46774 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XJ55 

Incidental Takes of Marine Mammals 

During Specified Activities; Shallow 

Hazard and Site Clearance Surveys in 

the Chukchi Sea in 2008 

ACTION: Notice of issuance of a marine 

mammal incidental take authorization. 

SUMMARY: In accordance with provisions 

of the Marine Mammal Protection Act 

(MMPA) as amended, notification is 

hereby given that an Incidental 

Harassment Authorization (IHA) to take 

marine mammals, by Level-B 

harassment, incidental to conducting 

open water shallow hazard and site 

clearance surveys by ASRC Energy 

Service (AES) in the Chukchi Sea, has 

been issued for a period of one year 

from the IHA effective date. 

DATES: The authorization is effective 

from July 30, 2008, until September 25, 

2008. 

ADDRESSES: Copy of the application, 

IHA, the Final Programmatic 

Environmental Assessment for Arctic 

Ocean Outer Continental Shelf Seismic 

Surveys - 2006 (2006 PEA) prepared by 

the Minerals Management Service 

(MMS), the 2008 Supplemental 

Environmental Assessment (SEA) for 

the Issuance of five IHAs for open water 

seismic surveys and shallow hazard and 

site clearance surveys in the Arctic, 

and/or a list of references used in this 

document may be obtained by writing to 

P. Michael Payne, Chief, Permits, 

Conservation and Education Division, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910–3225, or by telephoning one of 

the contacts listed here (see FOR 

FURTHER INFORMATION CONTACT). 

FOR FURTHER INFORMATION CONTACT: 

Shane Guan, Office of Protected 

Resources, NMFS, (301) 713–2289, ext 

137 or Brad Smith, Alaska Region, 

NMFS, (907) 271–5006. 

SUPPLEMENTARY INFORMATION: 

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of marine mammals 

by U.S. citizens who engage in a 

specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

authorization is provided to the public 

for review. 

Authorization shall be granted if 

NMFS finds that the taking will have a 

negligible impact on the species or 

stock(s) and will not have an 

unmitigable adverse impact on the 

availability of the species or stock(s) for 

certain subsistence uses, and if the 

permissible methods of taking and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

such takings are set forth. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as ’’...an impact resulting from 

the specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

Section 101(a)(5)(D) of the MMPA 

established an expedited process by 

which citizens of the United States can 

apply for an authorization to 

incidentally take small numbers of 

marine mammals by harassment. Except 

with respect to certain activities not 

pertinent here, the MMPA defines 

‘‘harassment’’ as: 

any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

[Level A harassment]; or (ii) has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment]. 

Section 101(a)(5)(D) establishes a 45– 

day time limit for NMFS review of an 

application followed by a 30–day public 

notice and comment period on any 

proposed authorizations for the 

incidental harassment of marine 

mammals. Within 45 days of the close 

of the comment period, NMFS must 

either issue or deny the authorization. 

Summary of Request 

On March 25, 2008, NMFS received 

an application from AES for the taking, 

by Level B harassment, of several 

species of marine mammals incidental 

to conducting shallow hazard and site 

clearance surveys in the Chukchi Sea for 

up to 100 days from approximately July 

1, 2008 until November 30, 2008. On 

June 26, 2008, AES notified NMFS that 

the proposed shallow hazard and site 

clearance survey could be finished 

before September 25, 2008, with a 

maximum of up to 60 days. The marine 

surveys would take place in the 

Chukchi Sea covering the area involved 

in MMS Lease Sale 193. The specific 

areas where the AES proposed shallow 

hazard and site clearance surveys would 

be are the Burger, Crackerjack, Ulu, and 

Caramel prospect sites in the Chukchi 

Sea. The marine surveys will be 

performed from a seismic vessel. 

Detailed information on the shallow 

hazard and seismic surveys can be 

found in the AES application and in the 

Federal Register notice for the proposed 

IHA published on April 28, 2008 (73 FR 

22922) (hereinafter ‘‘FR Notice of 

Proposed IHA’’). Except for the updated 

seismic activity period and specific 

locations, no changes have been made to 

the proposed activities. 

Comments and Responses 

A FR Notice of Proposed IHA was 

published on April 28, 2008 (73 FR 

22922). During the 30–day public 

comment period, NMFS received 

comments from the Marine Mammal 

Commission (Commission), the 

California Gray Whale Coalition 

(CGWC); the Native Village of Point 

Hope (NVPH); the North Slope Borough 

(NSB); the Alaska Eskimo Whaling 

Commission (AEWC); the Center for 

Biological Diversity, Pacific 

Environment, Sierra Club, Natural 

Resources Defense Council and Alaska 

Wilderness League; Oceana and Ocean 

Conservancy; Dr. David E. Bain of the 

University of Washington; Dr. Richard 

Steiner of the University of Alaska; and 

one private citizen. 

General Comments 

Comment 1: The Commission 

recommends that NMFS issue the IHA 

provided that (a) the proposed marine 

mammal mitigation and monitoring 

activities are carried out as described in 

NMFS’ FR Notice of Proposed IHA; and 

(b) operations be suspended 

immediately if a dead or seriously 

injured marine mammal is found in the 

vicinity of the operations and the death 

or injury could have occurred incidental 

to those operations. 

Response: NMFS concurs with the 

Commission’s recommendation and will 

require the immediate suspension of 

seismic activities if a dead or injured 

marine mammal has been sighted 

within an area where the Holder of the 

IHA deployed and utilized seismic 

airguns within the past 24 hours. 

Comment 2: The NSB points out that 

the AES application was poorly written, 

and that it did not reference the primary 

literature but used the summary 

information presented in the SAR. The 

NSB also points out that the scientific 

name of beluga whales was misspelled 

and the scientific name of the northern 

right whale was incorrect in the AES 

application. In essence, the NSB states 

that the application does not provide 

readers with confidence that AES has an 


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understanding of the background 

information or the need or expertise to 

conduct marine mammal monitoring or 

mitigation in association with the 

proposed site clearance or shallow 

hazard surveys. 

Response: Comment noted. NMFS 

reviewed the AES application and 

verified the information provided 

within. While information is lacking, 

NMFS conducted relevant research so 

that complete information is provided 

in the FR Notice of Proposed IHA. In 

addition, detailed and updated 

information on bowhead whales and 

other marine mammal species is 

provided in the MMS 2006 PEA, MMS 

2007 draft PEIS, NMFS 2008 SEA, and 

the SAR, as referenced in the FR Notice 

of Proposed IHA. 

Comment 3: The NVPH, CBD, and 

NSB point out that neither NMFS, nor 

AES has identified the specific locations 

where AES plans to conduct its shallow 

hazard and site clearance surveys, 

except that its vessels would remain 40 

km (25 mi) away from the Chukchi 

coast. The CBD further points out that 

NMFS did not provide specific dates of 

the proposed AES shallow hazard and 

site clearance surveys. As such, the CBD 

suggests NMFS should reject AES’

application as incomplete and requests 

that NMFS reopen the public comment 

period for an additional 30 days. The 

NVPH requests that NMFS identify all 

of the areas where subsistence hunting 

occurs, and impose enforceable 

restrictions that would require AES to 

avoid such areas by a distance sufficient 

to prevent displacement of marine 

mammals. 

Response: At the time of the 

publication of the FR Notice of 

Proposed IHA, no information was 

available regarding the exact locations 

of the survey and the specific dates 

because AES was in the stage of 

securing its client(s) and therefore could 

not have known where seismic survey 

operations would occur in the Chukchi 

Sea. Nevertheless, NMFS was able to 

conduct an analysis of AES’ proposed 

2008 open water seismic activities and 

its potential impacts on marine 

mammals and subsistence uses. NMFS’

preliminary determination that the 

issuance of an IHA to AES would have 

a negligible impact on affected species 

or stocks of marine mammals and would 

result in no unmitigable adverse impact 

on the availability of such species or 

stock for taking for subsistence uses was 

based on information contained in the 

AES application, including overall area 

(i.e., the area denoted as LS 193 in the 

Chukchi Sea), the period of the seismic 

operations (i.e., approximately July 1 - 

November 30, 2008), the acoustic 

equipment planned to be used for the 

surveys, marine mammal species and 

stocks that are likely to be found in the 

vicinity of the project area, and the 

proposed mitigation and monitoring 

measures. 

In addition, the MMPA and NMFS’

implementing regulations provide a 30–

day comment period on a proposed 

IHA. Based upon the information 

contained in the FR Notice of Proposed 

IHA, NMFS believes that the comment 

period afforded the public with ample 

time to comment on AES’ proposed 

seismic surveys, despite the fact that 

AES did not identify an exact location 

in which the proposed surveys would 

occur. At this time, the precise survey 

locations and operation timeframe have 

been identified (see Description of the 

Specified Activity section above). 

Therefore, the IHA issued to AES limits 

its 2008 open water shallow hazard and 

site clearance surveys within these 

areas. 

Finally, the areas and season where 

subsistence hunting occurs are 

described and analyzed in detail in the 

MMS 2007 EIS on Chukchi Sea Lease 

Sale 193, and NMFS has developed a 

list of mitigation measures that restrict 

seismic activities when the subsistence 

hunt occurs. For example, no seismic 

activities would be permitted before 

July 15 in the Chukchi Sea spring lead 

system. Also, as analyzed in the FR 

Notice of Proposed IHA, it is possible 

that small numbers of marine mammals 

could be temporarily displaced from 

their feeding areas as a result of the 

proposed shallow hazard and site 

clearance surveys. However, NMFS 

believes any displacement would 

constitute Level B behavioral 

harassment with the magnitude of 

displacement being relatively slight. 

NMFS does not believe the 

displacement of marine mammals 

would result in an unmitigable adverse 

impact to the availability of marine 

mammal species and/or stocks to 

subsistence uses because the AES would 

complete their seismic surveys before 

the fall bowhead hunting season, and it 

would not begin their operations prior 

to the completion of the late spring 

whale harvest, which is already over. 

In addition, NMFS understands that 

AES has developed a POC with the 

Native communities. The POC specifies 

measures AES would take to help 

ensure that any harassment of marine 

mammals resulting from the proposed 

activities will not have an unmitigable 

adverse impact on the availability of 

marine mammal species or stocks for 

taking for subsistence uses. NMFS will 

also require AES to comply with certain 

terms and conditions in the IHA to help 

ensure the availability of marine 

mammals for taking for subsistence 

uses. Please see description of the 

mitigation and monitoring measures 

below. 

Comment 4: The CBD and CGWC urge 

NMFS not to issue any take 

authorization to AES for the proposed 

activities unless and until the agency 

can ensure that mitigation measures are 

in place that truly avoid adverse 

impacts to all species and their habitats 

and only after full and adequate public 

participation has occurred and 

environmental review of the cumulative 

impacts of such activities on these 

species and their habitats has been 

undertaken. The CBD feels that the 

proposed IHA does not meet these 

standards and therefore violate the 

MMPA, ESA, NEPA, and other 

governing statutes and regulations. 

Response: NMFS does not agree with 

CBD’s assessment. In its FR Notice of 

Proposed IHA, NMFS outlined in detail 

the proposed mitigation and monitoring 

requirements. The implementation of 

these measures will reduce the impacts 

of the proposed survey on marine 

mammals and their surrounding 

environment to the lowest level 

practicable, as required by the MMPA. 

The public was given 30 days to review 

and comment on these measures, in 

accordance with section 101(a)(5)(D) of 

the MMPA. NMFS has prepared a 

Supplemental EA to the 2006 MMS 

PEA. NMFS has fulfilled its obligations 

under NEPA by completing a SEA, 

which is not required to be available for 

public comment prior to its finalization. 

Additionally, NMFS completed a 

Biological Opinion in July, 2008, as 

required by section 7 of the ESA, which 

concluded that this action is not likely 

to jeopardize the continued existence of 

listed species or result in the 

destruction or adverse modification of 

critical habitat. Therefore, NMFS does 

not believe the issuance of an IHA to 

AES would result in a violation of the 

MMPA, ESA, NEPA, and other 

governing statutes and regulations. 

Acoustics Impacts 

Comment 5: Citing studies on noise 

impacts to chinchillas (Henderson et al., 

1991) and human noise exposure 

standards by the U.S. Occupational 

Safety Health Administration (OSHA), 

Dr. Bain states that ‘‘in humans, chronic 

exposure to levels of noise too low to 

generate a TTS can result in PTS.’’ As 

OSHA standards require limiting human 

exposure to noise at 115 dBA above 

threshold to 15 minutes per day, Dr. 

Bain concludes that this level is 

equivalent to 145 dB re 1 microPa for 

killer whales. 


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Response: Although NMFS agrees that 

chronic exposure to noise levels that 

would not cause TTS could result in 

hearing impairment in the long-term, it 

is important to understand that such 

exposure has to be of a chronic and 

long-term nature. The OSHA standards 

for permissible exposure are based on 

daily impacts throughout an employee’s 

career, while the noise exposure to 

seismic surveys by marine mammals is 

short-term and intermittent, as 

described in the FR Notice of Proposed 

IHA and in the MMS 2006 PEA. In 

addition, the reference Dr. Bain cites to 

(Henderson et al., 1991) does not 

address chronic noise impact to 

humans. The research by Henderson et 

al. (1991) focused on the applicability of 

the equal energy hypothesis (EEH) to 

impact (impulse) noise exposures on 

chinchillas, and the results indicated 

that hearing loss resulting from 

exposure to impact noise did not 

conform to the predictions of the EEH, 

which is the basis for OSHA standards 

for continuous noise exposure. 

Most importantly, Dr. Bain’s 

extrapolation of 145 dB re 1 microPa for 

killer whale hearing safety from OSHA’s 

115 dBA is fundamentally flawed for 

three reasons: 

(1) The reference points when using 

decibel (dB) unit that address sound in 

air and in water are different. For 

airborne sounds, such as those by 

OSHA, the reference point is 20 

microPa, while for underwater sounds, 

the reference point is 1 microPa. There 

are 26 dB differences between the 

values when different reference points 

are used for the same sound pressure, 

therefore, 115 dB re 20 microPa is 141 

dB re 1 microPa for the same sound 

pressure. So 115 dB re 20 microPa in air 

above human threshold (defined as 0 dB 

re 20 microPa in air) would be 141 dB 

re 1 microPa underwater for the same 

sound pressure. Using the lowest 

threshold of 30 dB re 1 microPa as the 

killer whale hearing threshold, and 

assuming that noise impacts to killer 

whales are the same as for humans, one 

could extrapolate that continuous noise 

exposure of 171 dB re 1 microPa (141 

dB over the 30 dB threshold) for 15 

minutes for killer whales would be 

equivalent to humans exposed to 115 dB 

re 20 microPa for 15 minutes. 

Nevertheless, such extrapolation still 

leaves much uncertainty since marine 

mammals have a different mechanism 

for sound reception (Au, 1993; 

Richardson et al., 1005). Some of the 

most recent science have shown that for 

some odontocetes, the onset of TTS 

when exposed to impulse noise is much 

higher (Finneran et al., 2002) than 

NMFS’ current thresholds. 

(2) The decibel values used by OSHA 

are expressed as broadband A-weighted 

sound levels expressed in dBA. This 

frequency-dependent weighting 

function is used to apply to the sound 

in accordance with the sensitivity of the 

human ear to different frequencies. 

Thus, it is inappropriate to compare 

these values to an animal’s hearing 

capability, including how an animal 

perceives sound in air (Richardson et 

al., 1995). For marine mammals, Mweighting functions have been 

suggested based on five different 

hearing functional groups to address 

different hearing sensitivities of 

different frequencies by each of the 

marine mammal groups (Southall et al., 

2007). 

(3) Finally, the sound characteristic 

used in OSHA standards is continuous 

sound, while the seismic sound from 

the proposed shallow hazard and site 

clearance surveys is impulse sound, 

which by its very nature is not a 

continuous sound. 

Comment 6: Dr. Bain asserts that the 

zone of immediate risk of injury or 

death for marine mammals should be 

within the 150 - 215 dB re 1 microPa 

contours and assumes that values can be 

extrapolated from terrestrial species. Dr. 

Bain supports his argument by stating 

that immediate injury may result from 

brief exposure to sound levels that are 

120 to 140 dB above threshold in 

terrestrial mammals, and that marine 

mammals vary in their best sensitivity 

from killer whales at around 30 dB re 

1 microPa (killer whale) to 60 dB re 1 

microPa (phocids) and 75 dB re 1 

microPa (otariids) 

Response: NMFS does not agree with 

Dr. Bain’s assessment. As discussed in 

Response to Comment 4, the reference 

points when using decibel (dB) unit that 

address sound in air is 20 microPa, 

while in water the reference point is 1 

microPa. Therefore, the decibel levels 

used to address injury in terrestrial 

mammals cannot be extrapolated to 

apply marine mammal species without 

adding a correction factor of 26 dB (see 

Richardson et al., 1995). Even so, plenty 

of controlled laboratory experiments on 

several marine mammal species (e.g., 

beluga whales, bottlenose dolphins, 

harbor seals, California sea lions, and 

northern elephant seals) in the past 

decade point out injuries (PTS) to 

marine mammals would probably occur 

at much higher sound exposure levels, 

far above the 180 and 190 dB re 1 

microPa NMFS currently applies to 

protect cetaceans and pinnipeds from 

onset of Level A harassment (injury). 

(see review by Southall et al., 2007). 

Comment 7: Citing OSHA (2007) 

standards for human noise exposure 

standards, Nachtigall et al. (2003), and 

Henderson et al. (1991), Dr. Bain 

extrapolates that permanent injury to 

hearing from repeated exposure to noise 

at 120 dB re 1 microPa would occur to 

killer whales after being exposed for 8 

hours. 

Response: NMFS does not agree with 

Dr. Bain’s assessment as such an 

extrapolation is invalid. First, as 

discussed in Response to Comment 5, 

the reference point addressing sound 

levels or intensities in air, which is used 

by OSHA for the human noise exposure 

standards, is relative to 20 microPa, 

while the reference point used to 

address sound levels or intensities in 

water is relative to 1 microPa. These are 

fundamentally different acoustical 

measures and should not be confused. 

Second, as discussed in Response to 

Comment 5, the noise exposure 

standard unit used by OSHA is dBA, 

which is the weighted sound exposure 

level based on human hearing 

sensitivities, and is not suitable to be 

used in other animals which have very 

different hearing sensitivities across the 

spectrum. Third, the sound sources 

used by OSHA are based on continuous 

sound, as is the referenced paper by 

Nachtigall et al. (2003), while the sound 

sources from the proposed seismic 

surveys are impulse sounds. The 

prediction of acoustic injury from 

continuous noise exposure is not 

applicable to impulse noise exposure, as 

is shown in the referenced paper by 

Henderson et al. (1991); therefore, the 

extrapolation is invalid. Fourth, ambient 

noise levels at many shallow water areas 

could easily reach 120 dB re 1 microPa, 

coupled with surf and wave actions. If 

killer whales suffered from permanent 

hearing damage when exposed to this 

noise level for 8 hours as suggested by 

Dr. Bain, then most killer whales in the 

coastal areas would have no hearing left. 

The lab controlled experiments by 

Nachtigall et al. (2003), as cited by Dr. 

Bain, show that an Atlantic bottlenose 

dolphin exhibited TTS of an average 11 

dB after being exposed to continued 

noise up to 179 dB re 1 microPa for 55 

minutes, a much higher level than 

where Dr. Bain would consider TTS to 

occur. However, in the wild, animals are 

expected to avoid such intense noise 

levels, thus preventing onset of TTS. 

Finally, killer whales are not expected 

to occur frequently in the proposed 

Arctic shallow hazard and site clearance 

project area, so the risk to this species 

is minimal. 

Comment 8: Citing several papers on 

killer whales, harbor porpoises, and 

marbeled murrelets, Dr. Bain states that 

major behavior changes of these animals 

appear to be associated with received 


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levels of around 135 dB re 1 microPa, 

and that minor behavioral changes can 

occur at received levels from 90 - 110 

dB re 1 microPa or lower. Citing his 

own studies, Dr. Bain states that ‘‘killer 

whales are 40% less likely to forage at 

all when vessels are nearby, perhaps 

because vessel noise masks echoes from 

prey, making the probability of foraging 

successfully negligible (Bain et al., 

2006a; 2006b).’’ In addition, Dr. Bain 

states that the threshold for effects on 

harbor porpoise is 90 dB re 1 microPa, 

for killer whale is 100 dB re 1 microPa, 

and for beluga whale is 153 dB re 1 

microPa, which are all lower than the 

threshold used to estimate the takes. 

CBD also cited a study of Canadian 

beluga whales showing flight responses 

from ice-breakers at received sound 

levels as low as 94 dB. 

Response: NMFS does not agree with 

Dr. Bain and CBD’s assessment. 

Although it is possible that marine 

mammals could react to any sound 

levels detectable above the ambient 

noise level within the animals’

respective frequency response range, 

this does not mean that such animals 

would react in a biologically significant 

way. In addition, as discussed in 

Response to Comment 6, ambient noise 

levels in many of the world’s ocean can 

easily exceed 90 dB re 1 microPa (Urick, 

1983). 

According to experts on marine 

mammal behavior, the degree of 

reaction which constitutes a ‘‘take,’’ i.e., 

a reaction deemed to be biologically 

significant that could potentially disrupt 

the migration, breathing, nursing, 

breeding, feeding, or sheltering, etc. of 

a marine mammal is complex and 

context specific, and it depends on 

several variables in addition to the 

received level of the sound by the 

animals. These additional variables 

include, but are not limited to, other 

source characteristics (such as 

frequency range, duty cycle, continuous 

vs. impulse vs. intermittent sounds, 

duration, moving vs. stationary sources, 

etc.); specific species, populations, and/ 

or stocks; prior experience of the 

animals (naive vs. previously exposed); 

habituation or sensitization of the sound 

by the animals; and behavior context 

(whether the animal perceives the 

sound as predatory or simply 

annoyance), etc. (Southall et al., 2007). 

The references cited by Dr. Bain and 

CBD in this comment address different 

source characteristics (continuous 

sound rather than impulse sound that 

are planned for the proposed shallow 

hazard and site clearance surveys) or 

species (killer whales and harbor 

proposes) that rarely occur in the 

proposed Arctic action area. No 

reference supporting the ‘‘threshold for 

effects’’ on beluga whales is provided by 

Dr. Bain. Much research regarding 

bowhead and gray whales response to 

seismic survey noises has been 

conducted in addition to marine 

mammal monitoring studies during 

prior seismic surveys. Detailed 

descriptions regarding behavior 

responses of these marine mammals to 

seismic sounds are available (e.g., 

Richardson et al., 1995; review by 

Southall et al., 2007), and are also 

discussed in this document. 

Comment 9: Dr. Bain states that sound 

sources are typically divided into 

continuous and pulsed categories, and 

that behavioral effects from pulsed 

sound are likely to be independent of 

the repetition rate and duty cycle, and 

depend primarily on the duration of the 

survey. Dr. Bain further states that 

intermittent pulses can result in 

continuously received noise when 

sound arrives via multiple paths, which 

Dr. Bain explains as ‘‘sound that 

bounces between the bottom and the 

surface will take longer to reach an 

animal than sound traveling via a direct 

path,’’ and that ‘‘noise can mask signals 

for a brief period before and after it is 

received, meaning an almost continuous 

received noise can mask signals 

continuously.’’ Dr. Bain concludes that 

‘‘the subbottom profilers proposed for 

use during the site clearance surveys, 

with the very short intervals between 

pulses, present a risk of continuous 

masking effects.’’

Response: NMFS does not agree with 

Dr. Bain’s statement on ocean acoustics 

and his subsequent analysis and 

assessment regarding underwater sound 

propagation and its effects to marine 

mammals. Within the scientific 

community on ocean acoustics and 

bioacoustics, two types of sounds are 

traditionally recognized: transient 

sounds (sounds of relatively short 

duration) and continuous sounds 

(sounds that go on and on). Transient 

sounds can be further classified into 

impulsive (such as seismic airguns, 

explosives, pile driving) and nonimpulsive (such as military tactic 

sonars) sounds (Richardson et al., 1995). 

Other researchers working on noise 

impacts to marine mammals classified 

sound types into a single pulse (such as 

a single explosive), multiple pulses 

(seismic airguns, pile driving), and 

nonpulses (ship, sonar) (Southall et al., 

2007). A simple way to distinguish 

pulses sound from nonpulses 

(continuous sound included) is that the 

former have rapid rise-time in relation 

to its extremely short duration. As 

mentioned in Response to Comment 8, 

behavioral responses from marine 

mammals when exposed to underwater 

noise is complex and context specific, 

and often depend on the sound 

characteristics (such as received levels, 

duration, duty cycles, frequency, etc.) 

and other variables. 

NMFS agrees that the distinction 

between transient and continuous 

sounds is not absolute, as continuous 

sound from a fast moving vessel is often 

treated as transient sound in relation to 

a stationary or slow moving marine 

mammal. Further, the distinction 

between pulses and nonpulses is also 

not always clear as certain pulsed sound 

sources (e.g., seismic airguns and 

explosives) may become nonpulses at 

greater distances due to signal decay 

through reverberation and other 

propagation paths. However, Dr. Bain’s 

statement that intermittent pulses can 

result in continuously received noise 

when sound arrives via multiple paths 

is unfounded. For a marine mammal 

exposed to noise, multipath propagation 

would expose the animal to the noise 

multiple times, usually each subsequent 

exposure with lower sound level due to 

loss of acoustic energy from surface and 

bottom reflections; however, the noise 

arriving via multipath propagation 

would not become continuous sound 

because the intervals between signals 

would always exist. In addition, noise 

cannot mask a signal before or after it 

is received by the animal. Noise 

masking of signals can only occur when 

the unwanted sound (noise) interferes 

with the signal when received by the 

animal, generally at similar frequencies 

(Richardson et al., 1995). Therefore, Dr. 

Bain’s assessment that the subbottom 

profilers proposed for shallow hazard 

and site clearance surveys would cause 

continuous masking effects to marine 

mammals is not supported. 

Comment 10:Dr. Bain states that one 

characteristic of pulsed sources is 

known as ‘‘time-bandwidth’’ product, 

and he explains that it is ‘‘any sound 

with a finite duration (that is, any realworld sound) contains additional 

frequencies to the nominal frequency. 

That is, pulsed sources that nominally 

have a frequency that is too high to hear, 

may, in fact, be audible, as the source 

will contain lower frequencies that are 

detectable.’’

Response: NMFS does not agree with 

Dr. Bain’s statement that high frequency 

pulsed sources nominally contain 

additional frequencies that are audible. 

The high frequency pulsed sources are 

expected to operate within their 

frequency range, although some 

mechanical noise at lower frequencies 

may be produced as a byproduct during 

the operation. The mechanical noise 

associated with acoustic equipment is 


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expected to be low intensity and is not 

expected to result in harassment of 

marine mammals. Furthermore, the term 

‘‘time-bandwidth product’’ is generally 

used in signal process, which is 

irrelevant to the proposed Arctic 

seismic survey. 

Comment 11: Dr. Bain states that the 

directionality of the sources and 

whether they are on during turns would 

also affect the ensonified area. 

Response: All acoustic sources are 

downward directional, thus no 

additional ensonified area would result 

during turns. 

Comment 12: The CBD argues that 

NMFS analysis of the various highenergy sound sources on marine 

mammals is deficient, with NMFS for 

the most part simply asserting that the 

sound generated by these sources is 

outside the hearing range of most 

marine mammals. The CBD further 

states that even NMFS acknowledges 

that odontocetes such as beluga whales 

can in fact hear these sounds. 

Response: NMFS does not agree with 

the CBD statement as it does not have 

scientific basis. In the FR Notice of the 

Proposed IHA, NMFS stated that the 445 

kHz frequency band from the Klein 

System 3000 dual frequency digital 

side-scan sonar is outside any marine 

mammal species’ hearing range, 

therefore, there would be no effect to 

marine mammals when this frequency is 

chosen. High frequency sounds above 

200 kHz are clearly outside the hearing 

ranges for any marine mammals, which 

is well accepted among marine mammal 

bioacousticians (Richardson et al., 1995; 

Southall et al., 2007). In addition, NMFS 

never acknowledged that odontocetes 

such as beluga whales can hear these 

sounds (CBD did not provide any 

reference to support its statement.) 

Furthermore, the sound generated by 

various side-scan sonars operated at the 

frequency of 120 kHz and beyond 

produce signals above the hearing 

ranges for mysticetes, such as bowhead, 

gray, humpback, and minke whales 

(Richardson et al., 1995; Southall et al., 

2007). 

Comment 13: Citing Weilgart (2007), 

the CGWC states that seismic surveys 

can raise low-frequency noise over vast 

areas for more than a month, exposing 

large portions of a cetacean population 

to chronic noise. Citing Tyack (1988), 

the CGWC further states that avoidance 

behavior has been reported for gray 

whales in response to decibels great 

than 120 dB for continuous noise and 

160 - 170 dB for pulsed sounds. In 

addition, the CGWC points out that 

playback of sounds from a Bell 212 

turbine helicopter projected at random 

intervals of 10 seconds to 2 minutes 

showed significant course changes in 

gray whales in apparent avoidance of 

the sounds. Finally, the CGWC states 

that reactions to noise by gray whales 

are more pronounced on their breeding/ 

calving grounds (Malme et al., 1983; 

1984), and that gray whales were 

displaced for greater than 5 years from 

one of their breeding lagoons in 

response to industrial sounds (Jones et 

al., 1994). 

Response: NMFS does not agree with 

CGWC’s ‘‘one size fits all’’ statement 

that ‘‘seismic surveys can raise lowfrequency noise over vast areas for more 

than a month, exposing large portions of 

a cetacean population to chronic noise.’’

The degree and number of cetaceans, or 

any marine mammal species that can be 

exposed to a seismic survey depends on 

the duration of the survey, the intensity 

of the airgun source, and the density of 

cetacean population, or other marine 

mammals, in the vicinity of the survey 

area. 

NMFS agrees with CGWC’s comments 

that behavioral modification of many 

marine mammals starts when exposed 

to pulsed sounds at 160 - 170 dB, as 

cited in Tyack (1988), which is 

consistence with NMFS current criteria 

for Level B behavioral harassment of 

160–dB when exposed to pulsed 

sounds, and 120–dB when exposed to 

continuous sounds. The signals 

produced by airguns and other acoustic 

equipment for the proposed AES 

shallow hazard and site clearance 

survey are all pulsed sounds. 

Finally, the proposed survey area in 

the Arctic Ocean is not gray whale 

breeding/calving grounds, so there will 

be no effect to this species’ breeding/ 

calving activities from the proposed 

activity. 

Comment 14: The CGWC states that 

when gray whales were on their feeding 

grounds, Malme et al. (1986) estimated 

that there was a 50 percent probability 

of gray whale avoidance when the 

average pulse level of the received noise 

was approximately 173 dB and a 10 

percent probability of avoidance at 163 

dB. 

Response: Comment noted. Though 

some gray whales (10 percent) may be 

temporarily affected by seismic surveys 

when exposed to received level at 163 

dB as referenced by Malme et al. (1986), 

NMFS does not consider this effect to be 

significant for the following reasons: (1) 

the proposed shallow hazard and site 

clearance survey area is in the Chukchi 

Sea and is not a primary feeding ground 

for gray whales. The majority of gray 

whales feed on amphipods in shallow 

coastal waters in the Bering Sea which 

is not located near the proposed seismic 

survey area; and (2) a 160–dB safety 

zone will be established requiring shutdown of airguns when a congregation of 

12 or more bowhead or gray whales is 

sighted during the AES seismic 

activities. 

Comment 15: Citing NMFS (2002), 

Weller et al. (2006a; 2006b), and IWC 

(2007), the CGWC states that noise has 

been thought to at least contribute to 

some species’ decline or lack of 

recovery. 

Response: Comment noted. However, 

since the CGWC did not provide the full 

reference of the citation, NMFS is not 

able to verify its statement. 

Nevertheless, for the proposed AES 

shallow hazard and site clearance 

survey, NMFS has conducted a through 

analysis of the potential impacts from 

seismic noise to marine mammals in its 

FR Notice of Proposed IHA. More 

extensive analyses are also provided in 

the MMS 2006 PEA, the MMS 2007 

draft PEIS and the 2008 SEA. As stated 

in this document, NMFS finds that the 

impact of conducting the shallow 

hazard and site clearance surveys in 

Chukchi Sea may result, at worst, in a 

temporary modification in behavior of 

small numbers of certain species of 

marine mammals. 

MMPA Comments 

Comment 16: The CBD and NSB state 

that since NMFS has not promulgated 

any regulations related to shallow 

hazard and site clearance surveys under 

the MMPA, and because such surveys 

and associated activities carry the real 

potential of injury or death to marine 

mammals, neither an IHA nor an LOA 

can be issued for the AES’ proposed 

activities. 

Response: NMFS does not agree with 

the CBD and NSB’s statement. Section 

101(a)(5)(D) of the MMPA authorizes 

Level A (injury) harassment and Level B 

(behavioral) harassment takes. While 

NMFS’ regulations indicate that a LOA 

must be issued if there is a potential for 

serious injury or mortality, NMFS does 

not believe that AES’ shallow hazard 

and site clearance survey require 

issuance of a LOA. As explained 

throughout this Federal Register Notice 

of the Proposed IHA, it is highly 

unlikely that marine mammals would be 

exposed to sound pressure levels (SPLs) 

that could result in serious injury or 

mortality. The best scientific 

information indicates that an auditory 

injury is unlikely to occur as apparently 

sounds need to be significantly greater 

than 180 dB for injury to occur (Southall 

et al., 2007). 

NMFS has determined that exposure 

to several seismic pulses at received 

levels near 200 205 dB (rms) might 

result in slight temporary threshold shift 


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(TTS) in hearing in a small odontocete, 

assuming the TTS threshold is a 

function of the total received pulse 

energy. Received levels of 200 205 dB or 

more from the loudest acoustic device 

would be restricted to a radius of no 

more than 5 m (16 ft) around a seismic 

vessel. AES’ airgun array is considered 

to be of small size. For baleen whales, 

while there are no data, direct or 

indirect, on levels or properties of 

sound that are required to induce TTS, 

there is a strong likelihood that baleen 

whales (bowhead and gray whales) 

would avoid the approaching airguns 

(or vessel) before being exposed to 

levels high enough for there to be any 

possibility of onset of TTS. For 

pinnipeds, information indicates that 

for single seismic impulses, sounds 

would need to be higher than 190 dB 

rms for TTS to occur while exposure to 

several seismic pulses indicates that 

some pinnipeds may incur TTS at 

somewhat lower received levels than do 

small odontocetes exposed for similar 

durations. Consequently, NMFS has 

determined that it would be lawful to 

issue an IHA to AES for the 2008 

seismic survey program. 

Comment 17:The CBD states that it 

referenced the scientific literature 

linking seismic surveys with marine 

mammal stranding events in its 

comments to MMS on the 2006 Draft 

PEA and in comments to NMFS and 

MMS on the 2007 DPEIS. The CBD 

further states that NMFS’ failure to 

address these studies and the threat of 

serious injury or mortality to marine 

mammals from seismic surveys renders 

NMFS’ conclusory determination that 

serious injury or morality will not occur 

from AES’ activities arbitrary and 

capricious. 

Response: The MMS briefly addressed 

the humpback whale stranding in Brazil 

on page PEA–127 in the 2006 Final 

PEA. Marine mammal strandings are 

also discussed in the MMS 2007 DPEIS. 

A more detailed response to the cited 

strandings has been provided in several 

previous IHA issuance notices for 

seismic surveys (e.g., 73 FR 40512, July 

15, 2008). Additional information has 

not been provided by CBD or others 

regarding these strandings. As NMFS 

has stated, the evidence linking marine 

mammal strandings and seismic surveys 

remains tenuous at best. Two papers, 

Taylor et al. (2004) and Engel et al. 

(2004), reference seismic signals as a 

possible cause for a marine mammal 

stranding. Taylor et al. (2004) noted two 

beaked whale stranding incidents 

related to seismic surveys. The 

statement in Taylor et al. (2004) was 

that the seismic vessel was firing its 

airguns at 1300 hrs on September 24, 

2004, and that between 1400 and 1600 

hrs, local fishermen found live-stranded 

beaked whales some 22 km (12 nm) 

from the ship’s location. A review of the 

vessel’s trackline indicated that the 

closest approach of the seismic vessel 

and the beaked whales’ stranding 

location was 33 km (18 nm) at 1430 hrs. 

At 1300 hrs, the seismic vessel was 

located 46 km (25 nm) from the 

stranding location. What is unknown is 

the location of the beaked whales prior 

to the stranding in relation to the 

seismic vessel, but the close timing of 

events indicates that the distance was 

not less than 33 km (18 nm). No 

physical evidence for a link between the 

seismic survey and the stranding was 

obtained. In addition, Taylor et al. 

(2004) indicates that the same seismic 

vessel was operating 500 km (270 nm) 

from the site of the Galapagos Island 

stranding in 2000. Whether the 2004 

seismic survey caused two beaked 

whales to strand is a matter of 

considerable debate (see Cox et al., 

2004). NMFS believes that scientifically, 

these events do not constitute evidence 

that seismic surveys have an effect 

similar to that of mid-frequency tactical 

sonar. However, these incidents do 

point to the need to look for such effects 

during future seismic surveys. To date, 

follow-up observations on several 

scientific seismic survey cruises have 

not indicated any beaked whale 

stranding incidents. 

Engel et al. (2004), in a paper 

presented to the International Whaling 

Commission (IWC) in 2004 (SC/56/E28), 

mentioned a possible link between oil 

and gas seismic activities and the 

stranding of eight humpback whales 

(seven off the Bahia or Espirito Santo 

States and one off Rio de Janeiro, 

Brazil). Concerns about the relationship 

between this stranding event and 

seismic activity were raised by the 

International Association of 

Geophysical Contractors (IAGC). The 

IAGC (2004) argues that not enough 

evidence is presented in Engel et al. 

(2004) to assess whether or not the 

relatively high proportion of adult 

strandings in 2002 is anomalous. The 

IAGC contends that the data do not 

establish a clear record of what might be 

a ‘‘natural’’ adult stranding rate, nor is 

any attempt made to characterize other 

natural factors that may influence 

strandings. As stated previously, NMFS 

remains concerned that the Engel et al. 

(2004) article appears to compare 

stranding rates made by opportunistic 

sightings in the past with organized 

aerial surveys beginning in 2001. If so, 

then the data are suspect. 

Second, strandings have not been 

recorded for those marine mammal 

species expected to be harassed by 

seismic in the Arctic Ocean. Beaked 

whales and humpback whales, the two 

species linked in the literature with 

stranding events with a seismic 

component are either extralimital or not 

located in the Chukchi Sea where 

shallow hazard and site clearance 

survey would occur. Moreover, NMFS 

notes that in the Arctic, marine mammal 

observation and monitoring have been 

conducted by the industry during 

periods of industrial activity (and by 

MMS during times with no activity). No 

strandings or marine mammals in 

distress have been observed during 

these surveys; nor reported by NSB 

inhabitants. Finally, if bowhead and 

gray whales react to sounds at very low 

levels by making minor course 

corrections to avoid seismic noise and 

mitigation measures require AES to 

ramp-up the seismic array to avoid a 

startle effect, strandings are highly 

unlikely to occur in the Arctic Ocean. 

Ramping-up of the array will allow 

marine mammals the opportunity to 

vacate the area of ensonification and 

thus avoid any potential injury or 

impairment of their hearing capabilities. 

In conclusion, NMFS does not expect 

any marine mammals will incur serious 

injury or mortality as a result of AES’

shallow hazard and site clearance 

survey in the Chukchi Sea in 2008. 

Comment 18: The CBD states that 

NMFS failed to adequately specify AES’

activities and impacts of vessels because 

neither AES’ application nor NMFS’ FR 

Notice of the Proposed IHA mention the 

various transit routes through U.S. 

waters in the Bering, Chukchi and/or 

Beaufort Seas that these vessels 

associated with AES’ surveys would 

take. 

Response: The specified activity that 

has been proposed and for which an 

IHA has been requested is the use of 

seismic airguns to conduct oil and gas 

exploration. While the support vessels 

play a role in facilitating seismic 

operations, NMFS does not expect these 

operations to result in the incidental 

take of marine mammals. Since these 

support vessels are typically slowmoving, any risk of vessel collisions 

with marine mammals is expected to be 

minimal. Moreover, normal shipping 

and transit operations do not rise to a 

level requiring an authorization under 

the MMPA. To require IHAs and LOAs 

for standard shipping would reduce the 

ability of NMFS to review activities that 

have a potential to cause harm to marine 

mammal populations. 

Comment 19: The AEWC and NSB 

state that a ‘‘small take’’ finding cannot 

be supported with actual data for the 

proposed AES shallow hazard and site 


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clearance survey, therefore, placing 

NMFS in the position of having to make 

an arbitrary decision. In addition, the 

CBD states that NMFS did not make the 

distinction between ‘‘small number’’

and ‘‘negligible impact’’ while making 

the decision in the FR Notice of the 

Proposed IHA. 

Response: NMFS does not agree with 

the CBD’s statement. The analysis 

provided in the FR Notice of the 

Proposed IHA clearly described in detail 

the numbers of bowhead, gray, and 

beluga whales, and ringed and bearded 

seals that may be potentially taken by 

Level B harassment as a result of the 

seismic operations in the Chukchi Sea. 

(Take estimates for pinnipeds have 

since been revised based on the 160–dB 

rms threshold.) As clearly stated in the 

aforementioned Federal Register notice, 

take numbers of these species represent 

0.06, 0.06, and 0.6 percent of the 

western Arctic stock of bowhead 

(population estimated at 10,545), 

eastern North Pacific stock of gray 

(population estimated at 18,178), and 

eastern Chukchi stock of Beluga whales 

(population estimated at 3,710), 

respectively; and 3.96 and 0.438 percent 

of the Alaska stocks of ringed 

(population estimated at 249,000 in the 

Chukchi Sea) and bearded seal 

(population estimated at 250,000 - 

300,000 in the Bering and Chukchi Seas) 

populations within the Chukchi Sea, 

respectively. Although no take number 

was estimated for humpback, fin, 

minke, and killer whales, harbor 

porpoises, and spotted and ribbon seals 

in the vicinity of the project area due to 

their rare presence based in the Chukchi 

Sea, NMFS believes that the harassment 

of these species would be much less 

likely than those of bowhead and beluga 

whales and ringed and bearded seals. 

NMFS believes that the numbers for all 

affected species are small relative to 

their stock size. Separate detailed 

analyses on the levels of take by noise 

exposure and cumulative impacts to 

these marine mammal species and 

stocks from a wide spectrum in the past, 

current, and foreseeable future were also 

conducted and described in the 

aforementioned Federal Register notice, 

the MMS 2006 PEA, and NMFS 2008 

SEA. These analyses led NMFS to 

conclude that while behavioral 

modifications, including temporarily 

vacating the area during the project 

period may be made by these species to 

avoid the resultant visual and acoustic 

disturbance, NMFS nonetheless found 

that this action would result in no more 

than a negligible impact on the affected 

marine mammal species and/or stocks. 

NMFS also found that the proposed 

action would not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence uses. Please refer to the 

Federal Register notice (73 FR 22922, 

April 28, 2008), MMS 2006 PEA, and 

NMFS 2008 SEA for a detailed 

description of the analysis. 

Comment 20: The CBD points out that 

AES only provided estimates for 

exposure to sounds greater than 170 dB 

re 1 microPa (rms) for pinnipeds, and 

that NMFS has in the previous IHAs 

rejected this threshold. The CBD further 

points out that neither NMFS nor ASRC 

provide any estimate of how many 

pinnipeds would be exposed to sounds 

greater than 160 dB. 

Response: To be consistent with 

NMFS’ Level B behavioral harassment 

criteria for pinnipeds, NMFS will 

continue to use 160 dB re microPa as 

the threshold of onset for Level B 

behavioral harassment, as noted in this 

document. The estimated numbers of 

pinnipeds that could be exposed to 

SPLs by AES’ activities have been 

recalculated based on NMFS’

application of the 160–dB rms threshold 

and are described in this Federal 

Register notice (see response to 

comment 19). Nevertheless, it is 

important to note that even with the 160 

dB criteria, NMFS expects that only 

small numbers of pinnipeds would be 

exposed to seismic noises that could 

cause Level B behavioral harassment. In 

addition, research by Moulton and 

Lawson (2002) showed that most 

pinnipeds exposed to seismic sounds 

lower than 170 dB do not visibly react 

to that sound, and, therefore, pinnipeds 

are not likely to react to seismic sounds 

unless they are greater than 170 dB re 

1 microPa (rms). While the number of 

potential exposures of pinnipeds at 170 

dB is smaller than that at 160 dB, the 

overall environmental effect of received 

sound levels at 170 dB versus 160 dB is 

expected to be similar based on the best 

available science. 

Comment 21: The CBD and NSB state 

that NMFS’ estimates of the number of 

marine mammals that may be harassed 

based on the assumption that sounds 

below 160 dB re 1 microPa (rms) do not 

constitute harassment is incorrect 

because an activity can constitute 

harassment if it has the ‘‘potential’’ to 

affect marine mammal behavior. In 

addition, the CBD argues that 160 dB 

threshold for belugas is similarly 

flawed, as it points out in previous IHA 

notices, NMFS has acknowledged the 

impacts of sounds on beluga even at 

significant distances from a sound 

source (up to 20 km). 

Response: NMFS does not agree with 

CBD and NSB’s statement. As stated in 

the MMPA, Level B harassment is 

defined as any act of pursuit, torment, 

or annoyance which ‘‘has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, 

including but not limited to, migration, 

breathing, nursing, breeding, feeding, or 

sheltering.’’ Activities that affect marine 

mammal behavior briefly but not cause 

disruption of behavioral patterns are not 

considered ‘‘takes.’’

In addition, in regard to impacts to 

marine mammal behaviors, distance is 

not the only factor that counts. The 

received levels at which marine 

mammals are affected are related to a 

number of factors including source 

levels, distances, and acoustic 

propagation pathways. The particular 

example CBD brought up regarding the 

seismic surveys by the National Science 

Foundation used airgun arrays with 

total discharge volume of 2,840 in3, 

while the proposed AES shallow hazard 

and site clearance survey would only 

use an airgun array with total discharge 

volume of 40 in3. The different source 

levels determine the ensonified zone 

where marine mammals, including 

beluga whales, would be impacted. 

Comment 22: The CBD and NSB state 

that NMFS has no idea of the actual 

population status of several of the 

species subject to the proposed IHA. For 

example, in the most recent Stock 

Assessment Reports (SARs) prepared 

pursuant to the MMPA, NMFS 

acknowledges it has no accurate 

information on the status of ribbon, 

spotted, bearded, and ringed seals. CBD 

and NSB both indicate that without 

these data, NMFS cannot conclude that 

surveys which will harass untold 

numbers of individuals of each species 

would have no more than a ‘‘negligible 

impact’’ on the stocks. 

Response: As required by the MMPA 

implementing regulations at 50 CFR 

216.102(a), NMFS has used the best 

scientific information available in 

making its determinations required 

under the MMPA. The Alaska SAR 

provides population estimates based on 

past survey work conducted in the 

region, and the SAR shows that based 

on the most recent information, all of 

these Alaska stocks of ice seal species 

have robust populations. The proposed 

survey by AES is not expected to have 

adverse impacts on ice seals. The 

activity will last for approximately 60 

days in the open-water environment of 

the Chukchi Sea, where bearded and 

spotted seals are found only 

occasionally. 

In addition, it is expected that 

approximately 9,850 and 1,094 ringed 

and bearded seals would be affected by 


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Level B behavioral harassment as a 

result of the proposed shallow hazard 

and site clearance surveys, respectively, 

and that these take umbers represent 

3.96 and 0.438 percent of the Alaska 

stocks of ringed and bearded seal 

populations within the Chukchi Sea, 

respectively. Although spotted and 

ribbon seals could also be taken by 

Level B behavioral harassment as a 

result of the proposed marine surveys in 

the Chukchi Sea, the probability of take 

is very low since their presence is very 

rare within the proposed project area. 

Nonetheless, NMFS believes their take 

numbers would be much lower as 

compared to those marine mammals 

whose take numbers were calculated. 

Comment 23: Citing research on long 

term adverse effects to whales and 

dolphins from whale watching activities 

(Trites and Bain, 2000; Bain, 2002; 

Lusseau et al., 2006), Dr. Bain states that 

Level B behavioral harassment could be 

the primary threat to cetacean 

populations. 

Response: Although NMFS agrees that 

long-term, persistent, and chronic 

exposure to Level B harassment could 

have a profound and significant impact 

on marine mammal populations, such as 

described in the references cited by Dr. 

Bain, however, those examples do not 

reflect the impacts of seismic surveys to 

marine mammals for the proposed AES 

project. First, whale watching vessels 

are intentionally targeting and making 

close approaches to cetacean species so 

the tourists onboard can have a better 

view of the animals. Some of these 

whale/dolphin watching examples cited 

by Dr. Bain occurred in the coastal 

waters of the Northwest Pacific between 

April and October and for extended 

periods of time (‘‘[r]ecreational and 

scientific whale watchers were active by 

around 6 a.m., and some commercial 

whale watching continued until around 

sunset.’’) Thus multiple vessels have 

been documented to be in relatively 

close proximity to whales for about 12 

hours a day, six months a year, not 

counting some ‘‘out of season’’ whale 

watching activities and after dark 

commercial filming efforts. In addition, 

noise exposures to whales and dolphins 

from whale watching vessels are 

probably significant due to the vessels’

proximity to the animals. To the 

contrary, the proposed 2008 open water 

shallow hazard and site clearance 

surveys, along with other potential four 

seismic activities and existing industrial 

operations in the Chukchi and Beaufort 

Seas, do not intentionally approaching 

marine mammals in the project areas. 

The two areas situate in a much larger 

Arctic Ocean Basin which is far away 

from most human impacts. Therefore, 

the adverse effects from each activity are 

remote and spread farther apart, as 

analyzed in the MMS 2006 PEA and 

draft EIS. The proposed seismic 

activities would only be conducted 

between July and November for a 

maximum of 100 days, weather 

permitting. In addition, although studies 

and monitoring reports from previous 

seismic surveys have detected Level B 

harassment of marine mammals, such as 

avoidance of certain areas by bowhead 

and beluga whales during the airgun 

firing, no evidence suggests that such 

behavioral modification is biologically 

significant or non-negligible (Malme et 

al., 1986; 1988; Richardson et al., 1987; 

1999; Miller et al., 1999; 2005), as 

compared to those exposed by chronic 

whale watching vessels cited by Dr. 

Bain. Therefore, NMFS believes that 

potential impacts to marine mammals in 

the Arctic by shallow hazard and site 

clearance surveys would be limited to 

Level B harassment only, and due to the 

limited scale and remoteness of the 

projects in relation to a large area, such 

adverse effects would not accumulate to 

the point where biologically significant 

effects would realized. 

Comment 24: Dr. Bain states that 

changes in behavior resulting from noise 

exposure could lead to indirect injury in 

marine mammals in the wild. He 

presented several examples to suggest 

that marine mammals repeatedly 

exposed to Level B behavioral 

harassment could result in Level A 

takes: (1) Gas bubble lesions in beaked 

whales due to acoustically mediated 

bubble growth or rapid ascent by 

animals after deep diving; (2) a minke 

whale and harbor porpoises were 

observed traveling at high speed during 

exposure to mid-frequency sonar in 

Haro Strait in 2003, and that exhaustion 

from rapid flight could lead to heart or 

other muscle damage, which could 

cause mortality; (3) citing MMS’ (2004) 

Environmental Assessment on Proposed 

Oil and Gas Lease Sale 195 in the 

Beaufort Sea Planning Area (OCS EIS/ 

EA MMS 2004–028) that feeding 

requires a prey density of 800 mg/m3 

and his own observation, Dr. Bain is 

concerned displacement from high 

productive feeding areas would 

negatively affect individual whales, and 

that small cetaceans such as harbor 

porpoises would face a risk of death if 

they are unable to feed for periods as 

short as 48 - 72 hours; (4) individual 

killer whales have been observed 

splitting their pod when frightened by 

sonar, and that other killer whales’

separation from their social units has 

resulted in death; (5) TTS may lead to 

harm as a minke whale was nearly 

struck by a research vessel in the area 

where one had been observed fleeing 

mid-frequency sonar; and (6) impaired 

auditory ability may increase predation 

as white-sided dolphins were attacked 

by killer whales due to the noise of the 

research vessel caused the approach of 

killer whales undetected by the 

dolphins. 

Response: NMFS agrees that it is 

possible that changes in behavior or 

auditory masking resulting from noise 

exposure could lead to injury in marine 

mammals under certain circumstances 

in the world, such as those examples/ 

hypotheses raised by Dr. Bain. However, 

it is not likely that received sound 

pressure levels (SPLs) from the shallow 

hazard and site clearance surveys would 

drastically cause changes in behavior or 

auditory masking in marine mammals in 

the vicinity of the proposed action area. 

First, marine mammals in the 

aforementioned examples and 

hypotheses were exposed to high levels 

of non-pulse intermittent sounds such 

as the military sonar, which has been 

shown to cause flight activities (e.g., 

Haro Strait killer whales); and 

continuous sounds such as the vessel, 

which could cause auditory masking 

when animals are closer to the source. 

The sources produced by the acoustic 

equipment and airguns for the proposed 

shallow hazard and site clearance 

surveys are impulse sounds used in 

seismic profiling, bathymetry, and 

seafloor imaging. Unlike military sonar, 

seismic pulses have an extremely short 

duration (tens to hundreds 

milliseconds), and relatively long 

intervals (several seconds) between 

pulses. Therefore, the sound energy 

levels from these acoustic equipment 

and small airguns are far lower in a 

given time period. Second, the intervals 

between each short pulse would allow 

the animals to detect any biologically 

significant signals, and thus avoid or 

prevent auditory masking. In addition, 

NMFS requires mitigation measures to 

ramp up acoustic sources at a rate of no 

more than 6 dB every 5 minutes. This 

ramp up would prevent marine 

mammals from being exposed to high 

level noises without warning, thereby 

eliminating the possibility that animals 

would dramatically alter their behavior 

(i.e. from a ‘‘startle’’ reaction). NMFS 

also believes that long-term 

displacement of marine mammals from 

a feeding area is not likely because the 

seismic vessel is constantly moving, and 

the maximum 160–dB ensonified radius 

is about 4 km, which would make an 

ensonified zone of approximately 50 

km2 at any given moment, which is a 

small area compared to the Chukchi 


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Sea. In reality, NMFS expects the 160–

dB ensonified zone to be smaller due to 

absorption and attenuation of acoustic 

energy in the water column. 

Comment 25: Citing that the 

difference between takes by subsistence 

harvest and potential biological removal 

(PBR) of the Western Arctic stock 

bowhead whales is about 28 individuals 

whales, or less than 0.3 percent of the 

population, Dr. Bain is concerned that 

the cumulative effects of multiple 

seismic surveys would not need to be 

very large to push takes over PBR for 

bowheads. 

Response: NMFS does not agree with 

Dr. Bain’s assessment. None of the five 

proposed 2008 open water Arctic 

seismic surveys and shallow hazard and 

site clearance surveys is expected to 

result in any Level A harassment (i.e., 

injury) or mortality. As analyzed in the 

NMFS 2008 supplemental 

environmental assessment (SEA) for the 

issuance of five Arctic seismic surveys 

and shallow hazard and site clearance 

surveys, all incidental takes of marine 

mammals are expected to be Level B 

behavioral harassment (NMFS, 2008). 

Therefore, no PBR would be applied for 

the proposed AES seismic activities and 

other 2008 seismic activities in the 

Chukchi and Beaufort Seas. 

Comment 26: Citing MMS 2006 

Programmatic Environmental 

Assessment (MMS 2006 PEA) and the 

MMS 2007 draft Programmatic 

Environmental Impact Statement (DEIS) 

for seismic surveys in the Arctic Ocean, 

Dr. Bain states that he supports the 

mitigation measures established in these 

documents that no more than 12 cow/ 

calf pairs and aggregation of feeding or 

resting bowheads are within the area to 

be ensonified by 120 dB and 160 dB, 

respectively. The CBD also states that 

the monitoring of a 120 dB safety zone 

for bowhead cow/calf pairs and 

monitoring of a 160 dB safety zone for 

large groups of bowhead or gray whales 

(≤12 individuals) were required by 

NMFS in 2006 and were practicable. 

The CBD states that the failure to 

require such conditions, or at least 

analyze it, violates the MMPA. Dr. Bain 

presumes that these numbers (using 120 

and 160 dBs) reflect the difference 

between takes allocated to hunters and 

the PBR for the stock. Dr. Bain further 

suggests that this number be applied to 

all seismic activities combined, not 

individual seismic surveys, thus, if four 

seismic surveys occur concurrently, no 

single survey should be allowed to 

affect the migration of more than 3 cow/ 

calf pairs or 3 aggregation of feeding or 

resting bowhead whales. 

Response: First, the additional 

mitigation measures in the MMS 2006 

PEA and the MMS 2007 draft PEIS, as 

well as in the 2007 NMFS SEA for the 

issuance of an IHA to Shell Offshore 

Inc. for its open water seismic surveys 

conducted in the Chukchi and Beaufort 

Seas in 2007, establish safety (shutdown) zones of 120 dB re 1 microPa for 

an aggregation of four or more bowhead 

cow/calf pairs and 160 dB re 1 microPa 

for an aggregation of 12 or more 

bowhead or gray whales, not 12 cow/ 

calf pairs as Dr. Bain states in his 

comment. The rationale for this cautious 

and conservative approach when 

addressing the 120–dB and 160–dB 

safety zones is clearly stated in the 

MMS 2006 PEA. These additional 

mitigation and monitoring measures 

were identified through the analyses to 

further reduce the potential for adverse 

environmental impacts and, depending 

on the scope of seismic-survey 

activities, could be adopted as 

requirements for seismic-survey-related 

marine mammal incidental take 

authorizations. With respect to CBD’s 

concern that these measures were 

‘‘practicable’’ in 2006, NMFS has reevaluated the practicability of requiring 

aerial monitoring to the 120–dB isopleth 

in the Chukchi. NMFS has determined 

that it is not practicable to conduct 

aerial monitoring to the 120–dB isopleth 

because aerial surveys have currently 

been determined to be impracticable 

due to lack of adequate landing 

facilities, the prevalence of fog and 

other inclement weather in that area, 

thereby resulting in safety concerns. 

Additionally, these conditions are 

analyzed in NMFS’ 2008 SEA. These 

numbers have nothing to do with the 

PBR of the bowhead whale stock, as 

assumed by Dr. Bain. As discussed in 

FR Notice of Proposed IHA, the 

proposed 2008 Arctic seismic surveys 

and shallow hazard and site clearance 

surveys are not expected to result in 

Level A harassment (injury) or 

mortality. 

In addition, Dr. Bain’s suggestion of 

‘‘breaking up’’ the aggregated takes of 

bowheads into small subsets that can be 

‘‘allocated’’ to each seismic survey is 

based on his assumption that these 

numbers were set by PBR. NMFS does 

not support this suggestion because it 

has no scientific support other than 

assumption. The safety zones of 120–dB 

for four or more cow/calf pairs and 160–

dB for an aggregation of 12 bowhead or 

gray whales are based on the biology of 

the bowhead and gray whales as 

analyzed in the MMS 2007 draft PEIS. 

The threshold of four or more fallmigrating bowhead whale cow/calf pairs 

was set based on the following: (a) cow/ 

calf pairs are identified as the most 

vulnerable portion of the population 

and disruption of their biologically 

significant behaviors or their avoidance 

of important habitats is more likely to 

lead to population level impacts; (b) 

mitigation measures for this portion of 

the population should be cautiously 

developed to ensure that takings are at 

the lowest practicable level and that 

significance is avoided; (c) bowhead 

whale cow/calf pairs migrate in 

groupings or pulses and the observed 

presence of cow/calf pairs by surveys 

generally indicates that additional cow/ 

calf pairs are present but unseen; (d) 

using professional judgment, NMFS and 

MMS have determined that the presence 

of four or more cow/calf pairs (as 

observed during surveys) indicates that 

enough cow/calf pairs are likely present 

(but some unseen) in the area in 

numbers equal to or greater than 12 

animals; and (e) the potential for 

significance to occur therefore increases 

when four or more bowhead whale cow/ 

calf pairs are observed (MMS, 2007). 

The threshold of an aggregation of 12 

or more bowhead or gray whales is 

based on the following premises: (a) 

whales aggregate in order to 

communicate and perform ‘‘biologically 

significant’’ behaviors (as defined by 

NRC, 2005), such as feeding, resting, 

socializing, mating, and calving; (b) 

aggregations of animals can also 

indicate an area of preferred habitat and 

locations where biologically significant 

behaviors are likely occurring; (c) 

disruptions of these biologically 

significant behaviors and important 

habitats have a greater potential to lead 

to population level effects (i.e., result in 

limiting reproductive potential or 

recruiting success, impeding important 

mother/calf bonding); (d) protective 

measures should be designed to reduce 

the potential for disruption of 

biologically significant behaviors or 

help ensure whales do not avoid 

important key habitat areas (and thus 

potentially negate a negligible impact 

finding under the MMPA); and (e) 

standard scientific acceptance that the 

presence of observed whales (i.e., at the 

surface) during monitoring surveys 

indicates that additional whales are also 

present in the area but non-detectable 

(i.e., below the surface) (MMS, 2007). 

Comment 27: Dr. Bain is concerned 

that the North Pacific right whale is 

excluded from consideration for the 

proposed seismic activity in the 

Chukchi Sea. Citing Nowacek et al. 

(2004), Dr. Bain further states that the 

[North] Atlantic right whale is less 

easily disturbed [than the North Pacific 

right whale], is known to be affected by 

received levels below 135 dB. 

Response: NMFS does not agree with 

Dr. Bain and believes his concern is 


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unwarranted. The North Pacific right 

whales are found in the northern part of 

the Pacific, such as the Bering Sea and 

the Gulf of Alaska (Moore et al.; 2000; 

2002; LeDuc et al., 2001; Waite et al., 

2003; Mellinger et al., 2004; Wade et al., 

2006). They do not enter Chukchi Sea in 

the Arctic Ocean, where the proposed 

seismic activity is planned. In addition, 

NMFS is not able to verify Dr. Bain’s 

statement that the North Atlantic right 

whale is less easily disturbed than the 

North Pacific right whale, since he did 

not provide a supporting reference. 

Comment 28: Dr. Bain is concerned 

that many species are sedentary, 

territorial, or have strong tendencies 

toward site fidelity, and that these 

species are unlikely to move away from 

a noise source. In addition, Dr. Bain is 

concerned that many predators are used 

to experiencing pain during feeding, 

and hence tolerate pain [from being 

exposed to loud noise] rather than 

abandoning their prey (e.g., many 

mammals involved in fisheryinteractions). 

Response: First, the monitoring and 

mitigation measures described in this 

document and implemented for the 

proposed open water seismic activity 

would prevent any marine mammals 

from being exposed to received levels 

that could cause onset of injury (180 dB 

re 1 microPa for cetaceans and 190 dB 

re 1 microPa for pinnipeds). Second, 

there are no sedentary marine mammals. 

The proposed seismic activity is 

fundamentally different from 

commercial fisheries activity in which 

the appearance of a seismic vessel does 

not reinforce the marine mammal with 

food or prey, therefore, it is unlikely 

that predatory marine mammals would 

approach the seismic vessel or acoustic 

source while searching for prey. Even if 

a marine mammal happens to be in 

close vicinity of the vessel or source, 

monitoring and mitigation measures 

will required the crew to power-down 

or shut-down the acoustic sources so 

that the animal will not be affected by 

Level A harassment. 

Comment 29: Dr. Bain comments on 

NMFS’ and AES’ method of calculating 

estimated take numbers of marine 

mammals by multiplying the ‘‘strip 

width’’ by the length of the survey, and 

states that ‘‘[f]or bowheads, some 

studies showed behavioral changes in 

nearly all whales out to 20 km, and in 

many cases to at least 30 km.’’ Dr. Bain 

further states that ‘‘belugas and 

bowheads are known to be affected at 10 

- 20 km or more.’’ At such, Dr. Bain 

observes that the ramp-up procedures 

would not be effective as it would take 

about 5 hours for the bowheads [near 

the source] to move to a distance of 30 

km, and marine mammal monitoring 

over a distance of 20 km is very 

difficult. 

Response: First, the estimated takes of 

marine mammals were calculated by 

multiplying the expected average 

animal densities by the area of 

ensonification for the 160 dB re 1 

microPa (rms) and 170 dB re 1 microPa 

(rms) isopleths, for cetaceans and 

pinnipeds, respectively. The area of 

ensonification was determined by 

multiplying the total proposed trackline 

(760 km or 410 nm) times 2 (both sides 

of the trackline) times the distance to 

the 160–dB or 170–dB isopleths (not 

‘‘strip width,’’ a term usually used in 

the population survey, as stated by Dr. 

Bain in his comment). 

NMFS cannot verify Dr. Bain’s 

statement that ‘‘some studies showed 

behavioral changes in nearly all whales 

out to 20 km, and in many cases to at 

least 30 km’’ and that ‘‘belugas and 

bowheads are known to be affected at 10 

- 20 km or more,’’ since he did not 

provide any supporting references. 

Neither did Dr. Bain provide the source 

levels and displacement volumes of the 

airgun arrays in which these studies 

were conducted, nor the severity of the 

behavioral changes by the whales. 

Nevertheless, it is important to 

understand that the distance from the 

seismic sources where bowheads or 

other marine mammals can be affected 

depends on the source levels of the 

airgun arrays, which is also related to 

the size, or displacement volume of the 

airgun array. It is possible that if a large 

airgun array was used in the seismic 

survey, the received level at 20 to 30 km 

distance could still be high enough to 

cause behavioral changes (or behavioral 

harassment) by the bowhead whales. 

However, for the proposed shallow 

hazard and site clearance surveys, the 

source levels of the airgun array and 

other acoustic equipment are relatively 

low (about 214 dB re 1 ?Pa for the 

GeoChirp II, the loudest acoustic 

equipment planed to be used), and that 

the modeled distance to the 160–dB 

isopleths is estimated at 4,000 m (13,123 

ft). Please see Number of Marine 

Mammals Estimated to be Taken section 

below for a detailed description of the 

calculation. 

As far as mitigation measures are 

concerned, NMFS expects that the 

distance from the source to the safety 

zone for cetaceans is approximately 185 

m (607 ft), where the received level is 

at 180 dB re 1 microPa, which is a small 

enough area to be effectively monitored 

by NMFS-approved marine mammal 

monitors (MMOs). Furthermore, no 

seismic surveys, ramp up included, will 

commence if there is a marine mammal 

within the safety zone. 

Comment 30: Citing the 90–day 

monitoring report for the SOI 2007 open 

water seismic activities, the NVPH is 

concerned that the shallow hazard and 

site clearance surveys could exclude 

nearly all migrating bowhead whales 

from waters within 20 km or more of the 

survey vessel, since the 120–dB isopleth 

extends over 25 km. The NVPH states 

that similar displacement of beluga 

whales at large distance is also possible. 

Response: NMFS does not agree with 

NVPH’s assessment regarding the 

potential acoustic impacts to bowhead 

and beluga whales. First, as discussed in 

Response to Comment 5, although it is 

possible that marine mammals could 

react to any sound levels detectable 

above the ambient noise level within the 

animals’ respective frequency response 

range, this does not mean that such 

animals are taken by Level B harassment 

(see definition of Level B harassment 

above). The degree of reaction which 

constitutes a ‘‘take,’’ i.e., a reaction 

deemed to be biologically significant 

that could potentially disrupt the 

migration, breathing, nursing, breeding, 

feeding, or sheltering, etc. of a marine 

mammal is complex and context 

specific, and it depends on several 

variables in addition to the received 

level of the sound by the animals. In 

many cases, bowhead or beluga whales 

that are exposed to 120 dB re 1 ?Pa or 

higher do not exhibit noticeable 

behavioral changes (e.g., Malme et al., 

1984; Richardson et al., 1986; 1999; 

Miller et al., 2005). Second, only 

migrating bowhead whales showed 

behavioral disturbance in a biologically 

significant manner from exposure to 

seismic airgun at received level around 

120 dB re 1 microPa (Richardson et al., 

1999). The proposed shallow hazard 

and site clearance surveys would be 

concluded by September 25, before the 

fall migrating bowhead whales arrive 

the Chukchi Sea. Therefore, NMFS does 

not believe that bowhead and beluga 

whales would be displaced when 

exposed to received level from seismic 

airguns at 120 dB re 1 microPa. 

Comment 31: The NSB states that if 

AES conducts surveys into October or 

November, it would also encounter 

belugas from the Beaufort Sea stock as 

the animals are migrating toward 

wintering areas. There are no density 

estimates for belugas (or other marine 

mammals) during the darker months of 

October and November. The NSB 

further suggests allowing AES to 

conduct surveys until late October. 

Response: AES will complete its 

shallow hazard and site clearance 


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surveys by September 25, as stated in 

this document. 

Subsistence Uses 

Comment 32: NVPH states that NMFS 

did not present a preliminary 

determination that AES’ shallow hazard 

surveys would not have an unmitigable 

adverse impact on the availability of 

affected marine mammal populations to 

subsistence hunters in coastal villages of 

the Chukchi Sea in the FR Notice of 

Proposed IHA. NVPH further states that 

NMFS failed its basic duty under the 

MMPA and its regulations to make a 

proposed determination available to the 

public to scrutinize and comment on. 

NVPH requests that NMFS issue another 

Federal Register notice to set forth the 

full scope of its required proposed 

findings and afford an opportunity for 

the public to comment on the adequacy 

of NMFS’ assessment of the adverse 

effect of AES’ shallow hazard surveys 

on the availability of seals and whales 

for subsistence uses. 

Response: NMFS does not agree with 

NVPH’s statement. A detailed analysis 

on the subsistence harvest of marine 

mammals by Alaskan natives in and 

around the Chukchi Sea was provided 

in the FR Notice of Proposed IHA. 

NMFS also understands that as part of 

the application for the IHA, AES has 

developed a Plan of Cooperation (POC) 

with the Native communities. The POC 

specifies measures AES would take to 

minimize adverse effects on marine 

mammals where proposed activities 

may affect the availability of a species 

or stock of marine mammals for Arctic 

subsistence uses or near a traditional 

subsistence hunting area. In addition, 

AES has conducted POC meetings for its 

seismic operations in the Chukchi Sea 

in Barrow, Wainwright, Point Lay, and 

Point Hope, and with the Alaska Eskimo 

Whaling Commission (AEWC). AES also 

indicated to NMFS that a Conflict 

Avoidance Agreement would be signed 

with the AEWC prior to its proposed 

seismic activities in the Chukchi Sea. 

Furthermore, NMFS has preliminarily 

determined that the impact of 

conducting the shallow hazard and site 

clearance surveys in the Chukchi Sea 

may result, at worst, in a temporary 

modification in behavior of small 

numbers of marine mammals. Therefore, 

although NMFS did not specifically 

include its preliminary determination 

that the proposed shallow hazard and 

site clearance surveys by AES would 

have an unmitigable adverse impact on 

the availability of affected marine 

mammal populations to subsistence 

hunters in coastal villages of the 

Chukchi Sea, the analysis provided in 

the FR Notice of Proposed IHA supports 

such a determination. 

NMFS also does not believe that 

NVPH’s request of issuing another 

Federal Register notice is warranted. 

The FR Notice of Proposed IHA 

provided a 30–day comment period and 

plenty opportunity for the public to 

comment on AES’ proposed shallow 

hazard and site clearance surveys in the 

Chukchi Sea and NMFS preliminary 

determination to issue an IHA to AES 

for the said proposed activity. 

Comment 33: NVPH questions 

whether NMFS’s assessment of the 

impacts to subsistence was based on the 

‘‘best available scientific evidence’’ and 

whether NMFS has made any effort to 

discern whether seismic surveying 

activities in the Chukchi Sea in 2006 or 

2007 had an adverse impact on the 

availability of any or all seal and whale 

species for subsistence uses. 

Response: In making its final 

determination of whether the proposed 

shallow hazard and site clearance 

surveys would have unmitigable 

impacts to subsistence use of marine 

mammal populations in the affected 

area, NMFS relies upon the best 

available scientific information to make 

its MMPA determinations. In this case, 

NMFS has reviewed the 90–day marine 

mammal monitoring and mitigation 

reports for the 2006 and 2007 open 

water seismic survey and shallow 

hazard and site clearance survey 

conducted by Shell Offshore, Inc. (SOI), 

ConocoPhillips Alaska, Inc., and 

GXTechnology in 2006 and by SOI in 

2007 (Ireland et al., 2007a; 2007b; 

Patterson et al., 2007; Funk et al., 2007; 

2008). These monitoring reports point 

out that the potential impacts to marine 

mammals as a result from the 2006 and 

2007 Arctic seismic activities were 

negligible. In addition, actual take of 

marine mammals by Level B harassment 

was generally lower than expected due 

to the implementation of monitoring 

and mitigation measures. No marine 

mammals were observed to have 

suffered injuries or death as a result of 

the seismic surveys and none were 

suspected. In addition, information 

presented by the oil and gas industry 

and independent researchers who 

conducted marine mammal monitoring 

at the 2007 and 2008 Arctic Open Water 

Scientific Meetings was also taken into 

consideration. 

Comment 34: NVPH states that NMFS 

failed to provide the substantive 

analysis to support any meaningful 

finding regarding the possible effect of 

AES’ activities on the availability of 

beluga whales, seals, and bowhead 

whales for subsistence uses by coastal 

communities along the Chukchi Sea or 

the effectiveness of mitigation measures 

to eliminate such impacts. The NVPH 

further states that the Chukchi Sea and 

the adjoining coast existed as a 

relatively pristine ocean environment, 

free of industrial operations that would 

disturb bowhead and beluga whales and 

seals with their availability for 

subsistence uses. Therefore, NVPH 

states that even a slight interference 

with the availability of these species to 

communities on the Chukchi Sea would 

constitute an unmitigable adverse 

impact to their overall availability for 

subsistence uses. 

Response: NMFS does not agree with 

NVPH’s statement. The FR Notice of 

Proposed IHA provided a detailed 

analysis regarding the possible effect of 

seismic surveys and underwater sound 

on marine mammals in the planned 

action area. This analysis prompted 

NMFS to make a preliminarily 

determination that the impact of 

conducting the shallow hazard and site 

clearance surveys in Chukchi Sea may 

result, at worst, in a temporary 

modification in behavior of small 

numbers of marine mammals. 

NMFS agrees that the Chukchi Sea 

and the adjoining coast existed as a 

relatively pristine ocean environment 

that was free of industrial operations, 

however, NMFS does not agree with 

NVPH’s assessment that within this 

environment, a slight interference with 

the availability of these species to 

communities on the Chukchi Sea would 

constitute an unmitigable adverse 

impact for subsistence uses of these 

species. The proposed shallow hazard 

and site clearance surveys proposed by 

AES would only occur in a small area 

within the much larger Chukchi Sea 

basin for a brief period of 60 days. 

Furthermore, mitigation and monitoring 

measures required for the seismic 

activities would reduce all potential 

impacts to negligible levels to marine 

mammals and their habitat. In addition, 

AES will be working with Native 

communities in the affected region to 

ensure that seismic operations do not 

result in an unmitigable adverse impact 

on the availability of marine mammals 

to subsistence uses by the Native 

communities in and around the Chukchi 

Sea. 

Comment 35: The CBD and NSB state 

that the MMPA requires that any 

incidental take authorized will not have 

‘‘an unmitigable adverse impact on the 

availability of such species or stock for 

taking for subsistence uses’’ by Alaska 

Natives. The NSB is concerned about 

impacts to subsistence hunts of marine 

mammals early in the summer. The NSB 

points out that the beluga hunt at Point 

Lay typically occurs between June 20 


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and July 10. Additionally, CBD notes 

they are aware that the NVPH, a 

federally recognized tribal government, 

has submitted comments opposing the 

proposed take authorizations due to 

impacts on subsistence, and along with 

many community members has 

commented on myriad other related 

agency documents that have direct 

bearing on these take authorization such 

as the Chukchi Sea Sale 193, MMS FiveYear Plan, and the DPEIS. Similarly, the 

NSB, the AEWC, and REDOIL have all 

filed challenges in federal court and/or 

the IBLA challenging offshore activities 

due to impacts on the subsistence hunt 

of bowheads and other species. In light 

of the positions of these communities 

and organizations, the CBD does not 

think that NMFS can lawfully make the 

findings required under the MMPA for 

approving AES’ proposed IHA. 

Response: NMFS does not agree with 

CBD and NSB’s statement. The AES 

shallow hazard and site clearance 

survey will not start after July 15, after 

the spring subsistence hunt of marine 

mammals. NMFS believes that the 

concerns expressed by subsistence 

hunters and their representatives have 

been addressed by NMFS in this FR 

Notice and other supporting documents 

prepared or relied upon by NMFS in 

issuing the AES IHA. 

Comment 36: The AEWC states that 

under current Federal rules, protections 

for the subsistence uses are little more 

than an after-thought in Federal 

regulation, since they do not become 

effectively relevant until after 

exploration or development permits are 

issued. When these protections do come 

into play, at the point of IHA or LOA 

review, companies already have been 

allowed to address, substantively, 

mitigation or risk-reduction measures 

for likely impacts to the resources and 

lives of Alaskan natives. In addition, the 

AEWC states that Federal law do not 

require consultation with the native 

coastal communities until after offshore 

exploration and development plans 

have been finalized, permitted, and 

authorized. Then at the point at which 

these requirements do come into play, 

Federal agencies, including NMFS, are 

reluctant to give teeth to the very 

minimal protections articulated in the 

MMPA. 

Response: NMFS does not agree with 

the AEWC’s statement. Under sections 

101(a)(5)(A) and (D) of the MMPA (16 

U.S.C. 1361 et seq.), an IHA or LOA 

would be granted to U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if NMFS finds that 

the taking of marine mammals will have 

a negligible impact on the species or 

stock(s) and will not have an 

unmitigable adverse impact on the 

availability of the species or stock(s) for 

certain subsistence uses, and if the 

permissible methods of taking and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

such takings are set forth. In other 

words, no marine mammal take 

authorizations may be issued if NMFS 

has reason to believe that the proposed 

exploration or development activities 

would not have an unmitigable adverse 

impact on the availability of marine 

mammal species or stock(s) for Alaskan 

native subsistence uses. Although 

Federal laws do not require consultation 

with the native coastal communities 

until after offshore exploration and 

development plans have been finalized, 

permitted, and authorized, prepermitting consultations between oil 

and gas industries and the Alaskan 

coastal native communities are 

considered by NMFS when the agency 

makes a determination whether such 

activities would have an unmitigable 

adverse impact on the availability of 

marine mammal species or stock(s) for 

subsistence uses. For the proposed 

shallow hazard and site clearance 

survey, AES has conducted POC 

meetings for its seismic operations in 

the Chukchi Sea in Barrow, Wainwright, 

Point Lay, and Point Hope, and with the 

Alaska Eskimo Whaling Commission. 

AES also indicated to NMFS that a CAA 

would be signed with the AEWC prior 

to its proposed seismic activities in the 

Chukchi Sea. 

Comment 37: The AEWC notes that 

NMFS and the AEWC share 

management responsibility for bowhead 

whales and for the bowhead whale 

subsistence hunt through the NOAAAEWC Cooperative Agreement. The 

AEWC asserts that Alaska Native 

citizens who are part of the Agreement 

should be provided an opportunity to 

consult directly on all proposed actions 

affecting bowhead whales, rather than 

mere notice that NMFS has made a 

decision concerning the issuance or 

proposed issuance of authorizations to 

take marine mammals. 

Response: There are numerous 

opportunities, including the 

Cooperative Agreement, in which 

Alaska Native citizens can play a role in 

matters affecting bowhead whales. 

These include, but are not limited to, 

the MMPA’s requirement that proposed 

notices of IHAs be published in the 

Federal Register for a 30–day comment 

period; the requirement in NMFS’

regulations that oil and gas companies 

seeking take authorizations consult 

directly with Alaska Native 

communities to address subsistence use 

issues (i.e., development and 

submission of a Plan of Cooperation); 

the sharing of information between 

applicants and Alaska Native citizens; 

and annual stakeholder meetings in 

Alaska to discuss oil and gas 

development (i.e., open-water 

meetings). 

Comment 38: NVPH states that NMFS 

failed to discuss a mandatory limit on 

the number of concurrent seismic and/ 

or shallow hazard surveys in the 

Chukchi Sea. NVPH requests NMFS to 

prohibit the simultaneous operation of 

multiple vessels within the Chukchi Sea 

during the fall bowhead migration. 

NVPH further requests that NMFS 

require that no two vessels operate 

within 100 km (62 mi) of one another, 

because given the large size of the 120 

dB zone, closer simultaneous operation 

would pose a real risk of disrupting the 

bowhead whale migration. 

Response: NMFS does not agree with 

NVPH’s statement and request. First, the 

MMS 2006 PEA, which NMFS 

incorporated into its 2008 SEA, 

provided a thorough analysis on the 

maximum number of eight seismic 

activities that could occur in the 

Chukchi and Beaufort Seas. The 

analysis lead NMFS and MMS to 

conclude that up to a maximum of eight 

seismic surveys would not result in 

significant impacts to the quality of the 

human environment. In addition, 

NMFS’ 2008 SEA, which analyzed the 

effect of multiple seismic surveys also 

lead NMFS to conclude that the AES 

survey would not result in a significant 

impacts. 

NVPH has not provided NMFS with 

any data to support its argument that 

multiple seismic vessels should not be 

permitted in the Chukchi Sea or that no 

more than 2 vessels be allowed to 

operate within 100 km (62 mi) of one 

another. As mentioned above, NMFS 

and MMS analyzed the environmental 

effects of conducting multiple seismic 

surveys in both the Beaufort and 

Chukchi Seas. NMFS and MMS 

evaluated each seismic permit under the 

applicable NEPA document (i.e., the 

2006 PEA, 2007 SEA and 2008 SEA) to 

determine whether the action would 

result in significant effects. In AES’

case, NMFS has determined that the 

shallow hazard and site clearance 

surveys would not result in significant 

effects to the quality of the human 

environment. The 100 km (62 mi) 

separating distance for the 120 dB zone 

between vessels is also not scientifically 

supportable. The distance where the 

received level reaches 120 dB re 1 

microPa is dependent upon the source 

level and oceanographic conditions. For 

the same oceanographic condition, the 


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higher the source level, the longer the 

distance where the received level would 

reach 120 dB. Therefore, NMFS 

considers that the 100 km (62 mi) 

separation distance is arbitrary and 

baseless. 

Mitigation and Monitoring 

Comment 39: Dr. Bain questions about 

the effectiveness of marine mammal 

monitoring with only two MMOs on 

duty full time. Citing Forney and 

Barlow (1998) and Dahlheim and 

Towell (1994), Dr. Bain states that a 

common work schedule where 

consistent effort is required would be 40 

minutes on, 40 minutes off, 40 minutes 

on, two hours off, three times a day. Dr. 

Bain suggests that an observation team 

of 12 MMOs would be required to cover 

a 24–hour period. Dr. Bain further states 

that the probability of detecting marine 

mammals would drop with increased 

distance from the vessel. 

Response: NMFS does not agree with 

Dr. Bain’s assessment and suggestions 

regarding MMOs and marine mammal 

monitoring. NMFS reviewed the 

references (Dahlheim and Towell, 1994; 

Forney and Barlow, 1998) provided by 

Dr. Bain, and did not find any type of 

work schedules described. Unlike 

observers during marine mammal 

population surveys who are required to 

search the entire field for any marine 

mammals, the primary responsibility for 

MMOs is to monitor the safety zones, 

which in this case are 185 m (607 ft) 

radius for the 180–dB isopleths and 40 

m (131 m) radius for the 190–dB 

isopleths, and to ensure that proper 

mitigation measures (power-down or 

shut-down acoustic sources) are 

implemented if a marine mammal enters 

or is sighted within these safety zones. 

NMFS agrees that the detection 

probability of a marine mammal drops 

with increased distance from the ship. 

However, the occurrence of marine 

mammals outside the safety zones is not 

a big concern for marine mammal 

monitoring during the proposed seismic 

activity because it is presumed these 

animals would not be within a zone that 

could result in injury. In addition, all 

MMOs hired for the proposed seismic 

surveys must be NMFS-approved 

observers who are qualified to perform 

the required monitoring tasks. 

Comment 40: Dr. Bain is concerned 

that many species that are capable of 

diving for more than 30 minutes could 

be missed during the monitoring. 

Response: NMFS agrees with Dr. Bain 

that for deep diving marine mammals it 

pose a challenge for monitoring. 

However, within the proposed seismic 

survey area, there are no marine 

mammals that normally dive for more 

than 30 minutes. However, in the event 

that a marine would be missed during 

the initial pre-survey monitoring, rampup procedures will be followed when an 

acoustic source begin to operate, so the 

undetected animal(s) would have an 

opportunity to detect the sound as it 

increases gradually and move away 

from the source. Please refer to 

Monitoring and Mitigation Measures 

section below for a detailed description. 

Comment 41: NVPH is concerned that 

NMFS did not discuss the option of 

requiring AES to power down its 

airguns and other sound sources when 

aggregations of feeding, resting or 

socializing bowhead whales or gray 

whales are located within the 160 dB 

isopleths, and that NMFS fails to 

discuss the option of requiring AES to 

monitor the 120 dB isopleths for 

bowhead cow-calf pairs and to require 

AES to power down its sound sources 

when four or more cow-calf pairs are 

observed to be exposed to noises at or 

above 120 dB. NVPH requests NMFS to 

have both of these mitigation measures. 

Citing Richardson’s observation, NVPH 

further states that nearly all bowhead 

whales avoid seismic airguns at 

received levels as low as 107 dB, and 

requests NMFS to impose a safety zone 

for bowhead cow-calf pairs exposed to 

107 dB or more. In addition, as NVPH 

observes that it would be impossible to 

monitor such a large area be ship-based 

observation, NVPH requests that such 

monitoring be conducted by aerial 

observation together with ship-based 

observers, for both of these safety zones. 

Response: In its final determination 

and the IHA issued to AES, NMFS 

requires AES to establish a 160–dB 

safety zone whenever an aggregation of 

12 or more bowhead whales or gray 

whales are observed. If an aggregation of 

12 or more bowhead or gray whales is 

observed within the 160–dB safety zone 

around the seismic activity, the seismic 

operation will not commence, or will 

shut down, until two consecutive vessel 

surveys indicate they are no longer 

present within the 160–dB safety zone 

of seismic-surveying operations. 

However, NMFS will not impose a 

requirement to conduct aerial 

monitoring of the 120–dB safety zone 

for the occurrence of four ore more cowcalf pairs in the Chukchi Sea because it 

is not practicable. First, the 120–dB 

safety zone would require a safety zone 

of 20 km (12 mi) in radius, which is 

beyond the range for visual monitoring. 

The 120–dB ensonified zone is also too 

large to be monitored by chase boats. 

Second, aerial surveys are not required 

in the Chukchi Sea because they have 

currently been determined to be 

impracticable due to lack of adequate 

landing facilities, the prevalence of fog 

and other inclement weather in that 

area, thereby resulting in safety 

concerns. Third, the proposed AES 

shallow hazard and site clearance 

would be completed by September 25, 

before the large number of bowhead 

whales migrate pass the Chukchi Sea. 

As far as the NVPH’s statement that 

nearly all bowhead whales avoid 

seismic airguns at received levels as low 

as 107 dB, NMFS is not able verify 

NVPH’s assessment because NVPH did 

not provide a reference to support its 

statement. A comprehensive review by 

Southall et al. (2007) on the potential 

acoustic impacts to low-frequency 

cetaceans (bowhead and other large 

whales) does not list any reference that 

shows these animals react to received 

levels under 110 dB re 1 microPa, 

regardless of severity. Therefore, NMFS 

does not believe bowhead whales 

exposed to 107 dB would be taken by 

Level B behavioral harassment, and that 

imposing a safety zone of 107 dB is not 

appropriate. 

Comment 42: NVPH states that NMFS 

failed to provide for peer review of AES’

proposed monitoring plans. It further 

states that the presentation provided by 

AES at the 2008 Open Water Scientific 

Meeting only gave very limited 

information and was unable to respond 

to even the most basic questions raised 

by attendees. NVPH requests NMFS to 

reject any suggestion that the meeting 

satisfied the peer review requirement. 

NVPH states that peer review by 

independent, objective reviewers 

remains necessary. 

Response: In order for the 

independent peer-review of Arctic area 

activity monitoring plans, it must be 

conducted in an open and timely 

process. Review by organizations, such 

as the National Academy of Sciences, 

would take at least a year to complete 

and would likely provide for an 

inflexible monitoring plan (e.g., any 

modifications would require 

reconvening the Committee). As a 

result, NMFS believes that independent 

peer-review of monitoring plans can be 

conducted via two means. First, the 

monitoring plans are made public and 

available for review by scientists and 

members of the public in addition to 

scientists from the NSB, NMFS, and the 

FWS. In accordance with the MMPA, 

the Marine Mammal Commission’s 

Committee of Scientific Advisors 

reviews all IHA applications, including 

the monitoring plans. Second, 

monitoring plans and the results of 

previous monitoring measures are 

reviewed once or twice annually at 

public meetings held with the industry, 

the AEWC, the NSB, Federal agencies 


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and the public. AES’ mitigation and 

monitoring plan was reviewed by 

scientists and stakeholders at a meeting 

in Anchorage between April 14, 2008, 

and April 16, 2008, and by the public 

between April 28, 2008 (73 FR 22922) 

and May 28, 2008. NMFS believes that 

it has met the requirements of section 

101(a)(5)(D) of the MMPA. 

Comment 43: The CBD, NSB, Dr. 

Bain, and Dr. Steiner state that during 

night-time and poor visibility condition, 

AES proposes essentially no limitations 

on operations, even though the 

likelihood of observers seeing marine 

mammals in such conditions is very 

low. The CBD and Dr. Steiner 

recommend prohibiting seismic 

surveying when conditions prevent 

observers from detecting all marine 

mammals in the safety zone. One 

private citizen requests NMFS to clarify 

whether seismic sources are to be 

restarted in low visibility conditions. 

Response: The IHA issued to AES 

does not allow the start up of acoustic 

sources when the entire safety zones 

cannot be adequately monitored. 

However, as stated in the FR Notice of 

Proposed IHA, once the safety zones are 

visually established and that pre-survey 

monitoring has concluded that there is 

no marine mammals within the safety 

zones, seismic surveys can commence 

and continue into low visibility 

conditions. However, if for any reasons 

the seismic sources are stopped during 

low visibility conditions, they are not to 

be restarted until the conditions are 

suitable for the marine mammal visual 

monitoring so that the safety zones can 

be reestablished. Nevertheless, ramping 

up of airguns and other seismic 

equipment during under normal visual 

conditions is expected to keep marine 

mammals from entering the established 

safety zones. Please refer to Monitoring 

and Mitigation Measures section below 

for a detailed description. 

Comment 44: The CBD and NSB state 

that in its treatment of passive acoustic 

monitoring (PAM), NMFS and AES are 

also deficient. While past IHAs have 

required PAM, this IHA completely 

ignores even discussing the possibility 

of using such monitoring. 

Response: NMFS disagrees. The 

MMPA has not established standards for 

monitoring requirements. The 

monitoring requirements proposed are 

to ensure that the taking will have a 

negligible impact on the species or 

stock(s) and will not have an 

unmitigable adverse impact on the 

availability of the species or stock(s) for 

subsistence uses. Monitoring measures 

are also used to reduce the level of takes 

to the lowest level practicable due to 

implementation of the mitigation 

measures. 

Monitoring measures for different 

projects are proposed on a case-by-case 

basis, and there is no ‘‘one size fits all’’

type of monitoring protocol. For the 

proposed shallow hazard and site 

clearance survey in the Chukchi Sea, the 

radius of the safety zone (185 m, or 607 

ft) based on the 180 db re: 1 microPa 

isopleths is too small to allow accurate 

and effective passive?? acoustic 

monitoring. As the Joint Nature 

Conservation Committee (JNCC, 2004) 

stated that in practice the exclusion 

zone (safety zone) needs to be more than 

500 m (1,640 ft) to allow for accurate 

passive acoustic monitoring (PAM). 

JNCC also noted that in many cases 

PAM is not as accurate as visual 

observation when determining range. 

NMFS believes that in the subject 

seismic survey projects, where the 

safety zone is as small as 185 m (607 ft), 

passive acoustic monitoring is not 

warranted. The presence of additional 

vessels for deploying PAM would only 

introduce more noise to the small area 

where the proposed projects are to 

occur. 

NEPA 

Comment 45: NVPH, CBD, and the 

NSB state that NMFS must prepare an 

Environmental Impact Statement (EIS) 

to evaluate AES’ shallow hazard 

surveys, together with the other seismic 

and shallow hazard surveying activity 

proposed for the summer of 2008 in the 

Beaufort and Chukchi Seas. 

Response: NMFS prepared a Final 

SEA to analyze further the effects of 

AES’ (and other companies) proposed 

open-water shallow hazard and site 

clearance survey activities for the 2008 

season. NMFS has incorporated by 

reference the analyses contained in 

MMS 2006 Final PEA for Arctic OCS 

Seismic Surveys in the Beaufort and 

Chukchi Seas and has also relied in part 

on analyses contained in the MMS 2007 

FEIS for the Chukchi Sea Lease Sale 

193, the MMS 2003 FEIS for multiple 

lease sales, and the MMS 2007 DPEIS 

submitted for public comment on March 

30, 2007. 

The 2006 PEA analyzed a broad scope 

of proposed seismic activities in the 

Arctic Ocean. In fact, the PEA assessed 

the effects of multiple, ongoing seismic 

surveys (up to 8 surveys) in the Beaufort 

and Chukchi Seas for the Arctic open 

water season. Although AES’ proposed 

activity for this season was not 

explicitly identified in the 2006 PEA, 

the PEA did contemplate that future 

seismic activity, such as AES’ could 

occur. NMFS believes the range of 

alternatives and environmental effects 

considered in the MMS 2006 PEA, 

combined with NMFS’ SEA for the 2008 

season are sufficient to meet the 

agency’s NEPA responsibilities. In 

addition, the 2008 SEA includes new 

information obtained since the 2006 

Final PEA was issued, including 

updated information on cumulative 

impacts. NMFS also includes a new 

section in the 2008 SEA, which 

provides a review of the 2006 and 2007 

monitoring reports. As a result of our 

review and analysis, NMFS has 

determined that it was not necessary to 

prepare and issue an EIS for the 

issuance of an IHA to AES in 2008 for 

seismic activity in the Chukchi Sea but 

that preparation of an SEA and issuance 

of a Finding of No Significant Impact 

(FONSI) were sufficient under NEPA. 

Comment 46: The NSB and CBD state 

that NMFS appears to rely on the NEPA 

analysis in the DPEIS in clear violation 

of NEPA law. They state that NEPA 

requires agencies to prepare a draft EIS, 

consider public and other agency 

comments, respond to these comments 

in its final EIS, and wait 60 days before 

issuing a final decision. The CBD 

further states that before the record of 

decision has been issued on the final 

PEIS, NMFS cannot authorize AES’

proposed seismic surveys because the 

purpose of the PEIS process is to 

consider seismic surveys in the Chukchi 

and Beaufort Seas for the years 2008 and 

beyond. The CBD states that NMFS 

seems to either be relying on a NEPA 

document that is not just inadequate, 

but which by its very terms only covers 

activities from two years ago (the 2006 

PEA), or one which is nowhere near 

complete (the 2007 DPEIS). 

Response: See Response to Comment 

44 on this concern. Contrary to the 

NSB’s and CBD’s statement, NMFS 

relied on information contained in the 

MMS 2006 Final PEA, as updated by 

NMFS’ 2008 SEA for making its 

determinations under NEPA and that 

the DPEIS was not the underlying 

document to support NMFS’ issuance of 

AES’ IHA. NMFS merely relied upon 

specific pieces of information and 

analyses contained in the DPEIS to 

assist in preparing the SEA. It is NMFS’

intention that the PEIS currently being 

developed will be used to support, in 

whole, or in part, future MMPA actions 

relating to oil and gas exploration in the 

Arctic Ocean. Additionally, NMFS 

believes that a SEA is the appropriate 

NEPA analysis for this season as the 

amount of activity for 2008 is less than 

what was analyzed in the 2006 PEA. 

Comment 47: NVPH states that the 

MMS 2006 PEA is flawed since it 

understates the risk of significant 

impacts to bowhead whales, and 


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therefore, it is inappropriate for NMFS 

to rely on that document. NVPH states 

that the 2006 PEA assumed the source 

vessels would ensonify much smaller 

zones than those which have been 

subsequently measured in the field. 

NVPH states that based on the 

propagation actually measured in 2006 

and 2007, the impacts of a single 3D 

seismic survey are two to three times as 

large as NMFS anticipated or more. The 

impacts of a single shallow hazard 

survey are comparable to the impacts 

NMFS anticipated from a single 2D or 

3D seismic survey. Before authorizing 

further seismic surveying activity or 

shallow hazard surveys in the Arctic 

Ocean, NVPH requests NMFS to 

complete the PEIS that it began in 2006 

to evaluate the potentially significant 

impacts of such activities. 

Response: NMFS does not agree with 

NVPH’s statement. First, the subject 

2006 PEA was written by MMS, not 

NMFS. However, NMFS was a 

cooperating agency under NEPA in its 

preparation. Second, as noted in your 

cited part in the 2006 PEA, 20 km (12.4 

mi) was used for illustrative purposes in 

an exercise to estimate impact of 4 

seismic vessels operating within 24 km 

(15 mi) of each other. To do so, MMS 

created a box (that was moveable along 

the Beaufort or Chukchi Sea coast) to 

make these estimates. NMFS believes 

that the use of 20 km (12.4 mi) remains 

the best information available at this 

time and was the radius agreed to by 

participants at the 2001 Arctic Openwater Noise Peer Review Workshop in 

Seattle, Washington. This estimate is 

based on the results from the 1998 aerial 

survey (as supplemented by data from 

earlier years) as reported in Miller et al. 

(1999). In 1998, bowhead whales below 

the water surface at a distance of 20 km 

(12.4 mi) from an airgun array received 

pulses of about 117 - 135 dB re 1 μPa 

rms, depending upon propagation. 

Although NVPH states that propagation 

actually measured in 2006 and 2007 

showed that the impacts of a single 3D 

seismic survey are two to three times as 

large as NMFS anticipated, NVPH failed 

to provide any data to support this 

statement. In fact, the marine mammal 

monitoring reports on the 2006 and 

2007 open water seismic surveys clearly 

showed that at 20 km (12.4 mi) the 

received levels from large airgun arrays 

used in 3D seismic surveys fall between 

140 and 160 dB re 1 microPa (Ireland et 

al., 2007a; 2007b; Patterson et al., 2007; 

Funk et al., 2007; 2008), which is below 

NMFS current noise exposure standard 

for Level B behavioral harassment. For 

this reason, until more data collection 

and analyses are conducted on impacts 

of anthropogenic noise (principally from 

seismic) on marine mammals in the 

Beaufort and Chukchi seas, NMFS will 

continue to use 20 km (12.4 mi) as the 

radius for estimating impacts on 

bowhead whales during the fall 

migration period. 

Comment 48: NVPH states that the 

MMS 2006 PEA fails to provide sitespecific analysis. Thus, in order to 

reduce the likelihood of significant 

impacts, NMFS has imposed 160 dB and 

120 dB safety zones when authorizing 

surveys pursuant to the PEA. At a 

minimum, it must do the same for AES’

surveys but with the modifications to 

the safety zones discussed above. 

Response: NMFS does not agree with 

NVPH’s statement. Although the MMS 

2006 PEA did not explicitly provide 

site-specific analysis on the proposed 

AES shallow hazard and site clearance 

surveys, NMFS SEA prepared for the 

2008 open-water season described its 

specific location and time of operation. 

As in the PEA, NMFS’ 2008 SEA has 

described additional mitigation 

measures such as imposing the 160 dB 

safety zone for seismic activities in the 

Chukchi Sea when an aggregation of 12 

or more bowhead or gray whales is 

sighted. This mitigation measure is 

required in the IHA issued to AES. 

Regarding imposing the 120–dB safety 

zone, it would pose safety and practical 

concerns for marine mammal 

monitoring in the Chukchi Sea. 

Therefore, a safety zone based on 

received level of 120 dB re 1 microPa 

will not imposed in the Chukchi Sea as 

it has been determined to be 

impracticable under the MMPA. 

Comment 49: The NVPH and NSB 

state that the scope of the MMS 2006 

PEA is explicitly limited to activities 

that occur during 2006, and that those 

seismic survey activities have already 

occurred, as well as an additional 

season worth of activities in 2007. 

NVPH states that the PEA does not 

evaluate activities that will occur over a 

period of several years, though NMFS 

has continued to rely on it as if its scope 

were for a multi-year program of seismic 

surveys. In addition, NVPH states that 

the PEA uses arbitrary significance 

criteria for non-endangered marine 

mammals that would allow long-lasting 

impacts to populations, or in fact the 

entire Arctic ecosystem, that would 

nonetheless be deemed insignificant. 

NVPH states that these significance 

criteria are inappropriate for an 

evaluation of impacts from seismic 

surveys, as indicated by MMS’ use of 

more defensible significance criteria 

based on potential biological removal 

form marine mammal populations 

affected by seismic surveys in the Gulf 

of Mexico. 

Response: NMFS does not agree with 

the NVPH and NSB’s statement, as 

failed to provide any support for their 

position. The MMS 2006 PEA, in which 

NMFS was a cooperating agency, 

provided a thorough description and 

analysis on the affected environment, 

including ESA-listed and non-ESAlisted species. Under the NEPA, there is 

no ‘‘significance criteria for nonendangered’’ species. The criteria for 

determining whether a proposed action 

would result in significant effects to the 

environment are contained in CEQ’s 

regulations. NVPH’s statement that 

MMS’ such analysis ‘‘would allow longlasting impacts to populations, or in fact 

the entire Arctic ecosystem, that would 

nonetheless be deemed insignificant’’ in 

a way supports the MMS 2006 PEA. In 

addition, NMFS has prepared and 

released to the public an SEA for the 

proposed 2008 Arctic seismic surveys in 

the Chukchi and Beaufort Seas (see 

ADDRESSES for availability). This SEA 

incorporates by reference the relevant 

information contained in the 2006 PEA 

and updates that information where 

necessary to assess impacts on the 

marine environment from the 2008 

seismic survey activities. Further, the 

SEA and FONSI considered the CEQ 

significance criteria (including the 

criteria developed by NMFS) to 

determine whether take of marine 

mammals incidental to AES’ seismic 

survey would result in significant 

impacts to the human environment. 

NMFS believes that the agency has 

complied with the requirements of 

NEPA in its preparation of its NEPA 

documents. 

Comment 50: Oceana and Ocean 

Conservancy are concerned that oil and 

gas activities may have substantial 

negative effects on marine mammals 

and other Arctic species. Oceana and 

Ocean Conservancy further state that 

there has never been a comprehensive 

evaluation of the cumulative effects of 

seismic activities in the Arctic. Oceana 

and Ocean Conservancy request that in 

light of the dramatic effects of climate 

change in the Arctic, NMFS must not 

approve further seismic activities 

without such a comprehensive 

evaluation. 

Response: NMFS shares Oceana and 

Ocean Conservancy’s concern that the 

increasing industrial activities, 

including oil and gas development, 

could have profound negative effects on 

marine mammals in the Arctic region. 

Nevertheless, NMFS believes that 

proactive efforts to conserve and protect 

marine mammals and other Arctic 

species, such as NMFS’ initiation of 


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status reviews of ice seals and the recent 

FWS’ ESA-listing of polar bears, 

combined with prudent natural 

resources management and regulations 

on industrial activities by Federal 

Agencies would reduce these adverse 

impacts to biologically non-significant 

or negligible levels. In addition, 

monitoring and mitigation measures 

required for certain industrial activities 

would further reduce and minimize 

such negative effects to marine mammal 

species and stocks.. Long term research 

and monitoring results on ice seals in 

the Alaska’s North Slope have shown 

that effects of oil and gas development 

on local distribution of seals and seal 

lairs are no more than slight, and are 

small relative to the effects of natural 

environmental factors (Moulton et al., 

2005; Williams et al., 2006). 

NMFS does not agree with Ocean and 

Ocean Conservancy’s statement that 

there has never been a comprehensive 

evaluation of the cumulative effects of 

seismic activities in the Arctic. The 

MMS 2006 PEA, NMFS 2007 SEA, MMS 

2007 draft PEIS, and NMFS 2008 SEA 

for the proposed issuance of five seismic 

survey and shallow hazard and site 

clearance survey activities for the 2008 

open water season all provide 

comprehensive evaluation of the 

cumulative effects of seismic activities 

in the Arctic. 

Comment 51: NSB and CBD are both 

concerned about cumulative impacts 

from multiple operations. AES’ proposal 

is only one of numerous oil industry 

activities recently occurring, planned, or 

ongoing in the U.S. portions of the 

Chukchi and Beaufort Seas (e.g., 

proposed IHA for on-ice seismic surveys 

in Harrison Bay; proposed scientific 

seismic survey by the National Science 

Foundation (NSF); NMFS’ 5–year 

regulations for activities related to 

Northstar; SOI IHA for Beaufort Sea 

exploratory drilling; CPAI IHA for 

Beaufort Sea; SOI IHA for Beaufort Sea; 

two proposed IHAs for Chukchi Sea and 

two proposed for the Beaufort Sea; and 

FWS 5–year regulations for oil and gas 

activities in the Beaufort Sea). No 

analysis of seismic surveys in the 

Russian or Canadian portions of the 

Chukchi and Beaufort seas is mentioned 

either. Similarly, significant increases in 

onshore oil and gas development with 

attendant direct impacts and indirect 

impacts on marine mammals such as 

through increased ship traffic are also 

occurring and projected to occur at 

greater rates than in the past. CBD states 

that further cumulative effects 

impacting the marine mammals of the 

Beaufort and Chukchi Seas are outlined 

in their NEPA comments on the MMS 

PEA and the DPEIS. 

The NSB points out that in addition 

to the proposed offshore industrial 

operations listed above, there will be 

supply and fuel barging to villages, 

barging for support of onshore 

development and exploration, scientific 

cruises, climate change studies, USCG 

operations, tourist vessel traffic, and 

other activities as well. The cumulative 

impacts of all these activities must be 

factored into any negligible impact 

determination. Further, without an 

analysis of the effects of all of the 

planned operations, it is impossible to 

determine whether the monitoring plans 

are sufficient. 

Response: Under section 101(a)(5)(D) 

of the MMPA, NMFS is required to 

determine whether the taking by the 

applicant’s specified activity will have a 

negligible impact on the affected marine 

mammal species or population stocks. 

Cumulative impact assessments are 

NMFS’ responsibility under NEPA, not 

the MMPA. In that regard, the MMS 

Final PEA and NMFS SEA address 

cumulative impacts. The Final PEA’s 

cumulative activities scenario and 

cumulative impact analysis focused on 

oil and gas-related and non-oil and gasrelated noise-generating events/ 

activities in both Federal and State of 

Alaska waters that were likely and 

foreseeable. Other appropriate factors, 

such as Arctic warming, military 

activities, and noise contributions from 

community and commercial activities 

were also considered. Appendix D of 

the Final PEA addresses similar 

comments on cumulative impacts, 

including global warming. That 

information was incorporated into and 

updated in the NMFS 2008 SEA and 

into this document by citation. NMFS 

adopted the MMS Final PEA, and it is 

part of NMFS’ Administrative Record. 

Finally, NMFS does not require 

authorizations under section 101(a)(5) of 

the MMPA for normal shipping or 

transit. 

Comment 52: According to CBD, 

another factor causing NMFS’

‘‘negligible impact’’ findings to be 

suspect is the fact that the Chukchi Sea 

area is undergoing rapid change as a 

result of global warming. For species 

under NMFS’ jurisdiction, and therefore 

subject to the proposed IHA, seals are 

likely to face the most severe 

consequences. The Arctic Climate 

Impact Assessment (ACIA) concluded 

that ringed, spotted, and bearded seals 

would all be severely negatively 

impacted by global warming this 

century. The ACIA stated that ringed 

seals are particularly vulnerable: 

‘‘Ringed seals are likely to be the most 

highly affected species of seal because 

all aspects of their lives are tied to sea 

ice’’ (ACIA, 2004). In 2003, the NRC 

noted that oil and gas activities 

combined with global warming 

presented a serious cumulative impact 

to the species: ‘‘Climate warming at 

predicted rates in the Beaufort Sea 

region is likely to have serious 

consequences for ringed seals and polar 

bears, and those effects will accumulate 

with the effects of oil and gas activities 

in the region.’’ NMFS’ failure to address 

global warming as a cumulative effect 

renders its negligible impact findings 

invalid. 

Response: Under section 101(a)(5)(D) 

of the MMPA, ‘‘the Secretary shall 

authorize... taking by harassment of 

small numbers of marine mammals of a 

species or population stock by such 

citizens while engaging in that activity 

within that region if the Secretary finds 

that such harassment during each 

period concerned (I) will have a 

negligible impact on such species or 

stock, and (II) will not have an 

unmitigable adverse impact on the 

availability of such species or stock for 

taking for subsistence uses.’’ Section 

101(a)(5)(D) of the MMPA does not 

require NMFS to base its negligible 

impact determination on the possibility 

of cumulative effects of other actions. 

As stated in previous responses, 

cumulative impact assessments are 

NMFS’ responsibility under NEPA, not 

the MMPA. In that regard, the MMS 

2006 Final PEA and NMFS’ 2008 SEA 

address cumulative impacts. The PEA’s 

cumulative activities scenario and 

cumulative impact analysis focused on 

oil and gas-related and non-oil and gasrelated noise-generating events/ 

activities in both Federal and State of 

Alaska waters that were likely and 

foreseeable. Other appropriate factors, 

such as Arctic warming, military 

activities, and noise contributions from 

community and commercial activities 

were also considered. Appendix D of 

the PEA addresses similar comments on 

cumulative impacts, including global 

warming. That information was 

incorporated into and updated in the 

NMFS 2008 SEA and into this 

document by citation. NMFS adopted 

the MMS Final PEA, and it is part of 

NMFS’ Administrative Record. 

Endangered Species Act 

Comment 53: The CBD states that the 

proposed IHA will affect, at a minimum, 

four endangered species, the bowhead, 

humpback and fin whales, and the polar 

bear. As a consequence, NMFS must 

engage in consultation under Section 7 

of the ESA prior to issuing the IHA. 

Previous recent biological opinions for 

industrial activities in the Arctic (e.g., 

the 2006 Arctic Regional Biological 


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Opinion (ARBO)) have suffered from 

inadequate descriptions of the proposed 

action, inadequate descriptions of the 

status of the species, inadequate 

descriptions of the environmental 

baseline, inadequate descriptions of the 

effects of the action, inadequate analysis 

of cumulative effects, and inadequate 

descriptions and analysis of proposed 

mitigation. The CBD hopes NMFS 

performs the full analysis required by 

law and avoids these problems in its 

consultation for the proposed IHA. 

Response: Response: Under section 7 

of the ESA, NMFS has completed 

consultation with the MMS on the 

issuance of seismic permits for offshore 

oil and gas activities in the Beaufort and 

Chukchi seas. In a Biological Opinion 

issued on July 17, 2008, NMFS 

concluded that the issuance of seismic 

survey permits by MMS and the 

issuance of the associated IHAs for 

seismic surveys are not likely to 

jeopardize the continued existence of 

threatened or endangered species 

(specifically the bowhead, humpback, 

and fin whales) under the jurisdiction of 

NMFS or destroy or adversely modify 

any designated critical habitat. The 2008 

Biological Opinion takes into 

consideration all oil and gas related 

activities that are reasonably likely to 

occur, including exploratory (but not 

production) oil drilling activities. In 

addition, NMFS has issued an 

Incidental Take Statement under this 

Biological Opinion which contains 

reasonable and prudent measures with 

implementing terms and conditions to 

minimize the effects of take of bowhead, 

humpback, and fin whales. Regarding 

the polar bear, MMS has contacted the 

USFWS about conducting a section 7 

consultation. 

Comment 54: The CBD states that 

NMFS may authorize incidental take of 

the listed marine mammals under the 

ESA pursuant to Section 7(b)(4) of the 

ESA, but only where such take occurs 

while ‘‘carrying out an otherwise lawful 

activity.’’ To be ‘‘lawful,’’ such activities 

must ‘‘meet all State and Federal legal 

requirements except for the prohibition 

against taking in section 9 of the ESA.’’

The CBD states that AES’ proposed 

activities violate the MMPA and NEPA 

and therefore are ‘‘not otherwise 

lawful.’’ The CBD concludes that any 

take authorization for listed marine 

mammals would, therefore, violate the 

ESA, as well as these other statutes. 

Response: NMFS does not agree with 

the CBD statement. As noted in this 

document, NMFS has made the 

necessary determinations under the 

MMPA, the ESA, and NEPA regarding 

the incidental harassment of marine 

mammals by AES while it is conducting 

activities permitted legally under MMS’

jurisdiction. 

Other Comments 

Comment 55: The CGWC states that 

gray whale population estimate was 

based on outdated data, and that there 

is no comprehensive assessment in the 

2008 SAR. The CGWC points out that 

recent research by Professor Stephen 

Palumbi of Stanford University suggests 

the original gray whale population 

numbered approximately 118,000, 

nearly 5 times that of previous 

estimates. 

Response: Although the population 

estimates of several marine mammal 

species or stocks used in this document 

may not be up to date, these are the best 

available scientific information NMFS 

considered. In terms of gray whale 

population estimate, NMFS still 

believes that using the mean of the 

2000/01 and 2001/02 abundance 

estimates (not significantly different) of 

18,813 is the best estimate. As long as 

the cited Palumbi research (Alter et al., 

2007) on historical gray whale 

population is concerned, it is irrelevant 

to the issuance of the IHA. Alter et al.’s 

(2007) research hypothesized that the 

decline of gray whale population from 

between 76,000 and 118,000 (average 

estimate at 96,000) occurred over the 

past 1,100 - 1,600 years, much before 

the western whaling began in the 19th 

century. 

Description of Marine Mammals in the 

Activity Area 

In general, the marine mammal 

species under NMFS’ management 

authority that occur in or near the 

proposed survey area within the 

Chukchi Sea are the bowhead (Balaena 

mysticetus), gray (Eschrichtius 

robustus), humpback (Megaptera 

novaeangliae), fin (Balaenoptera 

physalus), minke (B. acutorostrata), 

beluga (Delphinapterus leucas), and 

killer whales (Orcinus orca); harbor 

porpoises (Phocoena phocoena); and the 

bearded (Erignathus barbatus), ringed 

(Phoca hispida), spotted (P. largha), and 

ribbon seals (P. fasciata). Among these 

species, the bowhead, humpback, and 

fin whales are listed as ‘‘Endangered’’

under the Endangered Species Act 

(ESA). 

A detailed description of the biology, 

population estimates, and distribution 

and abundance of these species is 

provided in the AES’ IHA application. 

Additional information regarding the 

stock assessments of these species is in 

NMFS Alaska Marine Mammal Stock 

Assessment Report (Angliss and 

Outlaw, 2007), and can also be assessed 

via the following URL link: http:// 

www.nmfs.noaa.gov/pr/pdfs/sars/ 

po2006.pdf. Additional information on 

those species that are under NMFS’

management authority within or near 

the proposed survey areas is described 

in the FR Notice of Proposed IHA and 

is not repeated here. 

Potential Effects on Marine Mammals 

Operating a variety of acoustic 

equipment such as side-scan sonars, 

echo-sounders, bottom profiling 

systems, and airguns for seafloor 

imagery, bathymetry, and seismic 

profiling has the potential for adverse 

affects on marine mammals. 

Potential Effects of Airgun Sounds on 

Marine Mammals 

The effects of sounds from airguns 

might include one or more of the 

following: tolerance, masking of natural 

sounds, behavioral disturbance, and, at 

least in theory, temporary or permanent 

hearing impairment, or non-auditory 

physical or physiological effects 

(Richardson et al., 1995) 

The potential effects of airguns 

discussed below are presented without 

consideration of the mitigation 

measures that AES has presented and 

that will be required by NMFS. When 

these measures are taken into account, 

it is unlikely that this project would 

result in temporary, or especially, 

permanent hearing impairment or any 

significant non-auditory physical or 

physiological effects. 

(1) Tolerance 

Numerous studies have shown that 

pulsed sounds from airguns are often 

readily detectable in the water at 

distances of many kilometers. Studies 

have also shown that marine mammals 

at distances more than a few kilometers 

from operating seismic vessels often 

show no apparent response (tolerance). 

That is often true even in cases when 

the pulsed sounds must be readily 

audible to the animals based on 

measured received levels and the 

hearing sensitivity of that mammal 

group. Although various baleen whales, 

toothed whales, and (less frequently) 

pinnipeds have been shown to react 

behaviorally to airgun pulses under 

some conditions, at other times 

mammals of all three types have shown 

no overt reactions. In general, 

pinnipeds, and small odontocetes seem 

to be more tolerant of exposure to airgun 

pulses than are baleen whales. 

(2) Masking 

Masking effects of pulsed sounds 

(even from large arrays of airguns) on 

marine mammal calls and other natural 

sounds are expected to be limited, 


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although there are very few specific data 

of relevance. Some whales are known to 

continue calling in the presence of 

seismic pulses. Their calls can be heard 

between the seismic pulses (e.g., 

Richardson et al., 1986; McDonald et al., 

1995; Greene et al., 1999; Nieukirk et 

al., 2004). Although there has been one 

report that sperm whales cease calling 

when exposed to pulses from a very 

distant seismic ship (Bowles et al., 

1994), a more recent study reports that 

sperm whales off northern Norway 

continued calling in the presence of 

seismic pulses (Madsen et al., 2002). 

That has also been shown during recent 

work in the Gulf of Mexico (Tyack et al., 

2003; Smultea et al., 2004). Masking 

effects of seismic pulses are expected to 

be negligible in the case of the smaller 

odontocete cetaceans, given the 

intermittent nature of seismic pulses. 

Dolphins and porpoises commonly are 

heard calling while airguns are 

operating (e.g., Gordon et al., 2004; 

Smultea et al., 2004; Holst et al., 2005a; 

2005b). Also, the sounds important to 

small odontocetes are predominantly at 

much higher frequencies than are airgun 

sounds. 

(3) Disturbance Reactions 

Disturbance includes a variety of 

effects, including subtle changes in 

behavior, more conspicuous changes in 

activities, and displacement. 

Reactions to sound, if any, depend on 

species, state of maturity, experience, 

current activity, reproductive state, time 

of day, and many other factors. If a 

marine mammal does react briefly to an 

underwater sound by slightly changing 

its behavior or moving a small distance, 

the impacts of the change are unlikely 

to be biologically significant to the 

individual, let alone the stock or the 

species as a whole. However, if a sound 

source displaces marine mammals from 

an important feeding or breeding area 

for a prolonged period, impacts on the 

animals could be significant. 

(4) Hearing Impairment and Other 

Physical Effects 

Temporary or permanent hearing 

impairment is a possibility when marine 

mammals are exposed to very strong 

sounds, but there has been no specific 

documentation of this for marine 

mammals exposed to sequences of 

airgun pulses. NMFS advises against 

exposing cetaceans and pinnipeds to 

impulsive sounds above 180 and 190 dB 

re 1 microPa (rms), respectively (NMFS, 

2000). Those thresholds have been used 

in defining the safety (shut down) radii 

planned for the proposed seismic 

surveys. Although those thresholds 

were established before there were any 

data on the minimum received levels of 

sounds necessary to cause temporary 

auditory impairment in marine 

mammals, they are considered to be 

conservative. 

Several aspects of the planned 

monitoring and mitigation measures for 

this project are designed to detect 

marine mammals occurring near the 

airguns to avoid exposing them to sound 

pulses that might, at least in theory, 

cause hearing impairment (see 

Mitigation and Monitoring section 

below). In addition, many cetaceans are 

likely to show some avoidance of the 

area with high received levels of airgun 

sound. In those cases, the avoidance 

responses of the animals themselves 

will reduce or (most likely) avoid any 

possibility of hearing impairment. 

Non-auditory physical effects may 

also occur in marine mammals exposed 

to strong underwater pulsed sound. 

Possible types of non-auditory 

physiological effects or injuries that 

theoretically might occur in mammals 

close to a strong sound source include 

stress, neurological effects, bubble 

formation, and other types of organ or 

tissue damage. It is possible that some 

marine mammal species (i.e., beaked 

whales) may be especially susceptible to 

injury and/or stranding when exposed 

to strong pulsed sounds. However, there 

is no definitive evidence that any of 

these effects occur even for marine 

mammals in close proximity to large 

arrays of airguns. It is unlikely that any 

effects of these types would occur 

during the proposed project given the 

brief duration of exposure of any given 

mammal, and the planned monitoring 

and mitigation measures (see below). 

(5) Strandings and Mortality 

Marine mammals close to underwater 

detonations of high explosive can be 

killed or severely injured, and the 

auditory organs are especially 

susceptible to injury (Ketten et al., 1993; 

Ketten, 1995). Airgun pulses are less 

energetic and have slower rise times, 

and there is no evidence that they can 

cause serious injury, death, or stranding 

even in the case of large airgun arrays. 

Nonetheless, the airgun array 

proposed to be used in the proposed site 

clearance surveys in Chukchi Sea is 

small in volume (40 cu inches) and the 

source level is expected at 196 dB re 1 

mircoPa (peak), which is approximately 

190 dB re 1 microPa (rms). The 160, 

170, and 180 dB re 1 microPa (rms) 

radii, in the beam below the transducer, 

would be 32 m (104 ft), 10 m (33 ft), and 

3.2 m (10 ft), respectively, for the 40–

cu-inch airgun array, assuming 

spherical spreading. 

Possible Effects of Bathymetry Echo 

Sounder Signals 

Two types of bathymetry echo 

sounders are planned to be used for the 

proposed surveys. The Odom Hydrotrac 

Digital Echo Sounder is a single beam 

echo sounder that emits a single pulse 

of sound directly below the ship along 

the vessel trackline and provides a 

continuous recording of water depth 

along the survey track. The second 

sonar is a Reson Seabat 8101 Multibeam 

Echo Sounder, which consists of a 

transducer array that emits a swath of 

sound. The seafloor coverage swath of 

the multibeam sonar is water depth 

dependent, but is usually equal to two 

to four times the water depth. 

Nonetheless both echo sounders 

produce acoustic signals above 200 kHz 

which is below any marine mammal 

species’ upper hearing threshold, 

therefore, NMFS does not believe that 

there will be any effects on marine 

mammals as a result from operating 

these sonars. 

Possible Effects of Sub-bottom Profiler 

Signals 

A high resolution subbottom profiler 

(GeoAcoustics GeoPulse sub-bottom 

profiling system or GeoAcoustics 

GeoChirp II sub-bottom profiling 

system) and an intermedia frequency 

seismic profiling system (‘‘boomer’’) are 

planned to be used for the proposed 

surveys. 

The frequency range for these high 

resolution subbottom profilers are 3.5 to 

5 kHz for the GeoPulse and 500 Hz to 

13 kHz for the GeoChirp II. Either 

subbottom profiler has a source level at 

approximately 214 dB re 1 microPa-m 

(rms). The 160, 170, 180, and 190 dB re 

1 microPa (rms) radii, in the beam 

below the transducer, would be 501 m 

(1,644 ft), 158 m (520 ft), 50 m (164 ft), 

and 16 m (52 ft), respectively, for either 

subbottom profiler, assuming spherical 

spreading. 

The Applied Acoustics Model AA300 

intermediate frequency seismic profiler 

(‘‘boomer’’) has a maximum energy 

input of 350 J per shot, though the 

maximum energy would be used in the 

surveys is 300 J. The pulse length ranges 

from 150 msec to 400 msec with a 

reverberation of less than 1/10 of the 

initial pulse. The peak in the source 

level beam reaches 218 dB re 1 microPam (or 209 dB re 1 microPa-m (rms)) at 

300 J with a frequency range of 500 Hz 

to 300 kHz. The 160, 170, 180, and 190 

dB re 1 microPa (rms) radii, in the beam 

below the transducer, would be 282 m 

(925 ft), 89 m (292 ft), 28 m (92 ft), and 

9 m (29 ft), respectively, assuming 

spherical spreading. 


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The corresponding distances for an 

animal in the horizontal direction of 

these transducers would be much 

smaller due to the direct downward 

beam pattern of the subbottom profilers. 

Therefore, the horizontal received levels 

of 180 and 190 dB re 1 microPa (rms) 

would be within much smaller radii 

than 50 m (164 ft) and 16 m (52 ft) when 

using the GeoAcoustics subbottom 

profilers, which have the highest 

downward source level, respectively. In 

addition, the pulse duration of these 

subbottom profilers is extremely short, 

in the order of tens to hundreds of msec, 

and the survey is constantly moving. 

Therefore, for a marine mammal to 

receive prolonged exposure, the animal 

has to stay in a very small zone of 

ensonification and keep with the 

vessel’s speed, which is very unlikely. 

Possible Effects of Side-Scan Sonar 

Signals for Seafloor Imagery 

One of the two types of side-scan 

sonars is planed to be used for the 

proposed shallow hazard and site 

clearance surveys for seafloor imagery. 

The EdgeTech 4200 dual-frequency side 

scan sonar operates at 120 kHz up to 

410 kHz, with source level reaching 210 

dB re 1 microPa-m (rms). The 160, 170, 

180, and 190 dB re 1 microPa (rms) 

radii, in the beam below the transducer, 

would be 316 m (1,037 ft), 100 m (328 

ft), 32 m (104 ft), and 10 m (33 ft), 

respectively, assuming spherical 

spreading. 

The Klein System 3000 dualfrequency digital side-scan sonar emits 

pulses between 25 msec and 400 msec. 

The peak in the 132 kHz source level 

beam reaches 234 dB re 1 microPa-m (or 

225 dB re 1 microPa-m (rms)). The peak 

in the 445 kHz source level beam 

reaches 242 dB re 1 microPa-m. The 445 

kHz frequency band is outside any 

marine mammal species’ hearing range, 

therefore, there would be no effect to 

marine mammals when this frequency is 

chosen. The 160, 170, 180, and 190 dB 

re 1 microPa (rms) radii, in the beam 

below the transducer, would be 1,778 m 

(5,834 ft), 562 m (1,844 ft), 178 m (583 

ft), and 56 m (184 ft), respectively, 

assuming spherical spreading. 

Nonetheless, these side scan sonars 

operate in an extremely high frequency 

range (over 120 kHz) relative to marine 

mammal hearing (Richardson et al., 

1995; Southall et al., 2007). The 

frequency range from these side scan 

sonars is beyond the hearing range of 

mysticetes (baleen whales) and 

pinnipeds. Therefore, these sonars are 

not expected to affect bowhead, gray, 

humpback, fin, and minke whales and 

pinniped species in the proposed 

project area. The frequency range from 

these side scan sonars falls within the 

upper end of odontocete (toothed 

whale) hearing spectrum (Richardson et 

al., 1995), which means that they are not 

perceived as loud acoustic signals with 

frequencies below 120 kHz by these 

animals. Therefore, these animals would 

not react to the sound in a biologically 

significant way. Further, in addition to 

spreading loss for acoustic propagation 

in the water column, high frequency 

acoustic energies are more quickly 

absorbed through the water column than 

sounds with lower frequencies (Urick, 

1983). Therefore, NMFS believes that 

the potential effects from side scan 

sonar to marine mammals are negligible. 

Numbers of Marine Mammals 

Estimated to be Taken 

All anticipated takes would be takes 

by Level B harassment, involving 

temporary changes in behavior. The 

proposed mitigation measures to be 

applied would prevent the possibility of 

injurious takes. 

The methods to estimate take by 

harassment and present estimates of the 

numbers of marine mammals that might 

be affected during the proposed seismic 

surveys in the Chukchi Sea are 

described below. The density estimates 

for cetaceans covered under this IHA 

area based on the estimates developed 

by LGL (2006) for the GXT IHA and 

used here for consistency. However, 

density estimates for these species were 

not separated by summer and fall. 

Rather, in a conservative approach, the 

higher of the two estimates was selected 

for use in the analysis. Density estimates 

on summering bowhead, gray, and 

beluga whales in the Beaufort and 

Chukchi seas are based on the data from 

Moore et al. (2000). Density estimates 

on ringed and bearded in the Chukchi 

Sea are based on Bengtson et al. (2005). 

Since the Bengtson et al. (2005) surveys 

were focused mainly on the coastal zone 

within 37 km (23 mi) of the shoreline, 

some adjustments were made to reflect 

the animals’ density in offshore waters 

where the site clearance surveys are 

proposed. Ringed seals were relatively 

common in nearshore fast ice and pack 

ice, with lower densities in offshore 

pack ice; while bearded seals were 

generally more common in offshore 

pack ice, with the exception of high 

bearded seal numbers observed near the 

shore south of Kivalina. To make the 

adjustment, the average ringed seal 

density number (1.62 seals/km2) for the 

year 2000 was used, while the raw 

density number (0.18 seal/km2) for the 

offshore bearded seas was adopted. In 

addition, the seal density numbers 

represent the near-ice animal density, 

which are higher than open water 

densities where the site clearance 

surveys would be conducted. Therefore, 

the sale density numbers are 

overestimates because the survey 

method focused on animals on ice, not 

in water. 

Specifically, the average estimates of 

‘‘take’’ were calculated by multiplying 

the expected average animal densities 

by the area of ensonification for the 160 

dB re 1 microPa (rms) isopleth for all 

marine mammals. The area of 

ensonification was determined by 

multiplying the total proposed trackline 

(760 km or 410 nm) times 2 (both sides 

of the trackline) times the distance to 

the 160–dB isopleth. The distance to the 

160–dB isopleth was estimated as 

approximately 4,000 m (13,123 ft) with 

a corresponding area of ensonification 

of 6,080 km2 (1,773 nm2). 

Based on the calculation, it is 

estimated that up to approximately 7 

bowhead, 11 gray, and 21 beluga 

whales, 9,850 ringed and 1,094 bearded 

seals would be affected by Level B 

behavioral harassment as a result of the 

proposed shallow hazard and site 

clearance surveys. These take numbers 

represent 0.06, 0.06, and 0.6 percent of 

the western Arctic stock of bowhead, 

eastern North Pacific stock of gray, and 

eastern Chukchi stock of Beluga whales, 

respectively; and 3.96 and 0.438 percent 

of the Alaska stocks of ringed and 

bearded seal populations within the 

Chukchi Sea, respectively. These 

numbers are small relative to the 

respective species’ stock size. 

In addition, a numbers of humpback, 

fin, minke, and killer whales, harbor 

porpoises, and spotted and ribbon seals 

could also be affected by Level B 

behavioral harassment as a result of the 

proposed marine surveys in the Chukchi 

Sea. However, since the occurrence of 

these marine mammals is very rare 

within the proposed project area in the 

Chukchi Sea, take numbers cannot be 

estimated. Nonetheless, NMFS believes 

their take numbers would be much 

lower as compared to those marine 

mammals whose take numbers were 

calculated. 

Potential Impacts to Subsistence 

Harvest of Marine Mammals 

Subsistence hunting and fishing is 

historically, and continues to be, an 

essential aspect of Native life, especially 

in rural coastal villages. The Inupiat 

participate in subsistence hunting and 

fishing activities in and around the 

Chukchi Sea. 

Alaska Natives, including the Inupiat, 

legally hunt several species of marine 

mammals. Communities that participate 

in subsistence activities potentially 

affected by seismic surveys within Lease 

Sale 193 are Point Hope, Point Lay, 


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Wainwright, and Barrow. Marine 

animals used for subsistence in the 

proposed area include: bowhead 

whales, beluga whales, ringed seals, 

spotted seals, bearded seals, Pacific 

walrus, and polar bears. Humpback 

whales are not typically found within 

the proposed project area of Lease Sale 

193. However, during the summer of 

2007, both humpback and fin whales 

were observed or detected as far as the 

Beaufort Sea (Joling, 2007). In each 

village, there are key subsistence 

species. Hunts for these animals occur 

during different seasons throughout the 

year. Depending upon the village’s 

success of the hunt for a certain species, 

another species may become a priority 

in order to provide enough nourishment 

to sustain the village. 

Point Hope residents subsistence hunt 

for bowhead and beluga whales, polar 

bears and walrus. Bowhead and beluga 

whales are hunted in the spring and 

early summer along the ice edge. Beluga 

whales may also be hunted later in the 

summer along the shore. Walrus are 

harvested in late spring and early 

summer, and polar bear are hunted from 

October to April (MMS, 2007). Seals are 

available from October through June, 

but are harvested primarily during the 

winter months, from November through 

March, due to the availability of other 

resources during the other periods of the 

year (MMS, 2007). 

With Point Lay situated near 

Kasegaluk Lagoon, the community’s 

main subsistence focus is on beluga 

whales. Seals are available year-round, 

and polar bears and walruses are 

normally hunted in the winter. Hunters 

typically travel to Barrow, Wainwright, 

or Point Hope to participate in bowhead 

whale harvest, but there is interest in 

reestablishing a local Point Lay harvest. 

Wainwright residents subsist on both 

beluga and bowhead whales in the 

spring and early summer. During these 

two seasons the chances of landing a 

whale are higher than during other 

seasons. Seals are hunted by this 

community year-round and polar bears 

are hunted in the winter. 

Barrow residents’ main subsistence 

focus is concentrated on biannual 

bowhead whale hunts. They hunt these 

whales during the spring and fall. Other 

animals, such as seals, walruses, and 

polar bears are hunted outside of the 

whaling season, but they are not the 

primary source of the subsistence 

harvest (URS Corporation, 2005). 

The seismic survey could affect 

subsistence uses particularly if bowhead 

or beluga whales are permanently 

deflected away from their migration 

path. In such a case, a permanent 

deflection could result in substantial 

impacts to Alaska Native communities 

who rely on these species for their 

subsistence harvest. However, 

mitigation measures will be put into 

place to minimize or avoid completely 

any adverse affects on all marine 

mammals. AES has proposed and NMFS 

will require that no seismic surveys 

would be conducted in areas where 

subsistence harvests would occur. Areas 

being used for subsistence hunting 

grounds would be avoided. 

Communication between the project 

vessels and land-based Com and Call 

Centers would provide additional 

insight to current subsistence activities 

to further ensure that there will be no 

negative impacts on subsistence 

activities. 

As part of the application for the IHA, 

AES has developed a Plan of 

Cooperation (POC) with the Native 

communities. The POC specifies 

measures AES would take to minimize 

adverse effects on marine mammals 

where proposed activities may affect the 

availability of a species or stock of 

marine mammals for arctic subsistence 

uses or near a traditional subsistence 

hunting area. The POC has been 

distributed to the affected subsistence 

communities. 

AES has conducted POC meetings for 

its seismic operations in the Chukchi 

Sea in Barrow, Wainwright, Point Lay, 

and Point Hope, and with the Alaska 

Eskimo Whaling Commission. 

Additional meetings will be held with 

the Alaska Ice Seal Committee, Alaska 

Beluga Committee, Eskimo Walrus 

Commission, and Alaska Nanuq 

Commission prior to operations. At 

these meetings, AES will present its 

program and discuss local concerns 

regarding subsistence activities. 

Potential Impacts on Habitat 

The proposed site clearance surveys 

would not result in any permanent 

impact on habitats used by marine 

mammals, or to the food sources they 

use. The main impact issue associated 

with the proposed activity would be 

temporarily elevated noise levels and 

the associated direct effects on marine 

mammals, as discussed above. 

Monitoring and Mitigation Measures 

Monitoring 

In order to further reduce and 

minimize the potential impacts to 

marine mammals from the proposed site 

clearance surveys, NMFS proposes the 

following monitoring and mitigation 

measures to be implemented for the 

proposed project in Chukchi Sea. 

(1) Proposed Safety Zones 

Based on a 214 dB re 1 microPa-m 

source sound for the GeoChirp II, the 

loudest acoustic equipment with sound 

in the sensitive hearing ranges of marine 

mammals, and a conservative acoustic 

modeling approach between spherical 

and cylindrical (i.e., ‘‘15 Log R’’) to 

estimate sound propagation loss, the 

calculated distance to the 180 dB 

isopleth is approximately 185 m (607 ft), 

and the distance to the 190 dB isopleth 

is about 40 m (131 ft). Because these 

values are based on calculation instead 

of field measurement during actual 

operations, NMFS proposes, as a 

precautionary measure, safety radii of 

250 m (820 ft) for cetaceans and 75 m 

(246 ft) for pinnipeds. 

In addition, a 160–dB vessel 

monitoring zone for bowhead and gray 

whales shall be established and 

monitored during all seismic surveys. 

Whenever an aggregation of 12 or more 

bowhead whales or gray whales are 

observed during a vessel monitoring 

program within the 160–dB safety zone 

around the seismic activity, the seismic 

operation will not commence, or will 

shut down, until two consecutive 

surveys indicate they are no longer 

present within the 160–dB safety zone 

of seismic-surveying operations. The 

radius of 160–dB isopleth based on 

modeling is 4,000 m (13,123 ft). 

Before the commencement of the 

shallow hazard and site clearance 

survey, AES is required to conduct 

empirical measurements of acoustic 

sources to be used in the seismic survey 

and verify the radii of the modeled 

safety zones at 160, 170, 180, and 190 

dB re 1 microPa (rms). 

(2) Vessel-based Visual Monitoring 

Marine mammal monitoring during 

the site clearance surveys would be 

conducted by qualified, NMFSapproved marine mammal observers 

(MMOs). Vessel-based MMOs would be 

on board the seismic source vessel to 

ensure that no marine mammals would 

enter the relevant safety radii of 180 and 

190–dB isopleths while noise-generating 

equipment is operating. 

For monitoring of the larger 160–dB 

safety zone, a chase vessel would be 

used for monitoring. 

(3) Communication between Vessel and 

Shore 

Communication of vessel operations 

and transit would occur in accordance 

with protocols set forth by the Com and 

Call Centers proposed to be operated in 

Barrow, Point Hope, and Point Lay. This 

would further enable vessel operators to 

be aware of marine mammals and 

subsistence activity in the area. 


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46794 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices 

Mitigation 

Proposed mitigation measures include 

(1) vessel speed or course alteration, 

provided that doing so will not 

compromise operational safety 

requirements, (2) acoustic equipment 

shut down, and (3) acoustic source ramp 

up. 

(1) Speed or Course Alteration 

If a marine mammal is detected 

outside the relevant safety zone but 

appears likely to enter it based on 

relative movement of the vessel and the 

animal, then if safety and survey 

objectives allow, the vessel speed and/ 

or course would be adjusted to 

minimize the likelihood of the animal 

entering the safety zone. 

Shut down Procedures 

If a marine mammal is detected 

within, or appears likely to enter, the 

relevant safety zone of the array in use, 

and if vessel course and/or speed 

changes are impractical or will not be 

effective to prevent the animal from 

entering the safety zone, then the 

acoustic sources that relate to the 

seismic surveys would be shut down. 

Following a shut down, acoustic 

equipment would not be turned on until 

the marine mammal is outside the safety 

zone. The animal would be considered 

to have cleared the safety zone if it (1) 

is visually observed to have left the 

250–m or 75–m safety zone, for a 

cetacean or a pinniped species, 

respectively; or (2) has not been seen 

within the relevant safety zone for 15 

minutes in the case of odontocetes and 

pinnipeds, and for 30 minutes in the 

case of mysticetes. For the aggregation 

of bowhead or gray whales, the seismic 

equipment will not be turned on until 

the aggregation has left the 4,000–m 

safety zone or the animals forming the 

aggregation are reduced to fewer than 12 

bowhead or gray whales. 

Following a shut down and 

subsequent animal departure as above, 

the acoustic sources may be turned on 

to resume operations following ramp-up 

procedures described below. 

(3) Ramp-up Procedures 

A ramp-up procedure will be 

followed when the acoustic sources 

begin operating after a specified period 

without operations. It is proposed that, 

for the present survey, this period 

would be 30 min. Ramp up would begin 

with the power on of the smallest 

acoustic equipment for the survey at its 

lowest power output. The power output 

would be gradually turned up and other 

acoustic sources would be added in a 

way such that the source level would 

increase in steps not exceeding 6 dB per 

5–min period. During ramp-up, the 

MMOs would monitor the safety zone, 

and if marine mammals are sighted, 

decisions about course/speed changes 

and/or shutdown would be 

implemented as though the acoustic 

equipment is operating at full power. 

(4) Poor Visibility Conditions 

AES plans to conduct 24–hr 

operations. The proposed provisions 

associated with operations at night or in 

periods of poor visibility include: 

(1) During any nighttime operations, if 

the entire 180–dB safety radius is visible 

using vessel lights and/or night vision 

devices, then start of a ramp-up 

procedure after a complete shutdown of 

the airgun array may occur following a 

30–min period of observation without 

sighting marine mammals in the safety 

zone. 

(2) If during foggy conditions or 

darkness (which may be encountered 

starting in late August), the full 180–dB 

safety zone is not visible, the airguns 

cannot be ramped-up if the seismic 

source is in a full shutdown mode. 

(3) If one or more airguns has been 

operational before nightfall or before the 

onset of foggy conditions, they can 

remain operational throughout the night 

or foggy conditions. In this case, rampup procedures can be initiated, even 

though the entire safety radius may not 

be visible, on the assumption that 

marine mammals will be alerted by the 

sounds from the single airgun and have 

moved away. 

Data Collection and Reporting 

MMOs would record data to estimate 

the numbers of marine mammals 

present and to document apparent 

disturbance reactions or lack thereof. 

Data would be used to estimate numbers 

of animals potentially ‘‘taken’’ by 

harassment. They would also provide 

information needed to order a shut 

down of acoustic equipment when 

marine mammals are within or entering 

the safety zone. 

When a sighting is made, the 

following information about the sighting 

would be recorded: 

(1) Species, group size, age/size/sex 

categories (if determinable), behavior 

when first sighted and after initial 

sighting, heading (if consistent), bearing 

and distance from seismic vessel, and 

apparent reaction to the acoustic 

sources or vessel. 

(2) Time, location relative to the 

acoustic sources, heading, speed, 

activity of the vessel (including whether 

and the level at which acoustic sources 

are operating), sea state, visibility, and 

sun glare. 

The data listed under (2) would also 

be recorded at the start and end of each 

observation watch, and during a watch 

whenever there is a change in one or 

more of the variables. 

A final report will be submitted to 

NMFS within 90 days after the end of 

the shallow hazard and site clearance 

surveys. The report will describe the 

operations that were conducted and 

sightings of marine mammals near the 

operations. The report also will provide 

full documentation of methods, results, 

and interpretation pertaining to all 

monitoring. The report will summarize 

the dates and locations of seismic 

operations, and all marine mammal 

sightings (dates, times, locations, 

activities, associated seismic survey 

activities), and the amount and nature of 

potential take of marine mammals by 

harassment or in other ways. 

Endangered Species Act 

Under section 7 of the ESA, NMFS 

has completed consultation with the 

MMS on the issuance of seismic permits 

for offshore oil and gas activities in the 

Beaufort and Chukchi seas. In a 

Biological Opinion issued on July 17, 

2008, NMFS concluded that the 

issuance of seismic survey permits by 

MMS and the issuance of the associated 

IHAs for seismic surveys are not likely 

to jeopardize the continued existence of 

threatened or endangered species 

(specifically the bowhead, humpback, 

and fin whales) under the jurisdiction of 

NMFS or destroy or adversely modify 

any designated critical habitat. The 2008 

Biological Opinion takes into 

consideration all oil and gas related 

activities that are reasonably likely to 

occur, including exploratory (but not 

production) oil drilling activities. In 

addition, NMFS has issued an 

Incidental Take Statement under this 

Biological Opinion which contains 

reasonable and prudent measures with 

implementing terms and conditions to 

minimize the effects of take of bowhead 

whales. 

NEPA 

In 2006, the MMS prepared Draft and 

Final PEAs for seismic surveys in the 

Beaufort and Chukchi Seas. NMFS was 

a cooperating agency in the preparation 

of the MMS PEA. On November 17, 

2006 (71 FR 66912), NMFS and MMS 

announced that they were preparing a 

DPEIS in order to assess the impacts of 

MMS’ annual authorizations under the 

Outer Continental Shelf Lands Act to 

the U.S. oil and gas industry to conduct 

offshore geophysical seismic surveys in 

the Chukchi and Beaufort Seas off 

Alaska and NMFS’ authorizations under 

the MMPA to incidentally harass marine 


rwilkins on PROD1PC63 with NOTICES3
Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices 46795 

mammals while conducting those 

surveys. 

On March 30, 2007 (72 FR 15135), the 

Environmental Protection Agency (EPA) 

noted the availability for comment of 

the NMFS/MMS DPEIS. Based upon 

several verbal and written requests to 

NMFS for additional time to review the 

DPEIS, EPA has twice announced an 

extension of the comment period until 

July 30, 2007 (72 FR 28044, May 18, 

2007; 72 FR 38576, July 13, 2007). 

Because NMFS has been unable to 

complete the PEIS, it was determined 

that the 2006 PEA would need to be 

updated in order to meet NMFS’ NEPA 

requirement. This approach was 

warranted as it was reviewing five 

proposed Arctic seismic survey IHAs for 

2008, well within the scope of the PEA’s 

eight consecutive seismic surveys. To 

update the 2006 Final PEA, NMFS 

prepared a SEA which incorporates by 

reference the 2006 Final PEA and other 

related documents. 

Determination 

Based on the preceding information, 

and provided that the mitigation and 

monitoring are incorporated, NMFS has 

determined that the impact of 

conducting the shallow hazard and site 

clearance surveys in Chukchi Sea may 

result, at worst, in a temporary 

modification in behavior of small 

numbers of certain species of marine 

mammals. While behavioral and 

avoidance reactions may be made by 

these species in response to the 

resultant noise from the airguns, sidescan sonars, seismic profilers, and other 

acoustic equipment, these behavioral 

changes are expected to have a 

negligible impact on the affected species 

and stocks of marine mammals. In 

addition, NMFS has determined that the 

AES’ shallow hazard and site clearance 

survey would have no unmitigable 

adverse impact to the subsistence use of 

marine mammal species and/or stocks. 

While the number of potential 

incidental harassment takes will depend 

on the distribution and abundance of 

marine mammals in the area of site 

clearance operations, the number of 

potential harassment takings is 

estimated to be relatively small in light 

of the population or stock size. NMFS 

anticipates the actual take of individuals 

to be lower than the numbers presented 

in the analysis because those numbers 

do not reflect either the implementation 

of the mitigation measures or the fact 

that some animals will avoid the sound 

at levels lower than those expected to 

result in harassment. 

In addition, no take by death and/or 

injury is anticipated, and the potential 

for temporary or permanent hearing 

impairment will be avoided through the 

incorporation of the required mitigation 

measures described in this document. 

This determination is supported by (1) 

the likelihood that, given sufficient 

notice through slow ship speed and 

ramp-up of the acoustic equipment, 

marine mammals are expected to move 

away from a noise source that it is 

annoying prior to its becoming 

potentially injurious; (2) TTS is unlikely 

to occur, especially in odontocetes, until 

levels much above 180 dB re 1 microPa 

(rms) are reached; and (3) the fact that 

injurious levels of sound are only likely 

if an animal is very close to the vessel. 

Authorization 

As a result of these determinations, 

NMFS has issued an IHA to AES for 

conducting a shallow hazard and site 

clearance survey in the Chukchi Sea in 

2008, provided the previously 

mentioned mitigation, monitoring, and 

reporting requirements are incorporated. 

Dated: July 30, 2008. 

James H. Lecky. 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. E8–18199 Filed 8–8–08; 8:45 am] 

BILLING CODE 3510–22–S 


rwilkins on PROD1PC63 with NOTICES3