Federal Register / Vol. 73, No. 163 / Thursday, August 21, 2008 / Notices 49421 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XJ71 

Incidental Takes of Marine Mammals 

During Specified Activities; Shallow 

Hazard and Site Clearance Surveys in 

the Chukchi Sea in 2008 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

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 ConocoPhillips 

Alaska, Inc. (CPAI) in the Chukchi Sea 

has been issued. 

DATES: The authorization is effective 

from August 15, 2008, until October 31, 

2008. 

ADDRESSES: A 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 April 30, 2008, NMFS received an 

application from CPAI for the taking, by 

Level B harassment, of several species of 

marine mammals incidental to 

conducting shallow hazard and site 

clearance surveys using acoustic 

equipment and small airguns in the 

Chukchi Sea for 30–45 days from 

approximately August 10, 2008 until 

October 31, 2008. The geographic region 

of the proposed activities includes two 

areas spaced about 60 km (37 mi) apart 

and a path for sampling conditions 

along a potential pipeline route. Each 

area is about 2,000 km2 (772.5 mi2) with 

dimensions about 72 km (45 mi) by 62 

km (38.5 mi). The two areas are about 

111 km (69 mi) off the Alaska coast, 

generally west from the village of 

Wainwright. The marine surveys will be 

performed from a seismic vessel. 

Detailed information on the shallow 

hazard and seismic surveys can be 

found in the CPAI application and in 

the Federal Register notice for the 

proposed IHA published on May 23, 

2008 (73 FR 30064) (hereinafter ‘‘FR 

Notice of Proposed IHA’’). No changes 

have been made to the proposed 

activities since publication of the FR 

Notice of Proposed IHA. 

Comments and Responses 

During the 30-day public comment 

period, NMFS received comments from 

the Marine Mammal Commission 

(Commission), the Native Village of 

Point Hope (NVPH); the North Slope 

Borough (NSB); the Alaska Eskimo 

Whaling Commission (AEWC); the 

Center for Biological Diversity (CBD), 

Pacific Environment, Natural Resources 

Defense Council and Alaska Wilderness 

League; Oceana and Ocean 

Conservancy; the Inupiat Community of 

the Arctic Slope (ICPS); Dr. David E. 

Bain of the University of Washington; 

and CPAI. 

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; (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; and (c) the list of species 

authorized to be taken be expanded to 

include fin whales. 

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. 

In addition, fin whales have been 

included in the list of species 

authorized to be taken by Level B 

harassment for the CPAI shallow hazard 

and site clearance surveys. 

Comment 2: The NSB and ICAS point 

out that the CPAI application was 

incomplete because the proposed dates 

and duration of activities vary 

throughout the application documents. 

In addition, the NSB points out that the 

application has limited information 

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about marine mammal distribution, 

movements, habitat use, population size 

and trends. In addition, the ICAS states 

that CPAI cannot have adequately 

provided estimates of the number and 

type of species taken, when the IHA 

application did not adequately 

acknowledge the uncertainties in the 

available data for this type of operation. 

Response: Comment noted. NMFS 

reviewed the CPAI application and 

verified the information provided 

within. At the time when CPAI 

submitted its application, no specific 

dates had been identified by CPAI, but 

a range of possible dates (i.e., July 15 

through November 15, 2008) for the 

activity was noted. CPAI has since 

narrowed its operation window to 

between August 10 and October 31, 

2008. CPAI also indicates that the 

seismic activities would take 

approximately 30–45 days, and it is 

likely to finish the operation earlier if 

weather permits. 

While information on marine 

mammals 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 NSB and ICAS 

recommend that NMFS not authorize 

CPAI’s proposed seismic activities. The 

CBD also urges NMFS not to issue any 

take authorization to CPAI 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 violates the 

MMPA, ESA, NEPA, and other 

governing statutes and regulations. 

Response: NMFS does not agree with 

NSB, ICAS, and CBD’s recommendation 

and 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 CPAI would result in a violation of 

the MMPA, ESA, NEPA, and other 

governing statutes and regulations. 

Acoustics Impacts 

Comment 4: 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. 

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 has 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 5: 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 

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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 3, 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 6: 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 4, 

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 7: 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 

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. 

2006ab).’’ 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 icebreakers at received sound levels as low 

as 94 dB. In addition, citing NRC (2003), 

the NVPH states that at distances of up 

to 50 km from icebreakers or other ships 

operating in deep channels, beluga 

whales respond with a suite of 

behavioral reactions which include 

rapid swimming away from the ship for 

distances up to 80 km. Finally, citing 

Richardson et al. (1999) and Richardson 

(2008), the NSB states that bowhead 

whales were excluded from a zone 

around an active seismic vessel where 

sound levels were estimated to be 

between 116 and 135 dB, and that 

bowhead whales were deflected away 

from sounds associated with a 

development island in the Beaufort Sea 

at levels perhaps approaching ambient 

sound levels. 

Response: NMFS does not agree with 

Dr. Bain, CBD, NVPH, and NSB’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 5, 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, CBD, 

NVPH, and NSB’s second example 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. 

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Although migrating bowhead whales 

were shown to be excluded from a zone 

around an active seismic vessel where 

sound levels were estimated to be at 

around 120 dB (Richardson et al., 1999), 

the situation in this issue was that the 

migratory corridor was narrower in the 

Beaufort Sea. As the 120 dB ensonified 

area filled the narrow migratory 

corridor, thus impedes the movement of 

the whales. However, NMFS believes 

that in the Chukchi Sea where the area 

is more open, the 120 dB ensonified 

area would not impede bowhead whale 

migration. Therefore, there would be no 

significant biological affect to the 

species. However, as discussed below 

that monitoring a 120-dB radius in the 

Chukchi Sea is not practicable and due 

to safety concerns, NMFS would not 

require this level of monitoring in the 

Chukchi Sea. 

Comment 8: 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 7, 

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 9: 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 

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 10: 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 11: 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 sounds 

above 200 kHz (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). 

MMPA Comments 

Comment 12: The CBD, ICAS, and 

NSB state that since NMFS has not 

promulgated any regulations related to 

shallow hazard and site clearance 

surveys under the MMPA, and because 

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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 

CPAI’s proposed activities. 

Response: NMFS does not agree with 

the CBD, ICAS, 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 CPAI’s 

shallow hazard and site clearance 

survey requires a LOA. As explained 

throughout this Federal Register Notice, 

it is highly unlikely that marine 

mammals would be exposed to sound 

pressure levels (SPLs) that could result 

in serious injury or mortality. The best 

scientific information indicates that an 

auditory injury is unlikely to occur as 

apparently sounds need to be 

significantly greater than 180 dB for 

injury to occur (Southall et al., 2007). 

NMFS has determined that exposure 

to several seismic pulses at received 

levels near 200 205 dB (rms) might 

result in slight temporary threshold shift 

(TTS) (which is not considered injury) 

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. CPAI’s 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 CPAI for the 2008 

seismic survey program. 

Comment 13: 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 CPAI’s 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 CPAI 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 CPAI’s 

shallow hazard and site clearance 

survey in the Chukchi Sea in 2008. 

Comment 14: The CBD states that 

NMFS failed to adequately specify 

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CPAI’s activities and impacts of vessels 

because neither CPAI’s 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 CPAI’s 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 affect 

NMFS’ ability to review activities that 

have a potential to cause harm to marine 

mammal populations. 

Comment 15: The ICAS and NSB state 

that a ‘‘small take’’ finding is inadequate 

and thus cannot be supported with 

actual data for the proposed CPAI 

shallow hazard and site 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 ICAS, NSB, and CBD’s statement. 

The analysis provided in the FR Notice 

of 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. As clearly stated in the 

aforementioned Federal Register notice, 

take numbers of these species represent 

0.09, 0.19, and 0.06 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 

the Bering Sea stock of harbor porpoises 

(population estimated at 66,078), 

respectively; and 0.55 and 0.15 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. 

Comment 16: The CPAI states 

although for bowhead whales a current 

minimum population is estimated at 

9,472, there are more data that gives a 

range of the population up to 13,000 

individuals. CPAI requests NMFS to 

consider using the range that more 

accurately reflects the health of the 

population and its increased growth 

over the past few decades. 

Response: Comment noted. Although 

several recent studies have put the 

western Arctic stock of bowhead whales 

in the range of 13,000 individuals 

(Gerber et al., 2007; Citta et al., 2007), 

those studies were based on the 

projection of an approximate 3 percent 

increase from the most recent estimate 

conducted in 2004 (George et al., 2004). 

However, it is important to recognize 

that this number (13,000) is merely a 

projection based on the stock 

assessment survey and does not 

represent the population estimate which 

is usually based on population 

abundance surveys. NMFS Stock 

Assessment Report defines the best 

stock estimate for the western Arctic 

bowhead whales at 10,545, the 

minimum at 9,472 individuals, 

respectively (Angliss and Outlaw, 2008). 

For the purpose of this activity, NMFS 

uses the best population estimate, i.e., 

10,545. 

Comment 17: The ICAS points out 

that the population density estimates 

used in the IHA application to 

determine the estimated take of various 

species are uncertain because CPAI 

based population density estimates on 

the published report of marine mammal 

surveys conducted during the Shell and 

CPAI seismic program in the Chukchi 

Sea during 2007 (‘‘LGL Report’’). The 

ICAS further states that while these may 

be the most recent density estimates for 

the region, they do not include 

estimates for ribbon seals, beluga, 

humpback whales, or fin whales. 

Finally, the ICAS points out that only 22 

percent of the total daylight observation 

effort from the main vessel, and 43 

percent of the total daylight observation 

from chase/monitoring vessels for the 

Chukchi Sea survey was useable. 

Response: As ICAS states in its 

comment these are the most recent 

density estimates of marine mammal 

species/stocks in the vicinity of the 

proposed seismic survey area. 

Therefore, NMFS considers these data to 

best reflect the recent marine mammal 

distribution and abundance in the 

region. These density estimates were 

adjusted for sighting rates to account for 

animals present but not actually seen. 

As for those species and stocks whose 

density data are not available, such as 

beluga, humpback, and killer whales, 

and ribbon seals that could also be 

affected by Level B behavioral 

harassment, since the occurrence of 

these marine mammals is very rare 

within the proposed project area during 

the late summer and fall in the Chukchi 

Sea, take numbers cannot be estimated. 

However, should these animals occur in 

the project area, NMFS believes their 

take numbers would be much lower 

(including as a percentage of the 

affected species or stock) as compared to 

those marine mammals whose take 

numbers were calculated. 

Comment 18: The CBD, ICAS, 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, ICAS, and NSB’s statement. As 

stated in the MMPA, Level B 

harassment is defined as any act of 

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Federal Register / Vol. 73, No. 163 / Thursday, August 21, 2008 / Notices 49427 

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 CPAI 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 19: The ICAS points out 

that when calculating the estimated take 

number, CPAI used the equation of 

multiplying the average density of 

species by the length of trackline shots 

(in km) by twice of the distance of 

transmission loss to 160 dB. The ICAS 

states that such calculation did not 

include marine mammal takes within 

the semi-circular areas defined by the 

safety radii that would bound the start 

and end-points of seismic surveying. 

The ICAS states that to account for this 

discrepancy, the above equation should 

be supplemented with the semi-circular 

areas. 

Response: Comment noted. Although 

it is customary to include the semicircular areas defined by the safety radii 

that would bound the start and endpoints of seismic surveying, the 160-dB 

distance is very short due to the overall 

low intensity of the acoustic sources. 

Therefore, the ensonified area within 

the bounded semi-circular areas is very 

small (8 km2, or 0.045 percent of the 

total ensonified area) when compared to 

the total ensonified area even without 

the semi-circular areas (17,649 km2). A 

recalculation of the estimated takes 

including the semi-circular areas did 

not show a difference from the original 

calculation. 

Comment 20: The CBD, ICAS, 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 CPAI is not expected to have 

adverse impacts on ice seals. The 

activity will last for approximately 30–

45 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 1,379 ringed and 376 

bearded seals would be affected by 

Level B behavioral harassment as a 

result of the proposed shallow hazard 

and site clearance surveys, respectively, 

and that these take numbers represent 

0.55 and 0.15 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 21: 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 CPAI 

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 August and October for 30–45 

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 22: 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 

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49428 Federal Register / Vol. 73, No. 163 / Thursday, August 21, 2008 / Notices 

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 

constitutes a very small portion of the 

Chukchi 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 23: 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 CPAI seismic activities 

and other 2008 seismic activities in the 

Chukchi and Beaufort Seas. 

Comment 24: 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 

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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 25: 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 

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 26: 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 27: Dr. Bain comments on 

NMFS’ and CPAI’s 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) isopleth for marine 

mammals. The area of ensonification 

was determined by multiplying the total 

proposed trackline (5,300 km or 3,294 

mi) times 2 (both sides of the trackline) 

times the distance to the 160-dB 

isopleth (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 

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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 microPa 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 1,665 m (5,463 

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 115 

m (377 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 28: 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 a 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 4, 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 microPa 

or higher do not exhibit noticeable 

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

1984; Richardson et al., 1986; 1999; 

Miller et al., 2005). Second, although 

migrating bowhead whales have been 

seen to be excluded from entering areas 

with seismic sound levels at 

approximately 120 dB re 1 microPa in 

the Beaufort Sea (Richardson et al., 

1999), NMFS believes this was due to 

the narrower migratory route in the 

Beaufort Sea where the whales 

migration was impeded due to the 

seismic noise. However, the migratory 

route of bowhead whales is much wider 

in the Chukchi Sea. The wider 

migratory route allows bowhead whales 

to go around the ensonified zone during 

their migration, instead of being 

impeded by the sound. In addition, 

since the source levels from the shallow 

hazard and site clearance survey are 

relatively low (214 dB re 1 microPa for 

the source of the loudest acoustic 

equipment), the ensonified zone would 

also be relatively small. If any deflection 

were to occur, NMFS does not believe 

it would be biologically significant. 

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 29: The NSB states CPAI 

used the density information to estimate 

the number of belugas they may 

encounter and take during the seismic 

operations, based on 2006 and 2007 

vessel based survey, was not 

appropriate, since these data were 

collected in the same season when 

seismic operations were occurring and 

belugas appear to be sensitive to 

industrial sounds. The NSB 

recommends that the Brueggerman et al. 

(1990; 1991; 1992) observations be used 

to calculate the beluga density. The NSB 

further states that if CPAI conducts 

surveys into October or November, it 

would also encounter belugas from the 

Beaufort Sea stock as the animals are 

migrating toward wintering areas. 

Therefore, it is highly unlikely that only 

10 belugas would be disturbed. 

Response: NMFS agrees with the 

NSB’s assessment regarding the 

uncertainty of beluga density in the 

vicinity of the proposed seismic 

operation area. Although density 

estimate data for marine mammals in 

the Arctic Ocean are available, NMFS 

typically uses the most recent data 

because they are deemed to be reliable. 

In this case, the 2006 and 2007 beluga 

whale monitoring data provide the most 

recent scientific information on the 

distribution of these animals, while the 

Brueggerman et al. (1990; 1991; 1992) 

data are 16–18 years old. In addition, 

the NSB did not provide the full citation 

of the Brueggerman et al. references for 

NMFS to verify and compare. However, 

NMFS also recognizes that satellite 

tagging efforts directed at the eastern 

Chukchi stock of beluga whales showed 

that whales tagged in the eastern 

Chukchi in summer traveled 1,100 km 

(684 mi) north of the Alaska coastline 

and to the Canadian Beaufort Sea within 

3 months of tagging (Suydam et al., 

2001), indicating significant stock 

overlap with the Beaufort Sea stock of 

beluga whales. For these reasons, NMFS 

could not provide a take estimate for 

beluga whales for both populations. 

Nevertheless, recent data from the LGL 

Report (LGL, 2008), which was based on 

marine mammal monitoring during the 

2007 Shell and CPAI seismic surveys, 

showed that beluga whale distribution 

in the proposed seismic area in the 

Chukchi Sea is very low. Therefore, 

NMFS believes that only a small 

undetermined number of beluga whales 

would be affected by Level B 

harassment as a result of the proposed 

CPAI shallow hazard and site clearance 

surveys. 

Subsistence Uses 

Comment 30: 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 impacts to marine mammals 

as a result of 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 

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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 31: NVPH states that NMFS 

failed to provide the substantive 

analysis to support any meaningful 

finding regarding the possible effect of 

CPAI’s 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 in 

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 in 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 

CPAI would only occur in a small area 

within the much larger Chukchi Sea 

basin for a brief period of 30–45 days. 

It would also occur far offshore, 

approximately 70 miles, outside the area 

in which harvest traditionally occurs. In 

addition, because CPAI’s seismic 

surveys will occur during the late 

summer and fall (after many of the 

Chukchi Sea communities have 

harvested sizeable portions of their 

marine mammal quota), NMFS does not 

believe that CPAI’s activities are likely 

to reduce the availability of the affected 

species to a level insufficient for a 

harvest to meet its needs. NMFS does 

not expect subsistence users to be 

directly displaced by the seismic 

surveys because subsistence users 

typically do not travel this far offshore 

to harvest marine mammals. Next, 

because of the significant distance 

offshore and the lack of hunting in these 

areas, there is no expectation that any 

physical barriers would exist between 

marine mammals and subsistence users. 

Furthermore, mitigation and monitoring 

measures required for the seismic 

activities are expected to reduce all 

potential impacts to negligible levels to 

marine mammals and their habitat. 

Finally, CPAI 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 32: The CBD, NVPH, ICAS, 

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 NVPH is concerned that CPAI 

intends to conduct surveys within just 

a few miles of the village of Wainwright, 

and that it also plans to conduct surveys 

near the north end of Kasegaluk Lagoon, 

which is an important subsistence use 

area for residents of Point Lay, and 

contains the largest concentration of 

spotted seals in Alaska. The NSB is also 

concerned about impacts to subsistence 

hunts of marine mammals in the 

summer: notably beluga hunts at Point 

Lay and Wainwright, and walrus and 

bearded seal hunts in all of the villages 

of the Alaska Bering and Chukchi Seas. 

The NSB states that the summer beluga 

whale hunt at Point Lay extends into 

July, the hunt in Wainwright extends 

into August, and Point Hope and 

Wainwright hunt bowhead whales in 

the fall and these hunts may be 

adversely affected. 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 CPAI’s proposed IHA. 

Response: NMFS does not agree with 

CBD, NVPH, ICAS, and NSB’s 

statement. The CPAI’s shallow hazard 

and site clearance survey will not occur 

in the coast of the Alaska North Slope. 

As stated in the FR Notice of Proposed 

IHA, the two areas for the proposed 

CPAI shallow hazard and site clearance 

surveys would be conducted about 111 

km (69 mi) off the Alaska coast, 

generally west from the village of 

Wainwright. Therefore, NVPH’s concern 

that the proposed seismic activities 

would be conducted just miles off the 

coast is unwarranted. 

Although CPAI plans to conduct its 

shallow hazard and site clearance 

survey in August, it is likely that the 

surveys would not start until midAugust, thus missing the summer beluga 

hunt at Point Lay and most in 

Wainwright. In addition, as mentioned 

earlier, the proposed shallow hazard 

and site clearance survey would be 

conducted 69 miles off the coast and 

would therefore not overlap with the 

subsistence harvest of beluga whales 

and bearded seals. The subsistence hunt 

of walruses was reviewed by the FWS 

since it is a species under the FWS 

jurisdiction. An LOA was issued by the 

FWS for the take of walruses incidental 

to CPAI’s proposed seismic surveys. 

Finally, the IHA issued to CPAI 

includes specific mitigation measures 

that would prevent any unmitigable 

impacts to subsistence use of marine 

mammals from the proposed seismic 

activities. Please refer to the Mitigation 

Section of this document for detailed 

information. 

Comment 33: The AEWC states that 

CPAI has not communicated its 

intentions regarding the signing of 

Conflict Avoidance Agreement (CAA) 

with the AEWC, and that it understands 

that CPAI would not agree to the 2008 

CAA. Therefore, AEWC observes that to 

issue an IHA to a company that would 

not voluntarily agree to the terms of the 

CAA, NMFS must limit its authorization 

to times and locations that would 

ensure they company’s compliance with 

the mitigation measures set forth in the 

CAA—no more than two simultaneous 

geophysical activities in each of the 

Beaufort and Chukchi Seas. The AEWC 

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further states that it would not oppose 

an IHA issued to CPAI containing these 

limitations and the other requirements 

and recommendations provided by the 

NSB in its comments. Finally, the 

AEWC states that it will oppose any IHA 

issued by NMFS that does not contain 

mitigation measures identical to those 

set forth in the 2008 CAA. 

Response: Comment noted. 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 the oil 

and gas industry 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, CPAI has conducted POC 

meetings for its seismic operations in 

the Chukchi Sea in the communities 

and villages of Kivalina, Kotzebue, 

Wainwright, Barrow, Point Lay, and 

Point Hope. 

CPAI has not signed the 2008 CAA 

with Alaska Natives and has informed 

NMFS that it does not intend to do so. 

NMFS has scrutinized all of the 

documents submitted by CPAI (e.g., IHA 

application, Plan of Cooperation and 

other correspondence to NMFS and 

affected stakeholders) and documents 

submitted by other affected stakeholders 

and concluded that harassment of 

marine mammals incidental to CPAI’s 

activities will not have an unmitigable 

adverse impact on the availability of 

marine mammals for taking for 

subsistence uses. This finding was 

based in large part on NMFS’ definition 

of ‘‘unmitigable adverse impact’’, the 

proposed mitigation and monitoring 

measures, the 2008 CAA signed by other 

industry participants and Alaska 

Natives, the scope of activities proposed 

to be conducted, including time of year, 

location and presence of marine 

mammals in the project area, and CPAI’s 

Plan of Cooperation. 

As described in CPAI’s IHA 

application, the seismic survey is 

proposed to be conducted 

approximately 70 miles off the Alaskan 

coast in the Chukchi Sea where very 

little subsistence harvest occurs. In 

addition, because CPAI’s seismic 

surveys will occur during the late 

summer and fall (after many of the 

Chukchi Sea communities have 

harvested sizeable portions of their 

marine mammal quota), NMFS does not 

believe that CPAI’s activities are likely 

to reduce the availability of the affected 

species to a level insufficient for a 

harvest to meet its needs. NMFS does 

not expect subsistence users to be 

directly displaced by the seismic 

surveys because subsistence users 

typically do not travel this far offshore 

to harvest marine mammals. Next, 

because of the significant distance 

offshore and the lack of hunting in these 

areas, there is no expectation that any 

physical barriers would exist between 

marine mammals and subsistence users. 

For bowhead whale subsistence 

hunting, recent history shows that Point 

Hope and Wainwright only hunt during 

the spring migration (Suydam et al., 

2005; Suydam and George, 2004). The 

village of Barrow hunts during the 

spring and fall migrations, taking most 

bowheads during the spring migration. 

The fall hunt occurs in open water from 

late August through October by Barrow, 

and whalers hunt mainly in the waters 

east and northeast of Point Barrow in 

the Beaufort Sea. Also, hunters prefer to 

take bowheads close to shore to avoid a 

long tow during which the meat can 

spoil. Beluga whales are hunted for 

subsistence at Barrow, Wainwright, 

Point Lay, and Point Hope, with the 

most taken by Point Lay (Fuller and 

George, 1997). Harvest at all of these 

villages generally occurs between April 

and July with most taken in April and 

May when pack-ice conditions 

deteriorate and leads open-up. Ringed, 

bearded, and spotted seals are hunted 

by all of the villages bordering the 

project area (Fuller and George, 1997). 

Ringed and bearded seals are hunted 

throughout the year, but most are taken 

in May, June, and July when ice breaks 

up and there is open water instead of 

the more difficult hunting of seals at 

holes and lairs. Spotted seals are only 

hunted in spring through summer. 

Therefore, the scheduling of the 

proposed shallow hazard and site 

clearance survey is expected to have 

minimum conflict between the 

industries and marine mammal 

harvests. 

Finally, in the event harvest activities 

do occur this far offshore, the required 

mitigation and monitoring measures are 

expected to reduce any adverse impacts 

on marine mammals for taking for 

subsistence uses to the extent 

practicable. These measures include, 

but are not limited to, the 180 dB and 

190 dB safety (shut-down/power-down) 

zones; a requirement to monitor the 160 

dB isopleths for aggregations of 12 or 

more non-migratory balaenidae whales 

and when necessary shut-down seismic 

airguns; maintaining a distance of at 

least 15 miles from other operating 

seismic vessels; reducing vessel speed 

when a vessel is within 300 yards of 

whales to avoid a collision; utilizing 

communication centers to avoid any 

conflict with subsistence hunting 

activities; and the use of marine 

mammal observers. Many of these 

requirements are consistent with the 

measures contained in the 2008 CAA 

entered into between other industry 

participants who operate in the Chukchi 

Sea and Alaska Natives. 

NMFS does not agree with AEWC’s 

recommendation to limit no more than 

two simultaneous geophysical activities 

in each of the Beaufort and Chukchi 

Seas. As analyzed in detail in the MMS 

2006 PEA and NMFS 2008 SEA, a total 

of four simultaneous geographical/ 

seismic activities can be conducted in 

each of the Beaufort and Chukchi Seas 

without significant impacts to the 

human environment. A similar finding 

was made for the proposed 2008 CPAI 

shallow hazard and site clearance 

survey in the Chukchi Sea. 

Comment 34: NVPH states that it 

noted that CPAI proposes to mitigate 

impacts to subsistence activities via 

measures developed through a Plan of 

Cooperation (POC) with the AEWC and 

a variety of meetings and consultations. 

The NVPH states that there is no 

guarantee that these processes would 

result in enforceable limits that ensure 

CPAI’s activities have no unmitigable 

adverse impact on the availability of 

seals and whales for subsistence 

purposes. The NVPH further states that 

by relying on these processes without 

ensuring that they produce a meaningful 

outcome, NMFS has effectively deferred 

its determination whether CPAI’s 

activities would have an unmitigable 

adverse impact on the availability of 

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seals and whales for subsistence uses by 

communities along the Beaufort Sea 

until after a POC has been developed. 

Response: NMFS does not agree with 

NVPH’s assessment. First, the proposed 

CPAI shallow hazard and site clearance 

survey is planned in the Chukchi Sea, 

not the Beaufort Sea as NVPH stated in 

its comment. In order to make a 

determination that the proposed CPAI 

2008 shallow hazard and site clearance 

surveys would not have a unmitigable 

adverse impact on the availability of 

marine mammal species or stocks for 

taking for subsistence uses in the 

proposed seismic area, NMFS carefully 

reviewed and analyzed the proposed 

seismic activities before making its 

determination (see Response to 

Comment 33). NMFS also reviewed 

other information presented in various 

documents, including but not limited to, 

the MMS 2006 PEA, the MMS 2007 

draft PEIS, 2006 and 2007 Arctic 

seismic survey monitoring reports, and 

the 2008 CAA. 

Comment 35: 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 CPAI 

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. The 100 km (62 mi) separating 

distance for the 120 dB zone between 

vessels is 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 conditions, the higher 

the source level, the longer the distance 

where the received level would reach 

120 dB. Therefore, at this time, there is 

no basis upon which to limit effort to no 

more than 2 vessels within 100 km of 

one another. 

Mitigation and Monitoring 

Comment 36: Dr. Bain questions 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 115 m (377 ft) 

radius for the 180-dB isopleth and 20 m 

(66 ft) radius for the 190-dB isopleth, 

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. 

Furthermore, MMOs would be on duty 

for 4 consecutive hours or less to reduce 

fatigue. In addition, all MMOs hired for 

the proposed seismic surveys must be 

NMFS-approved observers who are 

qualified to perform the required 

monitoring tasks. Therefore, NMFS 

believes that two MMOs are effective for 

marine mammal monitoring for CPAI’s 

shallow hazard and site clearance 

surveys. 

Comment 37: 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 monitoring for deep diving marine 

mammals it poses a challenge. 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 presurvey monitoring, ramp-up procedures 

will be followed when an acoustic 

source begins 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 

of these measures. 

Comment 38: NVPH is concerned that 

NMFS did not discuss the option of 

requiring CPAI 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 

isopleth, and that NMFS fails to discuss 

the option of requiring CPAI to monitor 

the 120 dB isopleth for bowhead cowcalf pairs and to require CPAI 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 that NMFS requires 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 CPAI, NMFS 

requires CPAI 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 or more cow-calf 

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49434 Federal Register / Vol. 73, No. 163 / Thursday, August 21, 2008 / Notices 

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. 

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. 

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 39: CPAI states that they are 

not able to ramp up the single source 

because they plan to use a low level 

sparker seismic tool for the geohazard 

surveys. CPAI requests that NMFS not 

require ramp-up procedures. CPAI 

indicates that they would still follow 

the following mitigation measures, 

including (1) vessel speed or course 

alteration; (2) shutdown procedures; (3) 

MMOs on the vessels; and (4) 

communication systems to stay in 

contact with villages and hunters to 

avoid conflict with subsistence 

activities. 

Response: With respect to CPAI’s 

comment, NMFS has communicated 

with ASRC Energy Services (AES), 

which plans to conduct a similar 

shallow hazard and site clearance 

survey in the Chukchi Sea during the 

2008 open water season and use 

essentially the same acoustic equipment 

CPAI listed in its IHA application. AES 

indicated that all of these Sparker 

acoustic systems can be ramped up. 

NMFS has also been informed by the 

U.S. Geological Survey and other 

contractors who use Sparker or similar 

acoustic systems that these acoustic 

devices have the capability to ramp up. 

Based upon this information and the 

technology identified in CPAI’s 

application, there does not appear to be 

a legitimate reason for waiving the ramp 

up procedures because Sparker or 

similar acoustic systems are capable of 

ramp up and these devices are available 

for CPAI’s use this season. In addition, 

ramping up is a standard mitigation 

measure for seismic surveys that 

introduce high level acoustic energy 

(over 200 dB re 1 microPa) into the 

water column, and is described in the 

MMS 2006 PEA, the MMS 2007 draft 

PEIS, and NMFS 2008 SEA for seismic 

surveys in the Arctic as a required 

mitigation measure under the preferred 

alternative. Furthermore, NMFS 

requires all IHA applicants that plan to 

conduct seismic surveys in the 2008 

Arctic open-water season to ramp up 

their seismic sources as a mitigation 

measure. Therefore, NMFS cannot 

waive ramp-up requirement just for 

CPAI. 

After further discussion with CPAI, 

CPAI agreed that they will use a smaller 

sparker tool to initiate the survey and 

then transfer to the larger sparker. This 

process would be equivalent to a 

traditional ramp up requirement and 

would be an appropriate mitigation 

measure. 

Comment 40: NVPH states that NMFS 

failed to provide for peer review of 

CPAI’s proposed monitoring plans. It 

further states that the presentation 

provided by CPAI 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 

and the public. CPAI’s 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 May 23, 2008 (73 FR 30064) 

and June 23, 2008. NMFS believes that 

it has met the requirements of section 

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

Comment 41: The CBD, NSB, ICAS, 

and Dr. Bain state that during night-time 

and poor visibility condition, CPAI 

proposes essentially no limitations on 

operations, even though the likelihood 

of observers seeing marine mammals in 

such conditions is very low. The NSB 

requests NMFS to require CPAI to cese 

operations during darkness and 

inclement weather until another 

technique becomes available for 

observing safety zones under such 

conditions. The NSB further states that 

MMOs would not be able to measure 

Level B impacts because they would not 

be able to see far enough away from the 

vessel to observe the zones where Level 

B takes may occur. 

Response: The IHA issued to CPAI 

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 determined there are no 

marine mammals within the safety 

zones, seismic surveys can commence 

and continue into low visibility 

conditions. However, if for any reason 

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. In addition, NMFS also 

does not agree with NSB’s assessment 

that the MMOs are not able to monitor 

the entire Level B zone. The 160-dB 

isopleth is estimated to be 1,665 m, 

which can reasonably be monitored 

from the source vessel with binoculars. 

Please refer to Monitoring and 

Mitigation Measures section below for a 

detailed description. 

Comment 42: The CBD and NSB state 

that NMFS and CPAI did not adequately 

consider the use of passive acoustic 

monitoring (PAM). 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 

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Federal Register / Vol. 73, No. 163 / Thursday, August 21, 2008 / Notices 49435 

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 (115 m, or 377 

ft) based on the 180 db re: 1 microPa 

isopleth 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 115 m (377 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 43: NVPH, CBD, ICAS, and 

the NSB state that NMFS must prepare 

an Environmental Impact Statement 

(EIS) to evaluate CPAI’s 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 

CPAI’s (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 CPAI’s 

proposed activity for this season was 

not explicitly identified in the 2006 

PEA, the PEA did contemplate that 

future seismic activity, such as CPAI’s 

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 CPAI 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 44: The NSB, NVPH, ICAS, 

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 CPAI’s 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 

43 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 

CPAI’s 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 (i.e., 

seismic surveys) 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 45: NVPH states that the 

MMS 2006 PEA is flawed since it 

understates the risk of significant 

impacts to bowhead whales, and 

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 for the 2006 and 

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49436 Federal Register / Vol. 73, No. 163 / Thursday, August 21, 2008 / Notices 

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 46: 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 

CPAI’s 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 

CPAI 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 CPAI. 

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 be imposed in the Chukchi Sea 

as it has been determined to be 

impracticable under the MMPA. 

Comment 47: 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 CPAI’s 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 48: 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 

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 49: NSB and CBD are both 

concerned about cumulative impacts 

from multiple operations. CPAI’s 

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 

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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 50: 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 51: 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. The CBD and ICAS states that 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 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. CPAI encourages 

NMFS to complete a thorough section 7 

consultation with FWS to assure that 

coverage for polar bear and walrus is 

addressed. 

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 

FWS about conducting a section 7 

consultation. Walrus is not an ESAlisted species, therefore, a section 7 

consultation is not warranted. 

Comment 52: 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 

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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 CPAI’s 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 CPAI while it is 

conducting activities permitted legally 

under MMS’ jurisdiction. 

Other Comments 

Comment 53: To assist with its ability 

to plan and coordinate its programs in 

the remote area of the Chukchi Sea, 

CPAI requests that NMFS expedite their 

decision on the IHA after the 30-day 

public comment period closes on June 

23, 2008. 

Response: Comment noted. 

Nevertheless, in order to make an sound 

determination regarding whether CPAI’s 

proposed shallow hazard and site 

clearance surveys would have a 

negligible impacts to marine mammals 

and unmitigable adverse affects to 

subsistence harvest of marine mammals 

in the Arctic region, NMFS has taken 

the time to thoroughly review all 

relevant documents on the proposed 

activities. Especially as CPAI indicated 

that it will not sign a CAA with the 

AEWC, NMFS is obligated to review and 

evaluate the CAA and stipulate certain 

conditions in the IHA to CPAI to ensure 

that the shallow hazard and site 

clearance survey would not have an 

unmitigable adverse impact on the 

availability of marine mammal species 

or stocks for taking for subsistence uses. 

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 CPAI’s IHA application. 

Additional information regarding the 

stock assessments of these species is in 

NMFS Alaska Marine Mammal Stock 

Assessment Report (Angliss and 

Outlaw, 2008), and can also be assessed 

via the following URL link: http:// 

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

ak2007.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 CPAI 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, 

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 

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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-cuinch 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 above 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 intermediate 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. 

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 planned 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. 

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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. 

Take was calculated for the two areas 

of the study area using vessel-based 

density estimates. Few bowheads and 

no belugas were observed during the 

vessel surveys conducted in the 

Chukchi Sea by LGL et al. (2008), 

although the surveys used multiple 

vessels achieving substantial effort and 

coverage from early July to mid 

November. This result is generally 

consistent with the historic information, 

which shows that bowheads generally 

migrated through the Chukchi Sea to the 

Beaufort Sea by mid-late June, and do 

not return until about late October and 

November, probably reaching the region 

of the project area no earlier than late 

October (LGL et al., 2008). Similarly, 

most belugas migrate to the northern 

Chukchi Sea and westward into the 

Beaufort Sea by mid to late July and 

return to the region of the project area 

in late October and November (Suydam 

et al., 2005). Although LGL et al., (2008) 

did not observe belugas offshore in 2006 

or 2007, they did encounter belugas 

along the coast in decreasing numbers 

from July to October/November during 

aerial surveys. LGL et al. (2008) also 

observed bowheads in the fall near 

Barrow during nearshore aerial surveys, 

suggesting the whales had not moved 

very far into Chukchi Sea at that time. 

While these data and the historic 

information suggest the take 

calculations are reasonable for belugas 

and bowheads, the take numbers have 

been adjusted to 10 animals for each 

species to account for the possible 

occurrence of more animals than 

estimated in the project area during 

operations due to an early freeze-up or 

other unanticipated changes in the 

environment. This adjustment is 

generally consistent with estimates 

based on less current densities used in 

past IHAs for bowhead (0.0011/km2) 

and beluga (0.0034/km2) whales for late 

fall. 

The vessel-based density estimates for 

ringed and spotted seals were reported 

in the LGL et al. (2008) study as a 

combined estimate for the two species, 

since observers were not able to 

distinguish the two species in the open 

water. However, since ringed seals 

typically comprise almost 95 percent of 

the combined ringed/spotted seal 

sightings recorded during surveys in 

offshore waters of the Chukchi Sea 

during 1989–1991 (Brueggeman et al., 

1990; 1991; 1992), the LGL et al. (2008) 

ringed/spotted seal data were corrected 

by applying 95 percent of the sightings 

as ringed, and 5 percent as spotted seals, 

respectively. 

JASCO modeled the sound levels of 

different configurations of seismic 

profilers (10 kj and 16 kj sparkers, 10 in3

and 20 in3 2-gun arrays, 40 cu3 single 

gun, and 10 in3 4-gun array) and found 

the 4-gun array produced the highest 

sound levels. Therefore, all take 

estimates of marine mammals are 

calculated for the 4-gun array in this 

proposed activity, which reaches the 

160 dB re 1 microPa sound level at 

1,665 m (5,463 ft) from the source, the 

180 dB re 1 microPa level at 115 m (377 

ft), and the 190 dB level at 20 m (66 ft). 

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). The area of 

ensonification was determined by 

multiplying the total proposed trackline 

of 5,300 km (3,294 mi)(2,120 km, or 

1,318 mi, in August; 2,120 km, or 1,318 

mi, in September; and 1,060 km, or 659 

mi, in October) 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 1,665 m (5,463 ft) with a 

corresponding area of ensonification of 

17,649 km2 (6,817 mi2). 

The Level B harassment take estimate 

of 1,379 ringed seals is a small number 

at least in relative terms, in that it 

represents approximately 0.55 percent 

of the Alaska stock size of that species 

(249,000) in the Chukchi Sea, if each 

‘‘exposure’’ at 160 dB represents an 

individual ringed seal. The percentage 

would be even lower if a higher SPL is 

required for a behavioral reaction (as is 

expected), or, if as expected, animals 

move out of the seismic area. As a 

result, we believe that these ‘‘exposure’’

estimates are conservative, and seismic 

surveys will actually affect less than 

0.55 percent of the ringed seal 

population. For the remaining 

potentially affected marine mammal 

species, NMFS expects that 

approximately 10 bowhead, 37 gray 

whales, 42 harbor porpoises, and 376 

bearded seals would be taken by Level 

B behavioral harassment as a result of 

the proposed site clearance surveys. 

These take numbers represent 0.09, 

0.19, 0.66, and 0.15 percent of the 

western Arctic stock of bowhead 

whales, eastern North Pacific stock of 

gray whales, Bering Sea stock of harbor 

porpoise, and Arctic stock of bearded 

seals in the Chukchi Sea region. These 

numbers are small relative to their 

respective stock or population sizes. In 

addition, NMFS expects that 4 minke 

whales and 72 spotted seals would be 

taken by Level B harassment. However, 

a specific estimate of the percentage of 

Level B harassment of these species 

cannot be determined because no 

accurate current population estimates of 

minke whales and spotted seals are 

available. Nevertheless, based on the 

information available, NMFS believes 

these numbers are very low relative to 

the populations of these species in the 

proposed project area because: (1) for 

the minke whales, the Chukchi Sea is 

not typical habitat, and visual surveys 

in 1999 and 2000 counted 810 and 1,003 

minke whales in the central-eastern and 

southeastern Bering Sea, respectively, 

not including animals missed on the 

trackline, or animals submerged when 

the ship passed; and (2) for the spotted 

seal, the early population estimate of 

this species ranged from 335,000–

450,000 seals, and there is no reason to 

believe that the population of this 

species has declined significantly. In 

addition, a number of beluga, 

humpback, and killer whales, 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 during the late summer and fall in 

the Chukchi Sea, take numbers cannot 

be estimated. In the event these species 

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are present in the proposed project area, 

NMFS believes their numbers would be 

limited; thus, should take occur from 

the seismic survey, NMFS would expect 

the numbers to be small, particularly in 

light of the fact that these animals do 

not frequent the project area. 

NMFS believes the number of 

potential takes by harassment is small 

and may be reduced further because of 

the proposed mitigation measures, 

including curtailing seismic activities 

during the bowhead migratory period to 

protect the Native subsistence hunt. 

Additionally, because the seismic 

airguns used by CPAI are of small 

discharge volumes (40 in3, compared to 

the 3,000+ in3 arrays used in 2D or 3D 

deep seismic surveys), the ensonified 

zones within which marine mammals 

could be adversely affected are very 

small (approximately 50 km2 for the 

160-dB isopleths at any given time as 

compared to 15,000 km2 for a 3,000+ 

in3 array [e.g., SOI’s proposed 3D 

seismic survey in the Chukchi Sea]). 

Potential Impacts to Subsistence 

Harvest of Marine Mammals 

Subsistence hunting and fishing has 

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 the 

proposed survey areas are Point Hope, 

Point Lay, Wainwright, and Barrow. 

Marine mammals used for subsistence 

in the proposed area include: bowhead 

whales, beluga whales, ringed seals, 

spotted seals, bearded seals, Pacific 

walrus, and polar bears. 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 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 potential impact of the noise 

produced by the proposed survey on 

subsistence could be substantial. If 

bowhead or beluga whales are 

permanently deflected away from their 

migration path, there could be 

significant repercussions to the 

subsistence use villages. However, 

mitigation efforts will be put into action 

to minimize or avoid completely any 

adverse affects on all marine mammals. 

In an effort to minimize or avoid any 

adverse effects to subsistence harvest, 

CPAI has met with key native 

organizations responsible for managing 

marine mammals in the Arctic. In 

accordance with 50 CFR 126.104(a)(12), 

CPAI has met with subsistence 

stakeholder in the communities and 

villages of Kivalina, Kotzebue, 

Wainwright, Barrow, Point Lay, and 

Point Hope and developed a POC for its 

proposed 2008 shallow hazard and site 

clearance survey. 

CPAI has not signed the 2008 CAA 

with Alaska Natives and has informed 

NMFS that it does not intend to do so. 

As explained above in Response to 

Comment 33, NMFS has scrutinized all 

of the documents submitted by CPAI 

(e.g., IHA application, Plan of 

Cooperation and other correspondence 

to NMFS and affected stakeholders) and 

documents submitted by other affected 

stakeholders and concluded that 

harassment of marine mammals 

incidental to CPAI’s activities will not 

have an unmitigable adverse impact on 

the availability of marine mammals for 

taking for subsistence uses. 

In addition, CPAI has indicated that a 

number of actions would be taken by 

CPAI during the surveys to minimize 

any adverse effect on the availability of 

marine mammals for subsistence, which 

have been proposed in the CPAI 

application. They include the following: 

(1) Site clearance and shallow hazard 

surveys will occur in areas considerably 

distant to the villages during the 

hunting periods (i.e., up to 70 miles 

offshore); 

(2) Site clearance and shallow hazard 

surveys will follow procedures of 

changing vessel course, powering down, 

and shutting down acoustic equipment 

to minimize effects on the behavior of 

marine mammals. These measures are 

likely to afford greater access by 

subsistence users to marine mammals 

should any harvest occur in the project 

area; and 

(3) In the unlikely event that a hunter 

is encountered, operations will be 

managed to keep the hunter and seismic 

vessel at least 5 km (3.1 mi) apart. 

The combination of the low volume 

air guns, timing, location, mitigation 

measures, and input from local 

communities and organization is 

expected to mitigate any adverse effect 

of the seismic surveys on availability of 

marine mammals for subsistence uses. 

Finally, in the event harvest activities 

do occur this far offshore, the required 

mitigation and monitoring measures are 

expected to reduce any adverse impacts 

on marine mammals for taking for 

subsistence uses to the extent 

practicable. These measures include, 

but are not limited to, the 180 dB and 

190 dB safety (shut-down/power-down) 

zones; a requirement to monitor the 160 

dB isopleth for aggregations of 12 or 

more non-migratory balaenidae whales 

and when necessary shut-down seismic 

airguns; maintaining a distance of at 

least 15 miles from other operating 

seismic vessels; reducing vessel speed 

when a vessel is within 300 yards of 

whales to avoid a collision; utilizing 

communication centers to avoid any 

conflict with subsistence hunting 

activities; and the use of marine 

mammal observers. Many of these 

requirements are consistent with the 

measures contained in the 2008 CAA 

entered into between other industry 

participants who operate in the Chukchi 

Sea and Alaska Natives. 

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 

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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 requires the 

following monitoring and mitigation 

measures to be implemented for the 

proposed project in Chukchi Sea. 

(1) Proposed Safety Zones 

Based acoustic propagation modeling 

performed by JASCO, it is estimated that 

distance from the seismic sources to the 

180 dB isopleth is approximately 115 m 

(377 ft), and the distance to the 190 dB 

isopleth is about 20 m (66 ft). Because 

these values are based on modeling 

instead of field measurement during 

actual operations, NMFS requires, as a 

precautionary measure, safety radii of 

120 m (393 ft) for cetaceans and 24 m 

(79 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 1,665 m (5,463 ft). 

Before the commencement of the 

shallow hazard and site clearance 

survey, CPAI 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. Monitoring will 

also be conducted to include the larger 

160-dB safety zone for an aggregation of 

12 or more bowhead or gray whales. 

(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. 

Mitigation 

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. 

(2) 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 120- 

m or 24-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 1,665-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 

CPAI 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 

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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 

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 

CPAI’s shallow hazard and site 

clearance survey would no have an 

unmitigable adverse impact on the 

availability of marine mammal species 

and/or stocks for taking for subsistence 

uses. 

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 small relative to the 

species’ population or stock size. NMFS 

anticipates the actual take of individuals 

would 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 CPAI 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: August 15, 2008. 

James H. Lecky, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. E8–19424 Filed 8–20–08; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XJ18 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Navy Operations of 

Surveillance Towed Array Sensor 

System Low Frequency Active Sonar 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of two Letters 

of Authorization. 

SUMMARY: In accordance with the 

Marine Mammal Protection Act 

(MMPA), as amended, and 

implementing regulations, notification 

is hereby given that NMFS has issued 

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