Incidental Takes of Marine Mammals During Specified Activities; Shallow Hazard and Site Clearance Surveys in the Chukchi Sea in 2008

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

PDF Version (23 pp, 285K, About PDF)


[Federal Register: August 11, 2008 (Volume 73, Number 155)]
[Notices]
[Page 46773-46795]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au08-141]


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Part III

Department of Commerce

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National Oceanic and Atmospheric Administration

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Incidental Takes of Marine Mammals During Specified Activities; Shallow
Hazard and Site Clearance Surveys in the Chukchi Sea in 2008; Notice

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XJ55

Incidental Takes of Marine Mammals During Specified Activities;
Shallow Hazard and Site Clearance Surveys in the Chukchi Sea in 2008

ACTION: Notice of issuance of a marine mammal incidental take
authorization.

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SUMMARY:  In accordance with provisions of the Marine Mammal Protection
Act (MMPA) as amended, notification is hereby given that an Incidental
Harassment Authorization (IHA) to take marine mammals, by Level-B
harassment, incidental to conducting open water shallow hazard and site
clearance surveys by ASRC Energy Service (AES) in the Chukchi Sea, has
been issued for a period of one year from the IHA effective date.

DATES:  The authorization is effective from July 30, 2008, until
September 25, 2008.

ADDRESSES:  Copy of the application, IHA, the Final Programmatic
Environmental Assessment for Arctic Ocean Outer Continental Shelf
Seismic Surveys - 2006 (2006 PEA) prepared by the Minerals Management
Service (MMS), the 2008 Supplemental Environmental Assessment (SEA) for
the Issuance of five IHAs for open water seismic surveys and shallow
hazard and site clearance surveys in the Arctic, and/or a list of
references used in this document may be obtained by writing to P.
Michael Payne, Chief, Permits, Conservation and Education Division,
Office of Protected Resources, National Marine Fisheries Service, 1315
East-West Highway, Silver Spring, MD 20910-3225, or by telephoning one
of the contacts listed here (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT:  Shane Guan, Office of Protected
Resources, NMFS, (301) 713-2289, ext 137 or Brad Smith, Alaska Region,
NMFS, (907) 271-5006.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region if certain findings are
made and either regulations are issued or, if the taking is limited to
harassment, a notice of a proposed authorization is provided to the
public for review.
    Authorization shall be granted if NMFS finds that the taking will
have a negligible impact on the species or stock(s) and will not have
an unmitigable adverse impact on the availability of the species or
stock(s) for certain subsistence uses, 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 United States can apply for an authorization
to incidentally take small numbers of marine mammals by harassment.
Except with respect to certain activities not pertinent here, the MMPA
defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild [Level A harassment]; or (ii) has the potential to disturb a
marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering
[Level B harassment].
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS
review of an application followed by a 30-day public notice and comment
period on any proposed authorizations for the incidental harassment of
marine mammals. Within 45 days of the close of the comment period, NMFS
must either issue or deny the authorization.

Summary of Request

    On March 25, 2008, NMFS received an application from AES for the
taking, by Level B harassment, of several species of marine mammals
incidental to conducting shallow hazard and site clearance surveys in
the Chukchi Sea for up to 100 days from approximately July 1, 2008
until November 30, 2008. On June 26, 2008, AES notified NMFS that the
proposed shallow hazard and site clearance survey could be finished
before September 25, 2008, with a maximum of up to 60 days. The marine
surveys would take place in the Chukchi Sea covering the area involved
in MMS Lease Sale 193. The specific areas where the AES proposed
shallow hazard and site clearance surveys would be are the Burger,
Crackerjack, Ulu, and Caramel prospect sites in the Chukchi Sea. The
marine surveys will be performed from a seismic vessel.
    Detailed information on the shallow hazard and seismic surveys can
be found in the AES application and in the Federal Register notice for
the proposed IHA published on April 28, 2008 (73 FR 22922) (hereinafter
``FR Notice of Proposed IHA''). Except for the updated seismic activity
period and specific locations, no changes have been made to the
proposed activities.

Comments and Responses

    A FR Notice of Proposed IHA was published on April 28, 2008 (73 FR
22922). During the 30-day public comment period, NMFS received comments
from the Marine Mammal Commission (Commission), the California Gray
Whale Coalition (CGWC); the Native Village of Point Hope (NVPH); the
North Slope Borough (NSB); the Alaska Eskimo Whaling Commission (AEWC);
the Center for Biological Diversity, Pacific Environment, Sierra Club,
Natural Resources Defense Council and Alaska Wilderness League; Oceana
and Ocean Conservancy; Dr. David E. Bain of the University of
Washington; Dr. Richard Steiner of the University of Alaska; and one
private citizen.

General Comments

    Comment 1: The Commission recommends that NMFS issue the IHA
provided that (a) the proposed marine mammal mitigation and monitoring
activities are carried out as described in NMFS' FR Notice of Proposed
IHA; and (b) operations be suspended immediately if a dead or seriously
injured marine mammal is found in the vicinity of the operations and
the death or injury could have occurred incidental to those operations.
    Response: NMFS concurs with the Commission's recommendation and
will require the immediate suspension of seismic activities if a dead
or injured marine mammal has been sighted within an area where the
Holder of the IHA deployed and utilized seismic airguns within the past
24 hours.
    Comment 2: The NSB points out that the AES application was poorly
written, and that it did not reference the primary literature but used
the summary information presented in the SAR. The NSB also points out
that the scientific name of beluga whales was misspelled and the
scientific name of the northern right whale was incorrect in the AES
application. In essence, the NSB states that the application does not
provide readers with confidence that AES has an

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understanding of the background information or the need or expertise to
conduct marine mammal monitoring or mitigation in association with the
proposed site clearance or shallow hazard surveys.
    Response: Comment noted. NMFS reviewed the AES application and
verified the information provided within. While information is lacking,
NMFS conducted relevant research so that complete information is
provided in the FR Notice of Proposed IHA. In addition, detailed and
updated information on bowhead whales and other marine mammal species
is provided in the MMS 2006 PEA, MMS 2007 draft PEIS, NMFS 2008 SEA,
and the SAR, as referenced in the FR Notice of Proposed IHA.
    Comment 3: The NVPH, CBD, and NSB point out that neither NMFS, nor
AES has identified the specific locations where AES plans to conduct
its shallow hazard and site clearance surveys, except that its vessels
would remain 40 km (25 mi) away from the Chukchi coast. The CBD further
points out that NMFS did not provide specific dates of the proposed AES
shallow hazard and site clearance surveys. As such, the CBD suggests
NMFS should reject AES' application as incomplete and requests that
NMFS reopen the public comment period for an additional 30 days. The
NVPH requests that NMFS identify all of the areas where subsistence
hunting occurs, and impose enforceable restrictions that would require
AES to avoid such areas by a distance sufficient to prevent
displacement of marine mammals.
    Response: At the time of the publication of the FR Notice of
Proposed IHA, no information was available regarding the exact
locations of the survey and the specific dates because AES was in the
stage of securing its client(s) and therefore could not have known
where seismic survey operations would occur in the Chukchi Sea.
Nevertheless, NMFS was able to conduct an analysis of AES' proposed
2008 open water seismic activities and its potential impacts on marine
mammals and subsistence uses. NMFS' preliminary determination that the
issuance of an IHA to AES would have a negligible impact on affected
species or stocks of marine mammals and would result in no unmitigable
adverse impact on the availability of such species or stock for taking
for subsistence uses was based on information contained in the AES
application, including overall area (i.e., the area denoted as LS 193
in the Chukchi Sea), the period of the seismic operations (i.e.,
approximately July 1 - November 30, 2008), the acoustic equipment
planned to be used for the surveys, marine mammal species and stocks
that are likely to be found in the vicinity of the project area, and
the proposed mitigation and monitoring measures.
    In addition, the MMPA and NMFS' implementing regulations provide a
30-day comment period on a proposed IHA. Based upon the information
contained in the FR Notice of Proposed IHA, NMFS believes that the
comment period afforded the public with ample time to comment on AES'
proposed seismic surveys, despite the fact that AES did not identify an
exact location in which the proposed surveys would occur. At this time,
the precise survey locations and operation timeframe have been
identified (see Description of the Specified Activity section above).
Therefore, the IHA issued to AES limits its 2008 open water shallow
hazard and site clearance surveys within these areas.
    Finally, the areas and season where subsistence hunting occurs are
described and analyzed in detail in the MMS 2007 EIS on Chukchi Sea
Lease Sale 193, and NMFS has developed a list of mitigation measures
that restrict seismic activities when the subsistence hunt occurs. For
example, no seismic activities would be permitted before July 15 in the
Chukchi Sea spring lead system. Also, as analyzed in the FR Notice of
Proposed IHA, it is possible that small numbers of marine mammals could
be temporarily displaced from their feeding areas as a result of the
proposed shallow hazard and site clearance surveys. However, NMFS
believes any displacement would constitute Level B behavioral
harassment with the magnitude of displacement being relatively slight.
NMFS does not believe the displacement of marine mammals would result
in an unmitigable adverse impact to the availability of marine mammal
species and/or stocks to subsistence uses because the AES would
complete their seismic surveys before the fall bowhead hunting season,
and it would not begin their operations prior to the completion of the
late spring whale harvest, which is already over.
    In addition, NMFS understands that AES has developed a POC with the
Native communities. The POC specifies measures AES would take to help
ensure that any harassment of marine mammals resulting from the
proposed activities will not have an unmitigable adverse impact on the
availability of marine mammal species or stocks for taking for
subsistence uses. NMFS will also require AES to comply with certain
terms and conditions in the IHA to help ensure the availability of
marine mammals for taking for subsistence uses. Please see description
of the mitigation and monitoring measures below.
    Comment 4: The CBD and CGWC urge NMFS not to issue any take
authorization to AES for the proposed activities unless and until the
agency can ensure that mitigation measures are in place that truly
avoid adverse impacts to all species and their habitats and only after
full and adequate public participation has occurred and environmental
review of the cumulative impacts of such activities on these species
and their habitats has been undertaken. The CBD feels that the proposed
IHA does not meet these standards and therefore violate the MMPA, ESA,
NEPA, and other governing statutes and regulations.
    Response: NMFS does not agree with CBD's assessment. In its FR
Notice of Proposed IHA, NMFS outlined in detail the proposed mitigation
and monitoring requirements. The implementation of these measures will
reduce the impacts of the proposed survey on marine mammals and their
surrounding environment to the lowest level practicable, as required by
the MMPA. The public was given 30 days to review and comment on these
measures, in accordance with section 101(a)(5)(D) of the MMPA. NMFS has
prepared a Supplemental EA to the 2006 MMS PEA. NMFS has fulfilled its
obligations under NEPA by completing a SEA, which is not required to be
available for public comment prior to its finalization. Additionally,
NMFS completed a Biological Opinion in July, 2008, as required by
section 7 of the ESA, which concluded that this action is not likely to
jeopardize the continued existence of listed species or result in the
destruction or adverse modification of critical habitat. Therefore,
NMFS does not believe the issuance of an IHA to AES would result in a
violation of the MMPA, ESA, NEPA, and other governing statutes and
regulations.

Acoustics Impacts

    Comment 5: Citing studies on noise impacts to chinchillas
(Henderson et al., 1991) and human noise exposure standards by the U.S.
Occupational Safety Health Administration (OSHA), Dr. Bain states that
``in humans, chronic exposure to levels of noise too low to generate a
TTS can result in PTS.'' As OSHA standards require limiting human
exposure to noise at 115 dBA above threshold to 15 minutes per day, Dr.
Bain concludes that this level is equivalent to 145 dB re 1 microPa for
killer whales.

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    Response: Although NMFS agrees that chronic exposure to noise
levels that would not cause TTS could result in hearing impairment in
the long-term, it is important to understand that such exposure has to
be of a chronic and long-term nature. The OSHA standards for
permissible exposure are based on daily impacts throughout an
employee's career, while the noise exposure to seismic surveys by
marine mammals is short-term and intermittent, as described in the FR
Notice of Proposed IHA and in the MMS 2006 PEA. In addition, the
reference Dr. Bain cites to (Henderson et al., 1991) does not address
chronic noise impact to humans. The research by Henderson et al. (1991)
focused on the applicability of the equal energy hypothesis (EEH) to
impact (impulse) noise exposures on chinchillas, and the results
indicated that hearing loss resulting from exposure to impact noise did
not conform to the predictions of the EEH, which is the basis for OSHA
standards for continuous noise exposure.
    Most importantly, Dr. Bain's extrapolation of 145 dB re 1 microPa
for killer whale hearing safety from OSHA's 115 dBA is fundamentally
flawed for three reasons:
    (1) The reference points when using decibel (dB) unit that address
sound in air and in water are different. For airborne sounds, such as
those by OSHA, the reference point is 20 microPa, while for underwater
sounds, the reference point is 1 microPa. There are 26 dB differences
between the values when different reference points are used for the
same sound pressure, therefore, 115 dB re 20 microPa is 141 dB re 1
microPa for the same sound pressure. So 115 dB re 20 microPa in air
above human threshold (defined as 0 dB re 20 microPa in air) would be
141 dB re 1 microPa underwater for the same sound pressure. Using the
lowest threshold of 30 dB re 1 microPa as the killer whale hearing
threshold, and assuming that noise impacts to killer whales are the
same as for humans, one could extrapolate that continuous noise
exposure of 171 dB re 1 microPa (141 dB over the 30 dB threshold) for
15 minutes for killer whales would be equivalent to humans exposed to
115 dB re 20 microPa for 15 minutes. Nevertheless, such extrapolation
still leaves much uncertainty since marine mammals have a different
mechanism for sound reception (Au, 1993; Richardson et al., 1005). Some
of the most recent science have shown that for some odontocetes, the
onset of TTS when exposed to impulse noise is much higher (Finneran et
al., 2002) than NMFS' current thresholds.
    (2) The decibel values used by OSHA are expressed as broadband A-
weighted sound levels expressed in dBA. This frequency-dependent
weighting function is used to apply to the sound in accordance with the
sensitivity of the human ear to different frequencies. Thus, it is
inappropriate to compare these values to an animal's hearing
capability, including how an animal perceives sound in air (Richardson
et al., 1995). For marine mammals, M-weighting functions have been
suggested based on five different hearing functional groups to address
different hearing sensitivities of different frequencies by each of the
marine mammal groups (Southall et al., 2007).
    (3) Finally, the sound characteristic used in OSHA standards is
continuous sound, while the seismic sound from the proposed shallow
hazard and site clearance surveys is impulse sound, which by its very
nature is not a continuous sound.
    Comment 6: Dr. Bain asserts that the zone of immediate risk of
injury or death for marine mammals should be within the 150 - 215 dB re
1 microPa contours and assumes that values can be extrapolated from
terrestrial species. Dr. Bain supports his argument by stating that
immediate injury may result from brief exposure to sound levels that
are 120 to 140 dB above threshold in terrestrial mammals, and that
marine mammals vary in their best sensitivity from killer whales at
around 30 dB re 1 microPa (killer whale) to 60 dB re 1 microPa
(phocids) and 75 dB re 1 microPa (otariids)
    Response: NMFS does not agree with Dr. Bain's assessment. As
discussed in Response to Comment 4, the reference points when using
decibel (dB) unit that address sound in air is 20 microPa, while in
water the reference point is 1 microPa. Therefore, the decibel levels
used to address injury in terrestrial mammals cannot be extrapolated to
apply marine mammal species without adding a correction factor of 26 dB
(see Richardson et al., 1995). Even so, plenty of controlled laboratory
experiments on several marine mammal species (e.g., beluga whales,
bottlenose dolphins, harbor seals, California sea lions, and northern
elephant seals) in the past decade point out injuries (PTS) to marine
mammals would probably occur at much higher sound exposure levels, far
above the 180 and 190 dB re 1 microPa NMFS currently applies to protect
cetaceans and pinnipeds from onset of Level A harassment (injury). (see
review by Southall et al., 2007).
    Comment 7: Citing OSHA (2007) standards for human noise exposure
standards, Nachtigall et al. (2003), and Henderson et al. (1991), Dr.
Bain extrapolates that permanent injury to hearing from repeated
exposure to noise at 120 dB re 1 microPa would occur to killer whales
after being exposed for 8 hours.
    Response: NMFS does not agree with Dr. Bain's assessment as such an
extrapolation is invalid. First, as discussed in Response to Comment 5,
the reference point addressing sound levels or intensities in air,
which is used by OSHA for the human noise exposure standards, is
relative to 20 microPa, while the reference point used to address sound
levels or intensities in water is relative to 1 microPa. These are
fundamentally different acoustical measures and should not be confused.
Second, as discussed in Response to Comment 5, the noise exposure
standard unit used by OSHA is dBA, which is the weighted sound exposure
level based on human hearing sensitivities, and is not suitable to be
used in other animals which have very different hearing sensitivities
across the spectrum. Third, the sound sources used by OSHA are based on
continuous sound, as is the referenced paper by Nachtigall et al.
(2003), while the sound sources from the proposed seismic surveys are
impulse sounds. The prediction of acoustic injury from continuous noise
exposure is not applicable to impulse noise exposure, as is shown in
the referenced paper by Henderson et al. (1991); therefore, the
extrapolation is invalid. Fourth, ambient noise levels at many shallow
water areas could easily reach 120 dB re 1 microPa, coupled with surf
and wave actions. If killer whales suffered from permanent hearing
damage when exposed to this noise level for 8 hours as suggested by Dr.
Bain, then most killer whales in the coastal areas would have no
hearing left. The lab controlled experiments by Nachtigall et al.
(2003), as cited by Dr. Bain, show that an Atlantic bottlenose dolphin
exhibited TTS of an average 11 dB after being exposed to continued
noise up to 179 dB re 1 microPa for 55 minutes, a much higher level
than where Dr. Bain would consider TTS to occur. However, in the wild,
animals are expected to avoid such intense noise levels, thus
preventing onset of TTS. Finally, killer whales are not expected to
occur frequently in the proposed Arctic shallow hazard and site
clearance project area, so the risk to this species is minimal.
    Comment 8: Citing several papers on killer whales, harbor
porpoises, and marbeled murrelets, Dr. Bain states that major behavior
changes of these animals appear to be associated with received

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levels of around 135 dB re 1 microPa, and that minor behavioral changes
can occur at received levels from 90 - 110 dB re 1 microPa or lower.
Citing his own studies, Dr. Bain states that ``killer whales are 40%
less likely to forage at all when vessels are nearby, perhaps because
vessel noise masks echoes from prey, making the probability of foraging
successfully negligible (Bain et al., 2006a; 2006b).'' In addition, Dr.
Bain states that the threshold for effects on harbor porpoise is 90 dB
re 1 microPa, for killer whale is 100 dB re 1 microPa, and for beluga
whale is 153 dB re 1 microPa, which are all lower than the threshold
used to estimate the takes. CBD also cited a study of Canadian beluga
whales showing flight responses from ice-breakers at received sound
levels as low as 94 dB.
    Response: NMFS does not agree with Dr. Bain and CBD's assessment.
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. In addition, as
discussed in Response to Comment 6, ambient noise levels in many of the
world's ocean can easily exceed 90 dB re 1 microPa (Urick, 1983).
    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).
    The references cited by Dr. Bain and CBD in this comment 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. No reference
supporting the ``threshold for effects'' on beluga whales is provided
by Dr. Bain. Much research regarding bowhead and gray whales response
to seismic survey noises has been conducted in addition to marine
mammal monitoring studies during prior seismic surveys. Detailed
descriptions regarding behavior 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.
    Comment 9: Dr. Bain states that sound sources are typically divided
into continuous and pulsed categories, and that behavioral effects from
pulsed sound are likely to be independent of the repetition rate and
duty cycle, and depend primarily on the duration of the survey. Dr.
Bain further states that intermittent pulses can result in continuously
received noise when sound arrives via multiple paths, which Dr. Bain
explains as ``sound that bounces between the bottom and the surface
will take longer to reach an animal than sound traveling via a direct
path,'' and that ``noise can mask signals for a brief period before and
after it is received, meaning an almost continuous received noise can
mask signals continuously.'' Dr. Bain concludes that ``the subbottom
profilers proposed for use during the site clearance surveys, with the
very short intervals between pulses, present a risk of continuous
masking effects.''
    Response: NMFS does not agree with Dr. Bain's statement on ocean
acoustics and his subsequent analysis and assessment regarding
underwater sound propagation and its effects to marine mammals. Within
the scientific community on ocean acoustics and bioacoustics, two types
of sounds are traditionally recognized: transient sounds (sounds of
relatively short duration) and continuous sounds (sounds that go on and
on). Transient sounds can be further classified into impulsive (such as
seismic airguns, explosives, pile driving) and non-impulsive (such as
military tactic sonars) sounds (Richardson et al., 1995). Other
researchers working on noise impacts to marine mammals classified sound
types into a single pulse (such as a single explosive), multiple pulses
(seismic airguns, pile driving), and nonpulses (ship, sonar) (Southall
et al., 2007). A simple way to distinguish pulses sound from nonpulses
(continuous sound included) is that the former have rapid rise-time in
relation to its extremely short duration. As mentioned in Response to
Comment 8, behavioral responses from marine mammals when exposed to
underwater noise is complex and context specific, and often depend on
the sound characteristics (such as received levels, duration, duty
cycles, frequency, etc.) and other variables.
    NMFS agrees that the distinction between transient and continuous
sounds is not absolute, as continuous sound from a fast moving vessel
is often treated as transient sound in relation to a stationary or slow
moving marine mammal. Further, the distinction between pulses and
nonpulses is also not always clear as certain pulsed sound sources
(e.g., seismic airguns and explosives) may become nonpulses at greater
distances due to signal decay through reverberation and other
propagation paths. However, Dr. Bain's statement that intermittent
pulses can result in continuously received noise when sound arrives via
multiple paths is unfounded. For a marine mammal exposed to noise,
multipath propagation would expose the animal to the noise multiple
times, usually each subsequent exposure with lower sound level due to
loss of acoustic energy from surface and bottom reflections; however,
the noise arriving via multipath propagation would not become
continuous sound because the intervals between signals would always
exist. In addition, noise cannot mask a signal before or after it is
received by the animal. Noise masking of signals can only occur when
the unwanted sound (noise) interferes with the signal when received by
the animal, generally at similar frequencies (Richardson et al., 1995).
Therefore, Dr. Bain's assessment that the subbottom profilers proposed
for shallow hazard and site clearance surveys would cause continuous
masking effects to marine mammals is not supported.
    Comment 10:Dr. Bain states that one characteristic of pulsed
sources is known as ``time-bandwidth'' product, and he explains that it
is ``any sound with a finite duration (that is, any real-world sound)
contains additional frequencies to the nominal frequency. That is,
pulsed sources that nominally have a frequency that is too high to
hear, may, in fact, be audible, as the source will contain lower
frequencies that are detectable.''
    Response: NMFS does not agree with Dr. Bain's statement that high
frequency pulsed sources nominally contain additional frequencies that
are audible. The high frequency pulsed sources are expected to operate
within their frequency range, although some mechanical noise at lower
frequencies may be produced as a byproduct during the operation. The
mechanical noise associated with acoustic equipment is

[[Page 46778]]

expected to be low intensity and is not expected to result in
harassment of marine mammals. Furthermore, the term ``time-bandwidth
product'' is generally used in signal process, which is irrelevant to
the proposed Arctic seismic survey.
    Comment 11: Dr. Bain states that the directionality of the sources
and whether they are on during turns would also affect the ensonified
area.
    Response: All acoustic sources are downward directional, thus no
additional ensonified area would result during turns.
    Comment 12: The CBD argues that NMFS analysis of the various high-
energy sound sources on marine mammals is deficient, with NMFS for the
most part simply asserting that the sound generated by these sources is
outside the hearing range of most marine mammals. The CBD further
states that even NMFS acknowledges that odontocetes such as beluga
whales can in fact hear these sounds.
    Response: NMFS does not agree with the CBD statement as it does not
have scientific basis. In the FR Notice of the Proposed IHA, NMFS
stated that the 445 kHz frequency band from the Klein System 3000 dual
frequency digital side-scan sonar is outside any marine mammal species'
hearing range, therefore, there would be no effect to marine mammals
when this frequency is chosen. High frequency sounds above 200 kHz are
clearly outside the hearing ranges for any marine mammals, which is
well accepted among marine mammal bioacousticians (Richardson et al.,
1995; Southall et al., 2007). In addition, NMFS never acknowledged that
odontocetes such as beluga whales can hear these sounds (CBD did not
provide any reference to support its statement.) Furthermore, the sound
generated by various side-scan sonars operated at the frequency of 120
kHz and beyond produce signals above the hearing ranges for mysticetes,
such as bowhead, gray, humpback, and minke whales (Richardson et al.,
1995; Southall et al., 2007).
    Comment 13: Citing Weilgart (2007), the CGWC states that seismic
surveys can raise low-frequency noise over vast areas for more than a
month, exposing large portions of a cetacean population to chronic
noise. Citing Tyack (1988), the CGWC further states that avoidance
behavior has been reported for gray whales in response to decibels
great than 120 dB for continuous noise and 160 - 170 dB for pulsed
sounds. In addition, the CGWC points out that playback of sounds from a
Bell 212 turbine helicopter projected at random intervals of 10 seconds
to 2 minutes showed significant course changes in gray whales in
apparent avoidance of the sounds. Finally, the CGWC states that
reactions to noise by gray whales are more pronounced on their
breeding/calving grounds (Malme et al., 1983; 1984), and that gray
whales were displaced for greater than 5 years from one of their
breeding lagoons in response to industrial sounds (Jones et al., 1994).
    Response: NMFS does not agree with CGWC's ``one size fits all''
statement that ``seismic surveys can raise low-frequency noise over
vast areas for more than a month, exposing large portions of a cetacean
population to chronic noise.'' The degree and number of cetaceans, or
any marine mammal species that can be exposed to a seismic survey
depends on the duration of the survey, the intensity of the airgun
source, and the density of cetacean population, or other marine
mammals, in the vicinity of the survey area.
    NMFS agrees with CGWC's comments that behavioral modification of
many marine mammals starts when exposed to pulsed sounds at 160 - 170
dB, as cited in Tyack (1988), which is consistence with NMFS current
criteria for Level B behavioral harassment of 160-dB when exposed to
pulsed sounds, and 120-dB when exposed to continuous sounds. The
signals produced by airguns and other acoustic equipment for the
proposed AES shallow hazard and site clearance survey are all pulsed
sounds.
    Finally, the proposed survey area in the Arctic Ocean is not gray
whale breeding/calving grounds, so there will be no effect to this
species' breeding/calving activities from the proposed activity.
    Comment 14: The CGWC states that when gray whales were on their
feeding grounds, Malme et al. (1986) estimated that there was a 50
percent probability of gray whale avoidance when the average pulse
level of the received noise was approximately 173 dB and a 10 percent
probability of avoidance at 163 dB.
    Response: Comment noted. Though some gray whales (10 percent) may
be temporarily affected by seismic surveys when exposed to received
level at 163 dB as referenced by Malme et al. (1986), NMFS does not
consider this effect to be significant for the following reasons: (1)
the proposed shallow hazard and site clearance survey area is in the
Chukchi Sea and is not a primary feeding ground for gray whales. The
majority of gray whales feed on amphipods in shallow coastal waters in
the Bering Sea which is not located near the proposed seismic survey
area; and (2) a 160-dB safety zone will be established requiring shut-
down of airguns when a congregation of 12 or more bowhead or gray
whales is sighted during the AES seismic activities.
    Comment 15: Citing NMFS (2002), Weller et al. (2006a; 2006b), and
IWC (2007), the CGWC states that noise has been thought to at least
contribute to some species' decline or lack of recovery.
    Response: Comment noted. However, since the CGWC did not provide
the full reference of the citation, NMFS is not able to verify its
statement. Nevertheless, for the proposed AES shallow hazard and site
clearance survey, NMFS has conducted a through analysis of the
potential impacts from seismic noise to marine mammals in its FR Notice
of Proposed IHA. More extensive analyses are also provided in the MMS
2006 PEA, the MMS 2007 draft PEIS and the 2008 SEA. As stated in this
document, NMFS finds that the impact of conducting the shallow hazard
and site clearance surveys in Chukchi Sea may result, at worst, in a
temporary modification in behavior of small numbers of certain species
of marine mammals.

MMPA Comments

    Comment 16: The CBD and NSB state that since NMFS has not
promulgated any regulations related to shallow hazard and site
clearance surveys under the MMPA, and because such surveys and
associated activities carry the real potential of injury or death to
marine mammals, neither an IHA nor an LOA can be issued for the AES'
proposed activities.
    Response: NMFS does not agree with the CBD and NSB's statement.
Section 101(a)(5)(D) of the MMPA authorizes Level A (injury) harassment
and Level B (behavioral) harassment takes. While NMFS' regulations
indicate that a LOA must be issued if there is a potential for serious
injury or mortality, NMFS does not believe that AES' shallow hazard and
site clearance survey require issuance of a LOA. As explained
throughout this Federal Register Notice of the Proposed IHA, it is
highly unlikely that marine mammals would be exposed to sound pressure
levels (SPLs) that could result in serious injury or mortality. The
best scientific information indicates that an auditory injury is
unlikely to occur as apparently sounds need to be significantly greater
than 180 dB for injury to occur (Southall et al., 2007).
    NMFS has determined that exposure to several seismic pulses at
received levels near 200 205 dB (rms) might result in slight temporary
threshold shift

[[Page 46779]]

(TTS) in hearing in a small odontocete, assuming the TTS threshold is a
function of the total received pulse energy. Received levels of 200 205
dB or more from the loudest acoustic device would be restricted to a
radius of no more than 5 m (16 ft) around a seismic vessel. AES' airgun
array is considered to be of small size. For baleen whales, while there
are no data, direct or indirect, on levels or properties of sound that
are required to induce TTS, there is a strong likelihood that baleen
whales (bowhead and gray whales) would avoid the approaching airguns
(or vessel) before being exposed to levels high enough for there to be
any possibility of onset of TTS. For pinnipeds, information indicates
that for single seismic impulses, sounds would need to be higher than
190 dB rms for TTS to occur while exposure to several seismic pulses
indicates that some pinnipeds may incur TTS at somewhat lower received
levels than do small odontocetes exposed for similar durations.
Consequently, NMFS has determined that it would be lawful to issue an
IHA to AES for the 2008 seismic survey program.
    Comment 17:The CBD states that it referenced the scientific
literature linking seismic surveys with marine mammal stranding events
in its comments to MMS on the 2006 Draft PEA and in comments to NMFS
and MMS on the 2007 DPEIS. The CBD further states that NMFS' failure to
address these studies and the threat of serious injury or mortality to
marine mammals from seismic surveys renders NMFS' conclusory
determination that serious injury or morality will not occur from AES'
activities arbitrary and capricious.
    Response: The MMS briefly addressed the humpback whale stranding in
Brazil on page PEA-127 in the 2006 Final PEA. Marine mammal strandings
are also discussed in the MMS 2007 DPEIS. A more detailed response to
the cited strandings has been provided in several previous IHA issuance
notices for seismic surveys (e.g., 73 FR 40512, July 15, 2008).
Additional information has not been provided by CBD or others regarding
these strandings. As NMFS has stated, the evidence linking marine
mammal strandings and seismic surveys remains tenuous at best. Two
papers, Taylor et al. (2004) and Engel et al. (2004), reference seismic
signals as a possible cause for a marine mammal stranding. Taylor et
al. (2004) noted two beaked whale stranding incidents related to
seismic surveys. The statement in Taylor et al. (2004) was that the
seismic vessel was firing its airguns at 1300 hrs on September 24,
2004, and that between 1400 and 1600 hrs, local fishermen found live-
stranded beaked whales some 22 km (12 nm) from the ship's location. A
review of the vessel's trackline indicated that the closest approach of
the seismic vessel and the beaked whales' stranding location was 33 km
(18 nm) at 1430 hrs. At 1300 hrs, the seismic vessel was located 46 km
(25 nm) 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 33 km (18 nm). 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 two beaked whales to strand is a
matter of considerable debate (see Cox et al., 2004). NMFS believes
that scientifically, these events do not constitute evidence that
seismic surveys have an effect similar to that of mid-frequency
tactical sonar. However, these incidents do point to the need to look
for such effects during future seismic surveys. To date, follow-up
observations on several scientific seismic survey cruises have not
indicated any beaked whale stranding incidents.
    Engel et al. (2004), in a paper presented to the International
Whaling Commission (IWC) in 2004 (SC/56/E28), mentioned a possible link
between oil and gas seismic activities and the stranding of eight
humpback whales (seven off the Bahia or Espirito Santo States and one
off Rio de Janeiro, Brazil). Concerns about the relationship between
this stranding event and seismic activity were raised by the
International Association of Geophysical Contractors (IAGC). The IAGC
(2004) argues that not enough evidence is presented in Engel et al.
(2004) to assess whether or not the relatively high proportion of adult
strandings in 2002 is anomalous. The IAGC contends that the data do not
establish a clear record of what might be a ``natural'' adult stranding
rate, nor is any attempt made to characterize other natural factors
that may influence strandings. As stated previously, NMFS remains
concerned that the Engel et al. (2004) article appears to compare
stranding rates made by opportunistic sightings in the past with
organized aerial surveys beginning in 2001. If so, then the data are
suspect.
    Second, strandings have not been recorded for those marine mammal
species expected to be harassed by seismic in the Arctic Ocean. Beaked
whales and humpback whales, the two species linked in the literature
with stranding events with a seismic component are either extralimital
or not located in the Chukchi Sea where shallow hazard and site
clearance survey would occur. Moreover, NMFS notes that in the Arctic,
marine mammal observation and monitoring have been conducted by the
industry during periods of industrial activity (and by MMS during times
with no activity). No strandings or marine mammals in distress have
been observed during these surveys; nor reported by NSB inhabitants.
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 AES to ramp-up the seismic array to avoid a
startle effect, strandings are highly unlikely to occur in the Arctic
Ocean. Ramping-up of the array will allow marine mammals the
opportunity to vacate the area of ensonification and thus avoid any
potential injury or impairment of their hearing capabilities. In
conclusion, NMFS does not expect any marine mammals will incur serious
injury or mortality as a result of AES' shallow hazard and site
clearance survey in the Chukchi Sea in 2008.
    Comment 18: The CBD states that NMFS failed to adequately specify
AES' activities and impacts of vessels because neither AES' application
nor NMFS' FR Notice of the Proposed IHA mention the various transit
routes through U.S. waters in the Bering, Chukchi and/or Beaufort Seas
that these vessels associated with AES' surveys would take.
    Response: The specified activity that has been proposed and for
which an IHA has been requested is the use of seismic airguns to
conduct oil and gas exploration. While the support vessels play a role
in facilitating seismic operations, NMFS does not expect these
operations to result in the incidental take of marine mammals. Since
these support vessels are typically slow-moving, any risk of vessel
collisions with marine mammals is expected to be minimal. Moreover,
normal shipping and transit operations do not rise to a level requiring
an authorization under the MMPA. To require IHAs and LOAs for standard
shipping would reduce the ability of NMFS to review activities that
have a potential to cause harm to marine mammal populations.
    Comment 19: The AEWC and NSB state that a ``small take'' finding
cannot be supported with actual data for the proposed AES shallow
hazard and site

[[Page 46780]]

clearance survey, therefore, placing NMFS in the position of having to
make an arbitrary decision. In addition, the CBD states that NMFS did
not make the distinction between ``small number'' and ``negligible
impact'' while making the decision in the FR Notice of the Proposed
IHA.
    Response: NMFS does not agree with the CBD's statement. The
analysis provided in the FR Notice of the Proposed IHA clearly
described in detail the numbers of bowhead, gray, and beluga whales,
and ringed and bearded seals that may be potentially taken by Level B
harassment as a result of the seismic operations in the Chukchi Sea.
(Take estimates for pinnipeds have since been revised based on the 160-
dB rms threshold.) As clearly stated in the aforementioned Federal
Register notice, take numbers of these species represent 0.06, 0.06,
and 0.6 percent of the western Arctic stock of bowhead (population
estimated at 10,545), eastern North Pacific stock of gray (population
estimated at 18,178), and eastern Chukchi stock of Beluga whales
(population estimated at 3,710), respectively; and 3.96 and 0.438
percent of the Alaska stocks of ringed (population estimated at 249,000
in the Chukchi Sea) and bearded seal (population estimated at 250,000 -
300,000 in the Bering and Chukchi Seas) populations within the Chukchi
Sea, respectively. Although no take number was estimated for humpback,
fin, minke, and killer whales, harbor porpoises, and spotted and ribbon
seals in the vicinity of the project area due to their rare presence
based in the Chukchi Sea, NMFS believes that the harassment of these
species would be much less likely than those of bowhead and beluga
whales and ringed and bearded seals. NMFS believes that the numbers for
all affected species are small relative to their stock size. Separate
detailed analyses on the levels of take by noise exposure and
cumulative impacts to these marine mammal species and stocks from a
wide spectrum in the past, current, and foreseeable future were also
conducted and described in the aforementioned Federal Register notice,
the MMS 2006 PEA, and NMFS 2008 SEA. These analyses led NMFS to
conclude that while behavioral modifications, including temporarily
vacating the area during the project period may be made by these
species to avoid the resultant visual and acoustic disturbance, NMFS
nonetheless found that this action would result in no more than a
negligible impact on the affected marine mammal species and/or stocks.
NMFS also found that the proposed action would not have an unmitigable
adverse impact on the availability of such species or stocks for taking
for subsistence uses. Please refer to the Federal Register notice (73
FR 22922, April 28, 2008), MMS 2006 PEA, and NMFS 2008 SEA for a
detailed description of the analysis.
    Comment 20: The CBD points out that AES only provided estimates for
exposure to sounds greater than 170 dB re 1 microPa (rms) for
pinnipeds, and that NMFS has in the previous IHAs rejected this
threshold. The CBD further points out that neither NMFS nor ASRC
provide any estimate of how many pinnipeds would be exposed to sounds
greater than 160 dB.
    Response: To be consistent with NMFS' Level B behavioral harassment
criteria for pinnipeds, NMFS will continue to use 160 dB re microPa as
the threshold of onset for Level B behavioral harassment, as noted in
this document. The estimated numbers of pinnipeds that could be exposed
to SPLs by AES' activities have been recalculated based on NMFS'
application of the 160-dB rms threshold and are described in this
Federal Register notice (see response to comment 19). Nevertheless, it
is important to note that even with the 160 dB criteria, NMFS expects
that only small numbers of pinnipeds would be exposed to seismic noises
that could cause Level B behavioral harassment. In addition, research
by Moulton and Lawson (2002) showed that most pinnipeds exposed to
seismic sounds lower than 170 dB do not visibly react to that sound,
and, therefore, pinnipeds are not likely to react to seismic sounds
unless they are greater than 170 dB re 1 microPa (rms). While the
number of potential exposures of pinnipeds at 170 dB is smaller than
that at 160 dB, the overall environmental effect of received sound
levels at 170 dB versus 160 dB is expected to be similar based on the
best available science.
    Comment 21: The CBD and NSB state that NMFS' estimates of the
number of marine mammals that may be harassed based on the assumption
that sounds below 160 dB re 1 microPa (rms) do not constitute
harassment is incorrect because an activity can constitute harassment
if it has the ``potential'' to affect marine mammal behavior. In
addition, the CBD argues that 160 dB threshold for belugas is similarly
flawed, as it points out in previous IHA notices, NMFS has acknowledged
the impacts of sounds on beluga even at significant distances from a
sound source (up to 20 km).
    Response: NMFS does not agree with CBD and NSB's statement. As
stated in the MMPA, Level B harassment is defined as any act of
pursuit, torment, or annoyance which ``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.'' Activities that
affect marine mammal behavior briefly but not cause disruption of
behavioral patterns are not considered ``takes.''
    In addition, in regard to impacts to marine mammal behaviors,
distance is not the only factor that counts. The received levels at
which marine mammals are affected are related to a number of factors
including source levels, distances, and acoustic propagation pathways.
The particular example CBD brought up regarding the seismic surveys by
the National Science Foundation used airgun arrays with total discharge
volume of 2,840 in\3\, while the proposed AES shallow hazard and site
clearance survey would only use an airgun array with total discharge
volume of 40 in\3\. The different source levels determine the
ensonified zone where marine mammals, including beluga whales, would be
impacted.
    Comment 22: The CBD and NSB state that NMFS has no idea of the
actual population status of several of the species subject to the
proposed IHA. For example, in the most recent Stock Assessment Reports
(SARs) prepared pursuant to the MMPA, NMFS acknowledges it has no
accurate information on the status of ribbon, spotted, bearded, and
ringed seals. CBD and NSB both indicate that without these data, NMFS
cannot conclude that surveys which will harass untold numbers of
individuals of each species would have no more than a ``negligible
impact'' on the stocks.
    Response: As required by the MMPA implementing regulations at 50
CFR 216.102(a), NMFS has used the best scientific information available
in making its determinations required under the MMPA. The Alaska SAR
provides population estimates based on past survey work conducted in
the region, and the SAR shows that based on the most recent
information, all of these Alaska stocks of ice seal species have robust
populations. The proposed survey by AES is not expected to have adverse
impacts on ice seals. The activity will last for approximately 60 days
in the open-water environment of the Chukchi Sea, where bearded and
spotted seals are found only occasionally.
    In addition, it is expected that approximately 9,850 and 1,094
ringed and bearded seals would be affected by

[[Page 46781]]

Level B behavioral harassment as a result of the proposed shallow
hazard and site clearance surveys, respectively, and that these take
umbers represent 3.96 and 0.438 percent of the Alaska stocks of ringed
and bearded seal populations within the Chukchi Sea, respectively.
Although spotted and ribbon seals could also be taken by Level B
behavioral harassment as a result of the proposed marine surveys in the
Chukchi Sea, the probability of take is very low since their presence
is very rare within the proposed project area. Nonetheless, NMFS
believes their take numbers would be much lower as compared to those
marine mammals whose take numbers were calculated.
    Comment 23: Citing research on long term adverse effects to whales
and dolphins from whale watching activities (Trites and Bain, 2000;
Bain, 2002; Lusseau et al., 2006), Dr. Bain states that Level B
behavioral harassment could be the primary threat to cetacean
populations.
    Response: Although NMFS agrees that long-term, persistent, and
chronic exposure to Level B harassment could have a profound and
significant impact on marine mammal populations, such as described in
the references cited by Dr. Bain, however, those examples do not
reflect the impacts of seismic surveys to marine mammals for the
proposed AES project. First, whale watching vessels are intentionally
targeting and making close approaches to cetacean species so the
tourists onboard can have a better view of the animals. Some of these
whale/dolphin watching examples cited by Dr. Bain occurred in the
coastal waters of the Northwest Pacific between April and October and
for extended periods of time (``[r]ecreational and scientific whale
watchers were active by around 6 a.m., and some commercial whale
watching continued until around sunset.'') Thus multiple vessels have
been documented to be in relatively close proximity to whales for about
12 hours a day, six months a year, not counting some ``out of season''
whale watching activities and after dark commercial filming efforts. In
addition, noise exposures to whales and dolphins from whale watching
vessels are probably significant due to the vessels' proximity to the
animals. To the contrary, the proposed 2008 open water shallow hazard
and site clearance surveys, along with other potential four seismic
activities and existing industrial operations in the Chukchi and
Beaufort Seas, do not intentionally approaching marine mammals in the
project areas. The two areas situate in a much larger Arctic Ocean
Basin which is far away from most human impacts. Therefore, the adverse
effects from each activity are remote and spread farther apart, as
analyzed in the MMS 2006 PEA and draft EIS. The proposed seismic
activities would only be conducted between July and November for a
maximum of 100 days, weather permitting. In addition, although studies
and monitoring reports from previous seismic surveys have detected
Level B harassment of marine mammals, such as avoidance of certain
areas by bowhead and beluga whales during the airgun firing, no
evidence suggests that such behavioral modification is biologically
significant or non-negligible (Malme et al., 1986; 1988; Richardson et
al., 1987; 1999; Miller et al., 1999; 2005), as compared to those
exposed by chronic whale watching vessels cited by Dr. Bain. Therefore,
NMFS believes that potential impacts to marine mammals in the Arctic by
shallow hazard and site clearance surveys would be limited to Level B
harassment only, and due to the limited scale and remoteness of the
projects in relation to a large area, such adverse effects would not
accumulate to the point where biologically significant effects would
realized.
    Comment 24: Dr. Bain states that changes in behavior resulting from
noise exposure could lead to indirect injury in marine mammals in the
wild. He presented several examples to suggest that marine mammals
repeatedly exposed to Level B behavioral harassment could result in
Level A takes: (1) Gas bubble lesions in beaked whales due to
acoustically mediated bubble growth or rapid ascent by animals after
deep diving; (2) a minke whale and harbor porpoises were observed
traveling at high speed during exposure to mid-frequency sonar in Haro
Strait in 2003, and that exhaustion from rapid flight could lead to
heart or other muscle damage, which could cause mortality; (3) citing
MMS' (2004) Environmental Assessment on Proposed Oil and Gas Lease Sale
195 in the Beaufort Sea Planning Area (OCS EIS/EA MMS 2004-028) that
feeding requires a prey density of 800 mg/m3 and his own observation,
Dr. Bain is concerned displacement from high productive feeding areas
would negatively affect individual whales, and that small cetaceans
such as harbor porpoises would face a risk of death if they are unable
to feed for periods as short as 48 - 72 hours; (4) individual killer
whales have been observed splitting their pod when frightened by sonar,
and that other killer whales' separation from their social units has
resulted in death; (5) TTS may lead to harm as a minke whale was nearly
struck by a research vessel in the area where one had been observed
fleeing mid-frequency sonar; and (6) impaired auditory ability may
increase predation as white-sided dolphins were attacked by killer
whales due to the noise of the research vessel caused the approach of
killer whales undetected by the dolphins.
    Response: NMFS agrees that it is possible that changes in behavior
or auditory masking resulting from noise exposure could lead to injury
in marine mammals under certain circumstances in the world, such as
those examples/hypotheses raised by Dr. Bain. However, it is not likely
that received sound pressure levels (SPLs) from the shallow hazard and
site clearance surveys would drastically cause changes in behavior or
auditory masking in marine mammals in the vicinity of the proposed
action area. First, marine mammals in the aforementioned examples and
hypotheses were exposed to high levels of non-pulse intermittent sounds
such as the military sonar, which has been shown to cause flight
activities (e.g., Haro Strait killer whales); and continuous sounds
such as the vessel, which could cause auditory masking when animals are
closer to the source. The sources produced by the acoustic equipment
and airguns for the proposed shallow hazard and site clearance surveys
are impulse sounds used in seismic profiling, bathymetry, and seafloor
imaging. Unlike military sonar, seismic pulses have an extremely short
duration (tens to hundreds milliseconds), and relatively long intervals
(several seconds) between pulses. Therefore, the sound energy levels
from these acoustic equipment and small airguns are far lower in a
given time period. Second, the intervals between each short pulse would
allow the animals to detect any biologically significant signals, and
thus avoid or prevent auditory masking. In addition, NMFS requires
mitigation measures to ramp up acoustic sources at a rate of no more
than 6 dB every 5 minutes. This ramp up would prevent marine mammals
from being exposed to high level noises without warning, thereby
eliminating the possibility that animals would dramatically alter their
behavior (i.e. from a ``startle'' reaction). NMFS also believes that
long-term displacement of marine mammals from a feeding area is not
likely because the seismic vessel is constantly moving, and the maximum
160-dB ensonified radius is about 4 km, which would make an ensonified
zone of approximately 50 km2 at any given moment, which is a small area
compared to the Chukchi

[[Page 46782]]

Sea. In reality, NMFS expects the 160-dB ensonified zone to be smaller
due to absorption and attenuation of acoustic energy in the water
column.
    Comment 25: Citing that the difference between takes by subsistence
harvest and potential biological removal (PBR) of the Western Arctic
stock bowhead whales is about 28 individuals whales, or less than 0.3
percent of the population, Dr. Bain is concerned that the cumulative
effects of multiple seismic surveys would not need to be very large to
push takes over PBR for bowheads.
    Response: NMFS does not agree with Dr. Bain's assessment. None of
the five proposed 2008 open water Arctic seismic surveys and shallow
hazard and site clearance surveys is expected to result in any Level A
harassment (i.e., injury) or mortality. As analyzed in the NMFS 2008
supplemental environmental assessment (SEA) for the issuance of five
Arctic seismic surveys and shallow hazard and site clearance surveys,
all incidental takes of marine mammals are expected to be Level B
behavioral harassment (NMFS, 2008). Therefore, no PBR would be applied
for the proposed AES seismic activities and other 2008 seismic
activities in the Chukchi and Beaufort Seas.
    Comment 26: Citing MMS 2006 Programmatic Environmental Assessment
(MMS 2006 PEA) and the MMS 2007 draft Programmatic Environmental Impact
Statement (DEIS) for seismic surveys in the Arctic Ocean, Dr. Bain
states that he supports the mitigation measures established in these
documents that no more than 12 cow/calf pairs and aggregation of
feeding or resting bowheads are within the area to be ensonified by 120
dB and 160 dB, respectively. The CBD also states that the monitoring of
a 120 dB safety zone for bowhead cow/calf pairs and monitoring of a 160
dB safety zone for large groups of bowhead or gray whales (>12
individuals) were required by NMFS in 2006 and were practicable. The
CBD states that the failure to require such conditions, or at least
analyze it, violates the MMPA. Dr. Bain presumes that these numbers
(using 120 and 160 dBs) reflect the difference between takes allocated
to hunters and the PBR for the stock. Dr. Bain further suggests that
this number be applied to all seismic activities combined, not
individual seismic surveys, thus, if four seismic surveys occur
concurrently, no single survey should be allowed to affect the
migration of more than 3 cow/calf pairs or 3 aggregation of feeding or
resting bowhead whales.
    Response: First, the additional mitigation measures in the MMS 2006
PEA and the MMS 2007 draft PEIS, as well as in the 2007 NMFS SEA for
the issuance of an IHA to Shell Offshore Inc. for its open water
seismic surveys conducted in the Chukchi and Beaufort Seas in 2007,
establish safety (shut-down) zones of 120 dB re 1 microPa for an
aggregation of four or more bowhead cow/calf pairs and 160 dB re 1
microPa for an aggregation of 12 or more bowhead or gray whales, not 12
cow/calf pairs as Dr. Bain states in his comment. The rationale for
this cautious and conservative approach when addressing the 120-dB and
160-dB safety zones is clearly stated in the MMS 2006 PEA. These
additional mitigation and monitoring measures were identified through
the analyses to further reduce the potential for adverse environmental
impacts and, depending on the scope of seismic-survey activities, could
be adopted as requirements for seismic-survey-related marine mammal
incidental take authorizations. With respect to CBD's concern that
these measures were ``practicable'' in 2006, NMFS has re-evaluated the
practicability of requiring aerial monitoring to the 120-dB isopleth in
the Chukchi. NMFS has determined that it is not practicable to conduct
aerial monitoring to the 120-dB isopleth because aerial surveys have
currently been determined to be impracticable due to lack of adequate
landing facilities, the prevalence of fog and other inclement weather
in that area, thereby resulting in safety concerns. Additionally, these
conditions are analyzed in NMFS' 2008 SEA. These numbers have nothing
to do with the PBR of the bowhead whale stock, as assumed by Dr. Bain.
As discussed in FR Notice of Proposed IHA, the proposed 2008 Arctic
seismic surveys and shallow hazard and site clearance surveys are not
expected to result in Level A harassment (injury) or mortality.
    In addition, Dr. Bain's suggestion of ``breaking up'' the
aggregated takes of bowheads into small subsets that can be
``allocated'' to each seismic survey is based on his assumption that
these numbers were set by PBR. NMFS does not support this suggestion
because it has no scientific support other than assumption. The safety
zones of 120-dB for four or more cow/calf pairs and 160-dB for an
aggregation of 12 bowhead or gray whales are based on the biology of
the bowhead and gray whales as analyzed in the MMS 2007 draft PEIS.
    The threshold of four or more fall-migrating bowhead whale cow/calf
pairs was set based on the following: (a) cow/calf pairs are identified
as the most vulnerable portion of the population and disruption of
their biologically significant behaviors or their avoidance of
important habitats is more likely to lead to population level impacts;
(b) mitigation measures for this portion of the population should be
cautiously developed to ensure that takings are at the lowest
practicable level and that significance is avoided; (c) bowhead whale
cow/calf pairs migrate in groupings or pulses and the observed presence
of cow/calf pairs by surveys generally indicates that additional cow/
calf pairs are present but unseen; (d) using professional judgment,
NMFS and MMS have determined that the presence of four or more cow/calf
pairs (as observed during surveys) indicates that enough cow/calf pairs
are likely present (but some unseen) in the area in numbers equal to or
greater than 12 animals; and (e) the potential for significance to
occur therefore increases when four or more bowhead whale cow/calf
pairs are observed (MMS, 2007).
    The threshold of an aggregation of 12 or more bowhead or gray
whales is based on the following premises: (a) whales aggregate in
order to communicate and perform ``biologically significant'' behaviors
(as defined by NRC, 2005), such as feeding, resting, socializing,
mating, and calving; (b) aggregations of animals can also indicate an
area of preferred habitat and locations where biologically significant
behaviors are likely occurring; (c) disruptions of these biologically
significant behaviors and important habitats have a greater potential
to lead to population level effects (i.e., result in limiting
reproductive potential or recruiting success, impeding important
mother/calf bonding); (d) protective measures should be designed to
reduce the potential for disruption of biologically significant
behaviors or help ensure whales do not avoid important key habitat
areas (and thus potentially negate a negligible impact finding under
the MMPA); and (e) standard scientific acceptance that the presence of
observed whales (i.e., at the surface) during monitoring surveys
indicates that additional whales are also present in the area but non-
detectable (i.e., below the surface) (MMS, 2007).
    Comment 27: Dr. Bain is concerned that the North Pacific right
whale is excluded from consideration for the proposed seismic activity
in the Chukchi Sea. Citing Nowacek et al. (2004), Dr. Bain further
states that the [North] Atlantic right whale is less easily disturbed
[than the North Pacific right whale], is known to be affected by
received levels below 135 dB.
    Response: NMFS does not agree with Dr. Bain and believes his
concern is

[[Page 46783]]

unwarranted. The North Pacific right whales are found in the northern
part of the Pacific, such as the Bering Sea and the Gulf of Alaska
(Moore et al.; 2000; 2002; LeDuc et al., 2001; Waite et al., 2003;
Mellinger et al., 2004; Wade et al., 2006). They do not enter Chukchi
Sea in the Arctic Ocean, where the proposed seismic activity is
planned. In addition, NMFS is not able to verify Dr. Bain's statement
that the North Atlantic right whale is less easily disturbed than the
North Pacific right whale, since he did not provide a supporting
reference.
    Comment 28: Dr. Bain is concerned that many species are sedentary,
territorial, or have strong tendencies toward site fidelity, and that
these species are unlikely to move away from a noise source. In
addition, Dr. Bain is concerned that many predators are used to
experiencing pain during feeding, and hence tolerate pain [from being
exposed to loud noise] rather than abandoning their prey (e.g., many
mammals involved in fishery-interactions).
    Response: First, the monitoring and mitigation measures described
in this document and implemented for the proposed open water seismic
activity would prevent any marine mammals from being exposed to
received levels that could cause onset of injury (180 dB re 1 microPa
for cetaceans and 190 dB re 1 microPa for pinnipeds). Second, there are
no sedentary marine mammals. The proposed seismic activity is
fundamentally different from commercial fisheries activity in which the
appearance of a seismic vessel does not reinforce the marine mammal
with food or prey, therefore, it is unlikely that predatory marine
mammals would approach the seismic vessel or acoustic source while
searching for prey. Even if a marine mammal happens to be in close
vicinity of the vessel or source, monitoring and mitigation measures
will required the crew to power-down or shut-down the acoustic sources
so that the animal will not be affected by Level A harassment.
    Comment 29: Dr. Bain comments on NMFS' and AES' method of
calculating estimated take numbers of marine mammals by multiplying the
``strip width'' by the length of the survey, and states that ``[f]or
bowheads, some studies showed behavioral changes in nearly all whales
out to 20 km, and in many cases to at least 30 km.'' Dr. Bain further
states that ``belugas and bowheads are known to be affected at 10 - 20
km or more.'' At such, Dr. Bain observes that the ramp-up procedures
would not be effective as it would take about 5 hours for the bowheads
[near the source] to move to a distance of 30 km, and marine mammal
monitoring over a distance of 20 km is very difficult.
    Response: First, the estimated takes of marine mammals were
calculated by multiplying the expected average animal densities by the
area of ensonification for the 160 dB re 1 microPa (rms) and 170 dB re
1 microPa (rms) isopleths, for cetaceans and pinnipeds, respectively.
The area of ensonification was determined by multiplying the total
proposed trackline (760 km or 410 nm) times 2 (both sides of the
trackline) times the distance to the 160-dB or 170-dB isopleths (not
``strip width,'' a term usually used in the population survey, as
stated by Dr. Bain in his comment).
    NMFS cannot verify Dr. Bain's statement that ``some studies showed
behavioral changes in nearly all whales out to 20 km, and in many cases
to at least 30 km'' and that ``belugas and bowheads are known to be
affected at 10 - 20 km or more,'' since he did not provide any
supporting references. Neither did Dr. Bain provide the source levels
and displacement volumes of the airgun arrays in which these studies
were conducted, nor the severity of the behavioral changes by the
whales. Nevertheless, it is important to understand that the distance
from the seismic sources where bowheads or other marine mammals can be
affected depends on the source levels of the airgun arrays, which is
also related to the size, or displacement volume of the airgun array.
It is possible that if a large airgun array was used in the seismic
survey, the received level at 20 to 30 km distance could still be high
enough to cause behavioral changes (or behavioral harassment) by the
bowhead whales. However, for the proposed shallow hazard and site
clearance surveys, the source levels of the airgun array and other
acoustic equipment are relatively low (about 214 dB re 1 ?Pa for the
GeoChirp II, the loudest acoustic equipment planed to be used), and
that the modeled distance to the 160-dB isopleths is estimated at 4,000
m (13,123 ft). Please see Number of Marine Mammals Estimated to be
Taken section below for a detailed description of the calculation.
    As far as mitigation measures are concerned, NMFS expects that the
distance from the source to the safety zone for cetaceans is
approximately 185 m (607 ft), where the received level is at 180 dB re
1 microPa, which is a small enough area to be effectively monitored by
NMFS-approved marine mammal monitors (MMOs). Furthermore, no seismic
surveys, ramp up included, will commence if there is a marine mammal
within the safety zone.
    Comment 30: Citing the 90-day monitoring report for the SOI 2007
open water seismic activities, the NVPH is concerned that the shallow
hazard and site clearance surveys could exclude nearly all migrating
bowhead whales from waters within 20 km or more of the survey vessel,
since the 120-dB isopleth extends over 25 km. The NVPH states that
similar displacement of beluga whales at large distance is also
possible.
    Response: NMFS does not agree with NVPH's assessment regarding the
potential acoustic impacts to bowhead and beluga whales. First, as
discussed in Response to Comment 5, 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 are taken by Level B harassment
(see definition of Level B harassment above). 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. In many cases, bowhead or beluga whales that are exposed to
120 dB re 1 ?Pa or higher do not exhibit noticeable behavioral changes
(e.g., Malme et al., 1984; Richardson et al., 1986; 1999; Miller et
al., 2005). Second, only migrating bowhead whales showed behavioral
disturbance in a biologically significant manner from exposure to
seismic airgun at received level around 120 dB re 1 microPa (Richardson
et al., 1999). The proposed shallow hazard and site clearance surveys
would be concluded by September 25, before the fall migrating bowhead
whales arrive the Chukchi Sea. Therefore, NMFS does not believe that
bowhead and beluga whales would be displaced when exposed to received
level from seismic airguns at 120 dB re 1 microPa.
    Comment 31: The NSB states that if AES conducts surveys into
October or November, it would also encounter belugas from the Beaufort
Sea stock as the animals are migrating toward wintering areas. There
are no density estimates for belugas (or other marine mammals) during
the darker months of October and November. The NSB further suggests
allowing AES to conduct surveys until late October.
    Response: AES will complete its shallow hazard and site clearance

[[Page 46784]]

surveys by September 25, as stated in this document.

Subsistence Uses

    Comment 32: NVPH states that NMFS did not present a preliminary
determination that AES' shallow hazard surveys would not have an
unmitigable adverse impact on the availability of affected marine
mammal populations to subsistence hunters in coastal villages of the
Chukchi Sea in the FR Notice of Proposed IHA. NVPH further states that
NMFS failed its basic duty under the MMPA and its regulations to make a
proposed determination available to the public to scrutinize and
comment on. NVPH requests that NMFS issue another Federal Register
notice to set forth the full scope of its required proposed findings
and afford an opportunity for the public to comment on the adequacy of
NMFS' assessment of the adverse effect of AES' shallow hazard surveys
on the availability of seals and whales for subsistence uses.
    Response: NMFS does not agree with NVPH's statement. A detailed
analysis on the subsistence harvest of marine mammals by Alaskan
natives in and around the Chukchi Sea was provided in the FR Notice of
Proposed IHA. NMFS also understands that as part of the application for
the IHA, AES has developed a Plan of Cooperation (POC) with the Native
communities. The POC specifies measures AES would take to minimize
adverse effects on marine mammals where proposed activities may affect
the availability of a species or stock of marine mammals for Arctic
subsistence uses or near a traditional subsistence hunting area. In
addition, AES has conducted POC meetings for its seismic operations in
the Chukchi Sea in Barrow, Wainwright, Point Lay, and Point Hope, and
with the Alaska Eskimo Whaling Commission (AEWC). AES also indicated to
NMFS that a Conflict Avoidance Agreement would be signed with the AEWC
prior to its proposed seismic activities in the Chukchi Sea.
Furthermore, NMFS has preliminarily determined that the impact of
conducting the shallow hazard and site clearance surveys in the Chukchi
Sea may result, at worst, in a temporary modification in behavior of
small numbers of marine mammals. Therefore, although NMFS did not
specifically include its preliminary determination that the proposed
shallow hazard and site clearance surveys by AES would have an
unmitigable adverse impact on the availability of affected marine
mammal populations to subsistence hunters in coastal villages of the
Chukchi Sea, the analysis provided in the FR Notice of Proposed IHA
supports such a determination.
    NMFS also does not believe that NVPH's request of issuing another
Federal Register notice is warranted. The FR Notice of Proposed IHA
provided a 30-day comment period and plenty opportunity for the public
to comment on AES' proposed shallow hazard and site clearance surveys
in the Chukchi Sea and NMFS preliminary determination to issue an IHA
to AES for the said proposed activity.
    Comment 33: NVPH questions whether NMFS's assessment of the impacts
to subsistence was based on the ``best available scientific evidence''
and whether NMFS has made any effort to discern whether seismic
surveying activities in the Chukchi Sea in 2006 or 2007 had an adverse
impact on the availability of any or all seal and whale species for
subsistence uses.
    Response: In making its final determination of whether the proposed
shallow hazard and site clearance surveys would have unmitigable
impacts to subsistence use of marine mammal populations in the affected
area, NMFS relies upon the best available scientific information to
make its MMPA determinations. In this case, NMFS has reviewed the 90-
day marine mammal monitoring and mitigation reports for the 2006 and
2007 open water seismic survey and shallow hazard and site clearance
survey conducted by Shell Offshore, Inc. (SOI), ConocoPhillips Alaska,
Inc., and GXTechnology in 2006 and by SOI in 2007 (Ireland et al.,
2007a; 2007b; Patterson et al., 2007; Funk et al., 2007; 2008). These
monitoring reports point out that the potential impacts to marine
mammals as a result from the 2006 and 2007 Arctic seismic activities
were negligible. In addition, actual take of marine mammals by Level B
harassment was generally lower than expected due to the implementation
of monitoring and mitigation measures. No marine mammals were observed
to have suffered injuries or death as a result of the seismic surveys
and none were suspected. In addition, information presented by the oil
and gas industry and independent researchers who conducted marine
mammal monitoring at the 2007 and 2008 Arctic Open Water Scientific
Meetings was also taken into consideration.
    Comment 34: NVPH states that NMFS failed to provide the substantive
analysis to support any meaningful finding regarding the possible
effect of AES' activities on the availability of beluga whales, seals,
and bowhead whales for subsistence uses by coastal communities along
the Chukchi Sea or the effectiveness of mitigation measures to
eliminate such impacts. The NVPH further states that the Chukchi Sea
and the adjoining coast existed as a relatively pristine ocean
environment, free of industrial operations that would disturb bowhead
and beluga whales and seals with their availability for subsistence
uses. Therefore, NVPH states that even a slight interference with the
availability of these species to communities on the Chukchi Sea would
constitute an unmitigable adverse impact to their overall availability
for subsistence uses.
    Response: NMFS does not agree with NVPH's statement. The FR Notice
of Proposed IHA provided a detailed analysis regarding the possible
effect of seismic surveys and underwater sound on marine mammals in the
planned action area. This analysis prompted NMFS to make a
preliminarily determination that the impact of conducting the shallow
hazard and site clearance surveys in Chukchi Sea may result, at worst,
in a temporary modification in behavior of small numbers of marine
mammals.
    NMFS agrees that the Chukchi Sea and the adjoining coast existed as
a relatively pristine ocean environment that was free of industrial
operations, however, NMFS does not agree with NVPH's assessment that
within this environment, a slight interference with the availability of
these species to communities on the Chukchi Sea would constitute an
unmitigable adverse impact for subsistence uses of these species. The
proposed shallow hazard and site clearance surveys proposed by AES
would only occur in a small area within the much larger Chukchi Sea
basin for a brief period of 60 days. Furthermore, mitigation and
monitoring measures required for the seismic activities would reduce
all potential impacts to negligible levels to marine mammals and their
habitat. In addition, AES will be working with Native communities in
the affected region to ensure that seismic operations do not result in
an unmitigable adverse impact on the availability of marine mammals to
subsistence uses by the Native communities in and around the Chukchi
Sea.
    Comment 35: The CBD and NSB state that the MMPA requires that any
incidental take authorized will not have ``an unmitigable adverse
impact on the availability of such species or stock for taking for
subsistence uses'' by Alaska Natives. The NSB is concerned about
impacts to subsistence hunts of marine mammals early in the summer. The
NSB points out that the beluga hunt at Point Lay typically occurs
between June 20

[[Page 46785]]

and July 10. Additionally, CBD notes they are aware that the NVPH, a
federally recognized tribal government, has submitted comments opposing
the proposed take authorizations due to impacts on subsistence, and
along with many community members has commented on myriad other related
agency documents that have direct bearing on these take authorization
such as the Chukchi Sea Sale 193, MMS Five-Year Plan, and the DPEIS.
Similarly, the NSB, the AEWC, and REDOIL have all filed challenges in
federal court and/or the IBLA challenging offshore activities due to
impacts on the subsistence hunt of bowheads and other species. In light
of the positions of these communities and organizations, the CBD does
not think that NMFS can lawfully make the findings required under the
MMPA for approving AES' proposed IHA.
    Response: NMFS does not agree with CBD and NSB's statement. The AES
shallow hazard and site clearance survey will not start after July 15,
after the spring subsistence hunt of marine mammals. NMFS believes that
the concerns expressed by subsistence hunters and their representatives
have been addressed by NMFS in this FR Notice and other supporting
documents prepared or relied upon by NMFS in issuing the AES IHA.
    Comment 36: The AEWC states that under current Federal rules,
protections for the subsistence uses are little more than an after-
thought in Federal regulation, since they do not become effectively
relevant until after exploration or development permits are issued.
When these protections do come into play, at the point of IHA or LOA
review, companies already have been allowed to address, substantively,
mitigation or risk-reduction measures for likely impacts to the
resources and lives of Alaskan natives. In addition, the AEWC states
that Federal law do not require consultation with the native coastal
communities until after offshore exploration and development plans have
been finalized, permitted, and authorized. Then at the point at which
these requirements do come into play, Federal agencies, including NMFS,
are reluctant to give teeth to the very minimal protections articulated
in the MMPA.
    Response: NMFS does not agree with the AEWC's statement. Under
sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.), an
IHA or LOA would be granted to U.S. citizens who engage in a specified
activity (other than commercial fishing) within a specified
geographical region if NMFS finds that the taking of marine mammals
will have a negligible impact on the species or stock(s) and will not
have an unmitigable adverse impact on the availability of the species
or stock(s) for certain subsistence uses, and if the permissible
methods of taking and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth. In other words,
no marine mammal take authorizations may be issued if NMFS has reason
to believe that the proposed exploration or development activities
would not have an unmitigable adverse impact on the availability of
marine mammal species or stock(s) for Alaskan native subsistence uses.
Although Federal laws do not require consultation with the native
coastal communities until after offshore exploration and development
plans have been finalized, permitted, and authorized, pre-permitting
consultations between oil and gas industries and the Alaskan coastal
native communities are considered by NMFS when the agency makes a
determination whether such activities would have an unmitigable adverse
impact on the availability of marine mammal species or stock(s) for
subsistence uses. For the proposed shallow hazard and site clearance
survey, AES has conducted POC meetings for its seismic operations in
the Chukchi Sea in Barrow, Wainwright, Point Lay, and Point Hope, and
with the Alaska Eskimo Whaling Commission. AES also indicated to NMFS
that a CAA would be signed with the AEWC prior to its proposed seismic
activities in the Chukchi Sea.
    Comment 37: The AEWC notes that NMFS and the AEWC share management
responsibility for bowhead whales and for the bowhead whale subsistence
hunt through the NOAA-AEWC Cooperative Agreement. The AEWC asserts that
Alaska Native citizens who are part of the Agreement should be provided
an opportunity to consult directly on all proposed actions affecting
bowhead whales, rather than mere notice that NMFS has made a decision
concerning the issuance or proposed issuance of authorizations to take
marine mammals.
    Response: There are numerous opportunities, including the
Cooperative Agreement, in which Alaska Native citizens can play a role
in matters affecting bowhead whales. These include, but are not limited
to, the MMPA's requirement that proposed notices of IHAs be published
in the Federal Register for a 30-day comment period; the requirement in
NMFS' regulations that oil and gas companies seeking take
authorizations consult directly with Alaska Native communities to
address subsistence use issues (i.e., development and submission of a
Plan of Cooperation); the sharing of information between applicants and
Alaska Native citizens; and annual stakeholder meetings in Alaska to
discuss oil and gas development (i.e., open-water meetings).
    Comment 38: NVPH states that NMFS failed to discuss a mandatory
limit on the number of concurrent seismic and/or shallow hazard surveys
in the Chukchi Sea. NVPH requests NMFS to prohibit the simultaneous
operation of multiple vessels within the Chukchi Sea during the fall
bowhead migration. NVPH further requests that NMFS require that no two
vessels operate within 100 km (62 mi) of one another, because given the
large size of the 120 dB zone, closer simultaneous operation would pose
a real risk of disrupting the bowhead whale migration.
    Response: NMFS does not agree with NVPH's statement and request.
First, the MMS 2006 PEA, which NMFS incorporated into its 2008 SEA,
provided a thorough analysis on the maximum number of eight seismic
activities that could occur in the Chukchi and Beaufort Seas. The
analysis lead NMFS and MMS to conclude that up to a maximum of eight
seismic surveys would not result in significant impacts to the quality
of the human environment. In addition, NMFS' 2008 SEA, which analyzed
the effect of multiple seismic surveys also lead NMFS to conclude that
the AES survey would not result in a significant impacts.
    NVPH has not provided NMFS with any data to support its argument
that multiple seismic vessels should not be permitted in the Chukchi
Sea or that no more than 2 vessels be allowed to operate within 100 km
(62 mi) of one another. As mentioned above, NMFS and MMS analyzed the
environmental effects of conducting multiple seismic surveys in both
the Beaufort and Chukchi Seas. NMFS and MMS evaluated each seismic
permit under the applicable NEPA document (i.e., the 2006 PEA, 2007 SEA
and 2008 SEA) to determine whether the action would result in
significant effects. In AES' case, NMFS has determined that the shallow
hazard and site clearance surveys would not result in significant
effects to the quality of the human environment. The 100 km (62 mi)
separating distance for the 120 dB zone between vessels is also not
scientifically supportable. The distance where the received level
reaches 120 dB re 1 microPa is dependent upon the source level and
oceanographic conditions. For the same oceanographic condition, the

[[Page 46786]]

higher the source level, the longer the distance where the received
level would reach 120 dB. Therefore, NMFS considers that the 100 km (62
mi) separation distance is arbitrary and baseless.

Mitigation and Monitoring

    Comment 39: Dr. Bain questions about the effectiveness of marine
mammal monitoring with only two MMOs on duty full time. Citing Forney
and Barlow (1998) and Dahlheim and Towell (1994), Dr. Bain states that
a common work schedule where consistent effort is required would be 40
minutes on, 40 minutes off, 40 minutes on, two hours off, three times a
day. Dr. Bain suggests that an observation team of 12 MMOs would be
required to cover a 24-hour period. Dr. Bain further states that the
probability of detecting marine mammals would drop with increased
distance from the vessel.
    Response: NMFS does not agree with Dr. Bain's assessment and
suggestions regarding MMOs and marine mammal monitoring. NMFS reviewed
the references (Dahlheim and Towell, 1994; Forney and Barlow, 1998)
provided by Dr. Bain, and did not find any type of work schedules
described. Unlike observers during marine mammal population surveys who
are required to search the entire field for any marine mammals, the
primary responsibility for MMOs is to monitor the safety zones, which
in this case are 185 m (607 ft) radius for the 180-dB isopleths and 40
m (131 m) radius for the 190-dB isopleths, and to ensure that proper
mitigation measures (power-down or shut-down acoustic sources) are
implemented if a marine mammal enters or is sighted within these safety
zones. NMFS agrees that the detection probability of a marine mammal
drops with increased distance from the ship. However, the occurrence of
marine mammals outside the safety zones is not a big concern for marine
mammal monitoring during the proposed seismic activity because it is
presumed these animals would not be within a zone that could result in
injury. In addition, all MMOs hired for the proposed seismic surveys
must be NMFS-approved observers who are qualified to perform the
required monitoring tasks.
    Comment 40: Dr. Bain is concerned that many species that are
capable of diving for more than 30 minutes could be missed during the
monitoring.
    Response: NMFS agrees with Dr. Bain that for deep diving marine
mammals it pose a challenge for monitoring. However, within the
proposed seismic survey area, there are no marine mammals that normally
dive for more than 30 minutes. However, in the event that a marine
would be missed during the initial pre-survey monitoring, ramp-up
procedures will be followed when an acoustic source begin to operate,
so the undetected animal(s) would have an opportunity to detect the
sound as it increases gradually and move away from the source. Please
refer to Monitoring and Mitigation Measures section below for a
detailed description.
    Comment 41: NVPH is concerned that NMFS did not discuss the option
of requiring AES to power down its airguns and other sound sources when
aggregations of feeding, resting or socializing bowhead whales or gray
whales are located within the 160 dB isopleths, and that NMFS fails to
discuss the option of requiring AES to monitor the 120 dB isopleths for
bowhead cow-calf pairs and to require AES to power down its sound
sources when four or more cow-calf pairs are observed to be exposed to
noises at or above 120 dB. NVPH requests NMFS to have both of these
mitigation measures. Citing Richardson's observation, NVPH further
states that nearly all bowhead whales avoid seismic airguns at received
levels as low as 107 dB, and requests NMFS to impose a safety zone for
bowhead cow-calf pairs exposed to 107 dB or more. In addition, as NVPH
observes that it would be impossible to monitor such a large area be
ship-based observation, NVPH requests that such monitoring be conducted
by aerial observation together with ship-based observers, for both of
these safety zones.
    Response: In its final determination and the IHA issued to AES,
NMFS requires AES to establish a 160-dB safety zone whenever an
aggregation of 12 or more bowhead whales or gray whales are observed.
If an aggregation of 12 or more bowhead or gray whales is observed
within the 160-dB safety zone around the seismic activity, the seismic
operation will not commence, or will shut down, until two consecutive
vessel surveys indicate they are no longer present within the 160-dB
safety zone of seismic-surveying operations.
    However, NMFS will not impose a requirement to conduct aerial
monitoring of the 120-dB safety zone for the occurrence of four ore
more cow-calf pairs in the Chukchi Sea because it is not practicable.
First, the 120-dB safety zone would require a safety zone of 20 km (12
mi) in radius, which is beyond the range for visual monitoring. The
120-dB ensonified zone is also too large to be monitored by chase
boats. Second, aerial surveys are not required in the Chukchi Sea
because they have currently been determined to be impracticable due to
lack of adequate landing facilities, the prevalence of fog and other
inclement weather in that area, thereby resulting in safety concerns.
Third, the proposed AES shallow hazard and site clearance would be
completed by September 25, before the large number of bowhead whales
migrate pass the Chukchi Sea.
    As far as the NVPH's statement that nearly all bowhead whales avoid
seismic airguns at received levels as low as 107 dB, NMFS is not able
verify NVPH's assessment because NVPH did not provide a reference to
support its statement. A comprehensive review by Southall et al. (2007)
on the potential acoustic impacts to low-frequency cetaceans (bowhead
and other large whales) does not list any reference that shows these
animals react to received levels under 110 dB re 1 microPa, regardless
of severity. Therefore, NMFS does not believe bowhead whales exposed to
107 dB would be taken by Level B behavioral harassment, and that
imposing a safety zone of 107 dB is not appropriate.
    Comment 42: NVPH states that NMFS failed to provide for peer review
of AES' proposed monitoring plans. It further states that the
presentation provided by AES at the 2008 Open Water Scientific Meeting
only gave very limited information and was unable to respond to even
the most basic questions raised by attendees. NVPH requests NMFS to
reject any suggestion that the meeting satisfied the peer review
requirement. NVPH states that peer review by independent, objective
reviewers remains necessary.
    Response: In order for the independent peer-review of Arctic area
activity monitoring plans, it must be conducted in an open and timely
process. Review by organizations, such as the National Academy of
Sciences, would take at least a year to complete and would likely
provide for an inflexible monitoring plan (e.g., any modifications
would require reconvening the Committee). As a result, NMFS believes
that independent peer-review of monitoring plans can be conducted via
two means. First, the monitoring plans are made public and available
for review by scientists and members of the public in addition to
scientists from the NSB, NMFS, and the FWS. In accordance with the
MMPA, the Marine Mammal Commission's Committee of Scientific Advisors
reviews all IHA applications, including the monitoring plans. Second,
monitoring plans and the results of previous monitoring measures are
reviewed once or twice annually at public meetings held with the
industry, the AEWC, the NSB, Federal agencies

[[Page 46787]]

and the public. AES' mitigation and monitoring plan was reviewed by
scientists and stakeholders at a meeting in Anchorage between April 14,
2008, and April 16, 2008, and by the public between April 28, 2008 (73
FR 22922) and May 28, 2008. NMFS believes that it has met the
requirements of section 101(a)(5)(D) of the MMPA.
    Comment 43: The CBD, NSB, Dr. Bain, and Dr. Steiner state that
during night-time and poor visibility condition, AES proposes
essentially no limitations on operations, even though the likelihood of
observers seeing marine mammals in such conditions is very low. The CBD
and Dr. Steiner recommend prohibiting seismic surveying when conditions
prevent observers from detecting all marine mammals in the safety zone.
One private citizen requests NMFS to clarify whether seismic sources
are to be restarted in low visibility conditions.
    Response: The IHA issued to AES does not allow the start up of
acoustic sources when the entire safety zones cannot be adequately
monitored. However, as stated in the FR Notice of Proposed IHA, once
the safety zones are visually established and that pre-survey
monitoring has concluded that there is no marine mammals within the
safety zones, seismic surveys can commence and continue into low
visibility conditions. However, if for any reasons the seismic sources
are stopped during low visibility conditions, they are not to be
restarted until the conditions are suitable for the marine mammal
visual monitoring so that the safety zones can be reestablished.
Nevertheless, ramping up of airguns and other seismic equipment during
under normal visual conditions is expected to keep marine mammals from
entering the established safety zones. Please refer to Monitoring and
Mitigation Measures section below for a detailed description.
    Comment 44: The CBD and NSB state that in its treatment of passive
acoustic monitoring (PAM), NMFS and AES are also deficient. While past
IHAs have required PAM, this IHA completely ignores even discussing the
possibility of using such monitoring.
    Response: NMFS disagrees. The MMPA has not established standards
for monitoring requirements. The monitoring requirements proposed are
to ensure that the taking will have a negligible impact on the species
or stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses.
Monitoring measures are also used to reduce the level of takes to the
lowest level practicable due to implementation of the mitigation
measures.
    Monitoring measures for different projects are proposed on a case-
by-case basis, and there is no ``one size fits all'' type of monitoring
protocol. For the proposed shallow hazard and site clearance survey in
the Chukchi Sea, the radius of the safety zone (185 m, or 607 ft) based
on the 180 db re: 1 microPa isopleths is too small to allow accurate
and effective passive?? acoustic monitoring. As the Joint Nature
Conservation Committee (JNCC, 2004) stated that in practice the
exclusion zone (safety zone) needs to be more than 500 m (1,640 ft) to
allow for accurate passive acoustic monitoring (PAM). JNCC also noted
that in many cases PAM is not as accurate as visual observation when
determining range. NMFS believes that in the subject seismic survey
projects, where the safety zone is as small as 185 m (607 ft), passive
acoustic monitoring is not warranted. The presence of additional
vessels for deploying PAM would only introduce more noise to the small
area where the proposed projects are to occur.

NEPA

    Comment 45: NVPH, CBD, and the NSB state that NMFS must prepare an
Environmental Impact Statement (EIS) to evaluate AES' shallow hazard
surveys, together with the other seismic and shallow hazard surveying
activity proposed for the summer of 2008 in the Beaufort and Chukchi
Seas.
    Response: NMFS prepared a Final SEA to analyze further the effects
of AES' (and other companies) proposed open-water shallow hazard and
site clearance survey activities for the 2008 season. NMFS has
incorporated by reference the analyses contained in MMS 2006 Final PEA
for Arctic OCS Seismic Surveys in the Beaufort and Chukchi Seas and has
also relied in part on analyses contained in the MMS 2007 FEIS for the
Chukchi Sea Lease Sale 193, the MMS 2003 FEIS for multiple lease sales,
and the MMS 2007 DPEIS submitted for public comment on March 30, 2007.
    The 2006 PEA analyzed a broad scope of proposed seismic activities
in the Arctic Ocean. In fact, the PEA assessed the effects of multiple,
ongoing seismic surveys (up to 8 surveys) in the Beaufort and Chukchi
Seas for the Arctic open water season. Although AES' proposed activity
for this season was not explicitly identified in the 2006 PEA, the PEA
did contemplate that future seismic activity, such as AES' could occur.
NMFS believes the range of alternatives and environmental effects
considered in the MMS 2006 PEA, combined with NMFS' SEA for the 2008
season are sufficient to meet the agency's NEPA responsibilities. In
addition, the 2008 SEA includes new information obtained since the 2006
Final PEA was issued, including updated information on cumulative
impacts. NMFS also includes a new section in the 2008 SEA, which
provides a review of the 2006 and 2007 monitoring reports. As a result
of our review and analysis, NMFS has determined that it was not
necessary to prepare and issue an EIS for the issuance of an IHA to AES
in 2008 for seismic activity in the Chukchi Sea but that preparation of
an SEA and issuance of a Finding of No Significant Impact (FONSI) were
sufficient under NEPA.
    Comment 46: The NSB and CBD state that NMFS appears to rely on the
NEPA analysis in the DPEIS in clear violation of NEPA law. They state
that NEPA requires agencies to prepare a draft EIS, consider public and
other agency comments, respond to these comments in its final EIS, and
wait 60 days before issuing a final decision. The CBD further states
that before the record of decision has been issued on the final PEIS,
NMFS cannot authorize AES' proposed seismic surveys because the purpose
of the PEIS process is to consider seismic surveys in the Chukchi and
Beaufort Seas for the years 2008 and beyond. The CBD states that NMFS
seems to either be relying on a NEPA document that is not just
inadequate, but which by its very terms only covers activities from two
years ago (the 2006 PEA), or one which is nowhere near complete (the
2007 DPEIS).
    Response: See Response to Comment 44 on this concern. Contrary to
the NSB's and CBD's statement, NMFS relied on information contained in
the MMS 2006 Final PEA, as updated by NMFS' 2008 SEA for making its
determinations under NEPA and that the DPEIS was not the underlying
document to support NMFS' issuance of AES' IHA. NMFS merely relied upon
specific pieces of information and analyses contained in the DPEIS to
assist in preparing the SEA. It is NMFS' intention that the PEIS
currently being developed will be used to support, in whole, or in
part, future MMPA actions relating to oil and gas exploration in the
Arctic Ocean. Additionally, NMFS believes that a SEA is the appropriate
NEPA analysis for this season as the amount of activity for 2008 is
less than what was analyzed in the 2006 PEA.
    Comment 47: NVPH states that the MMS 2006 PEA is flawed since it
understates the risk of significant impacts to bowhead whales, and

[[Page 46788]]

therefore, it is inappropriate for NMFS to rely on that document. NVPH
states that the 2006 PEA assumed the source vessels would ensonify much
smaller zones than those which have been subsequently measured in the
field. NVPH states that based on the propagation actually measured in
2006 and 2007, the impacts of a single 3D seismic survey are two to
three times as large as NMFS anticipated or more. The impacts of a
single shallow hazard survey are comparable to the impacts NMFS
anticipated from a single 2D or 3D seismic survey. Before authorizing
further seismic surveying activity or shallow hazard surveys in the
Arctic Ocean, NVPH requests NMFS to complete the PEIS that it began in
2006 to evaluate the potentially significant impacts of such
activities.
    Response: NMFS does not agree with NVPH's statement. First, the
subject 2006 PEA was written by MMS, not NMFS. However, NMFS was a
cooperating agency under NEPA in its preparation. Second, as noted in
your cited part in the 2006 PEA, 20 km (12.4 mi) was used for
illustrative purposes in an exercise to estimate impact of 4 seismic
vessels operating within 24 km (15 mi) of each other. To do so, MMS
created a box (that was moveable along the Beaufort or Chukchi Sea
coast) to make these estimates. NMFS believes that the use of 20 km
(12.4 mi) remains the best information available at this time and was
the radius agreed to by participants at the 2001 Arctic Open-water
Noise Peer Review Workshop in Seattle, Washington. This estimate 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 microPa
rms, depending upon propagation. Although NVPH states that propagation
actually measured in 2006 and 2007 showed that the impacts of a single
3D seismic survey are two to three times as large as NMFS anticipated,
NVPH failed to provide any data to support this statement. In fact, the
marine mammal monitoring reports on the 2006 and 2007 open water
seismic surveys clearly showed that at 20 km (12.4 mi) the received
levels from large airgun arrays used in 3D seismic surveys fall between
140 and 160 dB re 1 microPa (Ireland et al., 2007a; 2007b; Patterson et
al., 2007; Funk et al., 2007; 2008), which is below NMFS current noise
exposure standard for Level B behavioral harassment. For this reason,
until more data collection and analyses are conducted on impacts of
anthropogenic noise (principally from seismic) on marine mammals in the
Beaufort and Chukchi seas, NMFS will continue to use 20 km (12.4 mi) as
the radius for estimating impacts on bowhead whales during the fall
migration period.
    Comment 48: NVPH states that the MMS 2006 PEA fails to provide
site-specific analysis. Thus, in order to reduce the likelihood of
significant impacts, NMFS has imposed 160 dB and 120 dB safety zones
when authorizing surveys pursuant to the PEA. At a minimum, it must do
the same for AES' surveys but with the modifications to the safety
zones discussed above.
    Response: NMFS does not agree with NVPH's statement. Although the
MMS 2006 PEA did not explicitly provide site-specific analysis on the
proposed AES shallow hazard and site clearance surveys, NMFS SEA
prepared for the 2008 open-water season described its specific location
and time of operation. As in the PEA, NMFS' 2008 SEA has described
additional mitigation measures such as imposing the 160 dB safety zone
for seismic activities in the Chukchi Sea when an aggregation of 12 or
more bowhead or gray whales is sighted. This mitigation measure is
required in the IHA issued to AES. Regarding imposing the 120-dB safety
zone, it would pose safety and practical concerns for marine mammal
monitoring in the Chukchi Sea. Therefore, a safety zone based on
received level of 120 dB re 1 microPa will not imposed in the Chukchi
Sea as it has been determined to be impracticable under the MMPA.
    Comment 49: The NVPH and NSB state that the scope of the MMS 2006
PEA is explicitly limited to activities that occur during 2006, and
that those seismic survey activities have already occurred, as well as
an additional season worth of activities in 2007. NVPH states that the
PEA does not evaluate activities that will occur over a period of
several years, though NMFS has continued to rely on it as if its scope
were for a multi-year program of seismic surveys. In addition, NVPH
states that the PEA uses arbitrary significance criteria for non-
endangered marine mammals that would allow long-lasting impacts to
populations, or in fact the entire Arctic ecosystem, that would
nonetheless be deemed insignificant. NVPH states that these
significance criteria are inappropriate for an evaluation of impacts
from seismic surveys, as indicated by MMS' use of more defensible
significance criteria based on potential biological removal form marine
mammal populations affected by seismic surveys in the Gulf of Mexico.
    Response: NMFS does not agree with the NVPH and NSB's statement, as
failed to provide any support for their position. The MMS 2006 PEA, in
which NMFS was a cooperating agency, provided a thorough description
and analysis on the affected environment, including ESA-listed and non-
ESA-listed species. Under the NEPA, there is no ``significance criteria
for non-endangered'' species. The criteria for determining whether a
proposed action would result in significant effects to the environment
are contained in CEQ's regulations. NVPH's statement that MMS' such
analysis ``would allow long-lasting impacts to populations, or in fact
the entire Arctic ecosystem, that would nonetheless be deemed
insignificant'' in a way supports the MMS 2006 PEA. In addition, NMFS
has prepared and released to the public an SEA for the proposed 2008
Arctic seismic surveys in the Chukchi and Beaufort Seas (see ADDRESSES
for availability). This SEA incorporates by reference the relevant
information contained in the 2006 PEA and updates that information
where necessary to assess impacts on the marine environment from the
2008 seismic survey activities. Further, the SEA and FONSI considered
the CEQ significance criteria (including the criteria developed by
NMFS) to determine whether take of marine mammals incidental to AES'
seismic survey would result in significant impacts to the human
environment. NMFS believes that the agency has complied with the
requirements of NEPA in its preparation of its NEPA documents.
    Comment 50: Oceana and Ocean Conservancy are concerned that oil and
gas activities may have substantial negative effects on marine mammals
and other Arctic species. Oceana and Ocean Conservancy further state
that there has never been a comprehensive evaluation of the cumulative
effects of seismic activities in the Arctic. Oceana and Ocean
Conservancy request that in light of the dramatic effects of climate
change in the Arctic, NMFS must not approve further seismic activities
without such a comprehensive evaluation.
    Response: NMFS shares Oceana and Ocean Conservancy's concern that
the increasing industrial activities, including oil and gas
development, could have profound negative effects on marine mammals in
the Arctic region. Nevertheless, NMFS believes that proactive efforts
to conserve and protect marine mammals and other Arctic species, such
as NMFS' initiation of

[[Page 46789]]

status reviews of ice seals and the recent FWS' ESA-listing of polar
bears, combined with prudent natural resources management and
regulations on industrial activities by Federal Agencies would reduce
these adverse impacts to biologically non-significant or negligible
levels. In addition, monitoring and mitigation measures required for
certain industrial activities would further reduce and minimize such
negative effects to marine mammal species and stocks.. Long term
research and monitoring results on ice seals in the Alaska's North
Slope have shown that effects of oil and gas development on local
distribution of seals and seal lairs are no more than slight, and are
small relative to the effects of natural environmental factors (Moulton
et al., 2005; Williams et al., 2006).
    NMFS does not agree with Ocean and Ocean Conservancy's statement
that there has never been a comprehensive evaluation of the cumulative
effects of seismic activities in the Arctic. The MMS 2006 PEA, NMFS
2007 SEA, MMS 2007 draft PEIS, and NMFS 2008 SEA for the proposed
issuance of five seismic survey and shallow hazard and site clearance
survey activities for the 2008 open water season all provide
comprehensive evaluation of the cumulative effects of seismic
activities in the Arctic.
    Comment 51: NSB and CBD are both concerned about cumulative impacts
from multiple operations. AES' proposal is only one of numerous oil
industry activities recently occurring, planned, or ongoing in the U.S.
portions of the Chukchi and Beaufort Seas (e.g., proposed IHA for on-
ice seismic surveys in Harrison Bay; proposed scientific seismic survey
by the National Science Foundation (NSF); NMFS' 5-year regulations for
activities related to Northstar; SOI IHA for Beaufort Sea exploratory
drilling; CPAI IHA for Beaufort Sea; SOI IHA for Beaufort Sea; two
proposed IHAs for Chukchi Sea and two proposed for the Beaufort Sea;
and FWS 5-year regulations for oil and gas activities in the Beaufort
Sea). No analysis of seismic surveys in the Russian or Canadian
portions of the Chukchi and Beaufort seas is mentioned either.
Similarly, significant increases in onshore oil and gas development
with attendant direct impacts and indirect impacts on marine mammals
such as through increased ship traffic are also occurring and projected
to occur at greater rates than in the past. CBD states that further
cumulative effects impacting the marine mammals of the Beaufort and
Chukchi Seas are outlined in their NEPA comments on the MMS PEA and the
DPEIS.
    The NSB points out that in addition to the proposed offshore
industrial operations listed above, there will be supply and fuel
barging to villages, barging for support of onshore development and
exploration, scientific cruises, climate change studies, USCG
operations, tourist vessel traffic, and other activities as well. The
cumulative impacts of all these activities must be factored into any
negligible impact determination. Further, without an analysis of the
effects of all of the planned operations, it is impossible to determine
whether the monitoring plans are sufficient.
    Response: Under section 101(a)(5)(D) of the MMPA, NMFS is required
to determine whether the taking by the applicant's specified activity
will have a negligible impact on the affected marine mammal species or
population stocks. Cumulative impact assessments are NMFS'
responsibility under NEPA, not the MMPA. In that regard, the MMS Final
PEA and NMFS SEA address cumulative impacts. The Final PEA's cumulative
activities scenario and cumulative impact analysis focused on oil and
gas-related and non-oil and gas-related noise-generating events/
activities in both Federal and State of Alaska waters that were likely
and foreseeable. Other appropriate factors, such as Arctic warming,
military activities, and noise contributions from community and
commercial activities were also considered. Appendix D of the Final PEA
addresses similar comments on cumulative impacts, including global
warming. That information was incorporated into and updated in the NMFS
2008 SEA and into this document by citation. NMFS adopted the MMS Final
PEA, and it is part of NMFS' Administrative Record. Finally, NMFS does
not require authorizations under section 101(a)(5) of the MMPA for
normal shipping or transit.
    Comment 52: According to CBD, another factor causing NMFS'
``negligible impact'' findings to be suspect is the fact that the
Chukchi Sea area is undergoing rapid change as a result of global
warming. For species under NMFS' jurisdiction, and therefore subject to
the proposed IHA, seals are likely to face the most severe
consequences. The Arctic Climate Impact Assessment (ACIA) concluded
that ringed, spotted, and bearded seals would all be severely
negatively impacted by global warming this century. The ACIA stated
that ringed seals are particularly vulnerable: ``Ringed seals are
likely to be the most highly affected species of seal because all
aspects of their lives are tied to sea ice'' (ACIA, 2004). In 2003, the
NRC noted that oil and gas activities combined with global warming
presented a serious cumulative impact to the species: ``Climate warming
at predicted rates in the Beaufort Sea region is likely to have serious
consequences for ringed seals and polar bears, and those effects will
accumulate with the effects of oil and gas activities in the region.''
NMFS' failure to address global warming as a cumulative effect renders
its negligible impact findings invalid.
    Response: Under section 101(a)(5)(D) of the MMPA, ``the Secretary
shall authorize... taking by harassment of small numbers of marine
mammals of a species or population stock by such citizens while
engaging in that activity within that region if the Secretary finds
that such harassment during each period concerned (I) will have a
negligible impact on such species or stock, and (II) will not have an
unmitigable adverse impact on the availability of such species or stock
for taking for subsistence uses.'' Section 101(a)(5)(D) of the MMPA
does not require NMFS to base its negligible impact determination on
the possibility of cumulative effects of other actions.
    As stated in previous responses, cumulative impact assessments are
NMFS' responsibility under NEPA, not the MMPA. In that regard, the MMS
2006 Final PEA and NMFS' 2008 SEA address cumulative impacts. The PEA's
cumulative activities scenario and cumulative impact analysis focused
on oil and gas-related and non-oil and gas-related noise-generating
events/activities in both Federal and State of Alaska waters that were
likely and foreseeable. Other appropriate factors, such as Arctic
warming, military activities, and noise contributions from community
and commercial activities were also considered. Appendix D of the PEA
addresses similar comments on cumulative impacts, including global
warming. That information was incorporated into and updated in the NMFS
2008 SEA and into this document by citation. NMFS adopted the MMS Final
PEA, and it is part of NMFS' Administrative Record.

Endangered Species Act

    Comment 53: The CBD states that the proposed IHA will affect, at a
minimum, four endangered species, the bowhead, humpback and fin whales,
and the polar bear. As a consequence, NMFS must engage in consultation
under Section 7 of the ESA prior to issuing the IHA. Previous recent
biological opinions for industrial activities in the Arctic (e.g., the
2006 Arctic Regional Biological

[[Page 46790]]

Opinion (ARBO)) have suffered from inadequate descriptions of the
proposed action, inadequate descriptions of the status of the species,
inadequate descriptions of the environmental baseline, inadequate
descriptions of the effects of the action, inadequate analysis of
cumulative effects, and inadequate descriptions and analysis of
proposed mitigation. The CBD hopes NMFS performs the full analysis
required by law and avoids these problems in its consultation for the
proposed IHA.
    Response: Response: Under section 7 of the ESA, NMFS has completed
consultation with the MMS on the issuance of seismic permits for
offshore oil and gas activities in the Beaufort and Chukchi seas. In a
Biological Opinion issued on July 17, 2008, NMFS concluded that the
issuance of seismic survey permits by MMS and the issuance of the
associated IHAs for seismic surveys are not likely to jeopardize the
continued existence of threatened or endangered species (specifically
the bowhead, humpback, and fin whales) under the jurisdiction of NMFS
or destroy or adversely modify any designated critical habitat. The
2008 Biological Opinion takes into consideration all oil and gas
related activities that are reasonably likely to occur, including
exploratory (but not production) oil drilling activities. In addition,
NMFS has issued an Incidental Take Statement under this Biological
Opinion which contains reasonable and prudent measures with
implementing terms and conditions to minimize the effects of take of
bowhead, humpback, and fin whales. Regarding the polar bear, MMS has
contacted the USFWS about conducting a section 7 consultation.
    Comment 54: The CBD states that NMFS may authorize incidental take
of the listed marine mammals under the ESA pursuant to Section 7(b)(4)
of the ESA, but only where such take occurs while ``carrying out an
otherwise lawful activity.'' To be ``lawful,'' such activities must
``meet all State and Federal legal requirements except for the
prohibition against taking in section 9 of the ESA.'' The CBD states
that AES' proposed activities violate the MMPA and NEPA and therefore
are ``not otherwise lawful.'' The CBD concludes that any take
authorization for listed marine mammals would, therefore, violate the
ESA, as well as these other statutes.
    Response: NMFS does not agree with the CBD statement. As noted in
this document, NMFS has made the necessary determinations under the
MMPA, the ESA, and NEPA regarding the incidental harassment of marine
mammals by AES while it is conducting activities permitted legally
under MMS' jurisdiction.

Other Comments

    Comment 55: The CGWC states that gray whale population estimate was
based on outdated data, and that there is no comprehensive assessment
in the 2008 SAR. The CGWC points out that recent research by Professor
Stephen Palumbi of Stanford University suggests the original gray whale
population numbered approximately 118,000, nearly 5 times that of
previous estimates.
    Response: Although the population estimates of several marine
mammal species or stocks used in this document may not be up to date,
these are the best available scientific information NMFS considered. In
terms of gray whale population estimate, NMFS still believes that using
the mean of the 2000/01 and 2001/02 abundance estimates (not
significantly different) of 18,813 is the best estimate. As long as the
cited Palumbi research (Alter et al., 2007) on historical gray whale
population is concerned, it is irrelevant to the issuance of the IHA.
Alter et al.'s (2007) research hypothesized that the decline of gray
whale population from between 76,000 and 118,000 (average estimate at
96,000) occurred over the past 1,100 - 1,600 years, much before the
western whaling began in the 19th century.

Description of Marine Mammals in the Activity Area

    In general, the marine mammal species under NMFS' management
authority that occur in or near the proposed survey area within the
Chukchi Sea are the bowhead (Balaena mysticetus), gray (Eschrichtius
robustus), humpback (Megaptera novaeangliae), fin (Balaenoptera
physalus), minke (B. acutorostrata), beluga (Delphinapterus leucas),
and killer whales (Orcinus orca); harbor porpoises (Phocoena phocoena);
and the bearded (Erignathus barbatus), ringed (Phoca hispida), spotted
(P. largha), and ribbon seals (P. fasciata). Among these species, the
bowhead, humpback, and fin whales are listed as ``Endangered'' under
the Endangered Species Act (ESA).
    A detailed description of the biology, population estimates, and
distribution and abundance of these species is provided in the AES' IHA
application. Additional information regarding the stock assessments of
these species is in NMFS Alaska Marine Mammal Stock Assessment Report
(Angliss and Outlaw, 2007), and can also be assessed via the following
URL link: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2006.pdf. Additional
information on those species that are under NMFS' management authority
within or near the proposed survey areas is described in the FR Notice
of Proposed IHA and is not repeated here.

Potential Effects on Marine Mammals

    Operating a variety of acoustic equipment such as side-scan sonars,
echo-sounders, bottom profiling systems, and airguns for seafloor
imagery, bathymetry, and seismic profiling has the potential for
adverse affects on marine mammals.

Potential Effects of Airgun Sounds on Marine Mammals

    The effects of sounds from airguns might include one or more of the
following: tolerance, masking of natural sounds, behavioral
disturbance, and, at least in theory, temporary or permanent hearing
impairment, or non-auditory physical or physiological effects
(Richardson et al., 1995)
     The potential effects of airguns discussed below are presented
without consideration of the mitigation measures that AES has presented
and that will be required by NMFS. When these measures are taken into
account, it is unlikely that this project would result in temporary, or
especially, permanent hearing impairment or any significant non-
auditory physical or physiological effects.
(1) Tolerance
    Numerous studies have shown that pulsed sounds from airguns are
often readily detectable in the water at distances of many kilometers.
Studies have also shown that marine mammals at distances more than a
few kilometers from operating seismic vessels often show no apparent
response (tolerance). That is often true even in cases when the pulsed
sounds must be readily audible to the animals based on measured
received levels and the hearing sensitivity of that mammal group.
Although various baleen whales, toothed whales, and (less frequently)
pinnipeds have been shown to react behaviorally to airgun pulses under
some conditions, at other times mammals of all three types have shown
no overt reactions. In general, pinnipeds, and small odontocetes seem
to be more tolerant of exposure to airgun pulses than are baleen
whales.
(2) Masking
    Masking effects of pulsed sounds (even from large arrays of
airguns) on marine mammal calls and other natural sounds are expected
to be limited,

[[Page 46791]]

although there are very few specific data of relevance. Some whales are
known to continue calling in the presence of seismic pulses. Their
calls can be heard between the seismic pulses (e.g., Richardson et al.,
1986; McDonald et al., 1995; Greene et al., 1999; Nieukirk et al.,
2004). Although there has been one report that sperm whales cease
calling when exposed to pulses from a very distant seismic ship (Bowles
et al., 1994), a more recent study reports that sperm whales off
northern Norway continued calling in the presence of seismic pulses
(Madsen et al., 2002). That has also been shown during recent work in
the Gulf of Mexico (Tyack et al., 2003; Smultea et al., 2004). Masking
effects of seismic pulses are expected to be negligible in the case of
the smaller odontocete cetaceans, given the intermittent nature of
seismic pulses. Dolphins and porpoises commonly are heard calling while
airguns are operating (e.g., Gordon et al., 2004; Smultea et al., 2004;
Holst et al., 2005a; 2005b). Also, the sounds important to small
odontocetes are predominantly at much higher frequencies than are
airgun sounds.
(3) Disturbance Reactions
    Disturbance includes a variety of effects, including subtle changes
in behavior, more conspicuous changes in activities, and displacement.
    Reactions to sound, if any, depend on species, state of maturity,
experience, current activity, reproductive state, time of day, and many
other factors. If a marine mammal does react briefly to an underwater
sound by slightly changing its behavior or moving a small distance, the
impacts of the change are unlikely to be biologically significant to
the individual, let alone the stock or the species as a whole. However,
if a sound source displaces marine mammals from an important feeding or
breeding area for a prolonged period, impacts on the animals could be
significant.
(4) Hearing Impairment and Other Physical Effects
    Temporary or permanent hearing impairment is a possibility when
marine mammals are exposed to very strong sounds, but there has been no
specific documentation of this for marine mammals exposed to sequences
of airgun pulses. NMFS advises against exposing cetaceans and pinnipeds
to impulsive sounds above 180 and 190 dB re 1 microPa (rms),
respectively (NMFS, 2000). Those thresholds have been used in defining
the safety (shut down) radii planned for the proposed seismic surveys.
Although those thresholds were established before there were any data
on the minimum received levels of sounds necessary to cause temporary
auditory impairment in marine mammals, they are considered to be
conservative.
    Several aspects of the planned monitoring and mitigation measures
for this project are designed to detect marine mammals occurring near
the airguns to avoid exposing them to sound pulses that might, at least
in theory, cause hearing impairment (see Mitigation and Monitoring
section below). In addition, many cetaceans are likely to show some
avoidance of the area with high received levels of airgun sound. In
those cases, the avoidance responses of the animals themselves will
reduce or (most likely) avoid any possibility of hearing impairment.
    Non-auditory physical effects may also occur in marine mammals
exposed to strong underwater pulsed sound. Possible types of non-
auditory physiological effects or injuries that theoretically might
occur in mammals close to a strong sound source include stress,
neurological effects, bubble formation, and other types of organ or
tissue damage. It is possible that some marine mammal species (i.e.,
beaked whales) may be especially susceptible to injury and/or stranding
when exposed to strong pulsed sounds. However, there is no definitive
evidence that any of these effects occur even for marine mammals in
close proximity to large arrays of airguns. It is unlikely that any
effects of these types would occur during the proposed project given
the brief duration of exposure of any given mammal, and the planned
monitoring and mitigation measures (see below).
(5) Strandings and Mortality
    Marine mammals close to underwater detonations of high explosive
can be killed or severely injured, and the auditory organs are
especially susceptible to injury (Ketten et al., 1993; Ketten, 1995).
Airgun pulses are less energetic and have slower rise times, and there
is no evidence that they can cause serious injury, death, or stranding
even in the case of large airgun arrays.
    Nonetheless, the airgun array proposed to be used in the proposed
site clearance surveys in Chukchi Sea is small in volume (40 cu inches)
and the source level is expected at 196 dB re 1 mircoPa (peak), which
is approximately 190 dB re 1 microPa (rms). The 160, 170, and 180 dB re
1 microPa (rms) radii, in the beam below the transducer, would be 32 m
(104 ft), 10 m (33 ft), and 3.2 m (10 ft), respectively, for the 40-cu-
inch airgun array, assuming spherical spreading.

Possible Effects of Bathymetry Echo Sounder Signals

    Two types of bathymetry echo sounders are planned to be used for
the proposed surveys. The Odom Hydrotrac Digital Echo Sounder is a
single beam echo sounder that emits a single pulse of sound directly
below the ship along the vessel trackline and provides a continuous
recording of water depth along the survey track. The second sonar is a
Reson Seabat 8101 Multibeam Echo Sounder, which consists of a
transducer array that emits a swath of sound. The seafloor coverage
swath of the multibeam sonar is water depth dependent, but is usually
equal to two to four times the water depth. Nonetheless both echo
sounders produce acoustic signals above 200 kHz which is below any
marine mammal species' upper hearing threshold, therefore, NMFS does
not believe that there will be any effects on marine mammals as a
result from operating these sonars.

Possible Effects of Sub-bottom Profiler Signals

    A high resolution subbottom profiler (GeoAcoustics GeoPulse sub-
bottom profiling system or GeoAcoustics GeoChirp II sub-bottom
profiling system) and an intermedia frequency seismic profiling system
(``boomer'') are planned to be used for the proposed surveys.
    The frequency range for these high resolution subbottom profilers
are 3.5 to 5 kHz for the GeoPulse and 500 Hz to 13 kHz for the GeoChirp
II. Either subbottom profiler has a source level at approximately 214
dB re 1 microPa-m (rms). The 160, 170, 180, and 190 dB re 1 microPa
(rms) radii, in the beam below the transducer, would be 501 m (1,644
ft), 158 m (520 ft), 50 m (164 ft), and 16 m (52 ft), respectively, for
either subbottom profiler, assuming spherical spreading.
    The Applied Acoustics Model AA300 intermediate frequency seismic
profiler (``boomer'') has a maximum energy input of 350 J per shot,
though the maximum energy would be used in the surveys is 300 J. The
pulse length ranges from 150 msec to 400 msec with a reverberation of
less than 1/10 of the initial pulse. The peak in the source level beam
reaches 218 dB re 1 microPa-m (or 209 dB re 1 microPa-m (rms)) at 300 J
with a frequency range of 500 Hz to 300 kHz. The 160, 170, 180, and 190
dB re 1 microPa (rms) radii, in the beam below the transducer, would be
282 m (925 ft), 89 m (292 ft), 28 m (92 ft), and 9 m (29 ft),
respectively, assuming spherical spreading.

[[Page 46792]]

    The corresponding distances for an animal in the horizontal
direction of these transducers would be much smaller due to the direct
downward beam pattern of the subbottom profilers. Therefore, the
horizontal received levels of 180 and 190 dB re 1 microPa (rms) would
be within much smaller radii than 50 m (164 ft) and 16 m (52 ft) when
using the GeoAcoustics subbottom profilers, which have the highest
downward source level, respectively. In addition, the pulse duration of
these subbottom profilers is extremely short, in the order of tens to
hundreds of msec, and the survey is constantly moving. Therefore, for a
marine mammal to receive prolonged exposure, the animal has to stay in
a very small zone of ensonification and keep with the vessel's speed,
which is very unlikely.

Possible Effects of Side-Scan Sonar Signals for Seafloor Imagery

    One of the two types of side-scan sonars is planed to be used for
the proposed shallow hazard and site clearance surveys for seafloor
imagery. The EdgeTech 4200 dual-frequency side scan sonar operates at
120 kHz up to 410 kHz, with source level reaching 210 dB re 1 microPa-m
(rms). The 160, 170, 180, and 190 dB re 1 microPa (rms) radii, in the
beam below the transducer, would be 316 m (1,037 ft), 100 m (328 ft),
32 m (104 ft), and 10 m (33 ft), respectively, assuming spherical
spreading.
    The Klein System 3000 dual-frequency digital side-scan sonar emits
pulses between 25 msec and 400 msec. The peak in the 132 kHz source
level beam reaches 234 dB re 1 microPa-m (or 225 dB re 1 microPa-m
(rms)). The peak in the 445 kHz source level beam reaches 242 dB re 1
microPa-m. The 445 kHz frequency band is outside any marine mammal
species' hearing range, therefore, there would be no effect to marine
mammals when this frequency is chosen. The 160, 170, 180, and 190 dB re
1 microPa (rms) radii, in the beam below the transducer, would be 1,778
m (5,834 ft), 562 m (1,844 ft), 178 m (583 ft), and 56 m (184 ft),
respectively, assuming spherical spreading.
    Nonetheless, these side scan sonars operate in an extremely high
frequency range (over 120 kHz) relative to marine mammal hearing
(Richardson et al., 1995; Southall et al., 2007). The frequency range
from these side scan sonars is beyond the hearing range of mysticetes
(baleen whales) and pinnipeds. Therefore, these sonars are not expected
to affect bowhead, gray, humpback, fin, and minke whales and pinniped
species in the proposed project area. The frequency range from these
side scan sonars falls within the upper end of odontocete (toothed
whale) hearing spectrum (Richardson et al., 1995), which means that
they are not perceived as loud acoustic signals with frequencies below
120 kHz by these animals. Therefore, these animals would not react to
the sound in a biologically significant way. Further, in addition to
spreading loss for acoustic propagation in the water column, high
frequency acoustic energies are more quickly absorbed through the water
column than sounds with lower frequencies (Urick, 1983). Therefore,
NMFS believes that the potential effects from side scan sonar to marine
mammals are negligible.

Numbers of Marine Mammals Estimated to be Taken

    All anticipated takes would be takes by Level B harassment,
involving temporary changes in behavior. The proposed mitigation
measures to be applied would prevent the possibility of injurious
takes.
    The methods to estimate take by harassment and present estimates of
the numbers of marine mammals that might be affected during the
proposed seismic surveys in the Chukchi Sea are described below. The
density estimates for cetaceans covered under this IHA area based on
the estimates developed by LGL (2006) for the GXT IHA and used here for
consistency. However, density estimates for these species were not
separated by summer and fall. Rather, in a conservative approach, the
higher of the two estimates was selected for use in the analysis.
Density estimates on summering bowhead, gray, and beluga whales in the
Beaufort and Chukchi seas are based on the data from Moore et al.
(2000). Density estimates on ringed and bearded in the Chukchi Sea are
based on Bengtson et al. (2005). Since the Bengtson et al. (2005)
surveys were focused mainly on the coastal zone within 37 km (23 mi) of
the shoreline, some adjustments were made to reflect the animals'
density in offshore waters where the site clearance surveys are
proposed. Ringed seals were relatively common in nearshore fast ice and
pack ice, with lower densities in offshore pack ice; while bearded
seals were generally more common in offshore pack ice, with the
exception of high bearded seal numbers observed near the shore south of
Kivalina. To make the adjustment, the average ringed seal density
number (1.62 seals/km\2\) for the year 2000 was used, while the raw
density number (0.18 seal/km\2\) for the offshore bearded seas was
adopted. In addition, the seal density numbers represent the near-ice
animal density, which are higher than open water densities where the
site clearance surveys would be conducted. Therefore, the sale density
numbers are overestimates because the survey method focused on animals
on ice, not in water.
    Specifically, the average estimates of ``take'' were calculated by
multiplying the expected average animal densities by the area of
ensonification for the 160 dB re 1 microPa (rms) isopleth for all
marine mammals. The area of ensonification was determined by
multiplying the total proposed trackline (760 km or 410 nm) times 2
(both sides of the trackline) times the distance to the 160-dB
isopleth. The distance to the 160-dB isopleth was estimated as
approximately 4,000 m (13,123 ft) with a corresponding area of
ensonification of 6,080 km\2\ (1,773 nm\2\).
    Based on the calculation, it is estimated that up to approximately
7 bowhead, 11 gray, and 21 beluga whales, 9,850 ringed and 1,094
bearded seals would be affected by Level B behavioral harassment as a
result of the proposed shallow hazard and site clearance surveys. These
take numbers represent 0.06, 0.06, and 0.6 percent of the western
Arctic stock of bowhead, eastern North Pacific stock of gray, and
eastern Chukchi stock of Beluga whales, respectively; and 3.96 and
0.438 percent of the Alaska stocks of ringed and bearded seal
populations within the Chukchi Sea, respectively. These numbers are
small relative to the respective species' stock size.
    In addition, a numbers of humpback, fin, minke, and killer whales,
harbor porpoises, and spotted and ribbon seals could also be affected
by Level B behavioral harassment as a result of the proposed marine
surveys in the Chukchi Sea. However, since the occurrence of these
marine mammals is very rare within the proposed project area in the
Chukchi Sea, take numbers cannot be estimated. Nonetheless, NMFS
believes their take numbers would be much lower as compared to those
marine mammals whose take numbers were calculated.
    Potential Impacts to Subsistence Harvest of Marine Mammals
    Subsistence hunting and fishing is historically, and continues to
be, an essential aspect of Native life, especially in rural coastal
villages. The Inupiat participate in subsistence hunting and fishing
activities in and around the Chukchi Sea.
    Alaska Natives, including the Inupiat, legally hunt several species
of marine mammals. Communities that participate in subsistence
activities potentially affected by seismic surveys within Lease Sale
193 are Point Hope, Point Lay,

[[Page 46793]]

Wainwright, and Barrow. Marine animals used for subsistence in the
proposed area include: bowhead whales, beluga whales, ringed seals,
spotted seals, bearded seals, Pacific walrus, and polar bears. Humpback
whales are not typically found within the proposed project area of
Lease Sale 193. However, during the summer of 2007, both humpback and
fin whales were observed or detected as far as the Beaufort Sea
(Joling, 2007). In each village, there are key subsistence species.
Hunts for these animals occur during different seasons throughout the
year. Depending upon the village's success of the hunt for a certain
species, another species may become a priority in order to provide
enough nourishment to sustain the village.
    Point Hope residents subsistence hunt for bowhead and beluga
whales, polar bears and walrus. Bowhead and beluga whales are hunted in
the spring and early summer along the ice edge. Beluga whales may also
be hunted later in the summer along the shore. Walrus are harvested in
late spring and early summer, and polar bear are hunted from October to
April (MMS, 2007). Seals are available from October through June, but
are harvested primarily during the winter months, from November through
March, due to the availability of other resources during the other
periods of the year (MMS, 2007).
    With Point Lay situated near Kasegaluk Lagoon, the community's main
subsistence focus is on beluga whales. Seals are available year-round,
and polar bears and walruses are normally hunted in the winter. Hunters
typically travel to Barrow, Wainwright, or Point Hope to participate in
bowhead whale harvest, but there is interest in reestablishing a local
Point Lay harvest.
    Wainwright residents subsist on both beluga and bowhead whales in
the spring and early summer. During these two seasons the chances of
landing a whale are higher than during other seasons. Seals are hunted
by this community year-round and polar bears are hunted in the winter.
    Barrow residents' main subsistence focus is concentrated on
biannual bowhead whale hunts. They hunt these whales during the spring
and fall. Other animals, such as seals, walruses, and polar bears are
hunted outside of the whaling season, but they are not the primary
source of the subsistence harvest (URS Corporation, 2005).
    The seismic survey could affect subsistence uses particularly if
bowhead or beluga whales are permanently deflected away from their
migration path. In such a case, a permanent deflection could result in
substantial impacts to Alaska Native communities who rely on these
species for their subsistence harvest. However, mitigation measures
will be put into place to minimize or avoid completely any adverse
affects on all marine mammals. AES has proposed and NMFS will require
that no seismic surveys would be conducted in areas where subsistence
harvests would occur. Areas being used for subsistence hunting grounds
would be avoided. Communication between the project vessels and land-
based Com and Call Centers would provide additional insight to current
subsistence activities to further ensure that there will be no negative
impacts on subsistence activities.
    As part of the application for the IHA, AES has developed a Plan of
Cooperation (POC) with the Native communities. The POC specifies
measures AES would take to minimize adverse effects on marine mammals
where proposed activities may affect the availability of a species or
stock of marine mammals for arctic subsistence uses or near a
traditional subsistence hunting area. The POC has been distributed to
the affected subsistence communities.
    AES has conducted POC meetings for its seismic operations in the
Chukchi Sea in Barrow, Wainwright, Point Lay, and Point Hope, and with
the Alaska Eskimo Whaling Commission. Additional meetings will be held
with the Alaska Ice Seal Committee, Alaska Beluga Committee, Eskimo
Walrus Commission, and Alaska Nanuq Commission prior to operations. At
these meetings, AES will present its program and discuss local concerns
regarding subsistence activities.

Potential Impacts on Habitat

    The proposed site clearance surveys would not result in any
permanent impact on habitats used by marine mammals, or to the food
sources they use. The main impact issue associated with the proposed
activity would be temporarily elevated noise levels and the associated
direct effects on marine mammals, as discussed above.

Monitoring and Mitigation Measures

Monitoring

    In order to further reduce and minimize the potential impacts to
marine mammals from the proposed site clearance surveys, NMFS proposes
the following monitoring and mitigation measures to be implemented for
the proposed project in Chukchi Sea.
(1) Proposed Safety Zones
    Based on a 214 dB re 1 microPa-m source sound for the GeoChirp II,
the loudest acoustic equipment with sound in the sensitive hearing
ranges of marine mammals, and a conservative acoustic modeling approach
between spherical and cylindrical (i.e., ``15 Log R'') to estimate
sound propagation loss, the calculated distance to the 180 dB isopleth
is approximately 185 m (607 ft), and the distance to the 190 dB
isopleth is about 40 m (131 ft). Because these values are based on
calculation instead of field measurement during actual operations, NMFS
proposes, as a precautionary measure, safety radii of 250 m (820 ft)
for cetaceans and 75 m (246 ft) for pinnipeds.
    In addition, a 160-dB vessel monitoring zone for bowhead and gray
whales shall be established and monitored during all seismic surveys.
Whenever an aggregation of 12 or more bowhead whales or gray whales are
observed during a vessel monitoring program within the 160-dB safety
zone around the seismic activity, the seismic operation will not
commence, or will shut down, until two consecutive surveys indicate
they are no longer present within the 160-dB safety zone of seismic-
surveying operations. The radius of 160-dB isopleth based on modeling
is 4,000 m (13,123 ft).
    Before the commencement of the shallow hazard and site clearance
survey, AES is required to conduct empirical measurements of acoustic
sources to be used in the seismic survey and verify the radii of the
modeled safety zones at 160, 170, 180, and 190 dB re 1 microPa (rms).
(2) Vessel-based Visual Monitoring
    Marine mammal monitoring during the site clearance surveys would be
conducted by qualified, NMFS-approved marine mammal observers (MMOs).
Vessel-based MMOs would be on board the seismic source vessel to ensure
that no marine mammals would enter the relevant safety radii of 180 and
190-dB isopleths while noise-generating equipment is operating.
    For monitoring of the larger 160-dB safety zone, a chase vessel
would be used for monitoring.
(3) Communication between Vessel and Shore
    Communication of vessel operations and transit would occur in
accordance with protocols set forth by the Com and Call Centers
proposed to be operated in Barrow, Point Hope, and Point Lay. This
would further enable vessel operators to be aware of marine mammals and
subsistence activity in the area.

[[Page 46794]]

Mitigation

    Proposed mitigation measures include (1) vessel speed or course
alteration, provided that doing so will not compromise operational
safety requirements, (2) acoustic equipment shut down, and (3) acoustic
source ramp up.
(1) Speed or Course Alteration
    If a marine mammal is detected outside the relevant safety zone but
appears likely to enter it based on relative movement of the vessel and
the animal, then if safety and survey objectives allow, the vessel
speed and/or course would be adjusted to minimize the likelihood of the
animal entering the safety zone.
 Shut down Procedures
    If a marine mammal is detected within, or appears likely to enter,
the relevant safety zone of the array in use, and if vessel course and/
or speed changes are impractical or will not be effective to prevent
the animal from entering the safety zone, then the acoustic sources
that relate to the seismic surveys would be shut down.
    Following a shut down, acoustic equipment would not be turned on
until the marine mammal is outside the safety zone. The animal would be
considered to have cleared the safety zone if it (1) is visually
observed to have left the 250-m or 75-m safety zone, for a cetacean or
a pinniped species, respectively; or (2) has not been seen within the
relevant safety zone for 15 minutes in the case of odontocetes and
pinnipeds, and for 30 minutes in the case of mysticetes. For the
aggregation of bowhead or gray whales, the seismic equipment will not
be turned on until the aggregation has left the 4,000-m safety zone or
the animals forming the aggregation are reduced to fewer than 12
bowhead or gray whales.
    Following a shut down and subsequent animal departure as above, the
acoustic sources may be turned on to resume operations following ramp-
up procedures described below.
(3) Ramp-up Procedures
    A ramp-up procedure will be followed when the acoustic sources
begin operating after a specified period without operations. It is
proposed that, for the present survey, this period would be 30 min.
Ramp up would begin with the power on of the smallest acoustic
equipment for the survey at its lowest power output. The power output
would be gradually turned up and other acoustic sources would be added
in a way such that the source level would increase in steps not
exceeding 6 dB per 5-min period. During ramp-up, the MMOs would monitor
the safety zone, and if marine mammals are sighted, decisions about
course/speed changes and/or shutdown would be implemented as though the
acoustic equipment is operating at full power.
(4) Poor Visibility Conditions
    AES plans to conduct 24-hr operations. The proposed provisions
associated with operations at night or in periods of poor visibility
include:
    (1) During any nighttime operations, if the entire 180-dB safety
radius is visible using vessel lights and/or night vision devices, then
start of a ramp-up procedure after a complete shutdown of the airgun
array may occur following a 30-min period of observation without
sighting marine mammals in the safety zone.
    (2) If during foggy conditions or darkness (which may be
encountered starting in late August), the full 180-dB safety zone is
not visible, the airguns cannot be ramped-up if the seismic source is
in a full shutdown mode.
    (3) If one or more airguns has been operational before nightfall or
before the onset of foggy conditions, they can remain operational
throughout the night or foggy conditions. In this case, ramp-up
procedures can be initiated, even though the entire safety radius may
not be visible, on the assumption that marine mammals will be alerted
by the sounds from the single airgun and have moved away.
Data Collection and Reporting
    MMOs would record data to estimate the numbers of marine mammals
present and to document apparent disturbance reactions or lack thereof.
Data would be used to estimate numbers of animals potentially ``taken''
by harassment. They would also provide information needed to order a
shut down of acoustic equipment when marine mammals are within or
entering the safety zone.
    When a sighting is made, the following information about the
sighting would be recorded:
    (1) Species, group size, age/size/sex categories (if determinable),
behavior when first sighted and after initial sighting, heading (if
consistent), bearing and distance from seismic vessel, and apparent
reaction to the acoustic sources or vessel.
    (2) Time, location relative to the acoustic sources, heading,
speed, activity of the vessel (including whether and the level at which
acoustic sources are operating), sea state, visibility, and sun glare.
    The data listed under (2) would also be recorded at the start and
end of each observation watch, and during a watch whenever there is a
change in one or more of the variables.
    A final report will be submitted to NMFS within 90 days after the
end of the shallow hazard and site clearance surveys. The report will
describe the operations that were conducted and sightings of marine
mammals near the operations. The report also will provide full
documentation of methods, results, and interpretation pertaining to all
monitoring. The report will summarize the dates and locations of
seismic operations, and all marine mammal sightings (dates, times,
locations, activities, associated seismic survey activities), and the
amount and nature of potential take of marine mammals by harassment or
in other ways.

Endangered Species Act

    Under section 7 of the ESA, NMFS has completed consultation with
the MMS on the issuance of seismic permits for offshore oil and gas
activities in the Beaufort and Chukchi seas. In a Biological Opinion
issued on July 17, 2008, NMFS concluded that the issuance of seismic
survey permits by MMS and the issuance of the associated IHAs for
seismic surveys are not likely to jeopardize the continued existence of
threatened or endangered species (specifically the bowhead, humpback,
and fin whales) under the jurisdiction of NMFS or destroy or adversely
modify any designated critical habitat. The 2008 Biological Opinion
takes into consideration all oil and gas related activities that are
reasonably likely to occur, including exploratory (but not production)
oil drilling activities. In addition, NMFS has issued an Incidental
Take Statement under this Biological Opinion which contains reasonable
and prudent measures with implementing terms and conditions to minimize
the effects of take of bowhead whales.

NEPA

    In 2006, the MMS prepared Draft and Final PEAs for seismic surveys
in the Beaufort and Chukchi Seas. NMFS was a cooperating agency in the
preparation of the MMS PEA. On November 17, 2006 (71 FR 66912), NMFS
and MMS announced that they were preparing a DPEIS in order to assess
the impacts of MMS' annual authorizations under the Outer Continental
Shelf Lands Act to the U.S. oil and gas industry to conduct offshore
geophysical seismic surveys in the Chukchi and Beaufort Seas off Alaska
and NMFS' authorizations under the MMPA to incidentally harass marine

[[Page 46795]]

mammals while conducting those surveys.
    On March 30, 2007 (72 FR 15135), the Environmental Protection
Agency (EPA) noted the availability for comment of the NMFS/MMS DPEIS.
Based upon several verbal and written requests to NMFS for additional
time to review the DPEIS, EPA has twice announced an extension of the
comment period until July 30, 2007 (72 FR 28044, May 18, 2007; 72 FR
38576, July 13, 2007). Because NMFS has been unable to complete the
PEIS, it was determined that the 2006 PEA would need to be updated in
order to meet NMFS' NEPA requirement. This approach was warranted as it
was reviewing five proposed Arctic seismic survey IHAs for 2008, well
within the scope of the PEA's eight consecutive seismic surveys. To
update the 2006 Final PEA, NMFS prepared a SEA which incorporates by
reference the 2006 Final PEA and other related documents.

Determination

    Based on the preceding information, and provided that the
mitigation and monitoring are incorporated, NMFS has determined that
the impact of conducting the shallow hazard and site clearance surveys
in Chukchi Sea may result, at worst, in a temporary modification in
behavior of small numbers of certain species of marine mammals. While
behavioral and avoidance reactions may be made by these species in
response to the resultant noise from the airguns, side-scan sonars,
seismic profilers, and other acoustic equipment, these behavioral
changes are expected to have a negligible impact on the affected
species and stocks of marine mammals. In addition, NMFS has determined
that the AES' shallow hazard and site clearance survey would have no
unmitigable adverse impact to the subsistence use of marine mammal
species and/or stocks.
    While the number of potential incidental harassment takes will
depend on the distribution and abundance of marine mammals in the area
of site clearance operations, the number of potential harassment
takings is estimated to be relatively small in light of the population
or stock size. NMFS anticipates the actual take of individuals to be
lower than the numbers presented in the analysis because those numbers
do not reflect either the implementation of the mitigation measures or
the fact that some animals will avoid the sound at levels lower than
those expected to result in harassment.
    In addition, no take by death and/or injury is anticipated, and the
potential for temporary or permanent hearing impairment will be avoided
through the incorporation of the required mitigation measures described
in this document. This determination is supported by (1) the likelihood
that, given sufficient notice through slow ship speed and ramp-up of
the acoustic equipment, marine mammals are expected to move away from a
noise source that it is annoying prior to its becoming potentially
injurious; (2) TTS is unlikely to occur, especially in odontocetes,
until levels much above 180 dB re 1 microPa (rms) are reached; and (3)
the fact that injurious levels of sound are only likely if an animal is
very close to the vessel.

Authorization

    As a result of these determinations, NMFS has issued an IHA to AES
for conducting a shallow hazard and site clearance survey in the
Chukchi Sea in 2008, provided the previously mentioned mitigation,
monitoring, and reporting requirements are incorporated.

    Dated: July 30, 2008.
James H. Lecky.
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. E8-18199 Filed 8-8-08; 8:45 am]

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Incidental Takes of Marine Mammals During Specified Activities; Shallow Hazard and Site Clearance Surveys in the Chukchi Sea in 2008

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