[Federal Register Volume 71, Number 164 (Thursday, August 24, 2006)]
[Notices]
[Pages 50027-50045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7121]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 020306A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Seismic Surveys in the Beaufort and Chukchi Seas off Alaska

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

ACTION: Notice of Issuance of an Incidental Harassment Authorization.

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SUMMARY: In accordance with regulations implementing the Marine Mammal 
Protection Act (MMPA) as amended, notification is hereby given that an 
Incidental Harassment Authorization (IHA) to take small numbers of 
marine mammals, by harassment, incidental to conducting a marine 
geophysical program, including deep seismic surveys, on oil and gas 
lease blocks located on Outer Continental Shelf (OCS) waters in the 
mid- and eastern-Beaufort Sea and on pre-lease areas in the Northern 
Chukchi Sea has been issued to Shell Offshore, Inc. (Shell) and 
WesternGeco, Inc.

DATES: Effective from July 10, 2006 through December 31, 2006.

ADDRESSES: The application, a list of references used in this document, 
and the IHA are available 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. A copy of the application and/or the research monitoring 
plan (LGL, 2006) is also available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha. Documents cited in this document, that are 
not available through standard public (inter-library loan) access, may 
be viewed, by appointment, during regular business hours at this 
address.
    A copy of the Minerals Management Service's (MMS) Programmatic 
Environmental Assessment (PEA) is available on-line at: http://www.mms.gov/alaska/ref/pea_be.htm.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead or Jolie 
Harrison, Office of Protected Resources, NMFS, (301) 713-2289.

SUPPLEMENTARY INFORMATION:

Background

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

[[Page 50028]]

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 issuance of the authorization.

Summary of Request

    On November 16, 2005, NMFS received two applications from Shell for 
the taking, by Level B harassment, of several species of marine mammals 
incidental to conducting a marine seismic survey program during 2006 in 
the mid- and eastern-Beaufort and northern Chukchi seas. The deep 
seismic survey component of the program will be conducted from 
WesternGeco's vessel the M/V Gilavar. Detailed specifications on this 
seismic survey vessel are provided in Shell's application (Seismic 
Survey, Overview/Description). These specifications include: (1) 
complete descriptions of the number and lengths of the streamers which 
form the airgun and hydrophone arrays; (2) airgun size and sound 
propagation properties; and (3) additional detailed data on the M/V 
Gilavar's characteristics. In summary, the M/V Gilavar will tow two 
source arrays, comprising three identical subarrays each, which will be 
fired alternately as the ship sails downline in the survey area. The M/
V Gilavar will tow up to 6 hydrophone streamer cables up to 5.4 
kilometers (km)(3.4 mi) long. With this configuration each pass of the 
Gilavar can record 12 subsurface lines spanning a swath of up to 360 
meters (m; 1181 ft). The seismic data acquisition vessel will be 
supported by the M/V Alex Gordon, which will serve to resupply and re-
fuel the M/V Gilavar. The M/V Alex Gordon is also capable of ice 
management should that be required. The M/V Alex Gordon will not deploy 
seismic acquisition gear.

Plan for Seismic Operations

    It is planned that the M/V Gilavar will be in the Chukchi Sea in 
early July to begin deploying the acquisition equipment. Seismic 
acquisition will not begin before July 15, 2006. The approximate areas 
of operations are shown in Appendix 4 in Shell's IHA application. 
Acquisition will continue in the Chukchi Sea until ice conditions 
permit a transit into the Beaufort Sea around early August. Seismic 
acquisition is planned to continue in the Beaufort at one of three 3-D 
areas until early October depending on ice conditions. These 3-D areas 
are shown in Appendix 5 in Shell's application. For each of the 3-D 
areas, the M/V Gilavar will traverse the area multiple times until data 
on the area of interest has been recorded. At the conclusion of seismic 
acquisition in the Beaufort Sea, the M/V Gilavar will return to the 
Chukchi Sea and resume recording data there until all seismic lines are 
completed or weather prevents data collection.
    The proposed Beaufort Sea deep seismic, site clearance, shallow 
hazard surveys and geotechnical activities are proposed to commence in 
August (if ice conditions allow) and continue until weather precludes 
further seismic work. In addition to deep seismic surveys, Shell plans 
to conduct site clearance and shallow hazard surveys of potential 
exploratory drilling locations within Shell's lease areas in the 
Beaufort Sea. The M/V Henry Christoffersen will be conducting the 
shallow-hazard seismic survey program in the Beaufort Sea while the M/V 
Gilavar conducts the deep seismic survey. The site clearance surveys 
are confined to very small specific areas within defined lease blocks. 
Also, very small and limited geophysical survey energy sources will be 
employed to measure bathymetry, topography, geo-hazards and other 
seabed characteristics. On the M/V Henry Christoffersen, the following 
acoustic instrumentation will be used: (1) a dual frequency subbottom 
profiler (Datasonics CAP6000 Chirp II (2-7kHz or 8-23kHz)); (2) a 
medium penetration subbottom profiler (Datasonics SPR-1200 Bubble 
Pulser (400Hz)); (3)a hi-resolution multi-channel seismic system (240cu 
in (4X60) gun array (0-150 Hz)); (4) a multi-beam bathymetric sonar 
(Seabat 8101 (240 kHz)); and (5) a side-scan sonar system (Datasonics 
SIS-1500 (190kHz - 210 kHz)). The timing is scheduled to avoid any 
conflict with the Beaufort Sea subsistence hunting conducted by the 
Alaska Eskimo Whaling Commission's (AEWC) villages.
    In summary, the proposed Chukchi deep seismic survey will occur in 
two phases. Phase 1 will commence sometime after July 15, 2006, as sea 
ice coverage conditions allow and will continue through July to early 
August, 2006. Phase 2 of the Chukchi deep seismic survey will occur 
upon completion of the Beaufort Sea survey sometime after mid-October 
and continue until such time as sea ice and weather conditions preclude 
further work, probably sometime in mid- to late-November, 2006. Shell 
plans to run approximately 5556 km (3452 mi) of surveys in the Chukchi 
Sea and a similar survey length in the Beaufort Sea.
    Alternatively, if ice conditions preclude seismic operations in the 
Beaufort Sea, Shell proposes to continue its seismic program in the 
Chukchi Sea through mid- to late-November, 2006, or approximately 5.5 
months. This scenario takes into account that approximately twice as 
many seismic line miles would be completed during this time in the 
Chukchi Sea. Under this scenario approximately 6000 nm (6905 stat mi; 
11,112 km) of seismic line miles could be completed in the Chukchi Sea.
    A detailed description of the work proposed by Shell for 2006 is 
contained in the two applications which are available for review (see 
ADDRESSES).

Description of Marine 3-D Seismic Data Acquisition

    In the seismic method, reflected sound energy produces graphic 
images of seafloor and sub-seafloor features. The seismic system 
consists of sources and detectors, the positions of which must be 
accurately measured at all times. The sound signal comes from arrays of 
towed energy sources. These energy sources store compressed air which 
is released on command from the towing vessel. The released air forms a 
bubble which expands and contracts in a predictable fashion, emitting 
sound waves as it does so. Individual sources are configured into 
arrays. These arrays have an output signal, which is more desirable 
than that of a single bubble, and also serve to focus the sound output 
primarily in the downward direction, which is useful for the seismic 
method. This array effect also minimizes the sound emitted in the 
horizontal direction.
    The downward propagating sound travels to the seafloor and into the 
geologic strata below the seafloor. Changes in the acoustic properties 
between the various rock layers result in a portion of the sound being 
reflected back toward the surface at each layer. This reflected energy 
is received by detectors called hydrophones, which are housed within 
submerged streamer cables which are towed behind the seismic vessel. 
Data from these hydrophones are recorded to produce seismic records or 
profiles. Seismic profiles often resemble geologic cross-sections along 
the course traveled by the survey vessel.

Description of WesternGeco's Air-Gun Array

    Shell will use WesternGeco's 3147 in\3\ Bolt-Gun Array for its 3-D 
seismic survey operations in the Chukchi and

[[Page 50029]]

Beaufort Seas. WesternGeco's source arrays are composed of 3 
identically tuned Bolt-gun sub-arrays operating at an air pressure of 
2,000 psi. In general, the signature produced by an array composed of 
multiple sub-arrays has the same shape as that produced by a single 
sub-array while the overall acoustic output of the array is determined 
by the number of sub-arrays employed.
    The gun arrangement for each of the three 1049-in\3\ sub-array is 
detailed in Shell's application. As indicated in the application's 
diagram, each sub-array is composed of six tuning elements; two 2-gun 
clusters and four single guns. The standard configuration of a source 
array for 3D surveys consists of one or more 1049-in\3\ sub-arrays. 
When more than one sub-array is used, as here, the strings are lined up 
parallel to each other with either 8 m or 10 m (26 or 33 ft) cross-line 
separation between them. This separation was chosen so as to minimize 
the areal dimensions of the array in order to approximate point source 
radiation characteristics for frequencies in the nominal seismic 
processing band. For the 3147 in\3\ array the overall dimensions of the 
array are 15 m (49 ft) long by 16 m (52.5 ft) wide.
    Shell's application provides illustrations of the time series and 
amplitude spectrum for the far-field signature and the computed 
acoustic emission pattern for the vertical inline and crossline planes 
for the 3147 in\3\ array with guns at a depth of 6 m (20 ft). The 
signature for this array was first computed using GSAP, WesternGeco's 
in house signature modeling software.
    Subsequent to submitting its application, Shell contracted with 
JASCO to model sound source characteristics using a different model 
than the one used in the application. The JASCO parabolic equation 
model is believed by Shell and NMFS to be superior in these waters 
because it accounts for bathymetry effects, water properties, and the 
geoacoustic properties of seabed layers. The JASCO-modeled radii are 
based on the worst case model predictions. For this model, the proposed 
180-dB and 190-dB radii are 1.5 km (0.9 mi) and 0.5 km (0.3 mi), 
respectively. This model will be used by Shell and NMFS to estimate 
preliminary sound level isopleths and radii for rms sound level 
thresholds between 120 and 190 dB at six proposed survey locations for 
the proposed airgun arrays. In addition, these modeled radii estimates 
will be multiplied by a safety margin of 1.5 to obtain conservative 
exclusion radii for marine mammal safety until empirical sound field 
verification measurements are completed within the first few days of 
seismic shooting and new safety radii are calculated and used for 
implementing safety zones.
    An explanation for the indicated sound pressure levels (SPLs) is 
provided later in this document (see Impacts to Marine Mammals).

Characteristics of Airgun Pulses

    Discussion of the characteristics of airgun pulses was provided in 
several previous Federal Register documents (see 69 FR 31792 (June 7, 
2004) or 69 FR 34996 (June 23, 2004)) and is not repeated here. 
Additional information can be found in the MMS Final PEA. Reviewers are 
encouraged to read these earlier documents for additional information.

Site Clearance Surveys

    In addition to deep seismic surveys in the Beaufort Sea, Shell also 
plans to conduct site clearance and shallow hazards surveys of 
potential exploratory drilling locations within Shell's lease areas as 
required by MMS regulations. The site clearance surveys are confined to 
very small specific areas within defined OCS blocks. Shell has 
contracted for the M/V Henry Christoffersen to conduct the site 
clearance/shallow hazards surveys, and geotechnical borings. This 
survey will be conducted contemporaneously with the deep seismic survey 
program in the Beaufort Sea. Very small and limited geophysical survey 
energy sources will be employed to measure bathymetry, topography, geo-
hazards and other seabed characteristics. These include: (1) a dual 
frequency subbottom profiler (Datasonics CAP6000 Chirp II (2-7kHz or 8-
23kHz)); (2) a medium penetration Subbottom profiler (Datasonics SPR-
1200 Bubble Pulser (400Hz)); (3) a hi-resolution multi-channel seismic 
system (240cu in (4X60) gun array (0-150 Hz)); (4) a multi-beam 
bathymetric sonar (Seabat 8101 (240 kHz)); and (5) a side-scan sonar 
system (Datasonics SIS-1500 (190kHz - 210 kHz)). The actual locations 
of site clearance and shallow hazard surveys in the U.S. Beaufort Sea 
have not been released by Shell for proprietary reasons. That 
information will be supplied to NMFS and MMS prior to commencement of 
operations in the Beaufort Sea. The vessels conducting the site 
clearance and shallow hazard surveys, and geotechnical borings will 
also operate in accordance with the provisions of a Conflict Avoidance 
Agreement (CAA), between the seismic industry, the AEWC and the Whaling 
Captains Associations regarding times and areas in order to avoid any 
possible conflict with the bowhead subsistence whale hunts by the 
Kaktovik and Nuiqsut.
    Offshore site clearance surveys use various geophysical methods and 
tools to acquire graphic records of seafloor and sub-seafloor geologic 
conditions. The data acquired and the type of investigations outlined 
in this document are performed routinely for most exploratory drilling 
and production platforms, submarine pipelines, port facilities, and 
other offshore projects. High-resolution geophysical data such as two- 
dimensional, high-resolution multi-channel seismic, medium penetration 
seismic, subbottom profiler, side scan sonar, multibeam bathymetry, 
magnetometer and possibly piston core soil sampling are typical types 
of data acquired. These data are interpreted to define geologic and 
geotechnical conditions at the site and to assess the potential 
engineering significance of these conditions. The following section 
provides a brief description of those instruments used for site 
clearance that may impact marine mammals. Information on the data 
acquisition methodology planned by Shell can be found in the Shell 
application.

Geophysical Tools for Site Clearance

High-Resolution seismic profiling
    Reflected sound energy, often called acoustic or seismic energy, 
produces graphic images of seafloor and sub-seafloor features. These 
systems transmit the acoustic energy from various sources called 
transducers that are attached to the hull of the vessel or towed 
astern. Part of this energy is reflected from the seafloor and from 
geologic strata below the seafloor. This reflected energy is received 
by the hydrophone or streamer and is recorded to produce seismic 
records or profiles. Seismic profiles often resemble geologic cross-
sections along the course traveled by the survey vessel.
    In most Beaufort Sea site surveys, Shell will operate several high- 
resolution profiling systems simultaneously to obtain detailed records 
of seafloor and near seafloor conditions. The survey will include data 
acquisition using a shallow penetration profiler or subbottom profiler 
(1 - 12.0 kHz, typically 3.5 kHz), medium penetration system or boomer/
sparker/ airgun (400-800 Hz) and a deep penetrating hi-resolution 
multi-channel seismic system (20-300 Hz) not to be confused with the 
deep seismic used for hydrocarbon exploration. These profiling systems 
complement each other since each system achieves different degrees of 
resolution and depths of sub-seafloor penetrations.

[[Page 50030]]

Side Scan Sonar
    Unlike seismic profiling systems, which produce a vertical profile 
along the vessel's path, side scan sonar systems provide graphic 
records that show two-dimensional (map) views of seafloor topography 
and of objects on the seafloor. The sonar images provide a swath 
display/record covering an area on the seafloor up to several hundred 
feet on both sides of the survey trackline. The side scan sonar 
transmits very high-frequency acoustic signals (100 - 410 kHz) and 
records the reflected energy from the seafloor. Signals reflected from 
the seafloor are displayed on a continuous record produce by a two-
channel recorder. Reflected signals normally appear as dark areas on 
the record whereas shadows behind objects appear as light or white 
areas. The intensity and distribution of reflections displayed on the 
sonar image depend on the composition and surface texture of the 
reflecting features, on their size, and on their orientation with 
respect to the transducers in the towfish. Line spacing and display 
range are designed to ensure 100 percent coverage of the proposed 
survey area in the prime survey line direction, with additional tie-
lines acquired in an orthogonal direction.
    Side scan sonar data are useful for mapping areas of boulders, rock 
outcrops, and other areas of rough seafloor, and for determining the 
location and trends of seafloor scarps and ice gouges. These data are 
also used to locate shipwrecks, pipelines, and other objects on the 
seafloor.
Multi-beam Bathymetry
    Multi-beam bathymetric systems are either hull mounted or towed 
astern of the survey vessel. The system transmits acoustic signals 
(200-500 kHz) from multiple projectors propagating to either side of 
the vessel at angles that vary from vertical to near horizontal. The 
locations of the soundings cover a swath whose width may be equal to 
many times the waterdepth. By adjusting the spacing of the survey 
tracklines such that adjacent swaths are overlapping, Shell obtains 
depth information for 100 percent of the bottom in the survey area. The 
time it takes to receive the signals as well as signal intensity, 
position, and other characteristics for echoes received across the 
swath are used to calculate depth of each individual beam transmitted 
across the swath.
    Acoustic systems similar to the ones proposed for use by Shell have 
been described in detail by NMFS previously (see 66 FR 40996, August 6, 
2001; 70 FR 13466, March 21, 2005). NMFS encourages readers to refer to 
these documents for additional information on these systems.

Comments and Responses

    A notice of receipt of Shell's MMPA application and NMFS' proposal 
to issue an IHA to Shell was published in the Federal Register on May 
3, 2006 (71 FR 26055). 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 on Shell's application, comments were 
received from Shell, the Marine Mammal Commission (Commission), the 
Center for Biological Diversity (CBD) on behalf of several 
environmental organizations, the Northern Alaska Environmental Center 
(NAEC), the Alaska Oil and Gas Association (AOGA), the Alaska Eskimo 
Whaling Commission (AEWC), the North Slope Borough (NSB), Village of 
Point Hope (NVPH), and the Alaska Nanuuq Commission (Nanuuq 
Commission). The AOGA submitted a copy of the comments it submitted on 
the MMS PEA and the CBD attached the comments submitted by the Natural 
Resources Defense Council on the PEA. With the exception of some 
comments relevant to this specific action which are addressed here, 
comments on the Draft PEA have been addressed in Appendix D of the 
Final PEA and are not repeated. Some comments providing additional 
information for NMFS' consideration have been incorporated into this 
document without further reference.

Activity Concerns

    Comment 1: Shell notes that it was awarded 84 OCS leases in the 
Western Beaufort Sea Planning Area by the MMS in 2005 pursuant to the 
MMS Lease Sale 195 held March 30, 2005. Shell made plans and signed 
contracts to perform seismic surveys in the Chukchi and Beaufort Seas 
during the open water season of 2006, beginning in July. The 2006 
seismic surveys are critical in assessing hydrocarbon potential and 
site conditions necessary to conduct drilling operations in subsequent 
open water seasons. Shell notes that the 2006 seismic operations in the 
Chukchi Sea will be very surgical in nature, be at least 50 mi (80.5 
km) from shore, and cover less than 2 percent of the lease sale area. 
In the Beaufort Sea, Shell's seismic operations will be limited to the 
areas near its lease blocks and cover less than 1 percent of the lease 
sale area. As Shell's IHA application included a much broader area for 
seismic operations; the take estimates in its application are inflated 
and should be recalculated.
    Response: While NMFS recognizes that Shell will be concentrating 
seismic activity in relatively small areas, the Level B harassment 
estimates are calculated as ``exposures'' to sound and, therefore, 
while the survey may result in fewer marine mammals being exposed, 
those animals may be exposed more frequently than if the seismic vessel 
track were linear.

MMPA Concerns

    Comment 2: The CBD states that an IHA is only available if the 
activity has no potential to result in serious injury or mortality to a 
marine mammal. If injury or mortality to a marine mammal is possible, 
take can only be authorized pursuant to a Letter of Authorization (LOA) 
consistent with regulations promulgated pursuant to 16 U.S.C. 1371 
(a)(5)(D)(i) and 50 CFR 216.107. Because NMFS has not promulgated 
regulations related to incidental takes for seismic surveys, and 
because such surveys carry the real potential of injury or death to 
marine mammals, neither an IHA nor an LOA can be issued for Shell's 
proposed activities.
    Response: For reasons discussed later in this document, NMFS does 
not believe that there is any potential for marine mammal mortality to 
occur incidental to conducting seismic surveys in the Chukchi and 
Beaufort seas in 2006. IHAs can authorize takings by Level A (injury) 
and Level B harassment (behavioral harassment). As documented by 
Richardson [ed] (1998), aerial and vessel monitoring of marine mammals 
under previous incidental take authorizations did not indicate more 
than behavioral harassment takings would occur.
    Comment 3: The CBD believes that NMFS cannot issue an IHA to Shell 
because it has not complied with the MMPA's specific geographic region 
requirement.
    Response: 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). NMFS believes 
that Shell's description of the activity and the locations for 
conducting seismic surveys meet the requirements of the MMPA. Within 
the Chukchi Sea, Shell intends to conduct seismic activity within the 
area designated for Lease Sale 97 (shown in Appendix 4 in Shell's IHA 
application). More specific locations within the Lease Sale area are 
considered proprietary. In the Beaufort Sea, the areas of seismic 
operations are shown in Appendix 5 in

[[Page 50031]]

Shell's IHA application. Shell has provided a well-defined area within 
which certain biogeographic characteristics occur.
    Comment 4: The CBD states that Shell's application fails to specify 
the ``dates and duration'' of these activities as required by 50 CFR 
216.103(a)(2), or even who will perform them or in what manner. For 
example, CBD notes the various dates listed by Shell for beginning 
seismic. The CBD notes that the proposed IHA (notice) states that 
seismic acquisition is planned to begin on or about July 10, 2006, 
while a couple of paragraphs later states that ``Phase I will commence 
sometime after June 15, 2006; elsewhere the proposed IHA (notice) 
states that seismic operations will not begin until after July 1, 2006. 
The CBD believes NMFS' ``small numbers'' and ``negligible impacts'' 
conclusions are highly suspect given NMFS' confusion as to when and 
where Shell will actually be operating.
    Response: The application shows that Shell plans to pick up crew 
members and refuel near the end of June in Dutch Harbor and sail for 
the Chukchi Sea upon completion of resupply. Seismic surveys would 
begin no earlier than July 10, depending upon ice conditions in the 
Chukchi Sea. To avoid bowhead whales migrating in the spring leads, 
seismic survey work cannot begin prior to July 1, as explained in the 
PEA and as stipulated in Shell's permit from MMS. More recently, 
agreements with Alaskan natives restricted seismic operations prior to 
July 15, 2006. Sound exposure calculations are based on miles of 
seismic lines to be run and the average and maximum density of marine 
mammals expected to be exposed. Minor variations in dates would be due 
mostly to ice conditions in either the Chukchi or Beaufort Seas would 
not affect noise exposure estimates. However, to avoid further 
confusion, NMFS has modified the IHA to indicate that seismic data 
collection cannot begin prior to July 1, 2006.
    Comment 5: The CBD states that Shell's application and NMFS' notice 
fail to provide information on the ``dates and duration of the 
activities and provide only boilerplate descriptions of typical 
activities.
    Response: NMFS has determined that the activity descriptions in 
Shell's application, including the Appendixes, provide information 
necessary to make its determinations under the MMPA. The duration of 
the activity is highly dependent upon logistics, weather, mechanical 
problems, shut-downs and power-downs. However, Shell provided estimates 
of expected line miles of survey effort they expect to run which is 
used in part for calculating incidental harassment estimates.
    Comment 6: To protect bowhead whales, other marine mammals, and 
subsistence use of marine mammal resources, the AEWC states that NMFS 
must ensure that the planned activities, if authorized, conform to the 
statutory requirements of the MMPA. In that regard, the AEWC states 
that while not all acoustic takes threaten an impact that is greater 
than negligible, the MMPA requires that NMFS take special care to 
protect whales engaged in biologically significant behaviors such as 
feeding, mating, calving, and tending to young.
    Response: NMFS takes into account biological activities in its 
analyses and in determining appropriate mitigation and monitoring 
requirements. We recognize there is uncertainty in the distribution and 
abundance of marine mammal stocks in the Chukchi Sea. As a result, NMFS 
has required additional monitoring and mitigation measures for this 
year's survey. NMFS anticipates the industry research program will 
answer some of the uncertainties involving distribution and abundance 
of marine mammals in the Chukchi Sea.
    Comment 7: The CBD states that because the MMPA explicitly requires 
that NMFS prescribe the ``means effecting the least practicable 
impact'' on the affected species, stock or habitat, an IHA [notice] 
must explain why measures that would reduce the impact on a species 
were not chosen (i.e., why they were not practicable). Neither the 
proposed IHA [notice], Shell's application, nor the PEA do this. The 
AEWC made a similar comment on the context of biologically significant 
behaviors.
    Response: Neither the MMPA nor NMFS regulations implementing the 
incidental take program require NMFS to itemize and discuss all 
measures that were determined to be impractical. Such an effort can 
quickly become a matter of speculation. For example, drones, manned 
balloons, and satellites are currently considered impractical for 
technological and safety reasons and usually need not be discussed in 
issuing IHAs (although drones may become available for non-military 
activities within a few years). Helicopters and other aircraft may be 
practical depending upon distance between landing and activity 
location, weather and safety and are usually discussed if safety zones 
cannot be visually monitored effectively. Also, active and passive 
acoustics are often discussed when issuing an IHA if the safety zone 
cannot be visually monitored effectively. Time and area closures or 
restrictions are discussed when appropriate. In many cases, monitoring 
larger zones to reduce the Level B harassment take, is viewed as 
secondary to effectively monitoring the Level A harassment zone to 
prevent marine mammal injury. A final mitigation measure mentioned by 
commenters to the Draft PEA of using vibroseis technology in winter 
instead of open water seismic is not practical do to human safety 
concerns and must be limited to extremely shallow water depths.
    Comment 8: The CBD notes that while NMFS has not performed an 
analysis of why additional mitigation measures are not ``practicable,'' 
the proposed IHA [notice] contains information to conclude that many 
such measures are in fact practicable. For example, during periods when 
conflict with subsistence hunting is most likely, Shell proposes 
additional ``special'' monitoring and mitigation measures from August 
15 until the end of the bowhead hunting season. While these measures 
are designed to avoid impacts to bowheads so as not to affect the 
subsistence hunt, there is no reason, and certainly no explanation of, 
why these measures cannot be instituted for the entirety of the seismic 
survey. The MMPA requires minimizing all impacts on marine mammals, not 
only avoiding impacts on the subsistence hunt.
    Response: The ``special'' monitoring and mitigation measures 
proposed by Shell during the bowhead subsistence hunt were: (1) An 
aerial monitoring program during the bowhead subsistence hunt as 
described elsewhere in this document, and (2) time/area closures to 
prevent the survey from potentially having an unmitigable adverse 
impact. Only the latter is considered a measure that could potentially 
lower the impact on bowhead whales and other marine mammal species in 
the central Beaufort Sea. Since the CAA had not been developed at the 
time of Shell's application or NMFS' Federal Register notice for Shell, 
what those mitigation conditions might be would have been speculation. 
However, in general the imposition of additional time/area closures in 
the Beaufort Sea (and to some extent in the Chukchi Sea) are 
impractical for reasons of cost effectiveness and the limited ice-free 
time in Arctic Ocean waters. Overlooking costs, time/area closures are 
not practical in the Beaufort Sea if seismic had to occur over multiple 
years in an effort to obtain seismic data that could have been obtained 
with possibly a single-year of effort. For that reason, NMFS limits 
time/area closures as a

[[Page 50032]]

mitigation measure in Arctic waters only to protect subsistence hunting 
or marine mammal life stages that could significantly affect survival 
and reproduction.

Marine Mammal Impact Concerns

    Comment 9: The CBD states that the tables in the proposed IHA 
notice provide no support for NMFS' conclusion on small numbers. For 
Shell's proposed seismic surveys in the Chukchi, the number of bowheads 
likely to be exposed to sounds of 160 dB or greater and therefore 
harassed'' according to NMFS' operative thresholds, range from 403 to 
3226. In absolute terms these numbers cannot be considered small. Even 
relative to population size, the higher estimate represents a third of 
the estimated population of bowheads. CBD makes a similar comment 
regarding beluga whales.
    Response: NMFS believes that the small numbers requirement has been 
satisfied. The species most likely to be harassed during seismic 
surveys in the Arctic Ocean area is the ringed seal, with a ``best 
estimate'' of 7,335 animals in the Beaufort Sea and 13,610 animals in 
the Chukchi Sea being exposed to sound levels of 160 dB or greater, for 
a total of 20,945 animals. This does not mean that this is the number 
of ringed seals that will be taken by Level B harassment, it is 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; pinnipeds are not 
likely to react to seismic sounds unless they are greater than 170 dB 
re 1 microPa (rms)). In addition, these estimates are calculated based 
upon line miles of survey effort, animal density and the calculated 
zone of influence (ZOI). While this methodology is valid for seismic 
surveys that transect long distances, for those surveys that ``mow the 
lawn'' (that is, remain within a relatively small area, transiting back 
and forth while shooting seismic), the numbers tend to be highly 
inflated. As a result, NMFS believes that these exposure estimates are 
conservative and may actually affect much fewer animals.
    Although it might be argued that the estimated number of ringed 
seals behaviorally harassed is not small in absolute numbers, the 
number of exposures is relatively small, representing less than 10 
percent of the regional stock size of that species (249,000) if each 
``exposure'' represents an individual ringed seal. In addition, it 
should be recognized that because Shell will spend most of the time 
surveying small areas in the Chukchi Sea, fewer ringed seals would 
likely be harassed but these animals could be affected more often, 
unless they habituate to the sounds (see ``Ringed, Largha and Bearded 
Seals later in this document).
    For beluga and bowhead whales, the estimated number of sound 
exposures during Shell's seismic surveys in the Arctic will be 1702 and 
3226, respectively. While these exposure numbers represent a sizable 
portion of their respective population sizes (46 percent of the beluga 
population (3710) and 31 percent of the bowhead population (10545)), 
NMFS believes that the estimated number of exposures by bowheads and 
belugas greatly overestimate actual exposures for the following 
reasons: (1) The proposed seismic activities would occur in the Chukchi 
Sea when bowheads are concentrated in the Canadian Beaufort Sea; (2) 
bowheads and belugas may be absent or widely distributed and likely 
occur in very low numbers within the seismic activity area in the 
Chukchi Sea; (3) seismic surveys are not authorized in the Beaufort Sea 
during the bowhead westward migration; (4) Shell proposes to conduct 
seismic in the Beaufort Sea after the bowhead whales have migrated out 
of the Beaufort Sea; and (5) Shell will conduct late-fall seismic 
surveys in the Chukchi Sea after most bowheads have migrated out of the 
area, Therefore, NMFS believes that the number of bowhead whales that 
may be exposed to sounds at or greater than 160 dB re 1 microPa (rms) 
would be small.
    Comment 10: The CBD states that NMFS' failure to address the 
scientific literature linking seismic surveys with marine mammal 
stranding events, and the threat of serious injury or mortality renders 
NMFS' conclusionary determination that serious injury or mortality will 
not occur from Shell's activities arbitrary and capricious.
    Response: First, 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 18 nm (33 km) at 1430 hrs. At 
1300 hrs, the seismic vessel was located 25 nm (46 km) from the 
stranding location. What is unknown is the location of the beaked 
whales prior to the stranding in relation to the seismic vessel, but 
the close timing of events indicates that the distance was not less 
than 18 nm (33 km). No physical evidence for a link between the seismic 
survey and the stranding was obtained. In addition, Taylor et al. 
(2004) indicates that the same seismic vessel was operating 500 km (270 
nm) from the site of the Galapagos Island stranding in 2000. Whether 
the 2004 seismic survey caused to 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 8 humpback 
whales (7 off the Bahia or Espirito Santo States and 1 off Rio de 
Janeiro, Brazil). Concerns about the relationship between this 
stranding event and seismic activity were raised by the International 
Association of Geophysical Contractors (IAGC). The IAGC (2004) argues 
that not enough evidence is presented in Engel et al. (2004) to assess 
whether or not the relatively high proportion of adult strandings in 
2002 is anomalous. The IAGC contends that the data do not establish a 
clear record of what might be a ``natural'' adult stranding rate, nor 
is any attempt made to characterize other natural factors that may 
influence strandings. As stated previously, NMFS remains concerned that 
the Engel et al. (2004) article appears to compare stranding rates made 
by opportunistic sightings in the past with organized aerial surveys 
beginning in 2001. If so, then the data are suspect.
    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 not located in the 
Beaufort and Chukchi seas seismic

[[Page 50033]]

areas. Finally, if bowhead and gray whales react to sounds at very low 
levels by making minor course corrections to avoid seismic noise and 
mitigation measures require Shell to ramp-up the seismic array to avoid 
a startle effect, strandings are highly unlikely to occur in the Arctic 
Ocean. In conclusion, NMFS does not expect any marine mammals will 
incur serious injury or mortality as a result of Arctic Ocean seismic 
surveys in 2006.
    Comment 11: In submitted comments on the MMS Draft PEA, (and 
referenced by CBD), the NRDC states that the decibel thresholds 
selected for pinnipeds and cetaceans are based on old data which has 
since been ``superseded by science,'' and that pinnipeds should be 
included with cetaceans in the 180-db Level A harassment threshold.
    Response: New acoustic guidelines will be implemented by NMFS upon 
completion of a planned EIS on this subject. If NMFS were to implement 
new criteria at this time, it would need to be species-specific and 
safety zones would fluctuate depending upon the species believed to be 
affected by the action. Considering that the 180/190 dB safety zones 
were established based on onset TTS, a non-injurious (Level B 
harassment) level, the current safety zones of 180 dB rms for cetaceans 
and 190 dB rms for pinnipeds is conservative and will protect marine 
mammals from injury (Level A harassment).
    Comment 12: In submitted comments on the MMS Draft PEA, (and 
referenced by CBD), the NRDC states that harassment of marine mammals 
can occur at levels below the 160 dB threshold for Level B harassment, 
and that NMFS should reassess its harassment thresholds for acoustic 
impacts.
    Response: The 160-dB rms isopleth is based on work by Malme et al. 
(1984) for migrating gray whales along the California coast. Clark et 
al. (2000) replicating the work by Malme et al. (1984) indicated that 
this response is context dependent, as gray whales did not respond to 
simulated airgun noise when the acoustic source was removed from the 
gray whale migratory corridor. This indicates to NMFS that establishing 
a 160-dB isopleth for estimating a ZOI for low-frequency hearing 
specialists when exposed to a low frequency source is conservative. For 
mid- or high-frequency hearing specialists, a 160-dB ZOI for a low-
frequency source is likely overly conservative. In this action, 
empirical research indicates that bowhead whales respond to sounds at 
levels lower than 160 dB during periods of important biological 
behavior (migration) but possibly not during other important periods 
(feeding). As a result, to reduce the uncertainty over whether these 
same avoidance characteristics will occur in the Chukchi Sea as they 
appear to have in the Beaufort Sea, MMS and NMFS have established 
conservative ZOIs where additional mitigation measures could be imposed 
to further protect these species during critical periods in Arctic 
waters.
    Comment 13: In submitted comments on the MMS Draft PEA, (and 
referenced by CBD), NRDC states that MMS' calculations of PTS may be 
based on an improper model (i.e. traditional, linear models 
underestimate harm) and that MMS should lower its estimate for auditory 
injury. They cite Kastak et al. (2005) for this contention.
    Response: Kastak et al. (2005) note the non-linear growth of TTS 
for relatively small magnitude shifts ( <6 dB) and the inadequacy of a 
linear model using only these data in predicting the growth of TTS with 
exposure level for a wider range of exposures. It is well known that 
the TTS growth function is sigmoidal and thus it is misleading to 
describe it solely based on exposures that generate only small-
magnitude TTS (where the slope of the growth function is relatively 
shallow). For a wide range of exposures, however, there is a steeper, 
linear portion of the sigmoidal function and a fairly consistent 
relationship between exposure magnitude and growth of TTS. The slope of 
this relationship is relatively well-known for humans (on the order of 
1.6 dB TTS/dB noise (Ward et al., 1958; 1959)). While it is not well-
understood for marine mammals (because studies to date have yet to 
induce sufficiently large TTS values to properly assess it), the slope 
of this portion of the function predicted by the Kastak et al.(2005) 
data fit with the curvilinear approximation (based on Maslen, 1981), 
and was found to be comparable. Therefore, estimations of PTS from TTS 
onset that use a linear growth function with the steepest slope from a 
curvilinear function are very likely appropriate and in fact a 
conservative approximation, based on the information available at this 
time.
    Comment 14: In a footnote to the above comment, NRDC notes that 
NMFS adopted a higher criterion for pinnipeds (190 dB rms) despite the 
1997 HESS (High Energy Seismic Survey) Workshop declining to set this 
higher criterion. The NRDC claims that this is in violation of the 
Administrative Procedure Act and the Data Quality Act.
    Response: The 190 dB threshold for pinnipeds was not based on the 
HESS Workshop but came out of a follow-up workshop on acoustics in 1998 
(Gentry, 1998). Workshop participants included the same scientists as 
the HESS Workshop.
    Comment 15: With regard to bowhead whales, the CBD says NMFS' 
requires conclusive evidence of harm before it will find more than a 
negligible impact from Shell's activity. This is not the standard.
    Response: NMFS believes that CBD is referring to a sentence which 
reads: ``Additionally, Shell cites Richardson and Thomson [eds]. (2002) 
that there is no conclusive evidence that exposure to sounds exceeding 
160 db have displaced bowheads from feeding activity.'' This statement 
was made by Shell, not NMFS. However, empirical information cannot be 
ignored when making the required determinations under the MMPA.
    Comment 16: The Commission continues to question NMFS' definition 
of temporary threshold shift (TTS) in marine mammal hearing as 
constituting Level B Harassment. Clearly an animal's survival depends 
on its ability to detect and protect itself from threats. If because of 
temporarily compromised hearing it is unable to display a normal 
behavioral reaction to events in its environment (e.g., to detect 
predators or respond to warnings of danger from conspecifics, it is at 
a significantly greater risk of being seriously injured or killed. 
Therefore, the Commission reiterates its recommendation that NMFS 
revise its definition of TTS to include the potential for Level A 
harassment due to secondary effects of temporary hearing loss.
    Response: This issue has been addressed several times by NMFS in 
the past (see 70 FR 48675, August 19, 2005; 66 FR 22450, May 4, 2001). 
As stated in those documents, NMFS is using the best scientific 
information available on this subject. The Commission's argument for 
considering TTS as both Level A harassment and Level B harassment is 
based on conjecture on what might occur if a marine mammal with 
compromised hearing was at a disadvantage for survival. As noted 
previously, it is likely that marine mammals evolved certain behavioral 
responses to address natural loud noises in the environment (for 
example, billions of lightning strikes per year on the ocean at about 
260 dB peak), by changes in conspecific spatial separation.

Cumulative Effects Concerns

    Comment 17: The Commission questions whether there is a sufficient 
basis for concluding that the cumulative

[[Page 50034]]

effects of the proposed activities, coupled with past and prospective 
activities in the Beaufort and Chukchi seas, will be negligible for 
bowhead whales and other marine mammal species. The CBD. citing 
Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004), believes that 
individual IHA review and not a cumulative impact review is 
inappropriate and should address impacts from multi-activities over 
multi-years, both onshore and offshore Alaska. The CBD also states that 
NMFS' failure to address global warming as a cumulative effect renders 
its negligible findings invalid.
    Response: Under section 101(a)(5)(D) of the MMPA, NMFS is required 
to determine whether the taking by the IHA 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 addresses cumulative impacts, as did its Draft PEA. 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 that PEA 
addresses similar comments on cumulative impacts, including global 
warming. That information is incorporated in this document by citation. 
NMFS has adopted the MMS Final PEA and it is part of NMFS' 
Administrative Record. Finally, the proposition for which CBD cites 
Anderson was in the context of the court's analysis under NEPA, not 
MMPA section 101(a)(5)(D), which was not at issue in Anderson.
    Comment 18: The Commission notes that NMFS should consider the 
cumulative effects of the University of Texas at Austin's (UTA) seismic 
survey planned for this summer in the northern Chukchi Sea in 
combination with the three seismic surveys proposed by the oil industry 
and require similar, comprehensive monitoring and mitigation measures 
for that program as well.
    Response: See previous response on cumulative impacts. The UTA 
program is a separate action that was under internal NMFS review 
following the public comment period at the time the Shell IHA decision 
was issued (see 71 FR 27997, May 15, 2006). Essentially, seismic survey 
is significantly further north in the Chukchi Sea than are the oil 
company surveys, is for a shorter period of time during the summer, 
will have completed its work weeks prior to the bowhead migration and 
establishes very conservative safety zones to protect marine mammals.

Subsistence Concerns

    Comment 19: The Nanuuq Commission requests that someone from MMS or 
NMFS attend the Ice Seal Committee's July meeting to share information 
on the proposed seismic surveys and to respond to questions from the 
Committee. Issues for discussion include mitigation and monitoring for 
long-term effects on marine mammals and subsistence hunting due to 
increased vessel traffic in the area.
    Response: NMFS understands that the July meeting was cancelled. The 
next meeting is scheduled for October. NMFS plans to attend this 
meeting.
    Comment 20: The NVPH objects to any oil and gas activities as 
referenced in Resolution 06-05, based on concerns relating to NEPA, 
consultation and cooperation with the oil industry, and impacts on 
marine mammal resources. The CBD notes that the Villages of Kaktovik 
and Point Hope have passed resolutions opposing the proposed seismic 
surveys due to impacts on the subsistence hunt of bowheads and other 
species. In light of the positions of these communities, the CBD does 
not see how NMFS can lawfully make the findings required under the MMPA 
for Shell's proposed IHA.
    Response: NMFS acknowledges that these villages have passed 
resolutions objecting to offshore oil development. However, the village 
whaling captains of these villages (in addition to villages of Nuiqsuk 
and Wainwright and the AEWC) have signed a Programmatic CAA indicating 
to NMFS that there will not be an unmitigable adverse impact on 
subsistence uses of marine mammals. (see Impact on Subsistence).
    Comment 21: The AEWC states that under the MMPA, NMFS must impose 
mitigation measures sufficient to ensure that authorized activities 
will not have ``an unmitigable adverse impact'' on the availability of 
marine mammals for taking for subsistence uses. To accomplish this 
level of protection, NMFS must evaluate the activities within the 
context of the many other industrial operations expected this year, 
including (1) seismic operations in the Canadian Beaufort Sea, (2) 
vessel traffic associated with NPRA, and (3) ongoing operations at 
Northstar.
    Response: While acknowledging increasing industrialization of the 
Arctic Ocean and resultant impacts on the subsistence lifestyle of its 
inhabitants, section 101(a)(5)(D)(i) limits the scope of this 
determination to the specified activity. However, NMFS works 
cooperatively with the AEWC to ensure that activities that might result 
in marine mammal harassment and have an impact on their availability 
for subsistence uses are fully analyzed for their impacts on 
subsistence and are the subject of a CAA.
    Comment 22: The AEWC is also concerned that Chukchi Sea seismic 
operations to the west of Barrow, combined with Shell's proposed 
Beaufort Sea operations and other Beaufort Sea industrial operations, 
including FEX barging and work at Oooguruk could combine to drive the 
fall migration offshore, out of reach of whalers before the whales 
reach Barrow.
    Response: See previous response. Shell's Chukchi Sea proposed 
seismic operation locations are at least one hundred miles southwest of 
Barrow and, therefore, are unlikely to impact the fall Barrow 
subsistence hunt. Incidentally, FEX signed a CAA with the AEWC to 
restrict barging operations during the subsistence hunt. Shell and the 
other seismic companies also signed a CAA that prohibits most seismic 
operations in the Beaufort Sea during the subsistence hunt and limits 
activities affecting hunts in the Chukchi Sea.
    Comment 23: The AEWC notes that it has attempted through a CAA to 
craft mitigation measures to protect the fall bowhead whale subsistence 
hunt. The whaling captains of the Villages of Barrow, Nuiqsut and 
Kaktovik have established operating limitations applicable to seismic 
operations during the fall bowhead whale migration and subsistence 
hunt. The AEWC hopes these operating limitations will be effective 
despite the extraordinary level of industrial activity planned during 
the bowhead migration, in Alaskan as well as Canadian Arctic. The AEWC 
notes that if these mitigation measures are not adequate to protect the 
subsistence hunt, the AEWC will work with seismic operators and NMFS to 
address the concerns of the subsistence hunters.
    Response: As noted in the AEWC letter, the signed CAA excludes 
seismic operations in the near-shore polyna (although it will be 
necessary in future years for CAAs to address the Alaska Current). 
Also, Shell has agreed not to commence seismic operations in the 
Chukchi Sea before July 15, to reduce impacts on the beluga hunt. 
Additional mitigation requirements are addressed later in this document 
(see Plan of Cooperation).

[[Page 50035]]

Monitoring Concerns

    Comment 24: The Commission recommends that if NMFS decides to issue 
the IHA it should require all practical monitoring and mitigation 
measures to protect bowhead and other marine mammals from behavioral 
disturbance and to ensure their availability to Alaska Natives for 
subsistence purposes. To ensure additional protection to bowhead 
whales, and other marine mammals, and to obtain as much information as 
possible on the effects of the proposed (seismic) studies on marine 
mammals, the Commission recommends that NMFS also require: (1) The use 
of passive acoustic arrays from the seismic and/or support vessels and 
a passive net array along the Chukchi Sea coast as recommended by 
participants at NMFS' open water meeting in Anchorage, AK on April 19-
20, 2006; and (2) pre- and post-operation aerial surveys to supplement 
real-time monitoring for the presence of bowhead whales and other 
marine mammal species within the proposed action areas, out to the 120-
dB isopleth. Finally, the Commission notes that it will be important to 
assess the efficacy of such surveys to determine their value and 
reliability in monitoring potential effects.
    Response: NMFS considered these recommendations and discusses the 
required monitoring and mitigation programs required under the IHAs in 
this Federal Register notice.
    Comment 25: The CBD states that the MMPA authorizes NMFS to issue 
an incidental take authorization only if it can first find that it has 
required adequate monitoring of such taking and all methods and means 
of ensuring the least practicable impact have been adopted. The 
proposed IHA (notice) largely ignores this statutory requirement.
    Response: NMFS believes Shell and the other seismic survey 
operators in the Chukchi and Beaufort seas will be implementing a 
comprehensive monitoring and marine mammal research program that is 
fully capable of providing information on impacts from the seismic 
surveys and supporting NMFS' determinations that the activity will 
result in takes of small numbers of marine mammals, have a negligible 
impact on affected species and stocks and not have an unmitigable 
impact on the availability of marine mammals for subsisence. Mitigation 
measures were addressed previously (see previous comments 7 and 8; also 
see the Mitigation and Monitoring sections later in this document).
    Comment 26: The CBD notes that the proposed IHA notice suggests 
NMFS will require additional measures of Shell so as to be able to 
comply with NEPA, such as expanded safety zones for bowhead and gray 
whale, and having those zones monitored effectively in order to remain 
within the scope of the PEA. While in agreement, CBD notes that such 
additional measures are also required to comply with the MMPA. As such 
they should be explicitly spelled out in the proposed IHA (notice) and 
subject to public comment.
    Response: A detailed description of the monitoring program 
submitted by Shell was provided in Shell's application and cited in the 
Federal Register notice of the proposed IHA. That notice also provided 
a description of ongoing discussions regarding improvements to Shell's 
monitoring program including aerial monitoring and using passive 
acoustics. As a result of a dialogue on monitoring by scientists and 
stakeholders attending NMFS' public meeting in Anchorage in April, the 
industry expanded on its monitoring program in order to fulfill its 
responsibilities under the MMPA. The only addition to the monitoring 
program that was not offered for public review at the time was a 
research component designed to provide baseline data on marine mammals 
for future operations planning. This research program includes: (1) an 
acoustic program to measure sounds produced by seismic vessels 
(mentioned in the proposed IHA notice); (2) aerial monitoring and 
reconnaissance of marine mammals available for subsistence harvest 
along the Chukchi Sea coast; (3) research vessel surveys of the Chukchi 
Sea, including a towed hypdrophone passive acoustic monitoring (PAM) 
system to collect data on the distribution and abundance of marine 
mammals; and (4) deployment of, and later analysis of data from, 
bottom-founded autonomous acoustic recorder arrays along the coast of 
the Chukchi Sea to record ambient sound levels, vocalizations of marine 
mammals, and received levels of seismic operations should they be 
detectable. As a result of the workshop discussions a draft monitoring 
program was provided to workshop participants around April 26, 2006 and 
a revised plan distributed in mid-May. Scientists from NMFS and the NSB 
are continuing discussions to ensure that the research effort obtains 
the best scientific information possible.
    The proposed joint-industry research plan (which is a separate plan 
from the individual applicant monitoring plans) was not available prior 
to publication of the proposed IHA Federal Register notice on May 3, 
2006 (71 FR 26055) and could not be detailed without significantly 
delaying the public comment period on Shell's application. It should be 
noted that this research monitoring program follows the guidance of the 
Commission's recommended approach for monitoring seismic activities in 
the Arctic (Hofman and Swartz, 1991), that additional research might be 
warranted when impacts to marine mammals would not be detectable as a 
result of vessel observation programs.
    Comment 27: The AEWC notes the MMPA requires that authorizations 
for incidental take in Arctic waters include: ``requirements for the 
monitoring and reporting of such taking by harassment, including the 
requirements for independent peer review of proposed monitoring plans. 
`` The MMPA and NMFS' regulations are clear that any monitoring plan 
accompanying an IHA for activities in Arctic waters and potentially 
affecting subsistence uses of marine resources shall be subject to 
independent peer review. The agency has no discretion in this regard. 
Since Shell has not prepared a legally adequate monitoring plan, 
independent peer review of such a plan has not been possible. Given the 
strict requirements governing timing of agency and public review of an 
IHA application, such independent peer review will not occur as part of 
this process.<gr-thn-eq>
    Response: Shell submitted its monitoring plans for the Beaufort and 
Chukchi seas as part of its application. NMFS noted the availability of 
the application and monitoring plans on May 3, 2006 (71 FR 26055). 
Shell also made its application available to the AEWC and the NSB and 
its Department of Wildlife at the time of its application to NMFS and 
held meetings on its activity with affected communities beginning in 
the spring, 2006. Shell's Beaufort and Chukchi Sea monitoring plans 
were the subject of discussion at the NMFS' peer-review workshop in 
April, 2006. This workshop is the means used by NMFS to meet the 
requirement for peer-review. As a result of discussions at the April, 
2006 workshop, Shell and others proposed conducting additional 
monitoring and research. That proposal was completed on April 26, 2006, 
and reviewed by NSB and NMFS scientists. Comments were submitted by the 
NSB Department of Wildlife Management on May 18, 2006. A revised 
research plan was released on June 9, 2006 and is currently being 
reviewed by scientists.

[[Page 50036]]

Mitigation Concerns

    Comment 28: The CBD recommends NMFS deny an IHA to Shell unless and 
until NMFS can ensure that mitigation measures are in place to truly 
avoid adverse impacts to all species and their habitats.
    Response: NMFS is required to prescribe means of effecting the 
least practicable (adverse) impact (i.e., mitigation), not to ensure 
that no adverse impacts occur. NMFS believes that the mitigation 
measures required under Shell's IHA will reduce levels to the lowest 
level practicable. Inherent in implementing these mitigation measures 
is some level of uncertainty on the distribution and abundance of 
cetaceans in the Chukchi Sea and on whether the acoustic impacts 
observed in the Beaufort Sea also occur in the Chukchi Sea.
    Comment 29: The CBD believes that the proposed IHA [notice] 
contains information to conclude that many such measures are in fact 
practicable. For example, during periods when conflict with subsistence 
hunting is most likely, Shell proposes additional monitoring and 
mitigation measures: ``From August 15 until the end of the bowhead 
hunting season (or until the end of the seismic operations in the 
Beaufort Sea) special monitoring and mitigation/monitoring measures 
will be adopted (i.e. aerial surveys).'' While these measures are 
designed to avoid impacts to bowheads so as not to affect the 
subsistence hunt, there is no reason, and certainly no explanation of, 
why these measures cannot be instituted for the entirety of the seismic 
surveys.
    Response: As noted elsewhere in this document, Shell has agreed to 
area closures in the Beaufort Sea to ensure that there is not an 
unmitigable adverse impact on the subsistence use of bowheads by its 
seismic operation in the Beaufort Sea. This mitigation measure was 
proposed by the AEWC and the whaling captains associations after Shell 
submitted its application. As a result, neither Shell nor NMFS could 
address this measure at the time of the proposed IHA notice. While area 
closures are a valuable mitigation tool for protecting sensitive life 
stages for marine mammals and possibly for reducing impacts at less 
sensitive times, the application of temporal and spatial measures need 
to be balanced with the need to accomplish the activity. In the 
Beaufort Sea, the short season available for seismic surveys precludes 
extension of this measure for reasons other than subsistence.
    The second measure proposed by Shell in its application is an 
aerial monitoring program of the Beaufort Sea during the fall bowhead 
migration. This activity, which is not a mitigation measure (except to 
the extent detailed later in this document) was fully described in 
Shell's application. However, it is not a mitigation measure but a 
measure to obtain information on the fall migration of bowhead whales. 
Based upon discussions with scientists, modifications to that aerial 
monitoring program and the addition of aerial and vessel monitoring to 
the Chukchi Sea have been made to Shell's program.
    Comment 30: With regard to night-time and poor visibility 
conditions, the CBD notes that Shell proposes essentially no 
limitations in operations, even though they acknowledge that the 
likelihood of observers seeing marine mammals in such conditions is 
low. Only when the senior observer determines that ``densities of 
endangered cetaceans'' are high enough ``to warrant concern'' that an 
``endangered cetacean'' will enter the safety zone would Shell have to 
stop surveying or move to another part of the survey area. The CBD also 
states that there is no rationale under the MMPA to limit this 
provision to ``endangered cetaceans'' (i.e., bowheads) since minimizing 
impacts to all marine mammals is required. CBD claims the obvious 
solution, not analyzed by Shell or NMFS is to simply prohibit seismic 
surveying when conditions prevent observers from detecting all marine 
mammals in the safety zone.
    Response: NMFS agrees that mitigation is not restricted to bowhead 
whales, but should apply to all marine mammals. However, a shutdown of 
all seismic activity whenever the shutdown zone cannot be visually seen 
is simply not practical. It is NMFS opinion that once a safety zone is 
determined visually to be free of marine mammals, seismic should 
continue into periods of poor visibility. It should be understood that 
the safety zone not stationary but is moving along with the ship at 
whatever speed the ship is progressing. For example, if the ship is 
making 5 knots, the safety zone will be 5 nm (9.3 km) upstream in an 
hour). With a 180-dB exclusion zone of 1.5 km (08 nm), marine mammals 
potentially affected by seismic noise would have ample time to move 
away from the source, as evidenced by bowhead, beluga and gray whale 
avoidance behavior. A review of previous monitoring programs indicates 
these species will not be within a distance to incur Level A 
harassment. For pinnipeds, NMFS believes that because they are not 
likely to even react to seismic sounds unless the received levels are 
>170 dB re 1 microPa (rms), hearing impairment is also unlikely at an 
SPL as low as 190 dB. Therefore, it is unlikely that marine mammals 
will be harmed as a result of continuing seismic into periods of poor 
visibility in Arctic waters. As a result, NMFS has determined that it 
is only if daytime activities have a large abundance of marine mammals 
and/or a significant number of shutdowns, should nighttime seismic be 
prohibited.
    Also as a general rule, termination of seismic during nighttime and 
poor visibility is simply not practicable due to cost considerations 
and ship time schedules. The cost to operate a large industrial seismic 
survey with support vessels is approximately $300,000 per day (Kent 
Satterlee, pers. comn). If the vessels were prohibited from operating 
during nighttime, each trip could require several additional Arctic 
survey operations to complete, depending on average daylight at the 
time of work. In the Chukchi and Beaufort seas, fog is common even 
though there is 24 hours of daylight per day until late August, but by 
late September there is less than 12 hours of daylight and by late 
October there would be only 3-4 hours of daylight, seriously limiting 
operations later in the year if a daylight and clear weather 
requirement were imposed.

ESA Concerns

    Comment 31: The CBD states that NMFS may authorize incidental take 
of bowhead whales under the ESA pursuant to section 7(b)(4), 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 the prohibition against taking in 
section 9 of the [ESA].'' As discussed, Shell's proposed activities 
violate the MMPA and NEPA and therefore are not ``otherwise lawful.'' 
Any take authorization for the bowhead whale would therefore violate 
the ESA as well as other statutes.
    Response: As noted in this document, NMFS has made the necessary 
determinations under the MMPA and NEPA regarding the incidental 
harassment of marine mammals by Shell while it is conducting activities 
permitted legally under MMS' jurisdiction.

NEPA Concerns

    Comment 32: The CBD notes that they submitted comments on the MMS 
PEA along with comments on Shell's IHA application. Subsequent to CBD's 
May 10, 2006 letter on the PEA, they believe additional information has 
come to light that requires the preparation of an EIS in accordance 
with 40 CFR

[[Page 50037]]

1508.27(b)(4). The CBD notes that the Native Village of Kaktovik passed 
a resolution opposing Shell's seismic survey plans and the Native 
Village of Point Hope also officially expressed its opposition to this 
summer's various seismic surveys. The CBD believes that NMFS cannot 
rationally adopt the PEA and make a Finding of No Significant Impact 
(FONSI) on this action. Instead, it must prepare a full EIS analyzing 
the effects of Shell's proposed activities in the context of cumulative 
effects of all other natural and anthropogenic impacts on marine 
mammals, habitats and communities of the Chukchi and Beaufort seas.
    Response: While the Villages of Point Hope and Kaktovik expressed 
opposition to Shell's activities in the Chukchi and Beaufort seas this 
year (as coastal native Alaskan communities have done for many years), 
the Whaling Captains' Associations of Point Hope, Kaktovik, Nuiqsut, 
and Wainwright signed a CAA with Shell, ConocoPhillips and 
GXTechnology. This CAA indicates to NMFS that seismic exploration 
activities by these companies will not have an unmitigable adverse 
impact on the availability of marine mammals for subsistence uses, 
including bowheads and belugas. This, along with the required 
mitigation and monitoring measures, informed NMFS' FONSI.

Description of Habitat and Marine Mammals Affected by the Activity

    A detailed description of the Beaufort and Chukchi sea ecosystems 
and their associated marine mammals can be found in several documents 
(Corps of Engineers, 1999; NMFS, 1999; Minerals Management Service 
(MMS), 2006, 1996 and 1992) and does not need to be repeated here.

Marine Mammals

    The Beaufort/Chukchi Seas support a diverse assemblage of marine 
mammals, including bowhead whales (Balaena mysticetus), gray whales 
(Eschrichtius robustus), beluga whales (Delphinapterus leucas), killer 
whales (Orcinus orca), harbor porpoise (Phocoena phocoena), ringed 
seals (Phoca hispida), spotted seals (Phoca largha), bearded seals 
(Erignathus barbatus), walrus (Odobenus rosmarus) and polar bears 
(Ursus maritimus). These latter two species are under the jurisdiction 
of the U.S. Fish and Wildlife Service (USFWS) and are not discussed 
further in this document. Descriptions of the biology and distribution 
of the marine mammal species under NMFS' jurisdiction can be found in 
Shell's application and MMS' Final PEA. Information on these species 
can be found also in the NMFS Stock Assessment Reports. The Alaska 
Stock Assessment Report is available at: http://www.nmfs.noaa.gov/pr/sars/region.htm Please refer to those documents for information on 
these species.

Potential Effects of Seismic Surveys on Marine Mammals

    Disturbance by seismic noise is the principal means of taking by 
this activity. Support vessels and aircraft may provide a potential 
secondary source of noise. The physical presence of vessels and 
aircraft could also lead to non-acoustic effects on marine mammals 
involving visual or other cues.
    As outlined in previous NMFS documents, the effects of noise on 
marine mammals are highly variable, and can be categorized as follows 
(based on Richardson et al., 1995):
    (1) The noise may be too weak to be heard at the location of the 
animal (i.e., lower than the prevailing ambient noise level, the 
hearing threshold of the animal at relevant frequencies, or both);
    (2) The noise may be audible but not strong enough to elicit any 
overt behavioral response;
    (3) The noise may elicit reactions of variable conspicuousness and 
variable relevance to the well being of the marine mammal; these can 
range from temporary alert responses to active avoidance reactions such 
as vacating an area at least until the noise event ceases;
    (4) Upon repeated exposure, a marine mammal may exhibit diminishing 
responsiveness (habituation), or disturbance effects may persist; the 
latter is most likely with sounds that are highly variable in 
characteristics, infrequent and unpredictable in occurrence, and 
associated with situations that a marine mammal perceives as a threat;
    (5) Any anthropogenic noise that is strong enough to be heard has 
the potential to reduce (mask) the ability of a marine mammal to hear 
natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise;
    (6) If mammals remain in an area because it is important for 
feeding, breeding or some other biologically important purpose even 
though there is chronic exposure to noise, it is possible that there 
could be noise-induced physiological stress; this might in turn have 
negative effects on the well-being or reproduction of the animals 
involved; and
    (7) Very strong sounds have the potential to cause temporary or 
permanent reduction in hearing sensitivity. In terrestrial mammals, and 
presumably marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any temporary threshold 
shift (TTS) in its hearing ability. For transient sounds, the sound 
level necessary to cause TTS is inversely related to the duration of 
the sound. Received sound levels must be even higher for there to be 
risk of permanent hearing impairment. In addition, intense acoustic or 
explosive events may cause trauma to tissues associated with organs 
vital for hearing, sound production, respiration and other functions. 
This trauma may include minor to severe hemorrhage.

Effects of Seismic Surveys on Marine Mammals

    Shell (2005) states that the only anticipated impacts to marine 
mammals associated with noise propagation from vessel movement, seismic 
airgun operations, and seabed profiling and coring work (in the 
Beaufort Sea) would be the temporary and short term displacement of 
whales and seals from within ensonified zones produced by such noise 
sources. In the case of bowhead whales, that displacement might well 
take the form of a deflection of the swim paths of migrating bowheads 
away from (seaward of) received noise levels greater than 160 db 
(Richardson et al., 1999). The cited and other studies conducted to 
test the hypothesis of the deflection response of bowheads have 
determined that bowheads return to the swim paths they were following 
at relatively short distances after their exposure to the received 
sounds. NMFS believes that there is no evidence that bowheads so 
exposed to low sound pressure levels have incurred injury to their 
auditory mechanisms. Additionally, Shell cites Richardson and Thomson 
[eds]. (2002) for the proposition that there is no conclusive evidence 
that exposure to sounds exceeding 160 dB have displaced bowheads from 
feeding activity.
    Results from the 1996-1998 BP and Western Geophysical seismic 
monitoring programs in the Beaufort Sea indicate that most fall 
migrating bowheads deflected seaward to avoid an area within about 20 
km (12.4 mi) of an active nearshore seismic operation, with the 
exception of a few closer sightings when there was an island or very 
shallow water between the seismic operations and the whales (Miller et 
al., 1998, 1999). The available data do not provide an unequivocal 
estimate of the distance (and received sound levels) at

[[Page 50038]]

which approaching bowheads begin to deflect, but this may be on the 
order of 35 km (21.7 mi). It is also uncertain how far beyond (west of) 
the seismic operation the seaward deflection persists (Miller et al., 
1999). In one study, although very few bowheads approached within 20 km 
(12.4 mi) of the operating seismic vessel, the number of bowheads 
sighted within that area returned to normal within 12-24 hours after 
the airgun operations ended (Miller et al., 1999).
    Although NMFS believes that some limited masking of low-frequency 
sounds (e.g., whale calls) is a possibility during seismic surveys, the 
intermittent nature of seismic source pulses (1 second in duration 
every 16 to 24 seconds (i.e., less than 7 percent duty cycle)) will 
limit the extent of masking. Bowhead whales are known to continue 
calling in the presence of seismic survey sounds, and their calls can 
be heard between seismic pulses (Greene et al., 1999, Richardson et 
al., 1986). Masking effects are expected to be absent in the case of 
belugas, given that sounds important to them are predominantly at much 
higher frequencies than are airgun sounds (Western Geophysical, 2000).
    Hearing damage is not expected to occur during the Shell seismic 
survey project. It is not positively known whether the hearing systems 
of marine mammals very close to an airgun would be at risk of temporary 
or permanent hearing impairment, but TTS is a theoretical possibility 
for animals within a few hundred meters of the source (Richardson et 
al., 1995). However, planned monitoring and mitigation measures 
(described later in this document) are designed to avoid sudden onsets 
of seismic pulses at full power, to detect marine mammals occurring 
near the array, and to avoid exposing them to sound pulses that have 
any possibility of causing hearing impairment.
    When the received levels of noise exceed some threshold, cetaceans 
will show behavioral disturbance reactions. The levels, frequencies, 
and types of noise that will elicit a response vary between and within 
species, individuals, locations, and seasons. Behavioral changes may be 
subtle alterations in surface, respiration, and dive cycles. More 
conspicuous responses include changes in activity or aerial displays, 
movement away from the sound source, or complete avoidance of the area. 
The reaction threshold and degree of response also are related to the 
activity of the animal at the time of the disturbance. Whales engaged 
in active behaviors, such as feeding, socializing, or mating, are less 
likely than resting animals to show overt behavioral reactions, unless 
the disturbance is directly threatening.
    A description of potential impulsive noise impacts to bowhead 
whales, gray whales, beluga whales and ringed, largha and bearded seals 
were provided in the May 3, 2006 Federal Register notice (71 FR 26055) 
and is not repeated here. Additional information can be found in NMFS 
notice of receipt of an application from GX Technologies (71 FR 32045, 
June 2, 2006).

Numbers of Marine Mammals Expected to Be Exposed to Seismic Noise

    The methodology used by Shell to estimate incidental take by Level 
B harassment is presented in the application. Subsequent to submission 
of that application, Shell provided more conservative estimates of 
potential marine mammal exposures by using the JASCO model. Therefore, 
Tables 1 and 2 provide exposure calculations for both sets of 
calculations. NMFS has used the more conservative estimates of noise 
exposure to determine impacts to marine mammals.

                                     Table 1. Beaufort Sea Revised Estimates
----------------------------------------------------------------------------------------------------------------
                                                              Original      Original     Revised       Revised
                                    Average      Maximum      Estimate      Estimate     Estimate     Estimates
                                    Density      Density       Average      Maximum      Average       Maximum
                                                               Density      Density      Density       Density
----------------------------------------------------------------------------------------------------------------
Cetaceans                         ...........  ...........  ............  ...........  ...........  ............
  bowhead whales                  0.0064       0.0256       46            185          395          1579
  gray whale                      0.0045       0.0179       33            129          278          1104
  beluga                          0.0034       0.0135       25            98           210          833
Pinnipeds                         ...........  ...........  ............  ...........  ...........  ............
  ringed seal                     0.251        0.444        1185          2097         7335         12976
  spotted seal                    0.0001       0.0005       0             2            3            15
  bearded seal                    0.0128       0.0226       60            107          374          660
----------------------------------------------------------------------------------------------------------------


                                                         Table 2. Chukchi Sea Revised Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                Revised
                                                                                       Original       Revised       Revised        Revised     Estimates
                                     Average      Maximum       Original Estimate      Estimate      Estimate      Estimates      Estimates     Chukchi
                                     Density      Density        Average Density        Maximum       Average       Maximum       Scenario 2    Scenario
                                                                                        Density       Density       Density        Average     2 Maximum
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cetaceans                          ...........  ...........  ......................  ............  ............  .............  .............  .........
  bowhead whales                   0.0064       0.0256       46                      185           403           1613           806             3226
  gray whale                       0.0045       0.0179       33                      129           284           1128           568             2256
  beluga                           0.0034       0.0135       25                      98            214           851            428             1702
  killer whale                     0            0            0                       5             10            10             20                20
  harbor porpoise                  0            0.0002       0                       5             10            13             26                26
Pinnipeds                          ...........  ...........  ......................  ............  ............  .............  .............  .........
  ringed seal                      0.251        0.444        1185                    2097          6805          12038          13610          24076
  spotted seal                     0.0001       0.0005       0                       2             3             14             6                 28
  bearded seal                     0.0128       0.0226       60                      107           347           613            694             1226
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 50039]]

    The density estimates for the species covered under this IHA are 
based on the estimates developed by LGL (2005). The LGL density 
estimates are based on the original data from Moore et al. (2000) on 
summering bowhead, gray, and beluga whales in the Beaufort and Chukchi 
Seas, and relevant studies on ringed seal estimates, including Stirling 
et al. (1982) and Kingsley (1986).
    In its application, Shell provides estimates of the number of 
potential exposures to sound levels greater than 160 dB re 1 microPa 
(rms) and greater than 170 dB. Shell states that while the 160-dB 
criterion is applied for estimating Level B harassment of all species 
of cetaceans and pinnipeds, Shell believes that a 170-dB criterion 
should be considered appropriate for estimating Level B harassment of 
delphinid cetaceans and pinnipeds, which tend to be less responsive, 
whereas the 160-dB criterion is considered appropriate for other 
cetaceans (LGL, 2005). However, NMFS has noted in the past that there 
is no empirical evidence to indicate that some delphinid species do not 
respond at the lower level (i.e., 160 dB). As a result, NMFS is using 
the 160-dB isopleth to estimate the numbers of marine mammals that may 
be taken by Level B harassment.
    The estimates in Tables 1 and 2 are based on marine mammal 
exposures to 160 dB (and greater) from either approximately 5,556 km 
(3452 mi) of seismic surveys in three distinct areas of the eastern- 
and mid-Beaufort Sea and a similar level of effort in the Chukchi Sea 
or approximately 11,112 km (6905 mi) only in the Chukchi Sea if seismic 
work in the Beaufort Sea is not undertaken. These latter calculations 
are provided in the last column of Table 2.
    There will be no site clearance work performed for the seismic 
activities in the Chukchi Sea, therefore, potential taking estimates 
only include noise disturbance from the use of airguns. It is assumed 
that, during simultaneous operations of those additional sound sources 
and the airgun(s), any marine mammals close enough to be affected by 
the sonars or pinger would already be affected by the airgun(s).

Exposure Calculations for Cetaceans and Pinnipeds

    The number of exposures of a particular species to sound pressure 
levels between 160 dB and 180 dB re 1 microPa (rms) was calculated by 
multiplying: (1) the expected species density (i.e., average and 
maximum), as shown in Tables 1 and 2; (2) the anticipated total line-
kilometers of operations with the three 1,049-in3 subarrays (i.e., 5556 
km (3452 mi)); and (3) the cross-track distances within which received 
sound levels are predicted to be between 160 and 180 dB (Figure 6-1 and 
Table 6-3 in the Shell application).
Chukchi Sea
    Shell estimates that the average and maximum numbers of bowhead 
whales that may be exposed to noise levels of 160 dB or greater are 798 
and 3192 (based on seismic work in both the Chukchi and Beaufort seas), 
respectively. However, according to Shell, the proposed seismic 
activities would occur when bowheads are widely distributed and would 
be expected to occur in very low numbers within the seismic activity 
area. Therefore, based on the 160-dB threshold criterion, the number of 
bowhead whales that may be exposed to sounds at or greater than 160 dB 
re 1 microPa (rms) would be even smaller, and represents a small 
percent of the estimated population within the Beaufort and Chukchi 
Seas. The average and maximum estimates of the number of exposures at 
or greater than 160 dB are 284 and 1128 for gray whales, 214 and 851 
for beluga whales, 10 and 10 for killer whales, and 10 and 13 for 
harbor porpoises.
    While no reliable abundance numbers currently exist for ringed, 
spotted, and bearded seals for the Chukchi Sea, the potential number of 
exposures would be a very small fraction of abundance estimates as 
shown in Table 2.
Beaufort Sea
    As indicated in Table 1 in this document, the estimated average and 
maximum numbers for bowhead whales at exposures 160 dB or greater are 
395 and 1579, respectively. Again, as stated earlier, proposed 
activities would occur mainly when bowheads are not present in the area 
or are in very low numbers. Gray and beluga whales also have the 
potential for exposure, particularly near seismic survey area 3. The 
average and maximum estimates of the number of exposures for gray 
whales are 278 and 1104, and 210 and 833 for beluga whales, 
respectively.
    Ringed seals would be the most prevalent marine mammal species 
encountered at each of the three proposed seismic acquisition areas, 
and would account for most of the marine mammals that might be exposed 
to seismic sounds equal to or greater than 160 dB. Potential exposure 
estimates for pinnipeds in the Beaufort Sea are shown in Table 1. 
However, Moulton and Lawson (2002) indicated that most pinnipeds 
exposed to seismic sounds lower than 170 dB do not visibly react. As a 
result, NMFS believes that these exposure estimates are very 
conservative. Spotted and bearded seals may be encountered in much 
smaller numbers than ringed seals, but also have the potential for some 
minor exposure.
    Finally, if Shell does not conduct seismic survey work in the 
Beaufort Sea in 2006, and implements scenario 2 as mentioned 
previously, Shell estimates that additional sound exposures would occur 
in the Chukchi Sea. These estimates are provided in the last column of 
Table 2.

Potential Impact on Habitat

    It is unlikely that the proposed seismic activities will result in 
any permanent impact on habitats used by marine mammals, or to their 
prey sources. Seismic activities will occur during the time of year 
when bowhead whales are widely distributed and would be expected to 
occur in very low numbers within the seismic activity area (during July 
and again from mid-October through November). The northeastern-most of 
the recurring feeding areas is in the northeastern Chukchi Sea 
southwest of Barrow. Any effects would be temporary and of short 
duration at any one place.
    A broad discussion on the various types of potential effects of 
exposure to seismic on fish and invertebrates can be found in LGL 
(2005; University of Alaska-Fairbanks Seismic Survey across Arctic 
Ocean at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha), and 
includes a summary of direct mortality (pathological/ physiological) 
and indirect (behavioral) effects.
    Mortality to fish, fish eggs and larvae from seismic energy sources 
would be expected within a few meters (0.5 to 3 m (1.6 to 9.8 ft)) from 
the seismic source. Direct mortality within 48 hours has been observed 
in cod and plaice that were subjected to seismic pulses two meters from 
the source (Matishov, 1992), however other studies did not report any 
fish kills from seismic source exposure (La Bella et al., 1996; IMG, 
2002; Hassel et al., 2003). To date, fish mortalities associated with 
normal seismic operations are thought to be slight. Saetre and Ona 
(1996) modeled a worst-case mathematical approach on the effects of 
seismic energy on fish eggs and larvae, and concluded that mortality 
rates caused by exposure to seismic are so low compared to natural 
mortality that issues relating to stock recruitment should be regarded 
as insignificant.
    Limited studies on physiological effects on marine fish and 
invertebrates to acoustic stress have been conducted.

[[Page 50040]]

 No significant increases in physiological stress from seismic energy 
were detected for various fish, squid, and cuttlefish (McCauley et al., 
2000) or in male snow crabs (Christian et al., 2003). Behavioral 
changes in fish associated with seismic exposures are expected to be 
minor at best. Because only a small portion of the available foraging 
habitat would be subjected to seismic pulses at a given time, fish 
would be expected to return to the area of disturbance anywhere from 
15-30 minutes later (McCauley et al., 2000) to several days (Engas et 
al., 1996).
    Available data indicate that mortality and behavioral changes do 
occur within very close range to the seismic source, however, the 
proposed seismic acquisition activities in the Chukchi and Beaufort 
seas are predicted by Shell to have a negligible effect to the prey 
resource of the various life stages of fish and invertebrates available 
to marine mammals occurring during the project's duration.
    The total footprint of the proposed seismic survey area covers 
approximately 378,000 acres in the Chukchi Sea and 717,000 acres in the 
Beaufort Sea. The effects of the planned seismic activity at each of 
the seismic locations on marine mammal habitats and food resources are 
expected to be negligible, as described. It is estimated that only a 
small portion of the animals utilizing the areas of the proposed 
activities would be temporarily displaced.
    In addition, feeding does not appear to be an important activity by 
bowheads migrating through the Chukchi Sea or the eastern and central 
part of the Alaskan Beaufort Sea in most years (Shell, 2005). Sightings 
of bowhead whales occur in the summer near Barrow (Moore and DeMaster, 
2000) and there are suggestions that certain areas near Barrow are 
important feeding grounds. In addition, a few bowheads can be found in 
the Chukchi and Bering Seas during the summer and Rugh et al. (2003) 
suggest that this may be an expansion of the western Arctic stock, 
although more research is needed. In the absence of important feeding 
areas, the potential diversion of a small number of bowheads away from 
seismic activities is not expected to have any significant or long-term 
consequences for individual bowheads or their population. As a result, 
NMFS believes Shell's seismic activities will not have any habitat-
related effects that would produce long-term effects to marine mammals 
or their habitat due to the limited extent of the acquisition areas and 
timing of the activities.

Effects of Seismic Noise and Other Activities on the Availability of 
Marine Mammals for Subsistence Uses

    The disturbance and potential displacement of marine mammals by 
sounds from seismic activities are the principal concerns related to 
subsistence use of the area. The harvest of marine mammals (mainly 
bowhead whales, but also ringed and bearded seals) is central to the 
culture and subsistence economies of the coastal North Slope and 
Western Alaskan communities. In particular, if migrating bowhead whales 
are displaced farther offshore by elevated noise levels, the harvest of 
these whales could be more difficult and dangerous for hunters. The 
harvest could also be affected if bowheads become more skittish when 
exposed to seismic noise. Hunters related how whales also appear 
``angry'' due to seismic noise, making whaling more dangerous.
    In the Chukchi Sea, Shell seismic work should not have unmitigable 
adverse impacts on the availability of the whale species for 
subsistence uses. The whale species normally taken by Inupiat hunters 
are the bowhead and belugas. Shell's Chukchi seismic operations will 
not begin until after July 15, 2006 by which time the majority of 
bowheads will have migrated to their summer feeding areas in Canada. 
Even if any bowheads remain in the northeastern Chukchi Sea after July 
15, they are not normally hunted after this date until the return 
migration occurs around late September when a fall hunt by Barrow 
whalers takes place. In the past few years, a small number of bowheads 
have also been taken by coastal villages along the Chukchi coast. 
Seismic operations for phase two of the Chukchi program will be timed 
and located so as to avoid any possible conflict with the Barrow fall 
whaling, and specific provisions governing the timing and location have 
been incorporated into the CAA established between Shell and 
WesternGeco, the AEWC, and the Barrow Whaling Captains Association.
    Beluga whales may also be taken sporadically for subsistence needs 
by coastal villages, but traditionally are taken in small numbers very 
near the coast. Because the seismic surveys will be conducted at least 
12 miles (25 km) offshore, impacts to subsistence uses of bowheads are 
not anticipated. However, Shell will establish ``communication 
stations'' in the villages to monitoring impacts. Gray whales, which 
will be abundant in the northern Chukchi Sea from spring through 
autumn, are not taken by subsistence hunters.
    The various pinniped species, including walrus, are all taken by 
subsistence hunters of the Chukchi villages (Barrow, Wainwright, Pt 
Lay, Pt Hope). The planned seismic operations will not adversely affect 
the usual open-water locations of these species and no haul-out areas 
will be encountered (with the possible exception of the polar ice front 
used by walrus, which is under the jurisdiction of the USFWS). However, 
most seismic operations will take place sufficiently distant from 
nearshore traditional beluga, seal, and walrus hunting areas such that 
no unmitigable adverse impacts are anticipated.
    In the Beaufort Sea, there could be an adverse impact on the 
Inupiat bowhead subsistence hunt if the whales were deflected seaward 
(further from shore) in traditional hunting areas. The impact would be 
that whaling crews would necessarily be forced to travel greater 
distances to intercept westward migrating whales thereby creating a 
safety hazard for whaling crews and/or limiting chances of successfully 
striking and landing bowheads. This potential impact will be mitigated 
by application of the procedures established in the CAA between the 
seismic operators and the AEWC and the whaling captains' associations 
of Kaktovik, Nuiqsut and Barrow. The times and locations of seismic and 
other noise producing sources will be curtailed during times of active 
scouting and whaling within the traditional subsistence hunting areas 
of the three potentially affected communities. (Shell, 2005).

Monitoring

    As part of its application, Shell provided a monitoring plan for 
assessing impacts to marine mammals from seismic surveys in the 
Beaufort and Chukchi seas. During NMFS' Arctic Open Water Meeting in 
Anchorage on April 19-24, 2006, scientists and stakeholders indicated 
to Shell, ConocoPhillips and GXTechnology (the 3 companies planning to 
conduct seismic in the Arctic Ocean) that additional research 
monitoring would be necessary in order to obtain information on marine 
mammals in the Chukchi Sea and potential impacts of industrial noise on 
marine mammals and subsistence uses of marine mammals. For this year, 
in order to reduce uncertainty of impacts on low-frequency hearing 
sensitive marine mammals (bowhead and gray whales) during periods of 
significant behavioral activities (migration and feeding), and on 
subsistence activities, additional mitigation and monitoring measures 
are warranted. As a result, Shell will conduct the following 
monitoring:

[[Page 50041]]

Vessel-based Visual Monitoring

Seismic Source Vessel Monitoring
    Shell will have at least four observers (three trained biologists 
and one Inupiat observer/communicator) based aboard the seismic vessel. 
Marine mammal observers (MMOs) will search for and observe marine 
mammals whenever seismic operations are in progress and for at least 30 
minutes before the planned start of seismic transmissions or whenever 
the seismic array's operations have been suspended for more than 10 
minutes. These observers will scan the area immediately around the 
vessels with reticle binoculars during the daytime. Laser rangefinding 
equipment will be available to assist with distance estimation. After 
mid-August, when the duration of darkness increases, image intensifiers 
will be used by observers and additional light sources may be used to 
illuminate the safety zone.
    The use of four observers allows two observers to be on duty 
simultaneously for up to 50 percent of the active airgun hours. The use 
of two observers increases the probability of detecting marine mammals, 
and two observers will be on duty whenever the seismic array is ramped 
up. Individual watches will be limited to no more than 4 consecutive 
hours to avoid observer fatigue (and no more than 12 hours on watch per 
24 hour day). When mammals are detected within or about to enter the 
safety zone designated to prevent injury to the animals (see 
Mitigation), the geophysical crew leader will be notified so that 
shutdown procedures can be implemented immediately. Information on 
training, duties etc can be found in LGL (2006) which is available on 
the NMFS Web site (see ADDRESSES).
Chase Boat Monitoring
    In addition to MMOs onboard the seismic vessels, Shell will also 
have at least two MMOs aboard a ``chase boat'' or ``guard boat.'' 
During seismic operations, a chase boat remains very near to the stern 
of the source vessel anytime a member of the source vessel crew is on 
the back deck deploying or retrieving equipment related to the seismic 
array. Once the seismic array is deployed the chase boat then serves to 
keep other vessels away from the seismic vessel and its array 
(including the hydrophone streamer) during production of seismic data 
and provide additional emergency response capabilities. Whenever source 
vessel members are not working on the back deck and radar indicates no 
vessels approaching the source vessel, the chase boat will conduct 
observations of the area delineated by the 160-dB isopleth to look for 
bowhead and gray whale aggregations (see Mitigation). During all active 
seismic survey activity, the chase boat will conduct marine mammal 
surveys no less than every 48 hours or 3 times per 7 days, of the 160-
dB area to be seismically surveyed over the next 24 hours. MMOs will 
search for aggregations of bowhead and gray whale feeding. The MMOs on 
the chase boat will be responsible for immediately contacting the 
seismic survey ship if marine mammals are sited within the 180/190-dB 
safety zone or aggregations of 12 or more non-migratory bowhead whales 
or gray whales are sited within the surveyed 160-dB zone. The MMOs 
aboard the chase boat will also provide additional observations on the 
water to document any marine mammals in the vicinity of seismic 
operations. To maximize the amount of time during the day that an 
observer is on duty, the two observers aboard the chase boat will 
rarely work at the same time. As on the source vessel, shifts will be 
limited to 4 hours in length and 12 hours total in a 24-hour period.

Aerial Monitoring Surveys

Beaufort Sea
    Aerial Surveys: Shell will conduct aerial surveys of the Beaufort 
Sea regional distribution and abundance of marine mammals with special 
attention to bowhead whales prior to the initiation of the seismic 
survey starts and periodically during and after the survey. The 
objectives of the Beaufort Sea aerial surveys are the following:
    (1) document the occurrence, distribution, and movements of 
bowhead, as well as beluga and gray, whales in and near the area where 
they might be affected by the seismic pulses. These observations will 
be used to estimate the level of harassment takes and to assess the 
possibility that seismic operations affect the accessibility of bowhead 
whales for subsistence hunting. Pinnipeds will be recorded when seen, 
although survey altitude will be too high for systematic surveys of 
seals;
    (2) document the numbers of whales, at least theoretically, exposed 
to noise from seismic survey and their responses to the surveys (if 
detectable); and
    (3) Provide real-time or near real-time information that can be 
used (if appropriate) to alter the survey's starting point and survey 
line sequence based on the actual distribution of whales in the area 
immediately prior to and during surveys (see below),.
    Aerial surveys will be conducted only when they can be carried out 
in a safe manner and during periods of good visibility where there is 
sufficient probability of detecting bowhead whales and other marine 
mammals. Generally, the flight plan and coverage of the aerial survey 
will be conducted following established standards and methodologies, as 
described above, with particular reference to MMS' Bowhead Whale Aerial 
Survey Program (BWASP) procedures. Specific details of the flight 
pattern and coverage will be fully developed in an aerial flight 
operations plan but will be subject to operation changes as needed to 
provide effective coverage during field operations. Aerial surveys 
conducted during the bowhead whaling season will be coordinated with 
whaling efforts, such that airplanes operating in close proximity to 
whalers can take action (e.g. flying at higher altitudes, to reduce the 
potential to impact the hunt).
    Shell will conduct Beaufort Sea aerial surveys twice a week from 
August 25 through September 15, 2006 and daily (when weather permits) 
from September 16th on. Aerial surveys in the Beaufort Sea will 
continue for three days after the cessation of seismic operations in 
the Beaufort Sea. Aerial surveys will be conducted by teams of up to 
four observers (a pilot, two dedicated observers, and an observer/data 
recorder) in a twin-engine airplane (not a helicopter). Observations 
are made at an altitude of 900 to 1,500 ft (274 to 457 m)and a ground 
speed of 120 knots (120 nm/hr; 138 statute mi (mi)/hr; 222 km/hr). 
Similar to previous Beaufort Sea aerial surveys, the survey plane will 
traverse a survey grid (approved in advance by marine mammal scientists 
at NMFS' National Marine Mammal Laboratory (NMML) in coordination with 
other marine mammal scientists), centered on the seismic operations, 
which extends 50 to 75 km (31 to 46.6 mi) both east and west of the 
seismic operations and to 75 km (46.6 mi) offshore. Shell recommends 
that periodic flights range further to the east may be utilized prior 
to the onset of migration to provide an early warning of the approach 
of migrating bowhead whales. After September 1st , the daily flights 
will also monitor the area within the 120-dB isopleth (to the extent 
practicable) to locate migrating bowhead whale cow/calf pairs in 
compliance with mitigation requirements described later in this 
document.
    If seismic work in the Beaufort Sea is suspended by Shell during 
the bowhead subsistence hunting season, but resumes later in the 
autumn, aerial surveys, including monitoring the 120-dB zone, will 
commence (or resume) when the seismic work resumes.

[[Page 50042]]

    In addition to Shell's Beaufort Sea aerial monitoring program, MMS 
expects to conduct its broad-scale BWASP aerial survey work from 
approximately August 31\st\ until the end of the bowhead migration in 
October. NMFS believes that this combined aerial survey data will 
provide good information to estimate the number of bowheads taken by 
Level B harassment.
Chukchi Sea
    As described previously in this document, NMFS has determined that 
in order to avoid potentially significant impact (for purposes of 
NEPA), Shell must conduct aerial monitoring in the Chukchi Sea either 
after September 25th, once the research vessel monitoring program has 
detected 4 cow/calf pairs during a vessel transit (see Research 
Monitoring) or once bowhead whale hunters have determined that the 
``pulse'' of cow/calf pairs are passing Barrow AK, whichever is sooner. 
Once initiated, aerial monitoring will take place daily (weather 
permitting), whenever Shell's seismic vessel is conducting seismic 
surveys and is operating within an area of the Chukchi Sea that can be 
covered safely and practically. The primary objectives of the offshore 
aerial surveys will be to (1) document the occurrence, distribution, 
and movements of bowhead and gray whales, and other marine mammals in 
and near the area where they might be affected by the seismic sounds 
and (2) detect bowhead whale cow/calf pairs in or near the area 
ensonified to a 120-dB SPL near the seismic survey vessel (as detailed 
later in this document (see Mitigation)).
    If an aerial monitoring program cannot be implemented due to human 
safety concerns, a dedicated vessel may be used for surveys of the 120-
dB zone. If vessel surveys are used, a dedicated passive acoustic 
monitoring program, capable of locating the position of the 
vocalization, must be employed and monitored at all times that seismic 
is operating on the vessel. If the passive acoustic system detects one 
or more bowhead vocalizations within the 120-dB zone, Shell must 
immediately shut-down the seismic airgun array and/or other acoustic 
sources; and not proceed with ramping up the seismic airgun array until 
the passive acoustic monitoring program confirms that bowhead whales 
are not within the eastern portion of the 120-dB zone ahead of the 
ship's trackline over the next 24 hours.

Research Monitoring

Research
    Shell, ConocoPhillips, and GXTechnology have developed, and will 
implement, a joint-research component to their individual marine mammal 
monitoring programs that will further improve the understanding of 
impacts of seismic exploration on marine mammals, particularly bowhead 
whales. A preliminary description of this research was outlined in 
NMFS' proposed notice (71 FR 26055, May 3, 2006). Following NMFS' open 
water meeting in Anchorage, AK on April 19-24, 2006, a more detailed 
research plan was developed for the seismic industry. The latest 
version of this report is available for downloading (see ADDRESSES). A 
description of this Monitoring Plan was provided in an earlier Federal 
Register notice 71 FR 43112, July 31, 2006) and is not repeated here.

Mitigation Measures

    Shell will implement five main mitigation measures: (1) The timing 
and locations for active seismic acquisition work will be scheduled to 
curtail operations when whaling captains inform the operator that they 
are scouting or hunting within traditional hunting areas; (2) the 
configuration of airguns in a manner that directs energy primarily down 
to the seabed thus decreasing the range of horizontal spreading of 
seismic noise; (3) a seismic energy source that is as small as 
possible; (4) the use of ramp-up (soft start) as a method for 
initiating seismic operations to alert any marine mammals either within 
or approaching an operating airgun array so that they may swim away 
from the source; and (5) the curtailment (shut-down/power-down) of 
active seismic work when the MMOs visually sight (from shipboard or 
aerially) the presence of marine mammals within identified ensonified 
(safety) zones. Details of the required mitigation measures follow:
    Seasonal/Area Restrictions: Shell will take all practicable 
measures to complete seismic operations as early as possible and to 
vacate areas within close proximity of subsistence bowhead hunting 
areas during periods of hunting activity. During periods of hunting 
activity, seismic operations will be moved to areas remote from hunting 
operations or will cease for a period. From August 25 until the end of 
the bowhead hunting season (or until the end of seismic operations in 
the Beaufort Sea), seasonal area closures will be implemented as 
follows: (1) No geophysical activity from (1) the Canadian border to 
the Canning River from August 25\th\ to September 20\th\, (2) the 
Canning River to Point Storkersen from August 25\th\ to September 
25\th\ and (3) Pitt Point on the east side of Smith Bay to a location 
about half way between Barrow and Peard Bay from September 10\th\ to 
October 25\th\. Shell will make all reasonable efforts to avoid 
disruption of the hunt or deflection of migrating bowheads in hunting 
areas.
    Airgun Arrays: For the seismic survey, Shell will:
    (a) Configure the airgun array to maximize the proportion of the 
energy that is directed downward and to minimize horizontal sound 
propagation. In particular, closely spaced airguns whose overall 
radiation pattern is nearly omni-directional will be avoided. The size 
of the airgun arrays, as measured by the source level, will not be any 
larger than required to meet the technical objectives for the seismic 
survey.
    (b) Utilize pre-initiation modeling, based upon anticipated sound 
propagation characteristics of the array, to establish anticipated 
impact zones of 180 dB and 190 dB.
    (c) Conduct an independent field sound propagation assessments at 
the initiation of the field season and adjust the 180-dB and 190-dB 
zones accordingly, after consultation with NMFS.
    Ramp-up (soft-start): For the 2006 seismic survey, Shell will 
implement the following ramp-up (soft start) procedures:
    (a) The seismic operator will ramp-up airguns slowly over a period 
of 20 minutes each time shooting begins or whenever the shut-down 
period has been greater than 10 minutes. Soft starts will follow every 
interruption of the airgun array firing that is greater than 10 
minutes, most importantly if the survey is discontinued until marine 
mammals leave the safety zone. The seismic operator and MMOs will 
maintain records of the times when ramp-ups start, and when the airgun 
array reaches full power.
    (b) During periods of turn around and transit between seismic 
transects, one airgun will remain operational. Through use of this 
approach, seismic operations can resume upon entry to a new transect 
without full ramp up. While it is routine to ramp up from a single gun 
firing to full array operation, operation of a single gun allows 
starting during poor visibility and ramp up without a period of static 
visual observation.
    (c) If shut down occurs, ramp-up will begin only following a 
minimum of a 30-min period of observation of the prescribed safety zone 
to assure that no marine mammals are present. However,

[[Page 50043]]

if the MMOs are on-duty prior to the shut-down, and continue their 
observations during the shut-down, then an additional 30-min period of 
observation prior to ramp-up is not necessary. Ramp-up procedures will 
be followed until full operating intensity is achieved.
    Safety Zones: For the proposed seismic survey, Shell will implement 
the following measures:
    (a) Initial safety zones will be established prior to the survey 
based on available data and modeling concerning sound output. The sound 
levels are based on frequencies between 10 Hz and 120 Hz, the typical 
peak spectrum of sound emitted for seismic surveys.
    (b) The safety distances will be verified (and if necessary 
adjusted) during the first week of the seismic survey, based on direct 
measurements via calibrated hydrophones of the received levels of 
underwater sound versus distance and direction from the airgun array. 
The acoustic data will be analyzed as quickly as reasonably practicable 
in the field and used to adjust safety distance. The same acoustic data 
will be useful in interpreting observations of marine mammals during 
analysis of sighting data after the programs completion (see below).
    Biological Observers: For the 2006 Arctic Ocean seismic survey, 
Shell will implement the following measures:
    (a) Trained MMOs on the seismic ship will be on watch for marine 
mammals during all daylight hours when seismic operations are in 
progress, as described under Monitoring.
    (b) The purpose of the observers on the seismic vessel will 
primarily be to document the occurrence and responses of marine mammals 
visible from the vessel, and to initiate airgun shutdown requirements 
whenever a marine mammal is observed within the safety zone. 
Furthermore, the observers will confirm the absence of marine mammals 
in the safety zones prior to ramp-up.
    (c) When a marine mammal is sighted within, or approaching, the 
180/190-dB safety zones around the airgun array by the seismic vessel 
MMOs or the chase boat MMOs, the MMO will notify the seismic vessel 
contractor who will shut down the airguns. After completion of the 
survey, a technical report and a scientific research paper will be 
prepared to summarize the observations, results, and conclusions of the 
marine mammal monitoring program.
    Operations at Night and in Poor Visibility: For the 2006 Arctic 
Ocean seismic programs in the Beaufort and Chukchi seas, Shell will 
implement the following measures:
    (a) When operating under conditions of reduced visibility 
attributable to darkness or to adverse weather conditions, infra-red or 
night-vision binoculars will be available for use. It is recognized, 
however, that their effectiveness for this application is very limited 
even in clear night time conditions.
    (b) Seismic activities will not be initiated during darkness or 
during conditions when visibility is reduced to less than the radius of 
the safety zone. If a single small airgun remains firing during a shut-
down, the rest of the array can be ramped up during darkness or in 
periods of low visibility. Seismic operations may continue under 
conditions of darkness or reduced visibility unless, in the judgment of 
the senior MMO, densities of marine mammals in the general area are 
high enough to warrant concern that there is a high concern that one or 
more marine mammals is likely to enter the safety zone undetected. In 
that case, observers will advise the ship's captain or his designee to 
halt airgun operations or to move to a part of the survey area where 
visibility is adequate or where the likelihood of encountering marine 
mammals is low based on aerial and vessel based surveys that would be 
part of the real-time monitoring program.

Mitigation for Subsistence Needs

    To issue an IHA in Arctic waters, NMFS must determine that an 
activity will not have an unmitigable adverse impact on the 
availability of marine mammals for taking for subsistence uses. While 
this includes both cetaceans and pinnipeds, the primary impact by 
seismic activities on subsistence hunting is expected to be impacts 
from noise on bowhead whales during their westward fall feeding and 
migration period in the Beaufort Sea. NMFS has defined unmitigable 
adverse impact in 50 CFR 216.103 as an impact resulting from the 
specified activity:
    (1) that is likely to reduce the availability of the species to 
a level insufficient for a harvest to meet subsistence needs by: (i) 
causing the marine mammals to abandon or avoid hunting areas; (ii) 
directly displacing subsistence users; or (iii) placing physical 
barriers between the marine mammals and the subsistence hunters; and 
(2) that cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to allow subsistence 
needs to be met.
    Regulations at 50 CFR 216.104(a)(12) require IHA applicants for 
activities that take place in Arctic waters to provide a plan of 
cooperation (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. Shell's POC notes 
that negotiations were initiated beginning in summer of 2005 with the 
AEWC to create a CAA between Shell and WesternGeco for 2006, and the 
subsistence hunting communities of Barrow, Nuiqsut, and Kaktovik. The 
CAA covers both the Beaufort Sea seismic program (including deep 
seismic, site clearance, shallow hazard surveys and a geotechnical 
seabed coring program) and the Chukchi Sea deep seismic survey. 
Meetings between Shell and the AEWC began in October 2005 with 
representatives of the North Slope Borough also present in Fairbanks 
during the annual meeting of the Alaska Federation of Natives. 
Additional meetings were held this past spring.
    Given the number of activities planned for 2006, the AEWC elected 
to prepare a Programmatic CAA, setting forth mitigation measures that 
will apply to all seismic activities. Shell and other companies signed 
the CAA in July 2006. The CAA excludes conduct of seismic operations in 
the Chukchi Sea near-shore polyna, imposes time/area closures in the 
Beaufort Sea, prevents seismic operations in the Chukchi Sea before 
July 15 (to reduce impacts on the beluga hunt), requires sound 
signature tests of all geophysical equipment and vessels before 
initiating operations in the Beaufort and Chukchi seas; makes source 
verification test results available to the AEWC and others, requires 
preparation and implementation of a noise impact monitoring plan to 
collect data designed to determine the effects of its operations on 
fall migrating bowhead whales and other affected marine mammals; 
requires bowhead whale collision avoidance measures when within 1 mi 
(1.6 km) of a bowhead whale,; and requires a cumulative effects 
analysis of the multiple sound sources and their possible relationship 
to any observed changes in marine mammal behavior. The monitoring plan 
was subject to stake-holder review at the 2006 Open Water Meeting in 
Anchorage as discussed previously.
    The CAA incorporates all appropriate measures and procedures 
regarding the timing and areas of Shell's planned activities (i.e., 
times and places where seismic operations will be curtailed or moved in 
order to avoid potential conflicts with active subsistence whaling and 
sealing); communications system between operator's vessels and whaling 
and hunting crews (i.e., the communications center will be located in 
Deadhorse with links to Kaktovik, Nuiqsut, Cross Island, and Barrow); 
provision for marine mammal observers/Inupiat communicators aboard all 
project vessels; conflict

[[Page 50044]]

resolution procedures; and provisions for rendering emergency 
assistance to subsistence hunting crews.
    In addition, all geophysical activity in the Beaufort Sea will be 
restricted until the appropriate village has ended its bowhead whale 
subsistence hunt or exhausted its quota, whichever comes first, as 
follows. For Kaktovik, there will not be any geophysical activity from 
the Canadian border to the Canning River from August 25\th\ to 
September 20\th\. For Nuiqsut, there will not be any geophysical 
activity from the Canning River to Point Storkersen from August 25\th\ 
to September 25\th\ . For Barrow, there will not be any geophysical 
activity from Pitt Point in Smith Bay to a location about half way 
between Barrow and Peard Bay from September 10\th\ to October 25\th\.
    In the Chukchi Sea, once fall bowhead whaling starts, seismic 
operators (and others) will take all reasonable steps to avoid adverse 
effects on the bowhead whale subsistence hunt and on the behavior of 
migrating bowhead whales. If alerted to an adverse effect, the 
operators will promptly reduce the level and volume of geophysical 
operations and if such adverse effects continue, operators should 
promptly move operations to an area where seismic operations are 
feasible and consistent with the CAA. If adverse effects continue and 
negotiations are unsuccessful, the seismic operations are to cease in 
the area of the reported adverse effect until the affected village has 
completed its bowhead whale hunting for 2006.
    If requested, post-season meetings will also be held to assess the 
effectiveness of the 2006 CAA, to address how well conflicts (if any) 
were resolved; and to receive recommendations on any changes (if any) 
might be needed in the implementation of future CAAs. The Programmatic 
CAA for the Beaufort and Chukchi Seas was signed by Shell on May 12, 
2006. A signed CAA provides NMFS with information to make a 
determination that the activity will not have an unmitigable adverse 
impact on the subsistence use of marine mammals.
Additional Mitigation and Monitoring Measures
    As part of NMFS' week-long open-water meeting in Anchorage, on 
April 19-20, 2006, participants had a discussion on appropriate 
mitigation and monitoring measures for Arctic Ocean seismic activities 
in 2006. In addition to the standard mitigation and monitoring 
measures, additional measures, such as expanded monitoring-safety zones 
for bowhead and gray whales, and having those zones monitored 
effectively, have been implemented in order for NMFS to make its FONSI 
under NEPA. The additional mitigation measures are specific for this 
project. They do not establish NMFS policy applicable to other projects 
or other locations under NMFS' jurisdiction, as each application for an 
IHA is context dependent, that is, judged independently as to which 
measures are practicable and necessary to reduce impacts to the lowest 
level and to ensure that takings do not have an unmitigable adverse 
impact on subsistence uses. These measures have been developed based 
upon available data specific to the project areas. NMFS and MMS intend 
to collect additional information from all sources, including industry, 
non-governmental organizations, Alaska Natives and other federal and 
state agencies regarding measures necessary for effectively monitoring 
marine mammal populations, assessing impacts from seismic on marine 
mammals, and determining practicable measures for mitigating those 
impacts. MMS and NMFS anticipate that mitigation measures applicable to 
future seismic and other activities may change and evolve based on 
newly-acquired data.

Reporting

    Shell will submit a report to NMFS approximately 90 days after 
completion of the 2006 survey season. The 90-day report will: (1) 
present the results of the 2006 shipboard marine mammal monitoring; (2) 
estimate exposure of marine mammals to industry sounds; (3) provide 
data on marine mammal sightings (e.g., species, numbers, locations, 
age/size/gender, environmental correlates); (4) analyze the effects of 
seismic operations (e.g., on sighting rates, sighting distances, 
behaviors, movement patterns); (5) provide summaries of power downs, 
shut downs, and ramp up delays; (6) provide an analysis of factors 
influencing detectability of marine mammals; and (7) provide summaries 
on communications with hunters and potential effects on subsistence 
activities.
    Following the 2006 open water season, a single comprehensive report 
describing the acoustic, vessel-based, and aerial monitoring programs 
for all industrial seismic programs will be prepared. This 
comprehensive report will describe the methods, results, conclusions 
and limitations of each of the individual data sets in detail. The 
report will also integrate (to the extent possible) the studies into a 
broad based assessment of industry activities and their impacts on 
marine mammals in the Chukchi Sea during 2006. The report will help to 
establish long term data sets that can assist with the evaluation of 
changes in the Chukchi Sea ecosystem. The report will also incorporate 
studies being conducted in the Beaufort Sea and will attempt to provide 
a regional synthesis of available data on industry activity in offshore 
areas of northern Alaska that may influence marine mammal density, 
distribution and behavior.
    This comprehensive report will consider data from many different 
sources including two relatively different types of aerial surveys; 
several types of acoustic systems for data collection, and vessel based 
observations. Collection of comparable data across the wide array of 
programs will help with the synthesis of information. However, 
interpretation of broad patterns in data from a single year is 
inherently limited. Many of the 2006 data will be used to assess the 
efficacy of the various data collection methods and to help establish 
protocols that will provide a basis for integration of the data sets 
over a period of years. Because of the complexity of this comprehensive 
report, NMFS is requiring that it be submitted in draft to NMFS by 
April 1, 2007 in order for consideration, review and comment at the 
2007 open water meeting.

Endangered Species Act (ESA)

    NMFS has issued a biological opinion regarding the effects of this 
action on ESA-listed species and critical habitat under the 
jurisdiction of NMFS. That biological opinion 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. A copy of the Biological Opinion is available upon 
request (see ADDRESSES).

NEPA

    The MMS prepared a Draft PEA for the 2006 Arctic Outer Continental 
Shelf (OCS) Seismic Surveys. NMFS was a cooperating agency in the 
preparation of the MMS Draft and Final PEAs. NMFS noted that the MMS 
had prepared a PEA for the 2006 Arctic seismic surveys and made this 
Draft PEA available upon request (71 FR 26055, May 3, 2006). In 
accordance with NOAA Administrative Order 216-6 (Environmental Review 
Procedures for Implementing the National Environmental Policy Act, May 
20, 1999), NMFS has determined that the MMS Final PEA contains an in-
depth and detailed description of the seismic survey activities, 
reasonable alternatives to the proposed action, the

[[Page 50045]]

affected environment, mitigation and monitoring measures identified to 
reduce impacts on the human environment to non-significant levels, and 
the potential effects of the action on the human environment. In view 
of the information presented in this document and the analysis 
contained in the supporting PEA, NMFS has determined therefore that 
issuance by NMFS of an IHA to Shell and other companies for conducting 
seismic surveys this year in the Arctic Ocean will not significantly 
impact the quality of the human environment as described above and in 
the supporting Final PEA.
    This determination is predicated on full implementation of standard 
mitigation measures for preventing injury or mortality to marine 
mammals, in addition to the area and project specific mitigation 
measures described in this Federal Register notice. By incorporating 
the appropriate mitigation measures into NMFS' IHA conditions for this 
year's seismic survey operations, NMFS has determined that there will 
be no significant impact on the quality of the human environment. 
Accordingly, NMFS hereby adopts MMS' Final PEA and has determined that 
the preparation of an Environmental Impact Statement for this action is 
not necessary. A copy of the MMS Final PEA for this activity is 
available upon request and is available online (see ADDRESSES). 
Conclusions

Summary

    Based on the information provided in Shell's application and the 
MMS PEA, NMFS has determined that the impact of Shell conducting 
seismic surveys in the northern Chukchi Sea and eastern and central 
Beaufort Sea in 2006 will have a negligible impact on affected species 
or stocks of marine mammals and will not have an unmitigable adverse 
impact on their availability for taking for subsistence uses, provided 
the mitigation measures required under the authorization and CAA are 
implemented.
Potential Impacts on Marine Mammals
    NMFS has determined that the impact of conducting relatively short-
term seismic surveys in the U.S. Chukchi and Beaufort seas may result, 
at worst, in a temporary modification in behavior by certain species of 
marine mammals. While behavioral and avoidance reactions may be made by 
these species in response to the resultant noise, this behavioral 
change is expected to have a negligible impact on the affected species 
and stocks of marine mammals.
    While the number of potential incidental harassment takes will 
depend on the distribution and abundance of marine mammals in the area 
of seismic operations (as shown in Table 4-1 in the applications), 
which will vary annually due to variable ice conditions and other 
factors, the number of potential harassment takings is estimated to be 
small (see Tables 1 and 2 in this document).
    In addition, no take by death or serious injury is anticipated, and 
the potential for temporary or permanent hearing impairment will be 
avoided through the incorporation of the mitigation measures contained 
in Shell's IHA. This determination by NMFS is supported by: the 
information in this Federal Register notice, including: (1) the 
likelihood that, given sufficient notice through slow ship speed and 
ramp-up of the seismic array, marine mammals are expected to move away 
from a noise source that is annoying prior to its becoming potentially 
injurious; (2) the fact that injurious levels would be very close to 
the vessel; and (3) the likelihood that marine mammal detection ability 
by trained observers is close to 100 percent during daytime and remains 
high at night close to the seismic vessel. Finally, no known rookeries, 
mating grounds, areas of concentrated feeding, or other areas of 
special significance for marine mammals are known to occur within or 
near the planned areas of operations during the season of operations.
Potential Impacts on Subsistence Uses of Marine Mammals
    NMFS has determined that the proposed seismic activity by Shell in 
the northern Chukchi Sea and central and eastern Beaufort Sea in 2006, 
in combination with other seismic and oil and gas programs in these 
areas, will not have an unmitigable adverse impact on the subsistence 
uses of bowhead whales and other marine mammals. This determination is 
supported by the information in this Federal Register notice, 
including: (1) Seismic activities in the Chukchi Sea will not begin 
until after July 10 by which time the spring bowhead hunt is expected 
to have ended; (2) that the fall bowhead whale hunt in the Beaufort Sea 
will be governed by a CAA between Shell and the AEWC and village 
whaling captains; (3) the CAA conditions will significantly reduce 
impacts on subsistence hunters; (4) while it is possible that 
accessibility to belugas during the spring subsistence beluga hunt 
could be impaired by the survey, it is unlikely because very little of 
the proposed survey is within 25 km (15.5 mi) of the Chukchi coast, 
meaning the vessel will usually be well offshore and away from areas 
where seismic surveys would influence beluga hunting by communities; 
and (5) because seals (ringed, spotted, bearded) are hunted in 
nearshore waters and the seismic survey will remain offshore of the 
coastal and nearshore areas of these seals where natives would harvest 
these seals, it should not conflict with harvest activities.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Shell to take small numbers of marine mammals, by harassment, 
incidental to conducting a seismic survey in the northern Chukchi Sea 
and central and eastern Beaufort Sea in 2006, provided the mitigation, 
monitoring, and reporting requirements described in this document are 
undertaken.

    Dated: August 18, 2006.
P. Michael Payne,
Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service.
[FR Doc. 06-7121 Filed 8-23-06; 8:45 am]
BILLING CODE 3510-22-S