--Ice Gouge Survey

    Shell proposes one marine survey activity for the Chukchi Sea in 
2010. Shell intends to conduct ice gouge surveys annually over a few 
years to enhance baseline and statistical understanding of the 
formation, longevity, and temporal distribution of sea floor features 
and baseline environmental and biologic conditions. The ice gouge 
survey can be accomplished by one vessel. No other vessels are 
necessary to accomplish the proposed work.
    The proposed ice gouge surveys will be conducted in both State of 
Alaska waters and the Federal waters of the OCS in the Chukchi Sea. 
Actual locations of the ice gouge surveys have not been definitively 
set as of this date, although these will occur within the area outlined 
in Figure 4 of the IHA application. The water depth of the ice gouging 
survey ranges between 20 to 120 ft (6.1 to 36.6 m), and the surveys 
will take in an area of 21,954 mi\2\ (56,965 km\2\), with a survey 
track line of approximately 1,539 mi (2,473 km). This activity is 
proposed to be conducted within the timeframe of July through October 
2010. The total program will last a maximum of 60 days, excluding 
downtime due to ice, weather and other unforeseen delays, and should be 
complete by the end of October 2010.
    The equipment and method used to conduct the ice gouge survey in 
the Chukchi Sea will be the same as that used in the Beaufort Sea. 
Because of the low source levels of the sub-bottom profiler and the 
high-frequency nature of the multi-beam echo sounder used in the 
proposed ice gouge survey, NMFS believes it unlikely that a marine 
mammal would be taken by this activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Shell published in 
the Federal Register on May 18, 2010 (75 FR 27708). 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 five comment letters from the following: the Marine 
Mammal Commission (Commission); the Alaska Eskimo Whaling Commission 
(AEWC); the Inupiat Community of the Arctic Slope (ICAS); the North 
Slope Borough Office of the Mayor (NSB); and Alaska Wilderness League 
(AWL), Audubon Alaska, Center for Biological Diversity, Defenders of 
Wildlife, Earthjustice, Greenpeace, Natural Resources Defense Council, 
Northern Alaska Environmental Center, Ocean Conservancy, Oceana, 
Pacific Environment, Sierra Club, and World Wildlife Fund (collectively 
``AWL''), along with an attached letter from Dr. David E. Bain, a 
contract scientist for NMFS.
    The AEWC submitted several journal articles as attachments to its 
comment letters. NMFS acknowledges receipt of these documents but does 
not intend to address the specific articles themselves in the responses 
to comments, since these journal articles are merely used as citations 
in AEWC's comments. AEWC also submitted an unsigned, final version of 
the 2010 Conflict Avoidance Agreement (CAA), since Shell declined to 
sign the CAA. Dr. Bain also attached

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an in-review journal article he coauthored. Any comments specific to 
Shell's application 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.

General Comments

    Comment 1: AEWC and ICAS believe that NMFS should not issue 
incidental take authorizations for oil and gas-related activities given 
the current suspension of offshore drilling in Alaska and pending 
reorganization of the Minerals Management Service (MMS). AEWC and ICAS 
point out that the harm caused by an oil spill is not the only risk to 
marine mammals posed by oil and gas activities on the OCS and that 
there are concerns regarding underwater noise from geophysical 
activities and the threats posed to marine mammals from noise and 
chemical pollution, as well as increased vessel traffic. AEWC further 
claims that many times, NMFS issued IHAs over the objections of the 
scientific and subsistence communities as well as the agencies' own 
scientists.
    Response: The legal requirements and underlying analysis for the 
issuance of an IHA concerning take associated with seismic activities 
are unrelated to the moratorium on offshore drilling and reorganization 
of the MMS. In order to issue an authorization pursuant to Section 
101(a)(5)(D) of the MMPA, NMFS must determine that the taking by 
harassment of small numbers of marine mammal species or stocks will 
have a negligible impact on affected species or stocks, and will not 
have an unmitigable adverse impact on the availability of affected 
species or stocks for taking 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 2010 (as described in the application, 
the notice of proposed IHA (75 FR 27708; May 18, 2010) and this 
document), NMFS determined that it was able to make the required MMPA 
findings. 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, and no injury 
or mortality is authorized under the IHA.
    As discussed in detail in the proposed IHA (75 FR 27708; May 18, 
2010), the EA for the issuance of IHAs to Shell and Statoil for the 
proposed open water marine and seismic surveys, and this document, NMFS 
has conducted a thorough analysis of the potential impacts of 
underwater anthropogenic sound (especially sound from geophysical 
surveys) on marine mammals. We have cited multiple studies and research 
that support NMFS' MMPA and National Environmental Policy Act (NEPA) 
determinations that the localized and short-term disturbance from 
seismic surveys, with strict mitigation and monitoring measures 
implemented, is likely to result in negligible impacts to marine 
mammals and no significant impact to the human environment, 
respectively. Although issuance of the IHA may be of concern to certain 
members of the public, the proposed issuance of the IHA was carefully 
reviewed and analyzed by NMFS scientists both at headquarters, through 
an Endangered Species Act (ESA) section 7 consultation at NMFS Alaska 
Regional Office, and by an independent bioacoustics expert and NMFS' 
National Marine Mammal Laboratory. Based on those reviews, NMFS staff 
in the Office of Protected Resources made appropriate changes to this 
document.
    Comment 2: 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. These communities are also afforded the opportunity to 
submit comments on the application and proposed IHA notice, which are 
then considered by NMFS before making a final determination on whether 
or not to issue an IHA.
    Comment 3: 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 relationship 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 most recently met with ICAS at its May monthly meeting 
in Barrow to discuss NMFS' role in minimizing impacts to marine mammals 
from oil and gas industry activities and asked the ICAS membership for 
specific recommendations. NMFS will continue to ensure that it meets 
its government-to-government responsibilities and will work closely 
with Alaska Natives to address their concerns.

MMPA Concerns

    Comment 4: 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

[[Page 49714]]

indefensible determinations under the MMPA. The following is the 
information that AEWC believes to be missing from Shell's application: 
(1) A description of the ``age, sex, and reproductive condition'' of 
the marine mammals that will be impacted, particularly in regard to 
bowhead whales (50 CFR 216.104(a)(6)); (2) the economic ``availability 
and feasibility * * * of equipment, methods, and manner of conducting 
such activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, their habitat, and on their 
availability for subsistence uses, paying particular attention to 
rookeries, mating grounds, and areas of similar significance'' (50 CFR 
216.104(a)(11)); and (3) suggested means of learning of, encouraging, 
and coordinating any research related activities (50 CFR 
216.104(a)(14)). NSB also notes its concern about the lack of 
specificity regarding the timing and location of the proposed surveys, 
as well as the lack of specificity regarding the surveys themselves.
    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 incorporated into the final version of 
the IHA application that was released to the public for review and 
comment, NMFS made its determination of completeness and released the 
application, addenda, and the proposed IHA notice (75 FR 27708; May 18, 
2010). Regarding the three 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).
    Information required pursuant to 50 CFR 216.104(a)(6) requires that 
an applicant submit information on the ``age, sex, and reproductive 
condition (if possible)'' 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.
    Shell also provided information on economic ``availability and 
feasibility * * * of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, their habitat, and on their 
availability for subsistence uses, paying particular attention to 
rookeries, mating grounds, and areas of similar significance'' (50 CFR 
216.104(a)(11)) in its IHA application. In its application, Shell 
states that four main mitigations regarding site clearance and shallow 
hazards surveys in the Beaufort Sea are proposed: (1) Timing and 
locations for active survey acquisition work; (2) to configure airguns 
in a manner that directs energy primarily down to the seabed thus 
decreasing the range of horizontal spreading of noise; (3) using a 
energy source which is as small as possible while still accomplishing 
the survey objectives; and (4) curtailing active survey work when the 
marine mammal observers sight visually (from shipboard) the presence of 
marine mammals within identified ensonified zones. Details of these 
mitigation measures are discussed further in the 4MP that is included 
in Shell's IHA application. In addition to these measures, NMFS' Notice 
of Proposed IHA (75 FR 27708, May 18, 2010) described mitigation 
measures proposed to be implemented by Shell (outlined in the 
application), as well as additional measures proposed by NMFS for 
inclusion in an IHA.
    Lastly, 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 states that it plans to deploy arrays of acoustic 
recorders in the Beaufort Sea in 2010, similar to those deployed in 
2007 and 2008 using DASARs supplied by Greeneridge. These directional 
acoustic systems permit localization of bowhead whale and other marine 
mammal vocalizations, and to further understand, define, and document 
sound characteristics and propagation resulting from shallow hazards 
surveys that may have the potential to cause deflections of bowhead 
whales from their migratory pathway. NMFS also determined that Shell's 
application provides descriptions of the specified activities and 
specified geographic region.
    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 5: 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. Given Shell's refusal to sign the CAA and without a complete 
draft authorization and accompanying findings, AEWC states that it 
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.
    Response: The May 18, 2010 proposed IHA notice (75 FR 27708) 
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 and, 
in NMFS view, allowed the public to comment on the proposed 
authorization and inform NMFS' final decision. 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. The CAA 
is a document that is negotiated between and signed by the industry 
participant, AEWC, and the Village Whaling Captains' Associations. NMFS 
has no role in the development or execution of this agreement. Although 
the contents of a CAA may inform NMFS' no unmitigable adverse impact 
determination for bowhead and beluga whales and ice seals, the signing 
of it is not a requirement. While a CAA has not been signed and a final 
version agreed to by industry participants, AEWC, and the Village 
Whaling Captains' Associations, NMFS was provided with a copy of the 
version ready for signature by AEWC. NMFS has reviewed the CAA and 
included several measures from the document which relate to marine 
mammals and avoiding conflicts with subsistence hunts in the IHA. Some 
of

[[Page 49715]]

the conditions which have been added to the IHA include: (1) Avoiding 
concentrations of whales and reducing vessel speed when near whales; 
(2) flying at altitudes above 457 m (1,500 ft) unless involved in 
marine mammal monitoring or during take-offs, landings, or in 
emergencies situations; (3) conducting sound source verification 
measurements; and (4) participating in the Communication Centers. 
Despite the lack of a signed CAA for 2010 activities, NMFS is confident 
that the measures contained in the IHA will ensure no unmitigable 
adverse impact to subsistence users.
    Comment 6: AEWC and NSB argue that Shell has not demonstrated that 
its proposed activities would take only ``small numbers of marine 
mammals of a species or population stock,'' resulting in no more than a 
``negligible impact'' on a species or stock. In addition, NSB argues 
that NMFS has not adequately analyzed harassment associated with 
received levels of noise below 160 dB.
    Response: NMFS believes that it provided sufficient information in 
its proposed IHA notice (75 FR 27708; May 18, 2010) to make the small 
numbers and negligible impact determinations and that the best 
scientific information available was used to make those determinations. 
While some published articles indicate that certain marine mammal 
species may avoid seismic vessels at levels below 160 dB, NMFS does not 
consider that these responses rise to the level of a take, as defined 
in the MMPA. While studies, such as Miller et al. (1999), have 
indicated that some bowhead whales may have started to deflect from 
their migratory path 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,'' as the change in 
bearing is due to animals sensing the noise and avoiding passage 
through the ensonified area during their migration, and should not be 
considered as being displaced from their habitat. NMFS therefore 
continues to estimate ``takings'' under the MMPA from impulse noises, 
such as seismic, as being at a distance of 160 dB (re 1 [mu]Pa). 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 125 m (410 ft). Therefore, if injury were possible 
from Shell's activities, the animal would need to be closer than 125 m 
(410 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.
    Regarding the ``small numbers'' issue raised by the AEWC and NSB, 
NMFS has provided estimates on the number of marine mammals that could 
be taken as a result of Shell's proposed marine surveys, and the 
estimated takes from these proposed activities are all under 3 percent 
for affected marine mammal populations (see Potential Number of Takes 
by Harassment section below).

Impacts to Marine Mammals

    Comment 7: AEWC notes that based on the density estimates, Shell is 
predicting that an average of 381 and a maximum of 394 Bering-Chukchi-
Beaufort (B-C-B) stock of bowhead whales may be exposed to seismic 
sounds at received levels above 160 dB. AEWC states that these are by 
no means ``small numbers'' of marine mammals that will be subjected to 
impacts as a result of Shell's operations.
    Response: NMFS determined that the small numbers requirement has 
been satisfied. Shell has predicted that an average of 381 individuals 
of the B-C-B stock of bowhead whales would be exposed to noise received 
levels above 160 dB as the result of Shell's proposed marine surveys, 
and NMFS assumes that animals exposed to received levels above 160 dB 
are taken. However, because of the tendency of whales to avoid the 
source to some degree, and the fact that both the whales and the source 
are both moving through an area, the majority of the exposures would 
likely occur at levels closer to 160 dB (not higher levels) and the 
impacts would be expected to be relatively low-level and not of a long 
duration. NMFS addresses ``small numbers'' in terms relative to the 
stock or population size. The Level B harassment take estimate of 381 
bowhead whales is a small number in relative terms, because of the 
nature of the anticipated responses and in that it represents only 2.67 
percent of the regional stock size of that species (14,247), if each 
``exposure'' at 160 dB represents an individual bowhead whale. 
Additionally, the percentage would be even lower if animals move out of 
the seismic area in a manner that does not result in a take at all.
    Comment 8: 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 14,000 m.
    Response: In the proposed rule to implement 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 28379; May 31, 1995). While 
the Federal Register notice cited by the commenters states that NMFS 
considered PTS to be a serious injury (60 FR 28379; 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.
    Further, 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).

[[Page 49716]]

NMFS concluded that cetaceans and pinnipeds should not be exposed to 
pulsed underwater noise at received levels exceeding, respectively, 180 
and 190 dB re 1 [mu]Pa (rms). The established 180- and 190-dB re 1 
[mu]Pa (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, 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 Shell's 
activities are unlikely to even result in TTS. Based on this 
determination and the explanation provided here, PTS is also not 
expected. Therefore, an IHA is appropriate.
    Comment 9: AWL, Dr. Bain, NSB, and AEWC state that NMFS has not 
adequately considered whether marine mammals may be harassed at 
received levels significantly lower than 160 dB and that NMFS did not 
use the best scientific evidence in setting the sound levels against 
which take was assessed. They state that NMFS calculated harassment 
from Shell's proposed surveying based on the exposure to marine mammals 
to sounds at or above 160 dB and that this uniform approach to 
harassment does not take into account known reactions of marine mammals 
in the Arctic to levels of noise far below 160 dB. These comments state 
that bowhead, gray, killer, and beluga whales and harbor porpoise react 
to sounds lower than 160 dB.
    Citing several papers on killer whales and harbor porpoise, Dr. 
Bain states that major behavioral changes of these animals appear to be 
associated with received levels of around 135 dB re 1 [mu]Pa, and that 
minor behavioral changes can occur at received levels from 90-110 dB re 
1 [mu]Pa or lower. He also states that belugas have been observed to 
respond to icebreakers by swimming rapidly away at distances up to 80 
km, where received levels were between 94 and 105 dB re 1 [mu]Pa. 
Belugas exhibited minor behavioral changes such as changes in 
vocalization, dive patterns, and group composition at distances up to 
50 km (NRC 2003), where received levels were likely around 120 dB.
    AEWC also states that in conducting scoping on its national 
acoustic guidelines for marine mammals, NMFS noted that the existing 
system for determining take (i.e., the 160 dB mark) ``considers only 
the sound pressure level of an exposure but not its other attributes, 
such as duration, frequency, or repetition rate, all of which are 
critical for assessing impacts on marine Mammals'' and ``also assumes a 
consistent relationship between rms (root-mean-square) and peak 
pressure values for impulse sounds, which is known to be inaccurate 
under certain (many) conditions'' (70 FR 1871, 1873; January 11, 2005). 
Thus, NMFS itself has recognized that 160 dB (rms) is not an adequate 
measure. AEWC argues that current scientific research establishes that 
120 dB (rms) is a more appropriate measure for impacts to marine 
mammals.
    Response: The best information available to date for reactions by 
bowhead whales to noise, such as seismic, is based on the results from 
the 1998 aerial survey (as supplemented by data from earlier years) as 
reported in Miller et al. (1999). In 1998, bowhead whales below the 
water surface at a distance of 20 km (12.4 mi) from an airgun array 
received pulses of about 117-135 dB re 1 [mu]Pa rms, depending upon 
propagation. Corresponding levels at 30 km (18.6 mi) were about 107-126 
dB re 1 [mu]Pa rms. Miller et al. (1999) surmise that deflection may 
have begun about 35 km (21.7 mi) to the east of the seismic operations, 
but did not provide SPL measurements to that distance and noted that 
sound propagation has not been studied as extensively eastward in the 
alongshore direction, as it has northward, in the offshore direction. 
Therefore, while this single year of data analysis indicates that 
bowhead whales may make minor deflections in swimming direction at a 
distance of 30-35 km (18.6-21.7 mi), there is no indication that the 
SPL where deflection first begins is at 120 dB; it could be at another 
SPL lower or higher than 120 dB. Miller et al. (1999) also note that 
the received levels at 20-30 km (12.4-18.6 mi) were considerably lower 
in 1998 than have previously been shown to elicit avoidance in bowheads 
exposed to seismic pulses. However, the seismic airgun array used in 
1998 was larger than the ones used in 1996 and 1997. Therefore, NMFS 
believes that it cannot scientifically support adopting any single SPL 
value below 160 dB and apply it across the board for all species and in 
all circumstances. Second, these minor course changes occurred during 
migration and, as indicated in MMS' 2006 PEA, have not been seen at 
other times of the year and during other activities. Third, as stated 
in the past, NMFS does not believe that minor course corrections during 
a migration equate to ``take'' under the MMPA. This conclusion is based 
on controlled exposure experiments conducted on migrating gray whales 
exposed to the U.S. Navy's low frequency sonar (LFA) sources (Tyack 
2009). When the source was placed in the middle of the migratory 
corridor, the whales were observed deflecting around the source during 
their migration. However, such minor deflection is considered not to be 
biologically significant. To show the contextual nature of this minor 
behavioral modification, recent monitoring studies of Canadian seismic 
operations indicate that when, not migrating, but involved in feeding, 
bowhead whales do not move away from a noise source at an SPL of 160 
dB. Therefore, while bowheads may avoid an area of 20 km (12.4 mi) 
around a noise source, when that determination requires a post-survey 
computer analysis to find that bowheads have made a 1 or 2 degree 
course change, NMFS believes that does not rise to a level of a 
``take.'' NMFS therefore continues to estimate ``takings'' under the 
MMPA from impulse noises, such as seismic, as being at a distance of 
160 dB (re 1 [mu]Pa). Although it is possible that marine mammals could 
react to any sound levels detectable above the ambient noise level 
within the animals' respective frequency response range, this does not 
mean that such animals would react in a biologically significant way. 
According to experts on marine mammal behavior, the degree of reaction 
which constitutes a ``take,'' i.e., a reaction deemed to be 
biologically significant that could potentially disrupt the migration, 
breathing, nursing, breeding, feeding, or sheltering, etc., of a marine 
mammal is complex and context specific, and it depends on several 
variables in addition to the received level of the sound by the 
animals. These additional variables include, but are not limited to, 
other source characteristics (such as frequency range, duty cycle, 
continuous vs. impulse vs. intermittent sounds, duration, moving vs. 
stationary sources, etc.); specific species, populations, and/or 
stocks; prior experience of the animals (naive vs. previously exposed); 
habituation or sensitization of the sound by the animals; and behavior 
context (whether the animal perceives the sound as predatory or simply 
annoyance), etc. (Southall et al. 2007).

[[Page 49717]]

    The references cited in the comment letters address different 
source characteristics (continuous sound rather than impulse sound that 
are planned for the proposed shallow hazard and site clearance surveys) 
or species (killer whales and harbor proposes) that rarely occur in the 
proposed Arctic action area. Some information about the responses of 
bowhead and gray whales to seismic survey noises has been acquired 
through dedicated research and marine mammal monitoring studies 
conducted during prior seismic surveys. Detailed descriptions regarding 
behavioral responses of these marine mammals to seismic sounds are 
available (e.g., Richardson et al. 1995; review by Southall et al. 
2007), and are also discussed in this document. Additionally, as Shell 
does not intend to use ice-breakers during its operations, statements 
regarding beluga reactions to icebreaker noise are not relevant to this 
activity.
    Regarding the last point raised in this comment by AEWC, NMFS 
recognizes the concern. However, NMFS does not agree with AEWC's 
statement that current scientific research establishes that 120 dB 
(rms) is a more appropriate measure for impacts to marine mammals for 
reasons noted above. Based on the information and data summarized in 
Southall et al. (2007), and on information from various studies, NMFS 
believes that the onset for behavioral harassment is largely context 
dependent, and there are many studies showing marine mammals do not 
show behavioral responses when exposed to multiple pulses at received 
levels above 160 dB re 1 [mu]Pa (e.g., Malme et al. 1983; Malme et al. 
1984; Richardson et al. 1986; Akamatsu et al. 1993; Madsen and 
M[oslash]hl 2000; Harris et al. 2001; Miller et al. 2005). Therefore, 
although using a uniform SPL of 160-dB for the onset of behavioral 
harassment for impulse noises may not capture all of the nuances of 
different marine mammal reactions to sound, it is an appropriately 
conservative way to manage and regulate anthropogenic noise impacts on 
marine mammals. Therefore, unless and until an improved approach is 
developed and peer-reviewed, NMFS will continue to use the 160-dB 
threshold for determining the level of take of marine mammals by Level 
B harassment for impulse noise (such as from airguns).
    Comment 10: NSB and AWL note that this IHA, as currently proposed, 
is based on uncertainties that are not allowed under the MMPA. Citing 
comments made by NMFS on recent MMS Lease Sale Environmental Impact 
Statements, NSB notes that NMFS stated that without more current and 
thorough data on the marine mammals in the Chukchi Sea and their use of 
these waters, it would be difficult to make the findings required by 
the MMPA. NSB notes that NMFS noted that the ``continued lack of basic 
audiometric data for key marine mammal species'' that occur throughout 
the Chukchi Sea inhibits the ``ability to determine the nature and 
biological significance of exposure to various levels of both 
continuous and impulsive oil and gas activity sounds.''
    Response: NMFS agrees that while there may be some uncertainty on 
the current status of some marine mammal species in the Chukchi Sea and 
on impacts to marine mammals from seismic surveys, the best available 
information supports our findings. NMFS is currently proposing to 
conduct new population assessments for Arctic pinniped species, and 
current information is available on-line through the Stock Assessment 
Reports (SARs). Moreover, NMFS has required the industry to implement a 
monitoring and reporting program to collect additional information 
concerning effects to marine mammals.
    In regard to impacts, there is no indication that seismic survey 
activities are having a long-term impact on marine mammals. For 
example, apparently, bowhead whales continued to increase in abundance 
during periods of intense seismic activity in the Chukchi Sea in the 
1980s (Raftery et al. 1995; Angliss and Outlaw 2007), even without 
implementation of current mitigation requirements. As a result, NMFS 
believes that seismic survey noise in the Arctic will affect only small 
numbers of and have no more than a negligible impact on marine mammals 
in the Chukchi Sea. As explained in this document and based on the best 
available information, NMFS has determined that Shell's activities will 
affect 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 subsistence uses of the affected species or stocks.
    Comment 11: AEWC notes that stranded marine mammals or their 
carcasses are also a sign of injury. NMFS states in its notice that it 
``does not expect any marine mammal will * * * strand as a result of 
the proposed survey'' (75 FR 27708; May 18, 2010). In reaching this 
conclusion, NMFS claims that strandings have not been recorded for the 
Beaufort and Chukchi Seas. AEWC states that the Department of Wildlife 
Management of NSB has completed a study documenting 25 years worth of 
stranding data and showing that five dead whales were reported in 2008 
alone in comparison with the five dead whales that were reported in the 
same area over the course of 25 years (Rosa 2009).
    In light of the increase in seismic operations in the Arctic since 
2006, AEWC says that NSB's study raises serious concerns about the 
impacts of these operations and their potential to injure marine 
mammals. AEWC states that while they think this study taken together 
with the June 2008 stranding of ``melon headed whales off Madagascar 
that appears to be associated with seismic surveys'' (75 FR 27708; May 
18, 2010) demonstrate that seismic operations have the potential to 
injure marine mammals beyond beaked whales (and that Shell needs to 
apply for an LOA for its operations), certainly NSB's study shows that 
direct injury of whales is on-going. AEWC states that these direct 
impacts must be analyzed and explanations sought out before additional 
activities with the potential to injure marine mammals are authorized, 
and that NMFS must explain how, in light of this new information, 
Shell's application does not have the potential to injure marine 
mammals.
    Response: NMFS has reviewed the information provided by AEWC 
regarding marine mammal strandings in the Arctic. The Rosa (2009) paper 
cited by AEWC does not provide any evidence linking the cause of death 
for the bowhead carcasses reported in 2008 to seismic operations. 
Additionally, the increased reporting of carcasses in the Arctic since 
2006 may also be a result of increased reporting effort and does not 
necessarily indicate that there were fewer strandings prior to 2008. 
Marine mammal observers (MMOs) aboard industry vessels in the Beaufort 
and Chukchi Seas have been required to report sightings of injured and 
dead marine mammals to NMFS as part of the IHA requirements only since 
2006.
    Regarding the June 2008 stranding of melon headed whales off 
Madagascar, information available to NMFS at this time indicates that 
the seismic airguns were not active around the time of the stranding. 
While the Rosa (2009) study does present information regarding the 
injury of whales in the Arctic, it does not link the cause of the 
injury to seismic survey operations. As NMFS has stated previously, the 
evidence linking marine mammal strandings and seismic surveys remains 
tenuous at best. Two papers, Taylor et al. (2004) and Engel et al. 
(2004) reference seismic signals as a possible cause for a marine 
mammal stranding.

[[Page 49718]]

    Taylor et al. (2004) noted two beaked whale stranding incidents 
related to seismic surveys. The statement in Taylor et al. (2004) was 
that the seismic vessel was firing its airguns at 1300 hrs on September 
24, 2004, and that between 1400 and 1600 hrs, local fishermen found 
live stranded beaked whales 22 km (12 nm) from the ship's location. A 
review of the vessel's trackline indicated that the closest approach of 
the seismic vessel and the beaked whales stranding location was 18 nm 
(33 km) at 1430 hrs. At 1300 hrs, the seismic vessel was located 25 nm 
(46 km) from the stranding location. What is unknown is the location of 
the beaked whales prior to the stranding in relation to the seismic 
vessel, but the close timing of events indicates that the distance was 
not less than 18 nm (33 km). No physical evidence for a link between 
the seismic survey and the stranding was obtained. In addition, Taylor 
et al. (2004) indicates that the same seismic vessel was operating 500 
km (270 nm) from the site of the Galapagos Island stranding in 2000. 
Whether the 2004 seismic survey caused the beaked whales to strand is a 
matter of considerable debate (see Cox et al. 2006). However, these 
incidents do point to the need to look for such effects during future 
seismic surveys. To date, follow up observations on several scientific 
seismic survey cruises have not indicated any beaked whale stranding 
incidents.
    Engel et al. (2004), in a paper presented to the IWC in 2004 (SC/
56/E28), mentioned a possible link between oil and gas seismic 
activities and the stranding of 8 humpback whales (7 off the Bahia or 
Espirito Santo States and 1 off Rio de Janeiro, Brazil). Concerns about 
the relationship between this stranding event and seismic activity were 
raised by the International Association of Geophysical Contractors 
(IAGC). The IAGC (2004) argues that not enough evidence is presented in 
Engel et al. (2004) to assess whether or not the relatively high 
proportion of adult strandings in 2002 is anomalous. The IAGC contends 
that the data do not establish a clear record of what might be a 
``natural'' adult stranding rate, nor is any attempt made to 
characterize other natural factors that may influence strandings. As 
stated previously, NMFS remains concerned that the Engel et al. (2004) 
article appears to compare stranding rates made by opportunistic 
sightings in the past with organized aerial surveys beginning in 2001. 
If so, then the data are suspect.
    Finally, if bowhead and gray whales react to sounds at very low 
levels by making minor course corrections to avoid seismic noise, and 
mitigation measures require Shell to ramp-up the seismic array to avoid 
a startle effect, strandings such as those observed in the Bahamas in 
2000 are highly unlikely to occur in the Arctic Ocean as a result of 
seismic activity. Therefore, NMFS does not expect any marine mammals 
will incur serious injury or mortality as a result of Shell's 2010 
survey operations, so an LOA is not needed.
    Lastly, Shell is required to report all sightings of dead and 
injured marine mammals to NMFS and to notify the Marine Mammal Health 
and Stranding Response Network. However, Shell is not permitted to 
conduct necropsies on dead marine mammals. Necropsies can only be 
performed by people authorized to do so under the Marine Mammal Health 
and Stranding Response Program MMPA permit. NMFS is currently 
considering different methods for marking carcasses to reduce the 
problem of double counting. However, a protocol has not yet been 
developed, so marking is not required in the IHA.
    Comment 12: 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