Federal Register: October 27, 2009 (Volume 74, Number 206)

DOCID: fr27oc09-131 FR Doc E9-25545

SUBJECT CATEGORY:

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

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

DOCUMENT SUMMARY:

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

SUMMARY:

Commerce Department, National Oceanic and Atmospheric Administration

SUPPLEMENTAL INFORMATION

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``... an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.''

Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines ``harassment'' as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

Section 101(a)(5)(D) establishes a 45day time limit for NMFS review of an application followed by a 30day public notice and comment period on any proposed authorization for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.

Summary of Request

On December 15, 2008, NMFS received an application from Shell for the taking, by Level B harassment only, of small numbers of several species of marine mammals incidental to conducting an openwater marine survey program during the 2009/2010 Arctic openwater season in the Chukchi Sea. Shell plans to conduct site clearance and shallow hazards surveys and a strudel scour survey in the Chukchi Sea. These surveys are a continuation of those conducted by Shell in the Chukchi Sea in 2008. Shell's December 2008, application also requested MMPA coverage for site clearance and shallow hazards surveys, an ice gouge survey, and a strudel scour survey in the Beaufort Sea and an ice gouge survey in the Chukchi Sea for the 2009/2010 season. However, in an addendum to the IHA application submitted to NMFS on March 10, 2009, Shell indicated that it cancelled all survey programs for the Beaufort Sea and the ice gouge survey for the Chukchi Sea in 2009. Shell submitted a second application addendum on May 19, 2009, indicating that Shell will utilize an array of 4 x 10 in\3\ guns (40 in\3\ total discharge volume) instead of the 2 x 10 in\3\ array (20 in\3\ total discharge volume).

Site clearance and shallow hazards surveys will evaluate the seafloor and shallow subseafloor at prospective exploration drilling locations, focusing on the depth to seafloor, topography, the potential for shallow faults or gas zones, and the presence of archaeological features. The types of equipment used to conduct these surveys use low level energy sources focused on limited areas in order to characterize the footprint of the seafloor and shallow subseafloor at prospective drilling locations.
Description of the Specified Activity

Chukchi Site Clearance and Shallow Hazards Surveys

Site clearance and shallow hazards surveys of potential proposed locations for exploration drilling will be executed as required by the Minerals Management Service's (MMS) regulations. These surveys gather data on: (1) bathymetry; (2) seabed topography and other seabed characteristics (e.g., boulder patches); (3) potential geohazards (e.g., shallow faults and shallow gas zones); and (4) the presence of any archeological features (e.g., shipwrecks). Site clearance and shallow hazards surveys can be accomplished by one vessel with acoustic sources. A detailed overview of the activities of this survey was provided in the Notice of Proposed IHA (74 FR 26217, June 1, 2009). Since publication of that notice, Shell updated two pieces of information. First, the R/V Mt. Mitchell will be utilized as the source vessel for the site clearance and shallow hazards surveys. The R/V Mt. Mitchell is a diesel powered vessel, 70 m (231 ft) long, 12.7 m (42 ft) wide, with a 4.5 m (15 ft) draft. Second, the specific prospects within Outer Continental Shelf (OCS) Lease Sale (LS) 193 have been identified. Shell will conduct the surveys at the Burger and Crackerjack prospects and, if time and weather conditions permit, at SW Shoebill. Additional information is also
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contained in Shell's application and application addenda, which are available for review (see ADDRESSES).

Chukchi Strudel Scour Survey

During the early melt, the rivers begin to flow and discharge water over the coastal sea ice near the river deltas. That water rushes down holes in the ice (``strudels'') and scours the seafloor. These erosional areas are called ``strudel scours''. Information on these features is required for prospective pipeline planning. Two proposed activities are required to gather this information: aerial survey via helicopter overflights during the melt to locate the strudels and strudel scour marine surveys to gather bathymetric data. Additional information was provided in the Notice of Proposed IHA (74 FR 26217, June 1, 2009) and Shell's application (see ADDRESSES).

Comments and Responses

A notice of receipt of Shell's MMPA application and NMFS' proposal to issue an IHA to Shell published in the Federal Register on June 1, 2009 (74 FR 26217). That notice described, in detail, Shell's proposed activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30 day public comment period, NMFS received six comment letters from the following: the Marine Mammal Commission (MMC); Ocean Conservancy and Oceana; the Alaska Eskimo Whaling Commission (AEWC); the Inupiat Community of the Arctic Slope (ICAS); the North Slope Borough (NSB) Office of the Mayor and NSB Department of Wildlife Management (collectively ``NSB''); and Alaska Wilderness League (AWL), Center for Biological Diversity, Defenders of Wildlife, Earthjustice, Natural Resources Defense Council, Northern Alaska Environmental Center, Pacific Environment, Sierra Club, The Wilderness Society, and World Wildlife Fund (collectively ``AWL''), along with an attached letter from David E. Bain, Ph.D.

Both AEWC and NSB submitted several journal articles as attachments to their comment letters. NMFS acknowledges receipt of these documents but does not intend to address the specific articles themselves in the responses to comments. AEWC also submitted an unsigned, final version of the 2009 Conflict Avoidance Agreement (CAA). However, Shell signed the CAA on June 24, 2009. Some of NSB's comments were specific to the application and do not have a bearing on NMFS' determinations for issuing an IHA. For example, NSB pointed out that Figure 1 in Shell's application failed to identify the Alaska Maritime National Wildlife Refuge north of Point Lay and asked that the figure be revised. Those comments have been passed on to Shell for consideration in future IHA applications. Any application specific comments that address the statutory and regulatory requirements or findings NMFS must make to issue an IHA are addressed in this section of the Federal Register notice. Additionally, some of NSB's comments concerned the Beaufort Sea operations or ice gouge surveys. As noted above and in the Notice of Proposed IHA (74 FR 26217, June 1, 2009), Shell notified NMFS that it did not intend to conduct these activities; therefore, no marine mammals will be taken. Comments on the Beaufort operations and Chukchi ice gouge survey are not addressed in this document.

General Comments

Comment 1: AWL believes that NMFS should not issue incidental take authorizations for oil and gasrelated seismic surveying until NMFS and other agencies complete a comprehensive review of both the industrial activities and the marine resources of the Arctic. This review should ensure that critical information gaps relating to the Arctic are filled and that decisions made about Arctic activities are made in the context of a comprehensive plan for the region. In the interim, NMFS should not facilitate further potentially harmful seismic activity.

Response: In order to issue an authorization pursuant to Section 101(a)(5)(D) of the MMPA, NMFS must determine that the authorized activity will take only small numbers of marine mammals, will have a negligible impact on affected species or stocks, and will not have an unmitigable adverse impact on affected species or stocks for subsistence uses. If NMFS is able to make these findings, the Secretary is required to issue an IHA. In the case of Shell's activities for 2009/2010 (as described in the application, the Notice of Proposed IHA (74 FR 26217, June 1, 2009) and this document), NMFS determined that the authorized activity met the requirements of Section 101(a)(5)(D) of the MMPA. Additionally, as described later in this section and throughout this document, NMFS has determined that Shell's activities will not result in injury or mortality of marine mammals.

Comment 2: AWL, ICAS, and Ocean Conservancy and Oceana note that Shell's activities will occur on leases that were acquired in OCS LS 193, which was conducted pursuant to MMS' 20072012 FiveYear Leasing Program. This leasing program is part of ongoing litigation. NMFS should not issue IHAs for activities on these leases until the litigation is resolved.

Response: NMFS is aware of the litigation in the U.S. Court of Appeals for the D.C. Circuit, but we disagree with the commenter's assertion that NMFS should not issue IHAs for activities on these leases until the litigation is resolved. Although the court issued an opinion vacating and remanding the 5yr lease program to MMS, it also issued an order (on July 28, 2009) staying its mandate. MMS informed the court that it would complete remand proceedings as soon as possible and that, in the meantime, it would continue to review and act upon exploration plans for Chukchi Sea leases. MMS stated, however, that it would suspend activities under any approved plan pending the Secretary of the Interior's reconsideration decision on the remanded program, thereby halting all but data gathering ancillary activities on Chukchi Sea leases. Shell's 2009 operations are unaffected by the litigation because they are data gathering ancillary activities. Therefore, NMFS has concluded it was appropriate to issue an IHA to Shell for its 2009 seismic operations.

Comment 3: ICAS points out that Native communities in Alaska have long been ignored in the race to find and develop offshore oil and gas resources and that the U.S. Government has consistently failed to comply with legal requirements that require consultation with local Native communities as proposals are being developed that affect native environments. Instead, both Federal agencies and the entities they permit make only token gestures at consultations with Native groups offering them only the opportunity for involvement after proposals are developed and after local knowledge would serve a useful purpose.

Response: Regulations at 50 CFR 216.104(a)(12) require applicants for IHAs in Arctic waters to submit a Plan of Cooperation (POC), which, among other things, requires the applicant to meet with affected subsistence communities to discuss the proposed activities. Additionally, for many years, NMFS has conducted the Arctic Openwater Meeting, which brings together the Federal agencies, the oil and gas industry, and affected Alaska Native organizations to discuss the proposed activities and monitoring plans. Local knowledge is considered at these times, and it is not too late for that knowledge to serve a useful purpose.

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Comment 4: Executive Order 13175 requires Federal agencies to conduct governmenttogovernment consultation when undertaking to formulate and implement policies that have tribal implications. Despite this explicit requirement, ICAS believes that NMFS has failed to consult with governing bodies of Native people who will be and have been affected by the decisions NMFS is making under the MMPA. NMFS must meet with ICAS and local Native villages on a governmenttogovernment basis to discuss the proposed IHA, as well as appropriate mitigation and monitoring requirements.

Response: NMFS recognizes the importance of the governmentto government relations and has taken steps to ensure that Alaska Natives play an active role in the management of Arctic species. For example, NOAA and the AEWC comanage bowhead whales pursuant to a cooperative agreement. This agreement has allowed the AEWC to play a significant role in the management of a valuable resource by affording Alaska Natives the opportunity to protect bowhead whales and the Eskimo culture and to promote scientific investigation, among other purposes.

In addition, NMFS works closely with Alaska Natives when considering whether to permit the take of marine mammals incidental to oil and gas operations. NMFS has met repeatedly over the years with Alaska Native representatives to discuss concerns related to NMFS' MMPA program in the Arctic, and has also taken into account recommended mitigation measures to reduce the impact of oil and gas operations on bowhead whales and to ensure the availability of marine mammals for taking for subsistence uses. Finally, NMFS has participated in Alaska Native community meetings in the past and will continue to do so, when feasible. NMFS will continue to ensure that it meets its governmentto government responsibilities and will work closely with Alaska Natives to address their concerns.

Comment 5: Ocean Conservancy and Oceana believe that Shell's activities could substantially affect marine mammals in an area already impacted by climate change and particularly vulnerable to ocean acidification. Approving an IHA in these circumstances would be contrary to NMFS' responsibilities under the law.

Response: NMFS believes that it has made all of the necessary determinations in order to issue an IHA pursuant to Section 101(a)(5)(D) of the MMPA. NMFS has determined that Shell's activities will affect only small numbers of marine mammals, will have a negligible impact on the affected species and stocks, and will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence purposes, provided the mitigation measures described later in this document are implemented. NMFS completed an EA to analyze the impacts of cumulative activities on the affected species in the action area, including climate change.

Comment 6: AEWC and NSB expressed three concerns with the timing of IHA applications. First, they ask that only one authorization be issued per calendar year or per operating season for work associated with a specific project. Secondly, NMFS should ensure that IHA applications are submitted at least 1 month prior to the April Openwater Meeting or comparable peer review meetings that may ultimately replace such meetings. This will allow Native communities to receive draft POCs and proposed mitigation measures sufficiently in advance of these meetings to allow for meaningful discussion of any identified major flaws, evaluation of suggested improvements that draw upon our particular local expertise, and consideration of appropriate peer reviewers. Lastly, they request that NMFS change the expiration date for authorizations so that a single calendar year is authorized rather than activities in the latter part of one calendar year and the early part of the following year.

Response: Regarding the first and third points, Section 101(a)(5)(D) of the MMPA allows NMFS to issue IHAs ``for periods of not more than 1 year.'' There is no requirement that the period of effectiveness of an IHA fall within 1 calendar year or operating season. In instances where the period of effectiveness of an IHA would cover more than one operating season (i.e., there is considerable downtime between the start and finish of the operations), NMFS analyzes impacts for the entire extent of the operations when issuing the IHA. Regarding the second point about distribution of applications, NMFS cannot guarantee that all applications will be submitted to NMFS at least 1 month prior to the meeting. NMFS has a unique relationship with AEWC pursuant to a cooperative agreement. Pursuant to this agreement, NOAA is required to consult with AEWC on any action undertaken or proposed to be undertaken that may affect the bowhead whale and/or subsistence whaling. To that end, NMFS will make every effort to provide the AEWC with as much information as possible prior to the Openwater Meeting or comparable peer review meeting. However, it is NMFS' practice not to release applications for MMPA authorizations until NMFS deems them complete and a proposed IHA notice or notice of receipt of an application for rulemaking has published in the Federal Register.

Comment 7: NSB notes that Shell's application indicates that several vessels will be involved in the 20092010 period, involving various transit routes that are to be used to reach the Arctic survey sites. There is an absence of discussion of impacts and ``takes'' that may occur upon these transit routes. Shell needs to consider and state the impacts sufficiently. Additionally, Shell should consider other stocks of belugas beyond the Beaufort and Chukchi sea stocks, as impacts may occur in Bristol Bay during ship transit.

Response: As has been stated in several Federal Register notices in the past, normal shipping and transit operations do not rise to a level requiring an authorization under the MMPA. To require IHAs and Letters of Authorization (LOAs) for standard shipping would reduce the ability of NMFS to review activities that have a potential to cause harm to marine mammal populations. For example, in the Arctic Ocean, NMFS would need to issue authorizations for barging operations that supply the North Slope villages in addition to various onshore and offshore oil and gas projects. However, on this matter, Shell will (in keeping with the CAA signed by Shell) follow transit routes contained in the CAA to avoid conflicts with subsistence hunters.

Comment 8: NSB states that NMFS should not issue Shell an IHA for the strudel scour surveys in 2010, as they are substantially different from the shallow hazards and site clearance surveys. Additionally, it is not clear what other activities might be occurring in 2010, so it is not possible to evaluate the potential cumulative impacts from multiple activities that might occur in 2010. If NMFS does issue Shell an IHA for that survey, estimated takes and monitoring are needed. Additional information is needed from Shell about the possible impacts to marine mammals, monitoring plans, and mitigation measures from helicopter surveys over the sea ice. NMFS needs to make this additional information available to the public and decision makers for review and comment before it issues an IHA to Shell for strudel scour surveys in 2010. NSB also notes that the number of days of operation for [[Page 55371]]
the strudel scour surveys is not consistent throughout the application.

Response: The activities for the strudel scour survey are described in Shell's application and the proposed IHA in order to describe the full scale of Shell's operations. However, NMFS has determined that the activities for the strudel scour survey will not result in take of marine mammals. While the sonar equipment proposed to be used for this project generates high sound energy, the equipment operates at frequencies (>100 kHz) beyond the effective hearing range of most marine mammals likely to be encountered during strudel scour operations. Given the direct downward beam pattern of these sonar systems coupled with the highfrequency characteristics of the signals, the horizontal received levels of 180 and 190 dB re 1 microPa (rms) would be much smaller when compared to those from the lowfrequency airguns with similar source levels. Therefore, NMFS has determined that marine mammals will not have a significant behavioral response (i.e., a ``take'') to the strudel scour surveys. However, Shell needs to coordinate these activities with the Native Alaskan communities to ensure that there is no unmitigable adverse impact to subsistence hunts. As described in the application, two separate activities will occur to complete the strudel scour surveys: helicopter overflights and marine vessel work. The overflights will take approximately 4 days to complete and will occur in midMay or early June. The marine vessel portion of the survey will take approximately 10 days to complete and will occur sometime in July or early to midAugust.

Comment 9: NSB incorporated by reference a December 18, 2008, letter sent to the Acting Assistant Administrator for Fisheries, as well as NMFS' February 19, 2009, response, asking for suspension and review of Shell's 20082009 IHA, wherein Shell was allowed to proceed with seismic activities despite what was acknowledged by NMFS to be a potentially flawed survey design. At that time, NSB asked that no more IHAs be issued until compliance with the MMPA could be demonstrated. Based on NSB's review of NMFS' current proposed IHA, NSB does not see a demonstration of compliance and thus does not support issuance of an IHA at this time.

Response: As was stated in NMFS' February letter responding to NSB's concerns, NMFS determined that Shell was in substantial compliance with their IHA during the 2008 seismic survey season. No additional information has been provided to NMFS to indicate that Shell was not in compliance with the IHA. Additionally, NMFS believes that Shell will comply with the monitoring and mitigation measures required in the 2009 IHA.

MMPA Concerns

Comment 10: AWL, NSB, and AEWC state that NMFS cannot issue an IHA or a LOA (because NMFS has not promulgated regulations for mortality by seismic activities) to Shell for its activities since they carry the potential for serious injury or death to marine mammals. AEWC also believes that because Level A harassment is possible, an LOA is needed.

Response: Section 101(a)(5)(D) of the MMPA authorizes Level A (injury) harassment and Level B (behavioral) harassment takes. While NMFS' regulations indicate that a LOA must be issued if there is a potential for serious injury or mortality, NMFS does not believe that Shell's surveys will result in serious injury or mortality, thus obviating the need for a LOA. As explained throughout this Federal Register Notice, it is highly unlikely that marine mammals would be exposed to sound pressure levels (SPLs) that could result in serious injury or mortality. The best scientific information indicates that an auditory injury is unlikely to occur as apparently sounds need to be significantly greater than 180 dB for injury to occur (Southall et al., 2007). Based on the analysis contained in the ``Potential Effects of Survey Activities on Marine Mammals'' section in the Notice of Proposed IHA (74 FR 26217, June 1, 2009), NMFS has determined that an IHA can lawfully be issued to Shell for their activities since the already unlikely potential for serious injury or mortality will be reduced even further through the incorporation of the mitigation and monitoring measures described later in this document and required by the IHA.

Comment 11: AEWC notes their disappointment in NMFS for releasing for public comment an incomplete application from Shell that fails to provide the mandatory information required by the MMPA and NMFS' implementing regulations. AEWC requests that NMFS return Shell's application as incomplete, or else the agency risks making arbitrary and indefensible determinations under the MMPA. The following is the information that AEWC believes to be missing from Shell's application: (1) a POC ``or information that identifies what measures have been taken and/or will be taken to minimize any adverse effects on the availability of marine mammals for subsistence uses'' (50 CFR 216.104(a)(12)); (2) a scheduled meeting ``with the affected subsistence communities to discuss proposed activities and to resolve potential conflicts'' (50 CFR 216.104(a)(12)(ii)); (3) a ``description of what measures the applicant has taken and/or will take to ensure that proposed activities will not interfere with subsistence whaling or sealing'' (50 CFR 216.104(a)(12)(iii)); (4) suggested means of learning of, encouraging, and coordinating any research related activities (50 CFR 216.104(a)(14)); (5) a description of the specified activities and specified geographic region (16 U.S.C. 1371(a)(5)(D)(i)); and (6) a description of the ``age, sex, and reproductive condition'' of the marine mammals that will be impacted (50 CFR 216.104(a)(6)). AWL and NSB also note their concern about the lack of specificity regarding the timing and location of the site clearance and shallow hazards and strudel scour surveys.

Response: NMFS does not agree that it released an incomplete application for review during the public comment period. After NMFS' initial review of the application, NMFS submitted questions and comments to Shell on its application. After receipt and review of Shell's responses, which were submitted as an addendum to the original application, NMFS made its determination of completeness and released the application, addenda, and the proposed IHA notice (74 FR 26217, June 1, 2009). Regarding the six specific pieces of information believed to be missing by AEWC, Shell's original application included a description of the pieces of information that are required pursuant to 50 CFR 216.104(a)(12). The application noted that Shell was planning to meet with subsistence communities in 2009 and described measures to ensure that the applicant's proposed activities will not interfere with subsistence whaling or sealing. The proposed IHA notice (74 FR 26217, June 1, 2009) also noted meetings that had already taken place in the villages of Barrow, Point Hope, Point Lay, Wainwright, and Kotzebue. Moreover, on May 15, 2009, Shell distributed its draft POC for the 2009 activities to NMFS, other government agencies, and affected stakeholder communities.

Information required pursuant to 50 CFR 216.104(a)(14) was also included in Shell's application. Shell provided a list of researchers who could potentially receive results of their research activities who may find the data useful in their own research. Additionally, Shell and ConocoPhillips will be
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working together in 2009 to deploy an intensive array of acoustic recorders around both the Burger and Klondike prospects in the Chukchi Sea.

NMFS also determined that Shell's application provides descriptions of the specified activities and specified geographic region. NMFS defines ``specified geographical region'' as ``an area within which a specified activity is conducted and which has certain biogeographic characteristics'' (50 CFR 216.103). In regard to how specific one must be to define a ``specific geographic region'' within which the activity would take place, House Report 97228 states:

The specified geographic region should not be larger than is necessary to accomplish the specified activity, and should be drawn in such a way that the effects on marine mammals in the region are substantially the same. Thus, for example, it would be inappropriate to identify the entire Pacific coast of the North American continent as a specified geographic region, but it may be appropriate to identify particular segments of that coast having similar
characteristics, both biological and otherwise, as specified geographical regions.

NMFS believes that the U.S. Chukchi Sea meets Congressional intent and NMFS' definition because the region has similar geographic, physiographic (e.g., topography, temperature, sea ice), biologic (e.g., marine fauna (fish and marine mammals)), and sociocultural characteristics. Shell's application noted that the applicant would conduct activities on some of its prospects gained during LS 193, which itself is considered a ``specified geographic region.'' Since that time, Shell has informed NMFS of the specific areas within the lease holdings on which Shell intends to conduct the site clearance and shallow hazards surveys. They are the Burger and Crackerjack prospects, as well as SW Shoebill if time and weather conditions allow. At this time, more specificity on the location of the inwater portion of the strudel scour surveys cannot be provided. Until areas with strudel scour are revealed during helicopter overflights, it is uncertain the exact location along the Chukchi Sea coast where marine vessel operations will occur. However, as previously mentioned, the Chukchi Sea itself is considered a ``specified geographic region.'' Shell also provided a description of the types of equipment that would be used and time frame for conducting its activities. Therefore, NMFS believes that Shell's description of the activity and the locations for conducting their surveys meet the requirements of the MMPA.

Lastly, 50 CFR 216.104(a)(6) requires that an applicant submit information on the ``age, sex, and reproductive condition (if possible)'' (emphasis added) of the number of marine mammals that may be taken. In the application, Shell described the species expected to be taken by harassment and provided estimates of how many of each species were expected to be taken during their activities. In most cases, it is very difficult to estimate how many animals, especially cetaceans, of each age, sex, and reproductive condition will be taken or impacted by seismic or site clearance and shallow hazards surveys. In conclusion, NMFS believes that Shell provided all of the necessary information to proceed with publishing a proposed IHA notice in the Federal Register.

Comment 12: AEWC and NSB state that Shell did not disclose the full spectrum of activities in which it will engage. For example, Shell mentions support vessels and other equipment in its application but such machinery is not disclosed among Shell's activities. Additionally, Shell changed the airgun array it planned to use after submitting its application but did not conduct any new analysis of the impacts from this change, thus negating its analysis of the impacts from the original airgun array. Shell needs to adequately specify the activities and impacts of all the actions that will be undertaken in the Chukchi. AEWC also states that NMFS relied on surveys conducted in 2008 by Shell to calculate the area of ``water exposed to received levels at or above 160 dB.'' The 2008 surveys, however, were based on signals from ``four 10 in\3\ airguns,'' and not the 40 in\3\ airguns that Shell now intends to use. Thus, for this reason as well, Shell's application must be returned.

Response: NMFS determined that Shell's application and application addenda fully described the activities in which Shell will engage. In previous years, when Shell conducted its larger, 3D seismic surveys, several support vessels were needed to carry out operations. However, for this smaller survey, all work will be conducted from the single source vessel. All acoustic equipment that will be used to conduct the surveys is listed in the application. Shell did change the number of airguns and submitted this information to NMFS in their second application addendum. In assessing the new airgun array, NMFS determined that the potential impacts to marine mammals would be the same if the total discharge volume was 20 in\3\ or 40 in\3\. Shell submitted revised take estimates based on the new discharge volume and ensonified zones. The analysis of impacts from airguns and the revised take estimates were contained in the proposed IHA notice (74 FR 26217, June 1, 2009). Therefore, NMFS determined that Shell adequately specified the activities and impacts of all the actions that will be undertaken in the Chukchi Sea.

The modeled radii that Shell submitted were from sound source verification tests conducted in the Chukchi Sea during the 2008 open water season by JASCO. JASCO modeled three different airgun configurations: 4 x 10 in\3\ airgun array; 2 x 10 in\3\ airgun array; and 1 x 10 in\3\ airgun. For 2009, Shell intends to use the 4 x 10 in\3\ airgun array and not the 40 in\3\ airguns, as noted by AEWC. Therefore, this modeling was accurately used by Shell in its submission to NMFS.

Comment 13: NSB and AWL expressed concern that the IHA will cover a full year, as the assessment of effects on bowhead whales apparently relies in part on the surveys ending before the peak of the bowhead fall migration through the Chukchi Sea. Shell indicates that it will require a maximum of 50 days of active data acquisition, but it is noteworthy that this estimate expressly excludes any unplanned downtime. Consequently, Shell could need to survey well into the month of October, and the IHA as proposed would allow it to do so. A 1year IHA is clearly not compelled by the MMPA, and an authorization that includes a portion of the next openwater season only invites later confusion. Although NMFS' analysis of impacts to marine mammals appears to consider the entire 50 days of active surveying, the process leaves open the possibility of an unjustifiably segmented evaluation of survey activity, looking only at a portion of the surveying that will take place in a single season. NMFS should take steps to avoid such results.

Response: Section 101(a)(5)(D)(i) of the MMPA states that: ``Upon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specific geographic region, the Secretary shall authorize, for periods of not more than 1 year, subject to such conditions as the Secretary may specify, the incidental, but not intentional, taking by harassment of small numbers of marine mammals of a species or population stock by such citizens while engaging in that activity within that region....''

As noted, the MMPA does not limit the issuance of an IHA to a single openwater season (approximately July 20 to approximately November 15 in the U.S. Beaufort and Chukchi Seas), a period of less than 4 months, and even less
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available time if an applicant's activity is located in an area subject to area closure due to native subsistence hunting. Provided the IHA application includes an analysis of the specified activities during the time frame proposed by the applicant, NMFS will consider issuing an IHA that extends into a portion of the following year. NMFS evaluated the effects of Shell's activities for the full requested time frame, including evaluating effects into the following season. Additionally, NMFS believes that even if Shell must conduct activities into the middle or end of October, the mitigation and monitoring measures required by the IHA (described later in this document) will not increase the level of impact to marine mammals in the area.

Comment 14: AEWC and NSB state that NMFS failed to issue a draft authorization for public review and comment. The plain language of both the MMPA and NMFS' implementing regulations require that NMFS provide the opportunity for public comment on the ``proposed incidental harassment authorization'' (50 CFR 216.104(b)(1)(i); 16 U.S.C. 1371 (a)(5)(D)(iii)) and not just on the application itself as NMFS has done here. Without a complete draft authorization and accompanying findings, AEWC and NSB cannot provide meaningful comments on Shell's proposed activities, ways to mitigate the impacts of those activities on marine mammals, and measures that are necessary to protect subsistence uses and sensitive resources. For example, AEWC cannot ensure that the authorization will comport with the requirements of the applicable CAA.

Response: The June 1, 2009 proposed IHA notice (74 FR 26217) contained all of the relevant information needed by the public to provide comments on the proposed authorization itself. The notice contained the permissible methods of taking by harassment, means of effecting the least practicable impact on such species (i.e., mitigation), measures to ensure no unmitigable adverse impact on the availability of the species or stock for taking for subsistence use, requirements pertaining to the monitoring and reporting of such taking, including requirements for the independent peer review of the proposed monitoring plan. The notice provided detail on all of these points, allowing the public to provide meaningful comments. Additionally, the notice contained NMFS' preliminary findings of negligible impact and no unmitigable adverse impact.

The signing of a CAA is not a requirement to obtain an IHA. Additionally, the CAA is a document that is negotiated between and signed by the industry participant, AEWC, and the Village Whaling Captains' Associations. NMFS has no role in the development or execution (other than, where appropriate, to include marine mammal related measures from the CAA in the IHA) of this agreement. While signing a CAA helps NMFS to make its no unmitigable adverse impact determination for bowhead and beluga whales, it is not a requirement.

Comment 15: NSB states that based on the limited information provided by NMFS, there is no way to determine whether Shell's monitoring and reporting plans were subjected to independent peer review, as required by the MMPA. Unless NMFS can demonstrate compliance with the MMPA and its own regulations, it cannot issue an IHA to Shell. AEWC also notes that NMFS cannot issue an IHA to any company whose monitoring plan has not been cleared through independent peer review.

Response: On May 6, 2009, NMFS contacted representatives from AEWC, NSB, MMC, and Shell about nominating people to participate in an independent peer review of Shell's monitoring plan. NMFS received nominations from all of the contacted parties and selected and contacted reviewers from these lists. Two of the contacted individuals provided detailed comments on Shell's monitoring and reporting plan. NMFS provided Shell with the comments and recommendations of the reviewers. The reviewers' comments and changes to the monitoring plan are addressed later in this document (see ``Monitoring Plan Independent Peer Review'' section later in this document). NMFS complied with the requirements under the MMPA and the implementing regulations for issuing IHAs, and therefore can legally issue an IHA to Shell to conduct their operations.

Comment 16: AEWC states that because of the critical information provided through the direct observations of AEWC hunters, the peer review process must include AEWC representatives.

Response: NMFS' proposed rule for implementing the 1994 amendments to the MMPA described the process for conducting an independent peer review of monitoring plans where the proposed activity may affect the availability of a species or stock for taking for subsistence uses (60 FR 28379, May 31, 1995). While panelists for the independent peer review are selected by NMFS in consultation with the MMC, AEWC and/or other Alaska native organizations as appropriate, and the applicant, selected ``panelists are experts who are not currently employed or contracted by either the affected Alaskan native organization or the applicant'' (60 FR 28381, May 31, 1995). Therefore, it was NMFS' intent not to include AEWC representatives in the independent peer review process. However, AEWC representatives are afforded the opportunity to provide information based on their direct observations and experiences at the annual Openwater Meeting and through the public comment process on the proposed IHA.

Comment 17: AEWC specifically requests that NMFS release its response to comments at the earliest possible time and that NMFS not allow seismic activities to begin until the whaling captains have had a chance to review NMFS' response. We note that in 2008, NMFS did not publish its response to comments on Shell's IHA for seismic operations in the Beaufort Sea until well after the fall subsistence hunt at Cross Island had concluded and seismic operations had already taken place. There can be no excuse for allowing seismic operations to take place directly within one of the most important subsistence hunting areas in the Arctic Ocean prior to NMFS explaining to the local communities and whaling captains why it was issuing an IHA over their wellreasoned objections, which were presented during the public comment period. The fact that NMFS would not release its response to comments until after the activities had taken place casts serious doubt on the validity of NMFS' public involvement process and the underlying analysis of impacts to subsistence activities and marine mammals.

Response: NMFS publishes its responses to public comments in the Federal Register notice of issuance or denial. There is no provision requiring an applicant to wait to begin operations until after review of NMFS' responses to comments by members of the public. No public comment period is required on the Federal Register notice announcing NMFS' final decision. For the issuance of Shell's 2008 and 2009 IHAs, NMFS reviewed and considered all of the comments submitted before making its final determinations. Additionally, NMFS summarized and presented all of the significant issues raised by the commenters to the decision maker before signing the IHA.

Comment 18: AEWC notes that by regulation, Shell must include with its application a POC that ensures potential conflicts with subsistence uses are resolved/mitigated prior to the issuance of an IHA. It is AEWC's view that
[[Page 55374]]
signing and following the CAA meets the POC requirement as it pertains to bowhead whales. AEWC states that Shell must agree to all the terms of the 2009 Openwater CAA in order to mitigate the effects of its proposed operations. In fact, the CAA was in use prior to NMFS' issuance of its regulations, and the POC requirement was included in the regulatory language to point operators to the CAA. In addition to the CAA setting forth mitigation measures agreed to by the operators and hunters, a schedule of meetings in preparation for each upcoming season, and postseason review meetings to evaluate the effectiveness of mitigation measures employed during a certain season, an operator's adherence to the terms of the CAA enables the Secretary to make the no unmitigable adverse impact finding required by Congress in the MMPA. NMFS is welladvised to heed the longstanding practice of relying on the CAA to enable the Secretary to make the required finding, as the agency has no other basis upon which to determine whether a specified set of mitigation measures will enable hunters to retain access to migrating marine mammals without increasing the risks associated with an already highrisk practice.

Response: NMFS believes that the CAA is an important mechanism to ensure that there is not an unmitigable adverse impact on the availability of bowhead whales for taking for subsistence uses. However, the CAA is a document entered into between two entities (industry applicants and native community stakeholders). NMFS is neither a signatory to the CAA, nor does it play any formal role in the development of the CAA other than by requiring industry applicants to develop a POC pursuant to 50 CFR 216.104(a)(12). Moreover, the CAA is only one way to make the no unmitigable adverse impact to subsistence uses finding. Although NMFS has a limited role in this process, NMFS supports the continuation of the CAA process to help ensure that native subsistence harvests are successful.

Comment 19: AEWC and NSB state that the conclusion that Shell's proposed activities will only take small numbers of marine mammals and will have no more than a negligible impact is not justified by the information provided. AEWC believes that without knowing more about the status and number of species present in the Chukchi Sea, this conclusion cannot be supported. NSB believes that NMFS has not adequately considered whether marine mammals may be harassed at received levels significantly lower than 160 dB and has not considered the possible serious injuries associated with authorizing the proposed activities.

Response: NMFS believes that it provided sufficient information in its proposed IHA notice (74 FR 26217, June 1, 2009) to make the small numbers and negligible impact determinations and that the best scientific information available was used to make those determinations. The available information was sufficient to make the necessary findings. While some published articles indicate that certain marine mammal species may avoid seismic vessels at levels below 160 dB, NMFS does not believe that these responses rise to the level of a significant behavioral response. While studies, such as Miller et al. (1999), have indicated that some bowhead whales may have started to be deflected from their migratory path 35 km (21.7 mi) from the seismic vessel, it should be pointed out that these minor course changes are during migration and, as described in MMS' 2006 Final Programmatic Environmental Assessment (PEA), have not been seen at other times of the year and during other activities. To show the contextual nature of this minor behavioral modification, recent monitoring studies of Canadian seismic operations indicate that feeding, nonmigratory bowhead whales do not move away from a noise source at an SPL of 160 dB. Therefore, while bowheads may avoid an area of 20 km (12.4 mi) around a noise source, when that determination requires a postsurvey computer analysis to find that bowheads have made a 1 or 2 degree course change, NMFS believes that does not rise to a level of a ``take.'' NMFS therefore continues to estimate ``takings'' under the MMPA from impulse noises, such as seismic, as being at a distance of 160 dB (re 1 microPa).

NMFS has determined that Shell's activities will not cause serious injury to marine mammals. As explained throughout this Federal Register Notice, it is highly unlikely that marine mammals would be exposed to SPLs that could result in serious injury or mortality. The best scientific information indicates that an auditory injury is unlikely to occur, as apparently sounds need to be significantly greater than 180 dB for injury to occur (Southall et al., 2007). The 180dB radius for the airgun array to be used by Shell is 160 m (525 ft). Therefore, if injury were possible from Shell's activities, the animal would need to be closer than 160 m (525 ft). However, based on the configuration of the airgun array and streamers, it is highly unlikely that a marine mammal would be that close to the seismic vessel. Mitigation measures described later in this document will be implemented should a marine mammal enter this small zone around the airgun array.

Comment 20: AEWC notes that based on the density estimates, Shell is predicting that an average of 692 and a maximum of 1,078 ringed seals may be exposed to seismic sounds. These are by no means ``small numbers'' of marine mammals that will be subjected to impacts as a result of Shell's operations. NSB notes that Shell's application states that approximately 2 percent of the BeringChukchiBeaufort stock of bowhead whales will be exposed to sounds greater than or equal to 160 dB (rms). This is a large percentage of the population.

Response: NMFS determined that the small numbers requirement has been satisfied. Shell has predicted that an average of 692 ringed seals will be exposed to SPLs of 160 dB or greater during operations. This does not mean that this is the number of ringed seals that will actually exhibit a disruption of behavioral patterns in response to the sound source; rather, it is simply the best estimate of the number of animals that potentially could have a behavioral modification due to the noise. For example, Moulton and Lawson (2002) indicate that most pinnipeds exposed to seismic sounds lower than 170 dB do not visibly react to that sound, and, therefore, pinnipeds are not likely to react to seismic sounds unless they are greater than 170 dB re 1 microPa (rms).

The Level B harassment take estimate of 692 ringed seals is a small number, at least in relative terms, in that it represents only 0.3 percent of the regional stock size of that species (249,000), if each ``exposure'' at 160 dB represents an individual ringed seal. The percentage would be even lower if a higher SPL is required for a behavioral reaction (as is expected) or, if as expected, animals move out of the seismic area. As a result, NMFS determined that these ``exposure'' estimates are conservative, and seismic surveys will actually affect less than 0.3 percent of the Chukchi Sea ringed seal population.

Regarding bowhead whales, this percentage is a remnant from when Shell was going to conduct its full suite of surveys in both the Beaufort and Chukchi Seas. As mentioned earlier in this document, the Beaufort Sea surveys and the Chukchi Sea ice gouge survey were cancelled for the 2009/2010 season. Shell's Chukchi Sea site clearance and shallow hazards surveys are estimated to take only one bowhead whale, representing less than 0.01
[[Page 55375]]
percent of the BeringChukchiBeaufort stock of bowhead whales.

Comment 21: AEWC states that Shell should be required to engage in monitoring activities that are separate and apart from its oil and gas activities (see 50 CFR 216.104(a)(14)). These activities must be separate from Shell's proposed oil and gas related operations, since any data from such operations is skewed in light of marine mammals' avoidance of the vessels and seismic noise.

Response: In 2009, Shell and ConocoPhillips are jointly funding an extensive acoustic monitoring program in the Chukchi Sea. A total of 44 recorders will be distributed both broadly across the Chukchi lease area and nearshore environment and intensively on the Burger and Klondike lease areas. The broad area arrays are designed to capture both general background soundscape data and marine mammal call data across the lease area. Shell hopes to gain insights into largescale distribution of marine mammals, identification of marine mammal species present, movement and migration patterns, and general abundance data. Many of these recorders will be placed tens of miles away from the site clearance and shallow hazards surveys. Additionally, these recorders will remain deployed after completion of Shell's survey work in 2009.

Pursuant to 50 CFR 216.104(a)(14), an applicant must include ``suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities relating to reducing such incidental taking and evaluating its effects.'' There is no requirement that this information or monitoring be conducted separate and apart from the authorized activities, since the research is supposed to evaluate the effects of the taking.

Marine Mammal Impact Concerns

Comment 22: AWL, NSB, and AEWC noted that NMFS has acknowledged that permanent threshold shift (PTS) qualifies as a serious injury. Therefore, if an acoustic source at its maximum level has the potential to cause PTS and thus lead to serious injury, it would not be appropriate to issue an IHA for the activity (60 FR 28381, May 31, 1995). AEWC states that therefore an LOA is required here. While the airguns proposed by Shell are smaller than those associated with typical 2D/3D deep marine surveys, the noise they produce is still considerable, as evidenced by the estimated 120 dB radius that extends out to 24 km (15 mi). These groups state that in the proposed IHA, NMFS did not rule out the possibility of animals incurring PTS (74 FR 26222, June 1, 2009). Although NMFS characterizes the possibility as unlikely, it nevertheless relies on mitigation measures, such as rampups and exclusion zones, to ``minimize'' the ``alreadyminimal'' probability of PTS.

Response: In the proposed rule implementing the process to apply for and obtain an IHA, NMFS stated that authorizations for harassment involving the ``potential to injure'' would be limited to only those that may involve nonserious injury (60 FR 28380, May 31, 1995). However, NMFS goes on to say that ``if the review of an application for incidental harassment indicates there is a potential for serious injury or death, NMFS proposes that it would either (1) determine that the potential for serious injury can be negated through mitigation requirements that could be required under the authorization or (2) deny'' (Ibid) the IHA and require the applicant to petition for regulations and LOA. As stated several times in this document and previous Federal Register notices for seismic activities, there is no empirical evidence that exposure to pulses of airgun sound can cause PTS in any marine mammal, even with large arrays of airguns (see Southall et al., 2007). PTS is thought to occur several decibels above that inducing mild temporary threshold shift (TTS), the mildest form of hearing impairment (a noninjurious effect). NMFS (1995, 2000) concluded that cetaceans and pinnipeds should not be exposed to pulsed underwater noise at received levels exceeding, respectively, 180 and 190 dB re 1 microPa (rms). The established 180 and 190dB re 1 microPa (rms) criteria are the received levels above which, in the view of a panel of bioacoustics specialists convened by NMFS before TTS measurements for marine mammals started to become available, one could not be certain that there would be no injurious effects, auditory or otherwise, to marine mammals. As summarized later in this document, data that are now available imply that TTS is unlikely to occur unless bowriding odontocetes are exposed to airgun pulses much stronger than 180 dB re 1 Pa rms (Southall et al., 2007). Additionally, while the Federal Register notice cited by the commenters states that NMFS considered PTS to be a serious injury (60 FR 28380, May 31, 1995), our understanding of anthropogenic sound and the way it impacts marine mammals has evolved since then, and NMFS no longer considers PTS to be a serious injury. NMFS has defined ``serious injury'' in 50 CFR 216.3 as ``...any injury that will likely result in mortality.'' There are no data that suggest that PTS would be likely to result in mortality, especially the limited degree of PTS that could hypothetically be incurred through exposure of marine mammals to seismic airguns at the level and for the duration that are likely to occur in this action.

The extent of the 120dB radius does not indicate that animals may be seriously injured. Additionally, NMFS has required monitoring and mitigation measures to negate the possibility of marine mammals being seriously injured as a result of Shell's activities. In the proposed IHA, NMFS determined that no cases of TTS are expected to result from Shell's activities. Based on this determination and the explanation provided here, PTS is also not expected. Therefore, an IHA is appropriate.

Comment 23: AEWC and NSB state that research is increasingly showing that marine mammals may remain within dangerous distances of seismic operations rather than leave a valued resource such as a feeding ground (see Richardson, 2004). The International Whaling Commission (IWC) scientific committee has indicated that the lack of deflection by feeding whales in Camden Bay (during Shell seismic activities) likely shows that whales will tolerate and expose themselves to potentially harmful levels of sound when needing to perform a biologically vital activity, such as feeding (mating, giving birth, etc.). Thus, the noise from Shell's proposed operations could injure marine mammals if they are close enough to the source.

Response: If marine mammals, such as bowhead whales, remain near a seismic operation to perform a biologically vital activity, such as feeding, depending on the distance from the vessel and the size of the 160dB radius, the animals may experience some Level B harassment. Depending on the distance of the animals from the vessel and the number of individual whales present, certain mitigation measures are required to be implemented. If an aggregation of 12 or more mysticete whales are detected within the 160dB radius, then the airguns must be shutdown until the aggregation is no longer within that radius. Additionally, if any whales are sighted within the 180dB radius of the active airgun array, then either a powerdown or shutdown must be implemented immediately. For the reasons stated throughout this document, NMFS has determined that Shell's operations will not injure marine mammals. [[Page 55376]]

Comment 24: AWL and NSB state that the standard for determining whether an IHA is appropriate is exceptionally protective. If there is even the possibility of serious injury, NMFS must establish that the ``potential for serious injury can be negated through mitigation requirements'' (60 FR 28380, May 31, 1995; emphasis added). Reports from previous surveys, however, indicate that, despite monitored exclusion zones, marine mammals routinely stray too close to the airguns. AEWC states that the safety radii proposed by Shell do not negate injury.

Perhaps, more importantly, the documented exposures were recorded only because conditions were such that the marine mammals could be observed, but this only represents a fraction of the time that airguns are operating. Marine mammal observers (MMOs) cannot see animals at the surface when it is dark or during the day because of fog, glare, rough seas, the small size of animals such as seals, and the large portion of time that animals spend submerged. Shell has acknowledged that reported sightings are only ``minimum'' estimates of the number of animals potentially affected by surveying. AWL, NSB, and AEWC note that although NMFS recognizes that infrared goggles and nightvision binoculars are of ``limited'' effectiveness when visibility is low, its only response for Shell's 2009 surveying is that MMOs are relieved of monitoring the exclusion zones at night, except during periods before and during rampups.

NMFS appears to simply presume that marine mammals will naturally avoid airguns when they are operating at full strength, removing the need for monitoring when conditions prevent MMOs from effectively watching for intrusions into the exclusion zones. That premise is not supported by the survey data, indicating that shutdowns and powerdowns have repeatedly proven necessary. The requirement for rampup rests on the same foundation that marine mammals will leave an affected area as a result of increasing noise. Yet, as the Joint Subcommittee on Ocean Science & Technology report noted, although rampup is a widely imposed practice, ``there has never been a demonstration that it works as intended.'' Because NMFS has not negated the possibility of serious injury from Shell's 2009 seismic surveying, it may not issue an IHA.

Response: As has already been stated several times in this document, recent literature has indicated that sounds need to be significantly higher than 180 dB to cause injury to marine mammals (see Southall et al., 2007). Therefore, the 180 and 190dB safety zones are conservative. The survey reports indicate that mitigation measures (i.e., powerdowns or shutdowns) were implemented, thus preventing the animals from being exposed to more than one or two seismic pulses. Additionally, Shell's operations will occur in an area where periods of darkness do not begin until early September. Beginning in early September, there will be approximately 13 hours of darkness each day, with periods of darkness increasing by about 30 min each day. By the end of the survey period, there will be approximately 8 hours of darkness each day.

The source vessel will be traveling at speeds of about 15 knots (1.99.3 km/hr). With a 180dB safety range of 160 m (525 ft), the vessel will have moved out of the safety zone within a few minutes. As a result, during underway survey operations, MMOs are instructed to concentrate on the area ahead of the vessel, not behind the vessel where marine mammals would need to be voluntarily swimming towards the vessel to enter the 180dB zone. In fact, in some of NMFS' IHAs issued for scientific seismic operations, shutdown is not required for marine mammals that approach the vessel from the side or stern in order to ride the bow wave or rub on the seismic streamers deployed from the stern (and near the airgun array) as some scientists consider this a voluntary action on the part of an animal that is not being harassed or injured by seismic noise. While NMFS concurs that shutdowns are not likely warranted for these voluntary approaches, in the Arctic Ocean, all seismic surveys are shutdown or powered down for all marine mammal close approaches. Also, in all seismic IHAs, including Shell's IHA, NMFS requires that the safety zone be monitored for 30 min prior to beginning rampup to ensure that no marine mammals are present within the safety zones. Implementation of rampup is required because it is presumed it would allow marine mammals to become aware of the approaching vessel and move away from the noise, if they find the noise annoying. Data from 2007 and 2008, when Shell had support boats positioned 1 km (0.62 mi) on each side of the 3D seismic vessel, suggest that marine mammals do in fact move away from an active source vessel. In those instances, more seals were seen from the support vessels than were seen from the source vessels during active seismic operations. Additionally, research has indicated that some species tend to avoid areas of active seismic operations (e.g., bowhead whales, see Richardson et al., 1999).

NMFS has determined that an IHA is the proper authorization required to cover Shell's survey. As described in other responses to comments in this document, NMFS does not believe that there is a risk of serious injury or mortality from these activities. The monitoring reports from 2006, 2007, and 2008 do not note any instances of serious injury or mortality (Patterson et al., 2007; Funk et al., 2008; Ireland et al., 2009). Additionally, NMFS is confident it has met all of the requirements of section 101(a)(5)(D) of the MMPA (as described throughout this document) and therefore can issue an IHA to Shell for its survey operations in 2009/2010.

Comment 25: AWL, Dr. Bain, NSB, and AEWC believe that NMFS has not adequately considered whether marine mammals may be harassed at received levels significantly lower than 160 dB. Here, NMFS calculated harassment from Shell's proposed surveying based on the exposure to marine mammals to sounds at or above 160 dB. This uniform approach to harassment, however, does not take into account known reactions of marine mammals in the Arctic to levels of noise far below 160 dB. These letters state that bowhead, gray, killer, and beluga whales and harbor porpoise react to sounds lower than 160 dB. At least in the case of bowhead whales, a 120dB level is more appropriate to assess levels of harassment.

Citing several papers on killer whales and harbor porpoise, Dr. Bain states that major behavioral changes of these animals appear to be associated with received levels of around 135 dB re 1 microPa, and that minor behavioral changes can occur at received levels from 90110 dB re 1 microPa or lower. He also states that belugas have been observed to

FOR FURTHER INFORMATION CONTACT

Candace Nachman, Office of Protected Resources, NMFS, (301) 7132289 or Brad Smith, NMFS, Alaska Region, (907) 2713023.

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