Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Open Water Marine Seismic Survey in the Chukchi Sea, Alaska, 49760-49811 [2010-19962]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 156 (Friday, August 13, 2010)]
[Notices]
[Pages 49760-49811]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-19962]



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Part VI





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 
Chukchi Sea, 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-XW13


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Open Water Marine Seismic Survey in 
the Chukchi Sea, 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 Statoil USA E&P Inc. 
(Statoil) to take, by harassment, small numbers of 12 species of marine 
mammals incidental to a marine seismic survey program in the Chukchi 
Sea, 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 Statoil for 
the taking, by harassment, of marine mammals incidental to 3D and 2D 
marine seismic surveys in the Chukchi Sea, Alaska, during the 2010 
open-water season. After addressing comments from NMFS, Statoil 
modified its application and submitted a revised application on April 
12, 2010. The April 12, 2010, application was the one available for 
public comment (see ADDRESSES) and considered by NMFS for the IHA.
    The marine seismic survey will use two towed airgun arrays 
consisting of 26 active (10 spare) airguns with a maximum discharge 
volume of 3,000 cubic inch (in\3\). The 3D survey will take place in a 
915 mi\2\ (2,370 km\2\) survey area approximately 150 mi (241 km) west 
of Barrow in water depth of approximately 100 to 165 ft (30 to 50 m). 
The seismic survey is designed to collect 3D data of the deep sub-
surface in Statoil's Chukchi leases in support of future oil and gas 
development within the area of coverage. The data will help identify 
source rocks, migration pathways, and play types. In addition, a 2D tie 
line survey has been designed as a second priority program to acquire 
useful information in the region. The four stand alone 2D lines (with a 
total length of approximately 420 mi or 675 km) are designed to tie the 
details of the new high resolution 3D image to the surrounding regional 
geology to facilitate interpretation of more regional trends. The 
number of 2D km acquired will to some degree be dependent on the 2010 
season's restrictive ice coverage and the 3D data acquisition progress.
    Statoil intends to conduct these marine surveys during the 2010 
Arctic open-water season (July through November). Impacts to marine 
mammals may occur from noise produced by airgun sources used in the 
surveys.

Description of the Specified Activity

    Statoil plans to conduct geophysical data acquisition activities in 
the Chukchi Sea in the period late July through the end of November, 
2010. Data acquisition is expected to take approximately 60 days 
(including anticipated downtime), but the total period for this request 
was from July 25 through November 30 to allow for unexpected downtime 
(the IHA became effective on August 6, 2010). The project area 
encompasses approximately 915 mi\2\ (2,370 km\2\) in Statoil lease 
holdings in the Bureau of Ocean Energy Management, Regulation, and 
Enforcement's (BOEMRE) (formerly the Minerals Management Service) Outer 
Continental Shelf (OCS) Lease Sale 193 area in the northern Chukchi Sea 
(Figure 1 of the Statoil IHA application). The activities consist of 3D 
seismic data acquisition and a 2D tie line survey as a second priority 
program.
    The entire 3D program, if it can be completed, will consist of 
approximately 3,100 mi (4,990 km) of production line, not including 
line turns. A total of four 2D well tie lines with a total length of 
approximately 420 mi (675 km) are included in the survey

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plan as a second priority program. The 3D seismic data acquisition will 
be conducted from the M/V Geo Celtic. The M/V Geo Celtic will tow two 
identical airgun arrays at approximately 20 ft (6 m) depth and at a 
distance of about 902 ft (275 m) behind the vessel. Each array is 
composed of three strings for a total of 26 active G-guns (4x60 in\3\, 
8x70 in\3\, 6x100 in\3\, 4x150 in\3\, and 4x250 in\3\) with a total 
discharge volume of 3000 in\3\. Each array also consists of 5 clusters 
of 10 inactive airguns that will be used as spares. One of the smallest 
guns in the array (60 in\3\) will be used as the mitigation gun. More 
details of the airgun array and its components are described in 
Appendix B of Statoil's IHA application. In addition to the airgun 
array, pinger systems (DigiRANGE II, or similar systems) will be used 
to position the streamer array relative to the vessel.
    The estimated source level for the full 3000 in\3\ array is 245 dB 
re 1 [mu]Pa (rms) at 1 m. The maximum distances to received levels of 
190, 180 160, and 120 dB re 1 [mu]Pa (rms) from sound source 
verification (SSV) measurements of the 3,147 in\3\ airgun array used in 
the Chukchi Sea during 2006-2008 were used to model the received levels 
at these distances, which show that the maximum distances are 700, 
2,500, 13,000, and 120,000 m, respectively. The SSV tests will provide 
received sound measurements in 10-dB increments between 120-190-dB 
isopleths. NMFS does not consider marine mammals exposed to impulse 
sounds below the 160 dB received level to be taken. The sole purpose of 
measuring to the 120 dB distance is to assess how far the sound source 
attenuates in the Arctic for the proposed seismic survey and the 
resulting information has not been factored into NMFS' MMPA decision 
for the Statoil seismic activities.
    The estimated source level of the mitigation gun (i.e., the single 
60 in\3\ airgun noted above) is 230 dB re 1 [mu]Pa (rms) at 1 m, and 
the modeled distances to received levels of 190, 180 160, and 120 dB re 
1 [mu]Pa (rms) are 75, 220, 1,800, and 50,000 m, respectively.
    The DigiRANGE II pinger system produces very short pulses, 
occurring for 10 ms, with source levels of approximately 180 dB re 1 
[mu]Pa (rms) at 1 m at 55 kHz, 188 dB re 1 [mu]Pa (rms) at 1 m at 75 
kHz, and 184 dB re 1 [mu]Pa (rms) at 1 m at 95 kHz. One pulse is 
emitted on command from the operator aboard the source vessel, which 
under normal operating conditions is once every 10 s. Most of the 
energy in the sound pulses emitted by this pinger is between 50 and 100 
kHz. The signal is omnidirectional. Using a simple spherical spreading 
modeling for sound propagation, the calculated distances to received 
levels of 180, 160, and 120 dB re 1 [mu]Pa (rms) are 2.5 m, 25 m, and 
2,512 m, respectively. These distances are well within the radii for 
airgun arrays and that of a single mitigation gun.
    The vessel will travel along pre-determined lines at a speed of 
about 4-5 knots while one of the airgun arrays discharges every 8-10 
seconds (shot interval 61.52 ft [18.75 m]). The streamer hydrophone 
array will consist of twelve streamers of up to approximately 2.2 mi (4 
km) in length, with a total of 20,000-25,000 hydrophones at 6.6 ft (2 
m) spacing. This large hydrophone streamer receiver array, designed to 
maximize efficiency and minimize the number of source points, will 
receive the reflected signals from the airgun array and transfer the 
data to an on-board processing system.
    A 2D tie line survey has been designed as a second priority program 
to allow the vessel to acquire useful information in the region. The 
four stand alone 2D lines have a total length of approximately 420 mi 
(675 km) and are designed to tie the details of the new high resolution 
3D image to known surrounding regional geology.
    The approximate boundaries of the total surface area are between 
71[deg]30' N and 72[deg]00' N and between 165[deg] W and 162[deg]30' W. 
The water depth in the survey area varies from 100 to 165 ft (30 to 50 
m).
    The vessels involved in the seismic survey activities will consist 
of at least three vessels as listed below. Specifications of these 
vessels (or equivalent vessels if availability changes) are provided in 
Appendix A of Statoil's IHA application.
     One (1) seismic source vessel, the M/V Geo Celtic or 
similar equipped vessel, to tow the two 3,000 in\3\ airgun arrays and 
hydrophone streamer for the 3D (and 2D) seismic data acquisition and to 
serve as a platform for marine mammal monitoring;
     One (1) chase/monitoring vessel, the M/V Gulf Provider or 
similar equipped vessel, for marine mammal monitoring, crew transfer, 
support and supply duties.
     One (1) chase/monitoring vessel, the M/V Thor Alpha or 
similar equipped vessel, for marine mammal monitoring, support and 
supply duties.
    The M/V Geo Celtic, or similar vessel, arrived in Dutch Harbor 
around mid July 2010. The vessels were resupplied and the crew changed 
at this port. All three vessels had departed Dutch Harbor at the end of 
July with an expected transit time of approximately 5 days (weather 
depending). Directly upon arrival in the 3D survey area, depending on 
ice conditions, the M/V Geo Celtic will deploy the airgun array and 
start operating their guns for the purpose of sound source verification 
measurements (see Statoil IHA application for more details). The 
startup date of seismic data acquisition is expected to be early/mid 
August but depends on local ice conditions.
    Upon completion of these measurements the seismic data acquisition 
in the Chukchi Sea will start and, depending on the start date, is 
expected to be completed in the first half of October. This is based on 
an estimated duration of 60 days from first to last shot point 
(including anticipated downtime). The data acquisition is a 24-hour 
operation.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Statoil published in 
the Federal Register on June 8, 2010 (75 FR 32379). That notice 
described, in detail, Statoil'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 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 articles are merely used as citations in 
AEWC's comments. AEWC also submitted copies of 2009 and 2010 Conflict 
Avoidance Agreement (CAA), since Statoil declined to sign the CAA. Dr. 
Bain also attached an in-review journal article he coauthored. Any 
comments specific to Statoil'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.

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General Comments

    Comment 1: AEWC believes 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 points 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 mammals 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 Statoil's 
activities for 2010 (as described in the application, the notice of 
proposed IHA (75 FR 32379; June 8, 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 Statoil'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 32379; June 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, are likely to result in negligible impacts to marine 
mammals and their habitat 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 at 
headquarters and through Endangered Species Act (ESA) section 7 
consultation at NMFS Alaska Regional Office, and by an independent 
bioacoustics expert. Based on those reviews, NMFS staff in the Office 
of Protected Resources made appropriate changes to this document.
    Comment 2: The Commission requests that NMFS clarify whether the 3D 
and 2D seismic surveys will occur simultaneously or independent of one 
another and, if they will occur independently, recalculate the total 
exposed area and subsequent exposures for the 2D surveys.
    Response: As stated in Statoil's IHA application, the 3D and 2D 
seismic surveys will occur independently. The total exposed area and 
subsequent exposures for the 2D surveys are reported in Statoil's IHA 
application.

MMPA Concerns

    Comment 3: AEWC notes their disappointment in NMFS for releasing 
for public comment an incomplete application from Statoil that fails to 
provide the mandatory information required by the MMPA and NMFS' 
implementing regulations. AEWC requests that NMFS return Statoil'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 Statoil's 
application: (1) For several species, a thorough ``description of the 
status, distribution, and seasonal distribution (when applicable) of 
the affected species or stocks of marine mammals likely to be 
affected'' (50 CFR 216.104(a)(4)); (2) 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)); (3) an adequate detailing of ``the anticipated impact 
of the activity upon the species or stock of marine mammals'' (50 CFR 
216.104(a)(7)); (4) 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 (5) 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 Statoil on its application. After receipt and review of 
Statoil'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 32379; June 8, 
2010). Regarding the three specific pieces of information believed to 
be missing by AEWC, Statoil'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)(4) and (6) 
requires that an applicant submit information on the ``status, 
distribution, and seasonal distribution (when applicable) of the 
affected species or stocks of marine mammals likely to be affected'' 
and ``age, sex, and reproductive condition (if possible)'' of the 
number of marine mammals that may be taken, respectively. In the 
application, Statoil 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. The status and 
distribution of these species are included in Section IV of Statoil's 
IHA application, the proposed IHA (75 FR 32379; June 8, 2010), and in 
this document. However, in most cases, it is difficult to estimate how 
many animals, especially cetaceans, of each age, sex, and reproductive 
condition will be taken or impacted by seismic surveys, because group 
composition of animals varies greatly by time and space.
    In Section VII of Statoil's IHA application, the proposed IHA (75 
FR 32379; June 8, 2010), and in this document, detailed discussion on 
the anticipated impacts from the proposed Statoil open water seismic 
survey in the Chukchi is provided, as required under 50 CFR 
216.104(a)(7). The description of the anticipated impacts includes

[[Page 49763]]

discussions on potential effects from airgun noise and pinger signers.
    Statoil 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, Statoil 
states that four main mitigations regarding the open water marine 
seismic survey in the Chukchi 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 an 
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 Statoil's IHA application. In addition to these measures, NMFS' 
Notice of Proposed IHA (75 FR 32379; June 8, 2010) described mitigation 
measures proposed to be implemented by Statoil (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 Statoil's application. Statoil states that it will 
cooperate with any number of external entities, including other energy 
companies, agencies, universities, and NGOs, in its efforts to manage, 
understand, and fully communicate information about environmental 
impacts related to seismic activities. Statoil is a member of the OGP 
E&P Sound & Marine Life joint industry programme (JIP), which is an 
international consortium of oil and gas companies organized under the 
OGP in London. The objective of the JIP program is to obtain valid data 
on the effects of sounds produced by the gas exploration and production 
industry on marine life. Additionally, Statoil, Shell, and 
ConocoPhillips (CPAI) are jointly funding an extensive science program 
in the Chukchi Sea, which will be carried out by Olgoonik-Fairweather 
LLC to continue the acoustic monitoring programs of 2006-2009 with a 
total of 44 acoustic recorders distributed both broadly across the 
Chukchi lease area and nearshore environment and intensively on the 
Statoil, Burger (Shell), and Klondike (CPAI) lease holdings. Please 
refer to Statoil's IHA application and the proposed IHA (75 FR 32379; 
June 8, 2010) for a detailed description of the science program.
    In conclusion, NMFS believes that Statoil provided all of the 
necessary information to proceed with publishing a proposed IHA notice 
in the Federal Register.
    Comment 4: 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 Statoil's refusal to sign the CAA and without a 
complete draft authorization and accompanying findings, AEWC states 
that it cannot provide meaningful comments on Statoil'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 June 8, 2010 proposed IHA notice (75 FR 32379) 
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 the conditions which have been added to the IHA include: (1) 
Avoiding concentrations of whales and reducing vessel speed when near 
whales; (2) conducting sound source verification measurements; and (3) 
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 5: AEWC and NSB argue that Statoil 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 32379; June 8, 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

[[Page 49764]]

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 passing 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).
    Regarding the small number issue raised by the AEWC and NSB, NMFS 
has developed a series of estimates for marine mammals that could be 
taken as a result of Statoil's proposed marine surveys, and the 
estimated takes from these proposed activities are all under five 
percent for any affected marine mammal species or stock (see Potential 
Number of Takes by Harassment section below).

Impacts to Marine Mammals

    Comment 6: AEWC notes that based on the density estimates, Statoil 
is predicting that an average of 2,253 and 4,234 individuals of Alaska 
ringed seals may be exposed to sound levels of 160 dB and above during 
the proposed 3D and 2D seismic surveys, respectively. AEWC and NSB 
state that these are by no means ``small numbers'' of marine mammals 
that will be subjected to impacts as a result of Statoil's operations.
    Response: NMFS determined that the small numbers requirement has 
been satisfied. Statoil has predicted that an average of 2,253 and 
4,234 individuals of Alaska ringed seals may be exposed to sound levels 
of 160 dB and above as the result of Statoil's proposed 3D and 2D 
marine seismic surveys, respectively, and NMFS assumes that animals 
exposed to received levels above 160 dB are taken. However, because of 
the tendency of marine mammals to avoid the source to some degree, and 
the fact that both the marine mammals and the source are 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 assesses 
``small numbers'' in terms relative to the population/stock size. The 
Level B harassment take estimate of a total of 6,487 Alaska stock of 
ringed seals is a small number in relative terms, because of the nature 
of the anticipated responses and in that it represents only 2.81 
percent of the regional stock size of that species (population > 
230,000), if each ``exposure'' at 160 dB represents an individual 
ringed seal. Furthermore, as discussed below, exposure of marine 
mammals to received levels at 160 dB do not always constitute a 
``take.'' Many animals may not respond to this level in a way that is 
considered biologically significant. Therefore, even though NMFS uses 
the 160 dB received level as the onset of Level B harassment for 
regulatory purposes, this does not mean that all animals exposed to 
this level or levels above 160 dB are ``taken.'' Additionally, NMFS 
believes the percentage would be even lower if animals move out of the 
seismic area. In these circumstances, animals that are outside of the 
ensonified zone (e.g., the 160 dB isopleth) would not be expected to be 
taken by Level B harassment.
    Comment 7: 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.
    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). 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 Statoil's activities. In the proposed IHA, NMFS 
determined that Statoil'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 8: AWL, 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 Statoil's 
proposed surveying based on the exposure of 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,

[[Page 49765]]

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.
    The AWL states that harbor porpoises have been shown to be 
particularly responsive to sound, exhibiting behavioral changes, 
including exclusion from an area, at received levels of 90-110 dB or 
lower (with received levels around 70-90 dB), depending on experience 
with the noise source and environmental context. The AWL listed a 
number of papers but did not point out the source of its statement. The 
AWL also states that multiple studies confirm the sensitivity of beluga 
whales, and that they are known to alter their migration paths in 
response to icebreaker noise at received levels as low as 80 dB, and 
that belugas have been observed to respond to icebreakers by swimming 
rapidly away at distances up to 80 km.
    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 [micro]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). Furthermore, the behavioral 
responses by harbor porpoises (pinger) and beluga whales (icebreaker) 
were to non-impulse noises. For non-impulse noise sources, research 
shows that in general, the threshold that induces behavioral responses 
among animals tends to be much lower. Therefore, NMFS uses 120 dB as 
the onset for behavioral harassment for non-impulse noises but 160 dB 
for impulse noises. The noises from the proposed marine seismic survey 
from airgun arrays are pulses.
    The references cited in the comment letters address different 
source characteristics (continuous sound rather than impulse sound that 
are planned for the proposed seismic survey) or species (killer whales 
and harbor porpoises) 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 Statoil 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

[[Page 49766]]

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 9: 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. AWL points out that NMFS specifically observed that 
activities ``occurring near productive forage areas such as the Hanna 
Shoal'' or ``along migratory corridors'' are most likely to encounter 
and impact marine mammals. AWL states that Statoil's proposed surveying 
will likely take place proximate to the Hanna Shoal, which is a feeding 
ground for gray whales and is within the pathway for migrating 
bowheads. AWL furthers states that the lack of information runs up 
against the precautionary nature of the MMPA, therefore, NMFS cannot 
claim the lack of available information justifies its decision, and 
that NMFS has an affirmative obligation to find that impacts are no 
more than ``negligible'' and limited to the harassment of only ``small 
numbers of marine mammals.'' 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: 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 affected marine 
mammal species or stocks in the Chukchi Sea. As explained in this 
document and based on the best available information, NMFS has 
determined that Statoil's activities will affect only 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 subsistence uses of the affected species or stocks.
    Comment 10: 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). 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 Statoil do not negate injury.
    Response: As has already been stated in the Federal Register notice 
for the proposed IHA (75 FR 32379; June 8, 2010), recent scientific 
information has indicated that received noise levels need to be 
significantly higher than 190 dB to cause injury to marine mammals (see 
Southall et al. 2007). Therefore, the 180- and 190-dB safety zones are 
conservative.
    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 wave or rub on the seismic streamers deployed from the 
stern (and near the airgun array) as some scientists consider this a 
voluntary action on the part of an animal that is not being harassed or 
injured by seismic noise. While NMFS concurs that shutdowns are not 
likely warranted for these voluntary approaches, in the Arctic Ocean, 
all seismic surveys are shutdown or powered down for all marine mammal 
close approaches. Also, in all seismic IHAs, including Statoil's IHA, 
NMFS requires that the safety zone be monitored for 30 min prior to 
beginning ramp-up to ensure that no marine mammals are present within 
the safety zones. Implementation of ramp-up is required because it is 
presumed it would allow marine mammals to become aware of the 
approaching vessel and move away from the noise, if they find the noise 
annoying. Data from 2007 and 2008, when Shell had support boats 
positioned 1 km (0.62 mi) on each side of the 3D seismic vessel, 
suggest that marine mammals do in fact move away from an active source 
vessel. In those instances, more seals were seen from the support 
vessels than were seen from the source vessels during active seismic 
operations. Additionally, research has indicated that some species tend 
to avoid areas of active seismic operations (e.g., bowhead whales, see 
Richardson et al. 1999).
    NMFS has determined that an IHA is the proper authorization 
required to cover Statoil's survey. As described in other responses to 
comments in this document, NMFS does not believe that there is a risk 
of serious injury or mortality from these activities. The monitoring 
reports from 2006, 2007, 2008, and 2009 do not note any instances of 
serious injury or mortality (Patterson et al. 2007; Funk et al. 2008; 
Ireland et al. 2009; Reiser et al. 2010). Additionally, NMFS is 
confident it has met all of the requirements of section 101(a)(5)(D) of 
the MMPA (as described

[[Page 49767]]

throughout this document) and therefore can issue an IHA to Statoil for 
its survey operations in 2010.
    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 seismic survey'' (75 FR 32379; June 8, 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 32379; June 
8, 2010) demonstrate that seismic operations have the potential to 
injure marine mammals beyond beaked whales (and that Statoil 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, 
Statoil'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.
    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.
    Additionally, 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 Statoil 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 Statoil's 
2010 survey operations, so an LOA is not needed.
    Lastly, Statoil 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, Statoil 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, NSB, and Dr. Bain 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 
Offshore Inc. and Shell Gulf of Mexico Inc.'s 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 Statoil's proposed operations could injure 
marine mammals if they are close enough to the source. NSB further 
states that NMFS has not adequately analyzed the potential for serious 
injury.

[[Page 49768]]

    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. A 
detailed analysis on potential impacts of anthropogenic noise 
(including noise from seismic airguns and other active acoustic sources 
used in geophysical surveys) is provided in the proposed IHA (75 FR 
32379; June 8, 2010) and in this document. Based on the analysis, NMFS 
believes that it is unlikely any animals exposed to noise from 
Statoil's proposed marine surveys would be exposed to received levels 
that could cause TTS (a non-injurious Level B harassment). Therefore, 
it is even less likely that marine mammals would be exposed to levels 
of sound from Statoil's activity that could cause PTS (a non-lethal 
Level A harassment).
    In addition, 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 or any pinnipeds are sighted within the 190-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 Statoil's operations will not 
injure, seriously injure, or kill marine mammals.
    Comment 13: AEWC, AWL, and Dr. Bain state that NMFS does little to 
assess whether Level A harassment is occurring as a result of the 
deflection of marine mammals as a result of Statoil's proposed 
operations. Deflected marine mammals may suffer impacts due to masking 
of natural sounds including calling to others of their species, 
physiological damage from stress and other non-auditory effects, harm 
from pollution of their environment, tolerance, and hearing impacts 
(see Nieukirk et al. 2004). Not only do these operations disrupt the 
animals' behavioral patterns, but they also create the potential for 
injury by causing marine mammals to miss feeding opportunities, expend 
more energy, and stray from migratory routes when they are deflected.
    Response: See the response to comment 8 regarding the potential for 
injury. The paper cited by AEWC (Nieukirk et al. 2004) tried to draw 
linkages between recordings of fin, humpback, and minke whales and 
airgun signals in the western North Atlantic; however, the authors note 
the difficulty in assessing impacts based on the data collected. The 
authors also state that the effects of airgun activity on baleen whales 
is unknown and then cite to Richardson et al. (1995) for some possible 
effects, which AEWC lists in their comment. There is no statement in 
the cited study, however, about the linkage between deflection and 
these impacts. While deflection may cause animals to expend extra 
energy, there is no evidence that this deflection is causing a 
significant behavioral change that will adversely impact population 
growth. In fact, bowhead whales c