81 FR 47240 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Seismic Surveys in Cook Inlet, Alaska

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 139 (July 20, 2016)

Page Range47240-47280
FR Document2016-16695

NMFS is issuing regulations governing related Letters of Authorization (LOAs) in response to a request from Apache Alaska Corporation (Apache) for authorization to take marine mammals, by harassment, incidental to its oil and gas exploration seismic survey program in Cook Inlet, Alaska. This action will put the applicant into compliance with the Marine Mammal Protection Act (MMPA) and minimize impacts to marine mammals in Cook Inlet.

Federal Register, Volume 81 Issue 139 (Wednesday, July 20, 2016)
[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Rules and Regulations]
[Pages 47240-47280]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-16695]



[[Page 47239]]

Vol. 81

Wednesday,

No. 139

July 20, 2016

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 217





Taking and Importing Marine Mammals; Taking Marine Mammals Incidental 
to Seismic Surveys in Cook Inlet, Alaska; Final Rule

Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / 
Rules and Regulations

[[Page 47240]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 140912776-6553-02]
RIN 0648-BE53


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Seismic Surveys in Cook Inlet, Alaska

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

ACTION: Final rule.

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SUMMARY: NMFS is issuing regulations governing related Letters of 
Authorization (LOAs) in response to a request from Apache Alaska 
Corporation (Apache) for authorization to take marine mammals, by 
harassment, incidental to its oil and gas exploration seismic survey 
program in Cook Inlet, Alaska. This action will put the applicant into 
compliance with the Marine Mammal Protection Act (MMPA) and minimize 
impacts to marine mammals in Cook Inlet.

DATES: Effective August 19, 2016 through July 20, 2021.

ADDRESSES: An electronic copy of the application, containing a list of 
references used in this document, and the associated Environmental 
Assessment (EA) and Finding of No Significant Impact (FONSI) may be 
obtained by writing to the address specified above, telephoning the 
contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting 
the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. 
Documents cited in this notice may also be viewed, by appointment, 
during regular business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Sara Young, Office of Protected 
Resources, NMFS, (301) 427-8484.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    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].''

Summary of Request

    On July 11, 2014, NMFS received a complete application from Apache 
requesting authorization for the take of nine marine mammal species 
incidental to an oil and gas exploration seismic program in Cook Inlet, 
AK, over the course of 5 years. On February 23, 2015, NMFS published a 
notice in the Federal Register of our proposal to issue regulations and 
subsequent LOAs with preliminary determinations (80 FR 9510). The 
filing of the notice initiated a 30-day public comment period, which 
was then extended by 15 days. The comments and our responses are 
discussed later in this document.
    The activity will occur for approximately 8-9 months annually over 
the course of a 5-year period between August 2016 and July 2021. In-
water airguns will be active for approximately 2-3 hours during each of 
the slack tide periods. There are approximately four slack tide periods 
in a 24-hour period; therefore, airgun operations will be active during 
approximately 8-12 hours per day, if weather conditions allow. The 
following specific aspects of the activity are likely to result in the 
take of marine mammals: seismic airgun operations. Take, by Level B 
Harassment only, of individuals of nine species or stocks of marine 
mammals is anticipated to result from the specified activity.

Description of the Specified Activity

Overview

    Apache has acquired over 850,000 acres of oil and gas leases in 
Cook Inlet since 2010 with the primary objective to explore for and 
develop oil and gas resources in Cook Inlet. Apache will conduct oil 
and gas seismic surveys in Cook Inlet, Alaska, in an area that 
encompasses approximately 5,684 km\2\ (2,195 mi\2\) of intertidal and 
offshore areas. This area is slightly larger than that shown in 
Apache's MMPA application and corresponds with the request contained in 
their Biological Assessment and Figure 1 in this document, which is 
also available at: http://www.nmfs.noaa.gov/pr/permits/incidental/oilgas.htm#apache2020. Vessels will lay and retrieve nodal sensors on 
the sea floor in periods of low current, or, in the case of the 
intertidal area, during high tide over a 24-hour period. In deep water, 
a hull or pole mounted pinger system will be used to determine the 
exact location of the nodes. The two instruments used in this technique 
are a transceiver (operating at 33-55kHz with a maximum source level of 
188 dB re 1 [micro]Pa at 1 meter) and a transponder (operating at 35-
50kHz with a maximum source level of 188 dB re 1 [micro]Pa at 1 meter). 
The majority of the sound energy produced by this project is from the 
seismic airgun array, for which Apache will use two synchronized 
vessels. Each source vessel will be equipped with compressors and 2,400 
cubic inch (in\3\) airgun arrays. Additionally, one of the source 
vessels will be equipped with a 440 in\3\ shallow water source array, 
which can be deployed at high tide in the intertidal area in less than 
1.8 m (6 ft) of water. The two source vessels do not fire the airguns 
simultaneously; rather, each vessel fires a shot every 24 seconds, 
leaving 12 seconds between shots.
    The operation will utilize two source vessels, three cable/nodal 
deployment and retrieval operations vessels, a mitigation/monitoring 
vessel, a node re-charging and housing vessel, and two small vessels 
for personnel transport and node support in the extremely shallow 
waters in the intertidal area. Water depths for the program will range 
from 1-128 m (0-420 ft).
    Seismic surveys are designed to collect bathymetric and sub-
seafloor data that allow the evaluation of potential shallow faults, 
gas zones, and archeological features at prospective

[[Page 47241]]

exploration drilling locations. In the spring of 2011, Apache conducted 
a seismic test program to evaluate the feasibility of using new nodal 
(no cables) technology seismic recording equipment for operations in 
Cook Inlet. This test program found and provided important input to 
assist in finalizing the design of the 3D seismic program in Cook Inlet 
(the nodal technology was determined to be feasible).
    Apache began seismic onshore acquisition on the west side of Cook 
Inlet in September 2011 and offshore acquisition in May 2012 under an 
Incidental Harrassent Authorization (IHA) issued by NMFS for April 30, 
2012, through April 30, 2013 (77 FR 27720, May 11, 2012). Apache 
continued seismic data acquisition for approximately 3 months in spring 
and summer 2014 in compliance with an IHA issued on March 4, 2014 (79 
FR 13626, March 11, 2014). Apache reported a total of 29 level B 
harassment exposures from the 2014 IHA comprising beluga whales, 
humpback whales, harbor seals, and harbor porpoises, which was well 
within the scope of their authorization.

Dates and Duration

    Apache will conduct offshore/transition zone seismic operations for 
approximately 8 to 9 months in offshore areas in open water periods 
from March 1 through December 31 annually over the course of 5 years. 
During each 24-hour period, seismic support activities may be conducted 
throughout the entire period; however, in-water airguns will only be 
active for approximately 2-3 hours during each of the slack tide 
periods. There are approximately four slack tide periods in a 24-hour 
period; therefore, airgun operations will be active during 
approximately 8-12 hours per day, if weather conditions allow. Two 
airgun source vessels will work concurrently on the spread, acquiring 
source lines approximately 12 km (7.5 mi) in length. Apache anticipates 
that a crew can acquire approximately eight of these 12km lines per 
day, assuming a crew can work 8-12 hours per day. Thus, the actual 
survey duration each year will take approximately 160 days over the 
course of 8 to 9 months. The vessels will be mobilized out of Homer or 
Anchorage with resupply runs occurring multiple times per week out of 
Homer, Anchorage, or Nikiski.

Specified Geographic Region

    Each phase of the Apache program would cover land, intertidal 
transition zone, and marine environments in Cook Inlet, Alaska. 
However, only the portions occurring in the intertidal zone and marine 
environments have the potential to take marine mammals. The land-based 
portion of the program would not result in sound levels that would rise 
to the level of a marine mammal take.
    The location of Apache's acquisition plan is depicted in Figure 1 
in this document. The total seismic survey data acquisition locations 
encompass approximately 5,684 km\2\ (2,195 mi\2\) of intertidal and 
offshore areas. This area is approximately 18% larger than the area 
contained in Apache's MMPA application. The additional area for seismic 
survey data acquisition considered in this rule is located in northern 
Cook Inlet near the Susitna Delta region and was considered in both the 
proposed and final rule. Apache will only operate in a portion of the 
entire survey area between March 1 and December 31 each year. There are 
numerous factors that influence the survey areas, including the geology 
of the Cook Inlet area, other permitting restrictions (i.e., commercial 
fishing, Alaska Department of Fish and Game refuges), seismic imaging 
of leases held by other entities with whom Apache has agreements (e.g., 
data sharing), overlap of sources and receivers to obtain the necessary 
seismic imaging data, and general operational restrictions (ice, 
weather, environmental conditions, marine life activity, etc.). Water 
depths for the program will range from 1-128m (0-420 ft).

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[GRAPHIC] [TIFF OMITTED] TR20JY16.000

Detailed Description of Activities

    The Notice of Proposed Rulemaking (80 FR 9510, February 23, 2015) 
contains a full detailed description of the 3D seismic survey, 
including the recording system, sensor positioning, and seismic source. 
That information has not changed and is therefore not repeated here.

Comments and Responses

    A Notice of Proposed Rulemaking was published in the Federal 
Register on February 23, 2015 (80 FR 9510) for public comment. NMFS 
received a request for extension of the public comment period from the 
Natural Resource Defense Council on March 2, 2015. NMFS granted a 15-
day extension to the public comment period, which ended on April 9, 
2015. During the 45-day public comment period, NMFS received fourteen 
comment letters from the following: The State of Alaska Department of 
Natural Resources (AK DNR); the Alaska Chamber; the All American Oil 
Field; the Alaska Oil and Gas Association (AOGA); the Chugach Alaska 
Corporation; Cook Inlet Regional Inc. (CIRI); the International Fund 
for

[[Page 47243]]

Animal Welfare (IFAW); the Resource Development Council (RDC); Natural 
Resource Defense Council (NRDC); the Marine Mammal Commission (MMC); 
the public law class of the Vermont Law School (VLS); and three private 
citizens.
    All of the public comment letters received on the Notice of 
Proposed Rulemaking (80 FR 9510, February 23, 2015) are available on 
our Web site at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. 
Following is a summary of the public comments and NMFS' responses.
    Comment 1: One private citizen requested that we deny issuance of 
the IHA because marine mammals would be killed as a result of the 
survey.
    Response: This activity is not expected to result in the death of 
any marine mammal species, and no such take is authorized. Extensive 
analysis of the proposed 3D seismic survey was conducted in accordance 
with the MMPA, Endangered Species Act (ESA), and National Environmental 
Policy Act (NEPA). We analyzed the impacts to marine mammals (including 
those listed as threatened or endangered under the ESA), to their 
habitat (including critical habitat designated under the ESA), and to 
the availability of marine mammals for taking for subsistence uses. The 
MMPA analyses revealed that the activities would have a negligible 
impact on affected marine mammal species or stocks and would not have 
an unmitigable adverse impact on the availability of marine mammals for 
taking for subsistence uses. The ESA analysis concluded that the 
activities likely would not jeopardize the continued existence of ESA-
listed species or destroy or adversely modify designated critical 
habitat. The NEPA analysis concluded that there would not be a 
significant impact on the human environment.
    Comment 2: One private citizen requests that NMFS conduct research 
before and after the Apache survey activity to determine effects on 
wildlife.
    Response: NMFS agrees that pre- and post-activity monitoring is 
essential to analyze effects of the activity and gather crucial 
information. Therefore, NMFS is requiring Apache to conduct a pre and 
post-activity monitoring period of 30 minutes to assess movement of 
marine mammals into and out of the ensonified area. Apache also 
conducts monitoring efforts when sound sources are not in use which can 
provide additional context to the observations made during periods when 
the active sound sources are in use.
    Comment 3: The Resource Development Council, AK DNR, Alaska 
Chamber, All American Oilfield, AOGA, Chugach Alaska Corporation, and 
CIRI wrote letters in support of NMFS' issuance of 5-year regulations 
to Apache.
    Response: After careful evaluation of all comments and the data and 
information available regarding potential impacts to marine mammals and 
their habitat and to the availability of marine mammals for subsistence 
uses, NMFS has issued the final regulations to Apache to take marine 
mammals incidental to conducting a 3D seismic survey program in Cook 
Inlet for the period August 2016 to July 2021.
    Comment 4: The MMC and NRDC recommend that NMFS defer issuance of 
the regulations until such time as NMFS can, with reasonable 
confidence, support a conclusion that the activities would affect no 
more than a small number of Cook Inlet beluga whales and have no more 
than a negligible impact on the population. The MMC recommends that 
NMFS defer issuance until we have better information on the cause or 
causes of ongoing decline of the population and a reasonable basis for 
determining that authorizing additional takes would not contribute to 
or exacerbate that decline. The MMC continues to believe that any 
activity that may contribute to or that may worsen the observed decline 
should not be viewed as having a negligible impact on the population. 
NRDC urges NMFS to defer issuance of the rule, citing a letter dated 
Jan 13, 2014, from the MMC stating that NMFS has been unable to rule 
out cumulative disturbance associated with a broad suite of activities 
occurring in the Inlet, including oil and gas development, as a 
contributor to the decline of Cook Inlet beluga whales. Instead of 
issuing five-year regulations NRDC suggests that NMFS issue a one-year 
IHA.
    Response: In accordance with our implementing regulations at 50 CFR 
216.104(c), we use the best available scientific evidence to determine 
whether the taking by the specified activity within the specified 
geographic region will have a negligible impact on the species or stock 
and will not have an unmitigable adverse impact on the availability of 
such species or stock for subsistence uses.
    Based on the scientific evidence available, NMFS determined that 
the impacts of the 3D seismic survey program, which are primarily from 
acoustic exposure, would meet these standards. Moreover, Apache 
proposed and NMFS has required in the regulations a rigorous mitigation 
plan to reduce impacts to Cook Inlet beluga whales and other marine 
mammals to the lowest level practicable, including measures to power 
down or shutdown airguns if any beluga whale is observed approaching or 
within the Level B harassment zone and restricting activities within a 
10 mi (16 km) radius of the Susitna Delta from April 15 through October 
15, which is an important area for beluga feeding and calving in the 
spring and summer months. This shutdown measure is more restrictive 
than the standard shutdown measures typically applied, and combined 
with the Susitna Delta exclusion (minimizing adverse effects to 
foraging), is expected to reduce both the scope and severity of 
potential harassment takes, ensuring that there are no energetic 
impacts from the harassment that would adversely affect reproductive 
rates or survivorship.
    Our analysis indicates that issuance of these regulations will not 
contribute to or worsen the observed decline of the Cook Inlet beluga 
whale population. Additionally, the ESA Biological Opinion determined 
that the issuance of an IHA is not likely to jeopardize the continued 
existence of the Cook Inlet beluga whales (or the western distinct 
population segment of Steller sea lions) or destroy or adversely modify 
Cook Inlet beluga whale critical habitat. The Biological Opinion also 
outlined Reasonable and Prudent Measures and Terms and Conditions to 
reduce impacts, which have been incorporated into the IHA. Therefore, 
based on the analysis of potential effects, the parameters of the 
seismic survey, and the rigorous mitigation and monitoring program, 
NMFS determined that the activity would have a negligible impact on the 
population. The impacts from other past and ongoing anthropogenic 
activities are incorporated into the negligible impact analysis via 
their impacts on the environmental baseline (e.g., as reflected in the 
density/distribution and status of the species, population size and 
growth rate, and ambient noise). Cumulative effects were also addressed 
in the EA and related Finding of No Significant Impact and Biological 
Opinion prepared for this action. Those documents, as well as the 
Alaska Marine Stock Assessments and the most recent abundance estimate 
for Cook Inlet beluga whales (Shelden et al., 2015), are part of NMFS' 
Administrative Record for this action, and provided the decision maker 
with information regarding other activities in the action area that 
affect marine mammals, an analysis of cumulative impacts, and other 
information relevant to the determination made under the MMPA.
    Moreover, the seismic survey would take only small numbers of 
marine

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mammals relative to their population sizes. The number of belugas 
likely and authorized to be taken represents less than 9.6% of the 
population. NMFS used a method that incorporates density of marine 
mammals overlaid with the anticipated ensonified area to calculate an 
estimated number of takes for belugas, which was estimated to be less 
than 10% of the stock abundance, which NMFS considers small. In 
addition to this quantitative evaluation, NMFS has also considered 
qualitative factors that further support the ``small numbers'' 
determination, including: (1) The seasonal distribution and habitat use 
patterns of Cook Inlet beluga whales, which suggest that for much of 
the time, only a small portion of the population would be potentially 
subjected to impacts from Apache's activity, as most animals are 
concentrated in upper Cook Inlet; and (2) the mitigation requirements, 
which provide spatio-temporal limitations that avoid impacts to large 
numbers of animals feeding and calving in the Susitna Delta and limit 
exposures to sound levels associated with Level B harassment. Based on 
all of this information, NMFS determined that the number of beluga 
whales likely to be taken is small. See response to Comment 4 and our 
small numbers analysis later in this document for more information 
about the small numbers determination for beluga whales and the other 
marine mammal species.
    NMFS has made the necessary findings to issue the 5-yr regulations 
for Apache's activities. Nonetheless, NMFS agrees that caution is 
appropriate in the management of impacts on this small resident beluga 
population with declining abundance and constricted range. Accordingly, 
NMFS will issue annual LOAs, as appropriate, instead of a single 5-year 
LOA option. This will allow the agency to determine annually, in 
consideration of Apache monitoring reports and any other new 
information on impacts or Cook Inlet belugas (or other affected 
species), whether the level of taking will be consistent with the 
findings made for the total taking allowable under these 5-year 
regulations before issuing an LOA. Annual LOAs will also allow for, if 
necessary and appropriate, a public comment period. Additionally, this 
rule contains an adaptive management provision that allows for the 
modification of mitigation or monitoring requirements at any time (in 
response to new information) to ensure the least practicable adverse 
impact on the affected species and maximize the effectiveness of the 
monitoring program. We also note the MMPA and NMFS' implementing 
regulations allow for an LOA to be withdrawn or suspended, as 
appropriate, if, after notice and opportunity for public comment, we 
determine that the taking allowed is having, or may have, more than a 
negligible impact on the species or stock (among other circumstances). 
16 U.S.C. 1371(a)(5)(B); 50 CFR 216.106(e).
    Comment 5: The MMC recommends that NMFS develop a policy that sets 
forth clear criteria and/or thresholds for determining what constitutes 
``small numbers'' and ``negligible impact'' for the purpose of 
authorizing incidental takes of marine mammals. The MMC understands 
that NMFS has been working on developing a policy and would welcome an 
opportunity to discuss this policy further before it is finalized.
    Response: NMFS is in the process of developing both a clearer 
policy to outline the criteria for determining what constitutes ``small 
numbers'' and an improved analytical framework for determining whether 
an activity will have a ``negligible impact'' for the purpose of 
authorizing takes of marine mammals. We fully intend to engage the MMC 
in these processes at the appropriate time.
    Comment 6: The NRDC pointed by reference to the other proposed 
activities in Cook Inlet during the 2015 open water season. The NRDC, 
the MMC, and one private citizen note that NMFS must address the 
cumulative effects of activities in Cook Inlet on Cook Inlet beluga 
whales and whether the cumulative impacts of all the activities are 
having ``either individually or in combination'' a greater than 
negligible impact on marine mammals.
    Response: Neither the MMPA nor NMFS' implementing regulations 
specify how to consider other activities and their impacts on the same 
populations when conducting a negligible impact analysis. However, 
consistent with the 1989 preamble for NMFS' implementing regulations 
(54 FR 40338, September 29, 1989), the impacts from other past and 
ongoing anthropogenic activities are incorporated into the negligible 
impact analysis via their impacts on the environmental baseline (e.g., 
as reflected in the density/distribution and status of the species, 
population size and growth rate, and ambient noise). In addition, 
cumulative effects were addressed in the EA and Biological Opinion 
prepared for this action. The cumulative effects section of the EA has 
been expanded from the draft EA to discuss potential effects in greater 
detail. These documents, as well as the Alaska Marine Stock Assessments 
and the most recent abundance estimate for Cook Inlet beluga whales 
(Shelden et al., 2015) are part of NMFS' Administrative Record for this 
action, and provided the decision maker with information regarding 
other activities in the action area that affect marine mammals, an 
analysis of cumulative impacts, and other information relevant to the 
determination made under the MMPA.
    Comment 7: The NRDC states that NMFS failed to account for survey 
duration in the estimation of beluga whale takes and that NMFS based 
beluga takes using a predictive habitat density model (Goetz et al., 
2012) that is based on data from summer months and confined to summer 
distribution when belugas are generally concentrated in the Upper 
Inlet, even though activity could occur year round. One private citizen 
also suggests that NMFS did not improve upon take estimation used in a 
previous IHA for Apache, which was found arbitrary and capricious.
    Response: The numerical estimation of take for beluga whales does 
consider survey duration in the calculation. The Goetz et al. (2012) 
model is the best available data for beluga density in Cook Inlet. The 
method used by NMFS to estimate take uses that data to estimate the 
number of belugas taken. This is done by multiplying the density of the 
area surveyed on a given day by the area ensonified on that day of 
surveying to yield the number of belugas that were likely exposed 
during that day of surveying. This is then added to the next day of 
surveying and so forth in an additive model until the number of 30 
belugas is reached. If the number of 30 belugas is reached using this 
calculation before Apache has completed their 160 days of proposed 
surveying, survey activity must cease. Additionally, if they finish 
their 160 days without reaching the limit of 30 belugas their activity 
must still cease. The model, by being additive in nature for each day 
of surveying, accounts for the duration of the survey, as well as 
capturing a more specific density value than using an Inlet-wide 
density estimate.
    Moreover, the model (or other numerical methods for estimating 
take) does not take into consideration the rigorous mitigation 
protocols that will be implemented by Apache, which will likely reduce 
the number of actual Level B harassment takes of Cook Inlet beluga 
whales. As mentioned previously, the rule contains a condition 
restricting Apache's airgun operations within 10 mi (16 km) of the mean 
higher high water line of the Susitna Delta from

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April 15 through October 15. During this time, a significant portion of 
the Cook Inlet beluga whale population occurs in this area for feeding 
and calving. This setback distance includes the entire 160 dB radius of 
5.9 mi (9.5 km) predicted for the full airgun array plus an additional 
4.1 mi (6.5 km) of buffer, thus reducing the number of animals that may 
be exposed to Level B harassment thresholds during this important time. 
Apache is also required to shut down the airguns if any beluga whale is 
sighted approaching or entering the Level B harassment zone to avoid 
take. NMFS used the Goetz et al. (2012) model, which incorporates many 
years of NMML data collection and is considered the best available 
source of density estimation, with consideration of all of the 
mitigation measures required to be implemented, to authorize 30 beluga 
whale takes. This approach is reasonable and does not contradict 
available science and data of beluga whale distribution and local 
abundance during the period of operations. While the data used to 
create the model is from beluga surveys conducted in summer months, the 
majority of Apache's operations occur in summer months. Finally, unlike 
the take estimates for NMFS' 2012 IHA, which were found to be erroneous 
because they did not include a correction factor for the raw beluga 
survey data, the beluga take estimates in this rule making use the most 
current information in a predictive beluga habitat model to estimate 
how many belugas are likely to occur in the area that Apache plans to 
survey.
    Comment 8: The NRDC states that in the case of marine mammals other 
than beluga whales, NMFS repeated past errors associated with its use 
of raw NMML survey data. Cited errors in the density calculations 
include the failure to incorporate correction factors for missed marine 
mammals in the analysis and the failure to fully account for survey 
duration by multiplying densities (which are calculated on an hourly 
basis) by the number of survey days but not the number of hours in a 
day.
    Response: Correction factors for marine mammal surveys, with the 
exception of beluga whales, are not available for Cook Inlet. The 
primary purpose and focus of the NMFS aerial surveys in Cook Inlet for 
the past decade has been to monitor the beluga whale population. 
Although incidental observations of other marine mammals are noted 
during these surveys, they are focused on beluga whales. With the 
exception of the beluga whale, no detailed statistical analysis of Cook 
Inlet marine mammal survey results has been conducted, and no 
correction factors have been developed for Cook Inlet marine mammals. 
The only published Cook Inlet correction factor is for beluga whales. 
Developing correction factors for other marine mammals would have 
required different survey protocols and consideration of unavailable 
data such as Cook Inlet marine mammal detection rates, tidally-
influenced, daily and seasonal movement patterns, with subsequent 
detailed statistical analyses of these data. For example, other marine 
mammal numbers are often rounded to the nearest 10 or 100 during the 
NMFS aerial survey; resulting in unknown observation bias. Therefore, 
the data from the NMFS surveys are the best available, and number of 
animals taken are still likely overestimated because of the assumption 
that there is a 100% turnover rate of marine mammals each day.
    Survey duration was appropriately considered in the estimations by 
multiplying density by area of ensonification by number of survey days. 
NMFS does not calculate takes on an hourly basis, and, additionally, 
the multiple hours surveyed within a day are reflected in the area of 
ensonification, which considers the distance Apache can move within a 
day and is therefore larger than what would be covered in one hour. 
Additionally, as NMFS has used the density estimate from NMFS aerial 
surveys, multiplied by the area ensonified per day, multiplied by the 
number of days, this calculation produces the number of instances of 
exposure during the seismic survey. This is likely an overestimate of 
individuals taken by Level B harassment, as a single individual can be 
exposed on multiple days over the course of the survey, especially when 
a small seismic patch is shot over a period of multiple days. While 
protected species observers (PSOs) cannot detect every single animal 
within the Level B harassment zone, monitoring reports from similar 
past activities indicate that sightings did not exceed calculated 
projected take.
    Comment 9: The NRDC commented that NMFS underestimated the size of 
Apache's impact area by: (1) Using an outdated and incorrect threshold 
for behavioral take; and (2) disregarding the best available evidence 
on the potential for temporary and permanent threshold shift on mid- 
and high-frequency cetaceans and on pinnipeds. The NRDC also commented 
that it is irrational for NMFS to proceed with outdated acoustic 
thresholds when NMFS has developed a more appropriate method, stressing 
that take should not be authorized until the revision of acoustic 
thresholds for Level B take is complete.
    Response: The comment that NMFS uses an outdated and incorrect 
threshold for behavioral takes does not include any specific 
recommendations. NMFS uses 160 dB (rms) as the exposure level for 
estimating Level B harassment takes by non-continuous sound for most 
species in most cases. This threshold was established for underwater 
impulse sound sources based on measured avoidance responses observed in 
whales in the wild. Specifically, the 160 dB threshold was derived from 
data for mother-calf pairs of migrating gray whales (Malme et al., 
1983, 1984) and bowhead whales (Richardson et al., 1985, 1986) 
responding to seismic airguns (e.g., impulsive sound source). We 
acknowledge there is more recent information bearing on behavioral 
reactions to seismic airguns, but those data only illustrate how 
complex and context-dependent the relationship is between the two, in 
some cases suggesting that animals have been disturbed at lower levels 
and in others showing a lack of response when exposed to levels above 
160dB. See 75 FR 49710, 49716 (August 13, 2010) (IHA for Shell seismic 
survey in Alaska). Accordingly, it is not a matter of merely replacing 
the existing threshold with a new one. NOAA is working to develop more 
sophisticated guidance for determining impacts from acoustic sources, 
including information for determining Level B harassment thresholds. 
Due to the complexity of the task, any guidance will require a rigorous 
review that includes internal agency review, public notice and comment, 
and additional external peer review before any final product is 
published. In the meantime, and taking into consideration the facts and 
available science, NMFS determined it is reasonable to use the 160 dB 
threshold for estimating takes of marine mammals in Cook Inlet by Level 
B harassment. However, we discuss the science on this issue 
qualitatively in our analysis of potential effects to marine mammals.
    The comment that NMFS disregarded the best available evidence on 
the potential for temporary and permanent threshold shift on mid- and 
high-frequency cetaceans and on pinnipeds does not contain any specific 
recommendations. We acknowledge there is more recent information 
available bearing on the relevant exposure levels for assessing 
temporary and permanent hearing impacts. (See, e.g., NMFS' Federal 
Register notice (78 FR 78822, December 27, 2013) for

[[Page 47246]]

NMFS' draft guidance for assessing the onset of permanent and temporary 
threshold shift.) Again, NMFS will be issuing guidance, but that 
process is not complete, so we did not use it to assign new thresholds 
for calculating take estimates for hearing impacts. However, we did 
consider the information, and it suggests the current 180 dB (for 
cetaceans) and 190 dB (for pinnipeds) thresholds are appropriate. See 
75 FR 49710, 49715, 49724 (August 13, 2010) (IHA for Shell seismic 
survey in Alaska; responses to comment 8 and comment 27). Moreover, the 
required mitigation is designed to ensure there are no exposures at 
levels thought to cause hearing impairment, and further, for belugas, 
and groups of killer whales and harbor porpoises in the project area, 
mitigation measures are designed to reduce or eliminate exposures to 
Level B harassment thresholds as well.
    Comment 10: The NRDC comments that the proposed mitigation measures 
fail to meet the MMPA's ``least practicable adverse impact'' standard. 
The NRDC provides a list of approximately eight measures that NMFS 
``failed to consider or adequately consider.''
    Response: NMFS provided a detailed discussion of proposed 
mitigation measures and the MMPA's ``least practicable impact'' 
standard in the notice of the proposed IHA (80 FR 9510, February 23, 
2015), which are repeated in the ``Mitigation'' section of this notice. 
The measures that NMFS allegedly failed to consider or adequately 
consider are identified and discussed below:
    1. Use of quieting technologies, such as vibroseis and gravity 
gradiometry, to reduce or eliminate the need for airguns, and delaying 
seismic acquisition in higher density areas until the alternative 
technology of marine vibroseis becomes available: Apache requested 
takes of marine mammals incidental to the seismic survey operations 
described in the rulemaking application, which identified airgun arrays 
as the technique Apache would employ to acquire seismic data. It would 
be inappropriate for NMFS to change the specified activity and it is 
beyond the scope of the request for takes incidental to Apache's 
operation of airguns and other active acoustic sources.
    Apache knows of no alternative available technology scaled for 
industrial use that is reliable enough to meet the environmental 
challenges of operating in Cook Inlet. Apache is aware that many 
prototypes are currently in development, and may ultimately incorporate 
these new technologies into their evaluation process as the 
technologies become commercially viable. However, none of these 
technologies are currently ready for use on a large scale in Cook 
Inlet. As this technology is developed, Apache will evaluate its 
utility for operations in the Cook Inlet environment.
    2. Required use of the lowest practicable source level in 
conducting airgun activity: Apache determined that the 2400 in\3\ array 
is the minimum source level needed to provide the data required for 
Apache's operations.
    3. Seasonal exclusions around river mouths, including early spring 
(pre-April 14) exclusions around the Beluga River and Susitna Delta, 
and avoidance of other areas that have a higher probability of beluga 
occurrence: NMFS has required a 10-mile (16 km) exclusion zone around 
the Susitna Delta (which includes the Beluga River) in this regulation. 
This mitigation mirrors a measure in the Incidental Take Statement for 
the 2012 and 2013 Biological Opinions. Seismic survey operations 
involving the use of airguns will be prohibited in this area between 
April 15 and October 15. In both the MMPA and ESA analysis, NMFS 
determined that this date range is sufficient to protect Cook Inlet 
beluga whales and the critical habitat in the Susitna Delta. While data 
indicate that belugas may use this part of the inlet year round, peak 
use occurs from early May to late September. NMFS added a 2-week buffer 
on both ends of this peak usage period to add extra protection to 
feeding and calving belugas. NMFS also expanded the exclusion zone to 
start from the mean higher high water line to the mean lower low water 
line. (In addition, the Alaska Department of Fish and Game (ADF&G) 
prohibits the use of airguns within 1 mi (1.6 km) of the mouth of any 
stream listed by the ADF&G on the Catalogue of Waters Important for the 
Spawning, Rearing, or Migration of Anadromous Fishes. See additional 
explanation in ``Mitigation Measures Considered but not Required'' 
section, later in this document.)
    4. Limitation of the mitigation airgun to the longest shot interval 
necessary to carry out its intended purpose: This general comment 
contained no specific recommendations. Apache requires shot intervals 
of 50m at a speed of 2-4 knots to obtain the information from their 
survey. However NMFS has added a mitigation measure that Apache reduce 
the shot interval for the mitigation gun to one shot per minute.
    5. Immediate suspension of airgun activity, pending investigation, 
if any beluga strandings occur within a distance of 19km (two times the 
160dB isopleth) the survey area: If NMFS becomes aware of any live 
beluga strandings, Apache will be notified and required to shutdown if 
the stranding event is within 19km (two times the 160 dB isopleth) of 
Apache's operations until the circumstances of the stranding are 
reviewed. The regulation also requires Apache to immediately cease 
activities and report unauthorized takes of marine mammals, such as 
live stranding, injury, serious injury, or mortality. NMFS will review 
the circumstances of Apache's unauthorized take and determine if 
additional mitigation measures are needed before activities can resume 
to minimize the likelihood of further unauthorized take and to ensure 
MMPA compliance. Apache may not resume activities until notified by 
NMFS. Separately, the regulation includes measures to be implemented if 
injured or dead marine mammals are sighted and the cause cannot be 
easily determined. In those cases, NMFS will review the circumstances 
of the stranding event while Apache continues with operations.
    6. Establishment of a larger exclusion zone for beluga whales that 
is not predicated on the detection of whale aggregations or cow-calf 
pairs: Both the proposed rule notice and the issued regulations contain 
a requirement for Apache to delay the start of airgun use or shutdown 
the airguns if a beluga whale is visually sighted or detected by 
passive acoustic monitoring approaching or within the 160-dB 
disturbance zone until the animal(s) are no longer present within the 
160-dB zone. The measure applies to the sighting of any single beluga 
whale, not just sightings of groups or cow-calf pairs.
    7. Identifying compensatory mitigation such as habitat restoration 
to be undertaken by industry within the Inlet: NMFS is issuing an 
Authorization for incidental take of marine mammals for Apache's 
seismic survey program. NMFS is required to consider the practicability 
of implementation of the measure as well as proven or likely 
effectiveness of the measure. NMFS is not currently aware of literature 
demonstrating the effectiveness of habitat restoration on mitigating 
the effects of airgun noise. Additionally, NMFS considers effects to 
beluga habitat to be primarily acoustic and temporary in nature, which 
is difficult to mitigate.
    8. Creating quiet zones in highly important habitat: NMFS agrees 
that reduction of noise in habitat known to be essential for marine 
mammals is also area that should be targeted for measures to reduce 
noise. This principle

[[Page 47247]]

is incorporated through the exclusion zone of the Susitna Delta, 
ensuring that airgun noise is not prevalent within this section of 
Critical Habitat Area 1 for Cook Inlet belugas.
    Comment 11: The MMC suggests that NMFS work with Apache to explore 
the possibility of fixed passive acoustic monitoring. The NRDC echoed 
support for the use of passive acoustic monitoring techniques, 
moorings, and unmanned aerial systems.
    Response: The passive acoustic monitoring plan for Apache Alaska 
Corporation's 2012 survey anticipated the use of a bottom-mounted 
telemetry buoy to broadcast acoustic measurements using a radio-system 
link back to a monitoring vessel. Although a buoy was deployed during 
the first week of surveying under the 2012 IHA, it was not successful. 
Upon deployment, the buoy immediately turned upside down due to the 
strong current in Cook Inlet. After retrieval, the buoy was not 
redeployed and the survey used a single omni-directional hydrophone 
lowered from the side of the mitigation vessel. During the entire 2012 
survey season, Apache's PAM equipment yielded only six confirmed marine 
mammal detections, one of which was a Cook Inlet beluga whale. The 
single Cook Inlet beluga whale detection did not, however, result in a 
shutdown procedure.
    Additionally, Joint Base Elmendorf-Fort Richardson, the National 
Marine Mammal Laboratory, and Alaska Department of Fish &Game conducted 
a 2012 study (Gillespie et al., 2013) to determine if beluga whale 
observations at the mouth of Eagle River corresponded with acoustic 
detections received by a PAMBuoy data collection system. The PAMBuoy 
data collection system was deployed in the mouth of Eagle River from 
12-31 August 2012. This study was a trial period conducted with one 
hydrophone at the mouth of the river. Overall, it was successful in 
detecting beluga whale echolocation clicks and whistles, but PAM 
systems in this location may be limited due to: interactions with ice 
and debris, transmission distance limitations, detection distance 
limitations, and masking due to non-target sound sources. In addition, 
acoustic detections may be largely duplicative of daylight visual 
observations, the system cost is not trivial, and mooring of buoys can 
be a challenge in this environment of extreme tides. However, despite 
these challenges with PAM in certain circumstances, there is still 
value in exploring its use and it is not logistically impractical for 
this project and, therefore, Apache will be deploying a passive 
acoustic monitoring system for use during nighttime operations.
    Comment 12: The MMC requested clarification regarding 
Authorizations sought by Apache and SAE and inquired if these 
Authorizations were for the same project. The MMC recommends that NMFS 
encourage SAE and other applicants proposing to conduct seismic surveys 
in Cook Inlet in 2015 to collaborate on those surveys and, to the 
extent possible, submit a single application seeking authorization for 
incidental harassment of marine mammals.
    In a similar comment, the NRDC expressed concern over the number of 
activities proposed in the same area for the same season referencing 
applications for: Furie, Bluecrest, Buccaneer, and Apache.
    Response: We agree and have encouraged Apache to cooperate with 
other interested parties to minimize the impacts of new seismic surveys 
in the region. Apache has told NMFS that their proposed activities are 
a separate project from that of SAE. SAE has also withdrawn their 
request for an IHA in 2016. Apache will continue its discussions with 
other operators in Cook Inlet to find opportunities to joint venture in 
oil and gas operations, including seismic data acquisition. In 
addition, NMFS will do what it can to encourage such collaborations 
when they result in a reduction in disturbance to protected species or 
their habitats.
    NMFS is currently aware of one additional proposal for seismic 
exploration in Cook Inlet for 2016. Additionally, there are 
applications submitted for one geophysical survey and one test well 
drilling operation, which is proposed for a site much farther south 
than any of the above mentioned operations.
    Comment 13: Both the NRDC and the MMC comment that authorization 
should not be issued until the Cook Inlet Beluga Whale Take Recovery 
Plan is finalized and published.
    Response: The Cook Inlet Beluga Whale Recovery Plan is still under 
development and currently available in published draft form. It is not 
necessary to have the Recovery Plan finalized to authorize Apache's 
activity, as NMFS is still able to make a negligible impact 
determination for beluga whales using the best available information. 
NMFS will continue to work with Apache to focus mitigation and 
monitoring efforts to cover some of the focus points highlighted in the 
Draft Recovery Plan as appropriate.
    Comment 14: The MMC comments that various applicants in the Cook 
Inlet region have used differing density estimates for calculating take 
of marine mammal species in the Inlet and that all applicants should 
use the same densities.
    Response: The density estimates used for the 2015 SAE IHA and in 
the Final Rule for Apache, specifically for harbor porpoises and killer 
whales, are the best available science at this time. The data are from 
NMFS aerial surveys over a ten year period (2000-2012). NMFS is working 
with applicants to incorporate these density estimates into future 
applications and take authorizations. However, for harbor seals, which 
are known to have clustered distributions, density estimates and 
derived take estimation may vary based on action area boundaries, site-
specific knowledge of abundance, density, seasonality, or other 
qualities that could allow for a more nuanced assessment of the density 
in a given location.
    Comment 15: The MMC comments that Apache should be required to 
investigate and report on detection probabilities from various 
observation platforms for differing sea states and light conditions.
    Response: NMFS acknowledges that collecting detection probabilities 
from various platforms under different conditions would be very useful 
information and could better inform monitoring reports by discerning 
how many animals were likely taken. However, constructing a study to 
investigate detection probabilities requires a great deal of planning 
and many more observers than are involved in this survey. NMFS would 
like to work with the MMC to discuss how best to conduct this work and 
refine detection probabilities for seismic surveys.
    Comment 16: The NRDC comments that the effective dates in the 
proposed rule suggest a curtailing of public review in violation of the 
Administrative Procedure Act in that they do not allow for NMFS to 
sufficiently review and address public comments before the rule's 
proposed date of effectiveness.
    Response: The date provided in the proposed rule was the date 
proposed by the applicant originally for this work. NMFS has had ample 
time to review and address public comments prior to making its 
determinations for this rule and the effective dates have been adjusted 
accordingly. The dates of effectiveness for the rule have shifted since 
the proposed rule publication, giving NMFS adequate time to review and 
respond to public comment submitted by the close of public comment on 
April 9, 2015.

[[Page 47248]]

    Comment 17: The MMC comments that the use of turnover factors for 
take estimation in the proposed rule is inappropriate. The MMC requests 
that NMFS use the same density x daily ensonified area x number of days 
formula used for previous authorizations. The MMC also notes that if 
NMFS uses a turnover factor that it should consult the literature to 
create a more biologically relevant turnover factor than that derived 
from Wood et al. (2012). The MMC also recommends that NMFS re-evaluate 
the necessary determinations with the new take estimates.
    Response: After reviewing public comment submissions, NMFS decided 
to adjust the method used to estimate take in Cook Inlet. NMFS removed 
the use of turnover factors from Wood et al. (2012) completely from 
take estimation. The daily ensonified area x number of survey days x 
density method was used for all species to calculate the number of 
instances of exposure except for belugas, harbor seals, humpback 
whales, and Steller sea lions. Using sighting reports collected by the 
Alaska region, NMFS has determined that given the distribution of 
Steller sea lions in Cook Inlet, it is unlikely that more than 20 
individuals will be taken during the course of one year. Similarly, 
while several humpbacks are reported in Cook Inlet each year, it is 
unlikely that Apache will expose more than two humpbacks during their 
surveying each year.
    For Cook Inlet belugas, NMFS derived a method to ensure that Apache 
take no more than 30 belugas annually, which is approximately 10 
percent of the population. Using the Goetz et al. (2012) habitat model, 
Apache will calculate the possible take (density from the model x the 
area surveyed that day) for each day and sum the possible take across 
days until 30 is reached. When the take per day summed amounts to 30, 
Apache must cease surveying for the season. As an additional measure, 
and to account for a sudden sighting of a large group of belugas, 
Apache will also cease surveying if 30 belugas are visually observed to 
enter the 160dB harassment zone.
    For harbor seals, it is likely the daily ensonified area produces 
an overestimate of individuals taken, as described in more details in 
the Estimated Take section. NMFS applied the survey method used by 
Apache, patch shooting, and applied the number of days required to 
shoot a patch to estimate the number of days an animal at a given 
haulout could be exposed. This is an average of 3 days, but no more 
than 5. When this factor is applied to the estimate of instances of 
exposures by using the ensonified daily area method, the number of 
exposed individual seals can be more reasonably estimated and is much 
lower than the number of instances of exposure, at 6,438. This number 
is appropriately reduced even further as individuals could be exposed 
at multiple patches. Separately, NMFS then considered the harbor seal 
densities alongside monitoring reports from Apache's work in 2012. NMFS 
looked at the monitoring reports from Apache's aerial surveys in June 
and used correction factors from the literature to determine the number 
of seals in the water. This number was also multiplied to match the 
number of Apache's proposed survey days (160) to yield a number of 
8,250 instances of take, notably lower than 24,279. Additionally, in 
their 147 days of surveying, Apache reported sightings of 285 seals. 
While it is understood that visual observations likely underestimate 
the actual number of exposures, as all seals in the 160dB range are not 
visible, it is worth noting that the number of visual estimates is 131 
times smaller than the calculated number of exposures using the daily 
ensonified area method. These methods are discussed in greater detail 
in the Takes Estimation section of this document, but in summary we 
concluded that not more than 25% of the population of harbor seals 
would be taken. The daily ensonified method results in an estimate of 
24,279 instances of exposure, but this is likely an over-estimation of 
the number of instances of exposure and also does not represent the 
number of unique individuals in the population taken during the course 
of the survey. As explained in the Negligible Impact Determination and 
Small Numbers sections below, NMFS is able to make the necessary 
determinations for all species using the new take estimation 
methodology.
    Comment 18: Both the NRDC and MMC commented that the use of figures 
for the survey area was unclear and it was difficult to determine if 
the project area was expanded after the Federal Register Notice of 
Receipt of Apache's Application (79 FR 45428).
    Response: NMFS acknowledges that the figure used was unclear. The 
analysis in the proposed rule, however, was for the action area being 
considered, which did not change between the proposed and final rule.
    Comment 19: NRDC commented that NMFS did not take higher densities 
of beluga whales in the Upper Inlet into account when making a 
negligible impact determination, analyzing mitigation requirements, or 
adopting a cap to allow Apache geographic flexibility during the 
survey. The MMC also commented that the analysis did not take into 
account the expanded survey area in the Upper Inlet.
    Response: NMFS believes that increased density of beluga whales in 
the Upper Inlet is taken into account, despite the geographic 
flexibility allowed by Apache. The area ensonified each day will be 
multiplied by the applicable 1 km\2\ grid cell densities taken from the 
Goetz et al. (2012) paper. The modeling in this paper clearly 
demonstrates a higher density of belugas in the Upper Inlet. Therefore, 
using these densities accounts for area of high beluga density in the 
Upper Inlet. Additionally, NMFS has created an exclusion zone within 10 
miles of the Susitna River Delta, an area of known importance for 
belugas in the summer, to ensure that Apache's activity does not 
interfere with such an important area. When considering these things in 
combination, NMFS was able to make a negligible impact determination. 
NMFS also clarifies that while an ambiguous figure was used, Apache is 
not proposing to expand the survey beyond what was analyzed in the 
proposed rule.
    Comment 20: The NRDC commented that the number of takes in the 
regulatory text and Table 5 of the preamble were different.
    Response: NMFS acknowledges the discrepancy and points to Table 5 
of the preamble for the correct take estimates. However, because 
methodology has been altered between the issuance of the proposed rule 
and the final rule due to public comment and analysis of monitoring 
reports and sightings information, these take tables have changed.
    Comment 21: The MMC comments that NMFS should clarify if Apache 
should be requesting take of humpback whales, minke whales, and Dall's 
porpoises. Furthermore, NMFS should work with applicants to determine 
which species should be included in authorizations.
    Response: Apache did not request take of humpback whales, minke 
whales, and Dall's porpoises. However, because they have been sighted 
during Apache's previous surveying, NMFS has decided to authorize Level 
B harassment for small numbers of minke whales and Dall's porpoise. 
Additionally, take of humpback whales was analyzed in the Biological 
Opinion, due to the number of reported sightings of humpback whales in 
Cook Inlet in summer 2015.
    Comment 22: The MMC requests that NMFS periodically reconvene the 
Cook Inlet Beluga Whale Recovery Team (CIBWRT) and related working 
groups

[[Page 47249]]

to prioritize research and monitoring recommendations as well as other 
recovery plan items.
    Response: The determination of whether and when to reconvene the 
COBWRT is outside of the scope of this authorization. However, NMFS 
plans to incorporate recommendations from the Cook Inlet Beluga Whale 
Recovery Plan as appropriate into monitoring and mitigation 
requirements after the recovery plan is finalized through the adaptive 
management provisions of the rule.
    Comment 23: The MMC recommends that NMFS restrict all seismic 
activity occurring in Critical Habitat Area 1 to the time between 
October 15th and April 15th to minimize impacts to belugas using this 
seasonally vital habitat.
    Response: Given the seasonal nature of beluga concentrations, and 
their tendency to congregate in areas near Knik Arm and Turnagain Arm 
in the summer months, NMFS believes that the Susitna River Delta 
exclusion zone of 10 nmi from the MLLW line between the Susitna and 
Beluga Rivers is sufficient closure to protect beluga use of that 
portion of their critical habitat during times of high use.
    Comment 24: The NRDC recommends that NMFS require seismic operators 
to contribute to a comprehensive monitoring plan to better understand 
beluga distribution, individual effects, and cumulative effects of 
human activities on beluga whales.
    Response: NMFS believes that seismic operators have a substantial 
amount of information to contribute to our understanding of Cook Inlet 
beluga distribution, particularly through monitoring reports. It is 
also crucial to better understand individual and cumulative effects of 
human activities on belugas. NMFS is working to compile and analyze 
monitoring reports across all authorized activities to analyze 
effectiveness of mitigation and inform further monitoring plans for 
future Authorizations. We plan to develop a comprehensive monitoring 
plan for Cook Inlet concurrently with the development of the 
Environmental Impact Statement on the Issuance of Take Authorizations 
in Cook Inlet, Alaska (79 FR 61616).
    Comment 25: One private citizen commented that Apache should pay a 
large sum of money to a superfund to mitigate damage from the project 
by buying land for conservation easements or funding alternative energy 
research. This commenter also states that the only effective way to 
mitigate serious impacts is to remove airguns from sensitive 
environmental areas, cap activities by region and year, and promote 
alternative energies.
    Response: Where applicable, Apache has already proposed to 
implement certain measures mentioned above. The mandatory seasonal 
closure of the Susitna Delta from April 15-October 15 annually removes 
airguns from a portion of essential habitat at time of high use for 
belugas. The mitigation and monitoring in this rule represent the most 
effective and practicable means of reducing the impacts of Apache's 
activities on the affected marine mammal populations and their habitat. 
The purchase of land is not applicable to ensuring the least 
practicable adverse impact for this activity under the MMPA.
    Comment 26: One private citizen commented that the extended 
timeline of the project did not receive feedback from the community. 
There were also several comments included that referenced environmental 
impacts of drilling by Apache.
    Response: The public comment period, which was extended from 30 to 
45 days, provided reasonable time for interested parties to submit 
public comment regarding the proposed regulations and many such 
comments were received by NMFS. NMFS would like to reiterate that the 
petition for regulations relates to seismic surveying by Apache in Cook 
Inlet and that no portion of these regulations pertains to drilling 
activities.
    Comment 27: IFAW comments that the effects of noise from seismic 
activity contribute to problems between vessels and whales, including 
ship strike and entanglement.
    Response: NMFS is aware that ship strikes and entanglements can 
occur in locations where whales and certain human activities co-exist. 
However, NMFS is not aware of any studies that demonstrate seismic 
noise increases the likelihood of these occurrences. NMFS is unaware of 
any entanglements or ship strikes that have occurred from seismic 
operations in Cook Inlet. IFAW did not provide citations for NMFS to 
delve further into these claims.
    Comment 28: The public law class of VLS comments that a mass 
stranding event, similar to the 2008 stranding in Madagascar, could 
reduce beluga numbers by one third.
    Response: NMFS does not believe that a mass stranding similar to 
that off Madagascar in 2008 could occur from the proposed seismic 
survey considered in the rulemaking for Apache. There are several 
distinctions between the survey in Madagascar and Apache's survey: 
equipment type, type of environment, and species of cetacean 
considered. The Madagascar stranding was secondarily associated with 
multibeam echosounder use, not a seismic survey, operating at a 
different frequency than that of airguns and conducting operations in a 
different manner that was specifically problematic for the species and 
environment present. Additionally, the mammals that stranded were melon 
headed whales, which have a large average group size and are deep 
divers, and those particular animals incurred secondary health problems 
from their extended time spent stranded following their initial 
behavioral response to the sound exposure. Lastly, the type of 
surveying proposed by Apache has been conducted fairly consistently in 
Cook Inlet under IHAs, and has not caused mass strandings of Cook Inlet 
belugas or other Cook Inlet marine mammal species.
    Comment 29: The public law class of VLS comments that allowing take 
for the proposed activity is a mismanagement of ESA protections for 
endangered belugas.
    Response: NMFS disagrees. This rulemaking is undertaken pursuant to 
the MMPA, not the ESA. However, because we proposed to authorize take 
of ESA-listed species, including Cook Inlet belugas, consultation under 
section 7 of the ESA is required. The Biological Opinion for this 
activity concluded jeopardy was not likely, and therefore the take 
associated with this rule is considered allowable under the MMPA and 
ESA.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS's jurisdiction that could 
occur near operations in Cook Inlet include four cetacean species: 
Beluga whale (Delphinapterus leucas), humpback whale (Megaptera 
noveangliae), killer whale (Orcinus orca), harbor porpoise (Phocoena 
phocoena), Dall's porpoise (Phocoenoides dalli), minke whale 
(Balaenoptera acutorostrata), and gray whale (Eschrichtius robustus) 
and two pinniped species: Harbor seal (Phoca vitulina richardsi) and 
Steller sea lions (Eumetopias jubatus). The marine mammal species that 
is likely to be encountered most widely (in space and time) throughout 
the period of the planned surveys is the harbor seal. While killer 
whales, humpback whales, minke whales, Dall's porpoise, and gray whales 
as well as Steller sea lions have been sighted in upper Cook Inlet, 
their occurrence is considered rare in that portion of the Inlet.
    Of the nine marine mammal species likely to occur in the marine 
survey area, Cook Inlet beluga whales, Central

[[Page 47250]]

North Pacific humpback whales, and Steller sea lions are listed as 
endangered under the ESA (Steller sea lions are divided into two 
distinct population segments (DPSs), an eastern and a western DPS; the 
relevant DPS in Cook Inlet is the western DPS). The eastern DPS was 
recently removed from the endangered species list (78 FR 66139, 
November 4, 2013).

                         Table 1--Table of Stocks Expected To Occur in the Project Area
----------------------------------------------------------------------------------------------------------------
                                                                            Stock abundance
                                                        ESA/MMPA status;  (CV, Nmin, year of       Relative
             Species                     Stock         \1\ strategic  (Y/     most recent     occurrence in Cook
                                                               N)          abundance survey)   Inlet; season of
                                                                                  \2\             occurrence
----------------------------------------------------------------------------------------------------------------
Humpback whale..................  Central North        E/D;Y              7,469               Occasionally seen
                                   Pacific.                                (0.095;5,833;2000   in Lower Inlet,
                                                                           ).                  summer, rare in
                                                                                               upper inlet.
Gray whale......................  Eastern North        -; N               19,126 (0.071;      Rare migratory
                                   Pacific.                                18,017; 2007).      visitor; late
                                                                                               winter.
Killer whale....................  Alaska Resident....  -;N                2,347 (N/A; 2,084;  Occasionally seen
                                                                           2009).              in Lower Cook
                                                                                               Inlet.
                                  Gulf of Alaska,      -;N                345 (N/A; 303;
                                   Aleutian Island,                        2003).
                                   Bering Sea
                                   Transient.
Beluga whale....................  Cook Inlet.........  E/D;Y              312 (0.10; 280;     Use upper Inlet in
                                                                           2012).              summer and winter
                                                                                               and lower inlet
                                                                                               primarily in
                                                                                               winter: Annual.
Minke whale.....................  Alaska.............  -;N                1,233 (0.034;N/     Infrequently occur
                                                                           A;2003).            but reported year-
                                                                                               round.
Dall's porpoise.................  Alaska.............  -:N                106,000 \3\ (0.20;  Infrequently found
                                                                           N/A; 1991).         in Lower Inlet.
Harbor porpoise.................  Gulf of Alaska.....  -;Y                31,046 (0.214;      Widespread in the
                                                                           25,987; 1998).      Inlet: annual
                                                                                               (less in winter).
Steller sea lion................  Western DPS........  E/D;Y              79,300 (N/A;        Primarily found in
                                                                           45,659; 2012).      lower Inlet, rare
                                                                                               in upper inlet.
Harbor seal.....................  Alaska--Cook Inlet.  -;N                22,900 (0.053;      Frequently found
                                                                           21,896; 2006).      in upper and
                                                                                               lower inlet ;
                                                                                               annual (more in
                                                                                               northern Inlet in
                                                                                               summer).
----------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-)
  indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the
  MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see footnote
  3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future.
  Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a
  strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not
  applicable. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often
  pups) ashore multiplied by some correction factor derived from knowledge of the specie's (or similar species')
  life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the
  minimum abundance may represent actual counts of all animals ashore.
\3\ Because there is such little data regarding Dall's porpoises in Alaska, these population numbers refer to
  the Gulf of Alaska portion of the Alaska stock only.

    Pursuant to the ESA, critical habitat has been designated for Cook 
Inlet beluga whales and Steller sea lions. The action falls within 
critical habitat designated in Cook Inlet for beluga whales but is not 
within critical habitat designated for Steller sea lions. On April 11, 
2011, NMFS announced the two areas of beluga whale critical habitat (76 
FR 20180) comprising 7,800 km\2\ (3,013 mi\2\) of marine habitat. 
Designated beluga whale Critical Habitat Area 1 consists of 1,909 km\2\ 
of Cook Inlet, north of Three Mile Creek and Point Possession. Critical 
Habitat Area 1 contains shallow tidal flats or mudflats and mouths of 
rivers that provide important areas for foraging, calving, molting, and 
escape from predators. High concentrations of beluga whales are often 
observed in these areas from spring through fall. Critical Habitat Area 
2 consists of 5,891 km\2\ located south of Critical Habitat Area 1 and 
includes waters between Critical Habitat area 1 and 60[deg]15' North 
Latitude as well as nearshore areas along western Cook Inlet and 
Kachemak Bay. Critical Habitat Area 2 consists of known fall and winter 
foraging and transit habitat for beluga whales, as well as spring and 
summer habitat for smaller concentrations of beluga whales. 
Approximately 711 km\2\ of Apache's 5684 km\2\ seismic survey area is 
in the designated beluga whale Critical Habitat Area 1 and 
approximately 4,200 km\2\ is in the designated beluga whale Critical 
Habitat Area 2.
    There are several species of mysticetes that have been observed 
infrequently in lower Cook Inlet, including minke whale (Balaenoptera 
acutorostrata) and fin whale (Balaenoptera physalus). Because of their 
infrequent occurrence in the location of seismic acquisition, they are 
not included in this rule. Sea otters also occur in Cook Inlet. 
However, sea otters are managed by the U.S. Fish and Wildlife Service 
and are therefore not considered further in this rule.

Beluga Whale (Delphinapterus leucas)

    Cook Inlet beluga whales have not made significant progress towards 
recovery since they were listed as endangered in 2008. Data indicate 
that the Cook Inlet population of beluga whales has been decreasing at 
a rate of 0.6 percent annually between 2002 and 2012 (Allen and 
Angliss, 2014). One review of the status of the population indicated 
that there is an 80% chance that the population will decline further 
(Hobbs and Shelden, 2008).
    Cook Inlet beluga whales reside in Cook Inlet year-round, although 
their distribution and density changes seasonally. Factors that are 
likely to influence beluga whale distribution within the inlet include 
prey availability, predation pressure, sea-ice cover and other 
environmental factors, reproduction, sex and age class, and human 
activities (Rugh et al., 2000; NMFS 2008). Seasonal movement and 
density patterns as well as site fidelity appear to be closely linked 
to prey

[[Page 47251]]

availability, coinciding with seasonal salmon and eulachon 
concentrations (Moore et al., 2000). For example, during spring and 
summer, beluga whales are generally concentrated near the warmer waters 
of river mouths where prey availability is high and predator occurrence 
is low (Huntington 2000; Moore et al., 2000). During the winter 
(November to April), belugas disperse throughout the upper and mid-
inlet areas, with animals found between Kalgin Island and Point 
Possession (Rugh et al., 2000). During these months, there are 
generally fewer observations of beluga whales in the Anchorage and Knik 
Arm area (NMML 2004; Rugh et al., 2004).
    Beluga whales use several areas of the upper Cook Inlet for 
repeated summer and fall feeding. The primary hotspots for beluga 
feeding include the Big and Little Susitna rivers, Eagle Bay to Eklutna 
River, Ivan Slough, Theodore River, Lewis River, and Chickaloon River 
and Bay (NMFS, 2008). Availability of prey species appears to be the 
most influential environmental variable affecting Cook Inlet beluga 
whale distribution and relative abundance (Moore et al., 2000). The 
patterns and timing of eulachon and salmon runs have a strong influence 
on beluga whale feeding behavior and their seasonal movements (Nemeth 
et al., 2007; NMFS, 2008). The presence of prey species may account for 
the seasonal changes in beluga group size and composition (Moore et 
al., 2000). Aerial and vessel-based monitoring conducted by Apache 
during the March 2011 2D test program in Cook Inlet reported 33 beluga 
sightings. One of the sightings was of a large group (~25 individuals 
on March 27, 2011) of feeding/milling belugas near the mouth of the 
Drift River. If belugas are present during the late summer/early fall, 
they are more likely to occur in shallow areas near river mouths in 
upper Cook Inlet. For example, no beluga whales were observed in 
Trading Bay during Apache's 2D SSV conducted in September 2011, likely 
because during that time of year they were primarily located in the 
upper regions of Cook Inlet.

Humpback Whale (Megaptera novaeangliae)

    Although there is considerable distributional overlap in the 
humpback whale stocks that use Alaska, the whales seasonally found in 
lower Cook Inlet are probably of the Central North Pacific stock. 
Listed as endangered under the ESA, this stock has recently been 
estimated at 7,469, with the portion of the stock that feeds in the 
Gulf of Alaska estimated at 2,845 animals (Allen and Angliss 2014). The 
Central North Pacific stock winters in Hawaii and summers from British 
Columbia to the Aleutian Islands (Calambokidis et al., 1997), including 
Cook Inlet.
    Humpback use of Cook Inlet is largely confined to lower Cook Inlet. 
They have been regularly seen near Kachemak Bay during the summer 
months (Rugh et al., 2005a), and there is a whale-watching venture in 
Homer capitalizing on this seasonal event. There are anecdotal 
observations of humpback whales as far north as Anchor Point, with 
recent summer observations extending to Cape Starichkof (Owl Ridge 
2014). Humpbacks might be encountered in the vicinity of Anchor Point 
if seismic operations were to occur off the point during the summer. In 
2013, Apache encountered a humpback and calf in the ensonified area 
during seismic operations.

Killer Whales (Orcinus orca)

    In general, killer whales are rare in upper Cook Inlet. Transient 
killer whales are known to feed on beluga whales, and resident killer 
whales are known to feed on anadromous fish (Shelden et al., 2003). The 
availability of these prey species largely determines the likeliest 
times for killer whales to be in the area. Between 1993 and 2004, 23 
sightings of killer whales were reported in the lower Cook Inlet during 
aerial surveys by Rugh et al. (2005). Surveys conducted over a span of 
20 years by Shelden et al. (2003) reported 11 sightings in upper Cook 
Inlet between Turnagain Arm, Susitna Flats, and Knik Arm. No killer 
whales were spotted during surveys by Funk et al. (2005), Ireland et 
al. (2005), Brueggeman et al. (2007a, 2007b, 2008), or Prevel Ramos et 
al. (2006, 2008). Eleven killer whale strandings have been reported in 
Turnagain Arm, six in May 1991 and five in August 1993. NMFS aerial 
survey data spanning 13 years conducted in June each year have reported 
sightings ranging from 0 to 33 whales in a single year, although these 
surveys extend beyond the action area of Apache's survey. Sightings 
data can be found in Table 5 of Apache's application. Therefore, very 
few killer whales, if any, are expected to approach or be in the 
vicinity of the action area.

Harbor Porpoise (Phocoena phocoena)

    Previously estimated density for harbor porpoises in Cook Inlet is 
7.2 per 1,000 km\2\ (Dahlheim et al., 2000), suggesting that only a 
small number use Cook Inlet. Data from NMFS aerial surveys (Table 5 in 
Apache's application) flown annually in June from 2000-2012 sighted 
anywhere from 0 to 100 porpoises in a single season. The densities 
derived from this data range from 0 to 0.014 animals per km\2\. Harbor 
porpoise have been reported in lower Cook Inlet from Cape Douglas to 
the West Foreland, Kachemak Bay, and offshore (Rugh et al., 2005). 
Small numbers of harbor porpoises have been consistently reported in 
upper Cook Inlet between April and October, but more recent 
observations have recorded higher numbers (Prevel Ramos et al., 2008). 
Prevel Ramos et al. (2008) reported 17 harbor porpoises from spring to 
fall 2006, while other studies reported 14 in the spring of 2007 
(Brueggeman et al., 2007) and 12 in the fall of 2007 (Brueggeman et 
al., 2008). During the spring and fall of 2007, 129 harbor porpoises 
were reported between Granite Point and the Susitna River; however, the 
reason for the increase in numbers of harbor porpoise in the upper Cook 
Inlet remains unclear and the disparity between this result and past 
sightings suggests that it may be an anomaly. The spike in reported 
sightings occurred in July, which was followed by sightings of 79 
harbor porpoises in August, 78 in September, and 59 in October 2007. It 
is important to note that the number of porpoises counted more than 
once was unknown, which suggests that the actual numbers are likely 
smaller than those reported. In 2012, Apache marine mammal observers 
recorded 137 sightings of 190 estimated individuals; a similar count to 
the 2007 spike previously observed. In addition, recent passive 
acoustic research in Cook Inlet by the Alaska Department of Fish and 
Game and the National Marine Mammal Laboratory have indicated that 
harbor porpoises occur in the area more frequently than previously 
thought, particularly in the West Foreland area in the spring (NMFS 
2011); however overall numbers are still unknown at this time.

Dall's Porpoise (Phocoenoides dalli)

    Dall's porpoise are widely distributed throughout the North Pacific 
Ocean including Alaska, although they are not found in upper Cook Inlet 
and the shallower waters of the Bering, Chukchi, and Beaufort Seas 
(Allen and Angliss 2014). Compared to harbor porpoise, Dall's porpoise 
prefer the deep offshore and shelf slope waters. The Alaskan population 
has been estimated at 83,400 animals (Allen and Angliss 2014), making 
it one of the more common cetaceans in the state. Dall's porpoise have 
been observed in lower Cook Inlet, including Kachemak Bay and near 
Anchor Point (Owl Ridge 2014), but sightings there are rare. There is a

[[Page 47252]]

remote chance that Dall's porpoise might be encountered during seismic 
operations along the Kenai Peninsula.

Minke Whale (Balaenoptera acutorostra)

    Minke whales are the smallest of the rorqual group of baleen whales 
reaching lengths of up to 35 feet. They are also the most common of the 
baleen whales, although there are no population estimates for the North 
Pacific, although estimates have been made for some portions of Alaska. 
Zerbini et al. (2006) estimated the coastal population between Kenai 
Fjords and the Aleutian Islands at 1,233 animals.
    During Cook Inlet-wide aerial surveys conducted from 1993 to 2004, 
minke whales were encountered only twice (1998, 1999), both times off 
Anchor Point 16 miles northwest of Homer. A minke whale was also 
reported off Cape Starichkof in 2011 (A. Holmes, pers. comm.) and 2013 
(E. Fernandez and C. Hesselbach, pers. comm.), suggesting this location 
is regularly used by minke whales, including during the winter. 
Recently, several minke whales were recorded off Cape Starichkof in 
early summer 2013 during exploratory drilling conducted there (Owl 
Ridge 2014). There are no records north of Cape Starichkof, and this 
species is unlikely to be seen in upper Cook Inlet. There is a chance 
of encountering this whale during seismic operations along the Kenai 
Peninsula in lower Cook Inlet.

Gray Whale (Eschrichtius robustus)

    Numbers of gray whales in Cook Inlet are small compared to the 
overall population (18,017 individuals). However, Apache marine mammal 
observers recorded nine sightings of nine individuals (including 
possible resights of the same animals) from May-July 2012. Of those 
sightings, seven were observed from project vessels, and two were 
observed from land-based observation stations. The eastern North 
Pacific gray whales observed in Cook Inlet are likely migrating to 
summer feeding grounds in the Bering, Chukchi, and Beaufort Seas, 
though a small number feed along the coast between Kodiak Island and 
northern California (Matkin, 2009; Carretta et al., 2014). NMFS aerial 
surveys flown annually in June have not sighted a gray whale during 
survey season since 2001. Occurrences in the seismic survey area 
(especially in the upper parts of the Inlet) are expected to be low.
    Two species of pinnipeds may be encountered in Cook Inlet: Harbor 
seal and Steller sea lion.

Harbor Seal (Phoca vitulina)

    Harbor seals inhabit the coastal and estuarine waters of Cook 
Inlet. Historically, harbor seals have been more abundant in lower Cook 
Inlet than in upper Cook Inlet (Rugh et al., 2005a,b). Harbor seals are 
non-migratory; their movements are associated with tides, weather, 
season, food availability, and reproduction. The major haulout sites 
for harbor seals are located in lower Cook Inlet, and their presence in 
the upper inlet coincides with seasonal runs of prey species. For 
example, harbor seals are commonly observed along the Susitna River and 
other tributaries along upper Cook Inlet during the eulachon and salmon 
migrations (NMFS, 2003). During aerial surveys of upper Cook Inlet in 
2001, 2002, and 2003, harbor seals were observed 24 to 96 km (15 to 60 
mi) south-southwest of Anchorage at the Chickaloon, Little Susitna, 
Susitna, Ivan, McArthur, and Beluga Rivers (Rugh et al., 2005). NMFS 
aerial surveys flown in June have reported sightings ranging from 956 
to 2037 harbor seals over the course of surveys from 2000 to 2012. 
Apache aerial observers recorded approximately 900 harbor seals north 
of the Forelands in 2012 (Lomac-MacNair et al., 2013). Moreover, 
preliminary reports from Apache's 2014 vessel, aerial, and land 
observations suggest harbor seals may be more abundant north of the 
Forelands than previously understood. During the 2D test program in 
March 2011, two harbor seals were observed by vessel-based PSOs. On 
March 25, 2011, one harbor seal was observed approximately 400 m (0.2 
mi) from the M/V Miss Diane. At the time of the observation, the vessel 
was operating the positioning pinger, and PSOs instructed the operator 
to implement a shut-down. The pinger was shut down for 30 minutes while 
PSOs monitored the area and re-started the device when the animal was 
not sighted again during the 30 minute site clearing protocol. No 
unusual behaviors were reported during the time the animal was 
observed. The second harbor seal was observed on March 26, 2011, by 
vessel-based PSO onboard the M/V Dreamcatcher approximately 4,260 m 
(2.6 mi) from the source vessel, which was operating the 10 in\3\ 
airgun at the time. NMFS and Apache do not anticipate encountering 
large aggregations of seals (the closest known haulout site to the 
action area is located on Kalgin Island, which is approximately 22 km 
[14 mi] south of the McArthur River), but we do expect to see 
individual harbor seals (Boveng et al., 2011); especially during large 
fish runs in the various rivers draining into Cook Inlet.
    Important harbor seal life functions, such as breeding and molting 
may occur within portions of Apache's survey area in June and August, 
but the co-occurrence is expected to be minimal. From November through 
January, harbor seals leave Cook Inlet to forage in Shelikof Strait 
(Boveng et al., 2007).

Steller Sea Lion (Eumetopia jubatus)

    Two separate stocks of Steller sea lions are recognized within U.S. 
waters: An eastern DPS, which includes animals east of Cape Suckling, 
Alaska; and a western DPS, which includes animals west of Cape Suckling 
(NMFS, 2008). Individuals in Cook Inlet are considered part of the 
western DPS, which is listed as endangered under the ESA.
    Regional variation in trends in Steller sea lion pup counts in 
2000-2012 is similar to that of non-pup counts (Johnson and Fritz, 
2014). Overall, there is strong evidence that pup counts in the western 
stock in Alaska increased (1.45 percent annually). Between 2004 and 
2008, Alaska western non-pup counts increased only 3%: Eastern Gulf of 
Alaska (Prince William Sound area) counts were higher and Kenai 
Peninsula through Kiska Island counts were stable, but western Aleutian 
counts continued to decline. Johnson and Fritz (2014) analyzed western 
Steller sea lion population trends in Alaska and noted that there was 
strong evidence that non-pup counts in the western stock in Alaska 
increased between 2000 and 2012 (average rate of 1.67 percent 
annually). However, there continues to be considerable regional 
variability in recent trends across the range in Alaska, with strong 
evidence of a positive trend east of Samalga Pass and strong evidence 
of a decreasing trend to the west (Allen and Angliss, 2014).
    Steller sea lions primarily occur in lower, rather than upper Cook 
Inlet and are rarely sighted north of Nikiski on the Kenai Peninsula. 
NMFS aerial surveys conducted in June 2000-2012, primarily in lower 
Cook Inlet, indicated presence of 0 to 104 Steller sea lions. Haul-outs 
and rookeries are located near, but outside of Cook Inlet at Gore 
Point, Elizabeth Island, Perl Island, and Chugach Island (NMFS, 2008). 
No Steller sea lion haul-outs or rookeries are located in the vicinity 
of the seismic survey. Furthermore, no sightings of Steller sea lions 
were reported by Apache during the 2D test program in March 2011. 
During the 3D seismic survey, one Steller sea lion was observed from 
the M/V Dreamcatcher on August 18, 2012, during a period

[[Page 47253]]

when the air guns were not active. Although Apache has requested takes 
of Steller sea lions, Steller sea lions would be rare in the action 
area during seismic survey operations.
    Apache's application contains more information on the status, 
distribution, seasonal distribution, and abundance of each of the 
species under NMFS jurisdiction mentioned in this document. Please 
refer to the application for that information (see ADDRESSES). 
Additional information can also be found in the NMFS Stock Assessment 
Reports (SAR). The Alaska 2014 SAR is available on the Internet at: 
http://www.nmfs.noaa.gov/pr/sars/pdf/ak2013_final.pdf.

Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that 
components (e.g., seismic airgun operations, vessel movement) of the 
specified activity, including mitigation, may impact marine mammals. 
The ``Estimated Take by Incidental Harassment'' section later in this 
document will include a quantitative analysis of the number of 
individuals that are expected to be taken by this activity. The 
``Negligible Impact Analysis'' section will include the analysis of how 
this specific activity will impact marine mammals and will consider the 
content of this section, the ``Estimated Take by Incidental 
Harassment'' section, the ``Mitigation'' section, and the ``Anticipated 
Effects on Marine Mammal Habitat'' section to draw conclusions 
regarding the likely impacts of this activity on the reproductive 
success or survivorship of individuals and from that on the affected 
marine mammal populations or stocks.
    Operating active acoustic sources, such as airgun arrays, has the 
potential for adverse effects on marine mammals. The majority of 
anticipated impacts would be from the use of acoustic sources.

Acoustic Impacts

    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms have been derived using 
auditory evoked potentials, anatomical modeling, and other data. 
Southall et al. (2007) designate ``functional hearing groups'' for 
marine mammals and estimate the lower and upper frequencies of 
functional hearing of the groups. The functional groups and the 
associated frequencies are indicated below (note that animals are less 
sensitive to sounds at the outer edge of their functional range and 
most sensitive to sounds of frequencies within a smaller range 
somewhere in the middle of their functional hearing range):
     Low frequency cetaceans (13 species of mysticetes): 
functional hearing is estimated to occur between approximately 7 Hz and 
30 kHz;
     Mid-frequency cetaceans (32 species of dolphins, six 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): Functional hearing is estimated to occur between 
approximately 150 Hz and 160 kHz;
     High frequency cetaceans (eight species of true porpoises, 
six species of river dolphins, Kogia, the franciscana, and four species 
of cephalorhynchids): Functional hearing is estimated to occur between 
approximately 200 Hz and 180 kHz;
     Phocid pinnipeds in Water: Functional hearing is estimated 
to occur between approximately 75 Hz and 100 kHz; and
     Otariid pinnipeds in Water: Functional hearing is 
estimated to occur between approximately 100 Hz and 40 kHz.
    As mentioned previously in this document, nine marine mammal 
species (seven cetacean and two pinniped species) are likely to occur 
in the seismic survey area. Of the four cetacean species likely to 
occur in Apache's project area, one is classified as a low-frequency 
cetacean (gray whale), two are classified as mid-frequency cetaceans 
(i.e., beluga and killer whales), and one is classified as a high-
frequency cetacean (i.e., harbor porpoise) (Southall et al., 2007). Of 
the two pinniped species likely to occur in Apache's project area, one 
is classified as a phocid (i.e., harbor seal), and one is classified as 
an otariid (i.e., Steller sea lion). A species functional hearing group 
is a consideration when we analyze the effects of its exposure to 
different frequencies of sound.
1. Potential Effects of Airgun Sounds on Marine Mammals
    The effects of sounds from airgun pulses might include one or more 
of the following: Tolerance, masking of natural sounds, behavioral 
disturbance, temporary or permanent hearing threshold shifts, and non-
auditory effects (Richardson et al., 1995). As outlined in previous 
NMFS documents, the effects of noise on marine mammals are highly 
variable, often depending on species and contextual factors (based on 
Richardson et al., 1995).
    Tolerance: Numerous studies have shown that pulsed sounds from air 
guns are often readily detectable in the water at distances of many 
kilometers. Numerous studies have also shown that marine mammals at 
distances more than a few kilometers from operating survey vessels 
often show no apparent response. 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. In general, pinnipeds and small odontocetes (toothed whales) 
seem to be more tolerant of exposure to air gun pulses than baleen 
whales. Although various toothed whales, and (less frequently) 
pinnipeds have been shown to react behaviorally to airgun pulses under 
some conditions, at other times, mammals of both types have shown no 
overt reactions. Weir (2008) observed marine mammal responses to 
seismic pulses from a 24 airgun array firing a total volume of either 
5,085 in\3\ or 3,147 in\3\ in Angolan waters between August 2004 and 
May 2005. Weir recorded a total of 207 sightings of humpback whales (n 
= 66), sperm whales (n = 124), and Atlantic spotted dolphins (n = 17) 
and reported that there were no significant differences in encounter 
rates (sightings/hr) for humpback and sperm whales according to the 
airgun array's operational status (i.e., active versus silent).
    Behavioral Disturbance: Marine mammals may behaviorally respond 
when exposed to anthropogenic noise. These behavioral reactions are 
often shown as: Changing durations of surfacing and dives, number of 
blows per surfacing, or moving direction and/or speed; reduced/
increased vocal activities; changing/cessation of certain behavioral 
activities (such as socializing or feeding); visible startle response 
or aggressive behavior (such as tail/fluke slapping or jaw clapping); 
avoidance of areas where noise sources are located; and/or flight 
responses (e.g., pinnipeds flushing into water from haulouts or 
rookeries).
    The biological significance of many of these behavioral 
disturbances is difficult to predict. The consequences of behavioral 
modification to individual fitness can range from none up to potential 
changes to growth, survival, or reproduction, depending on the context, 
duration, and degree of behavioral modification. Examples of behavioral 
modifications that could impact growth, survival or reproduction 
include: Drastic changes in diving/surfacing/swimming patterns that 
lead to stranding (such as those associated with beaked whale 
strandings related to

[[Page 47254]]

exposure to military mid-frequency tactical sonar); longer-term 
abandonment of habitat that is specifically important for feeding, 
reproduction, or other critical needs, or significant disruption of 
feeding or social interaction resulting in substantive energetic costs, 
inhibited breeding, or prolonged or permanent cow-calf separation.
    The likelihood and severity of behavioral disturbance from 
anthropogenic noise depends on both external factors (characteristics 
of noise sources and their paths) and the receiving animals (hearing, 
motivation, experience, demography, context of the exposure) and is 
also difficult to predict (Southall et al., 2007).
    Toothed whales. Few systematic data are available describing 
reactions of toothed whales to noise pulses. However, systematic work 
on sperm whales (Tyack et al., 2003) has yielded an increasing amount 
of information about responses of various odontocetes to seismic 
surveys based on monitoring studies (e.g., Stone, 2003; Smultea et al., 
2004; Moulton and Miller, 2005). Stone et al. (2003) reported reduced 
sighting rates of small odontocetes during periods of shooting during 
seismic surveys with large airgun arrays. Moulton and Miller (2004) 
also found that the range of audibility of seismic pules for mid-sized 
odontecetes was largely underestimated by models.
    Seismic operators and marine mammal observers sometimes see 
dolphins and other small toothed whales near operating airgun arrays, 
but, in general, there seems to be a tendency for most delphinids to 
show some avoidance of seismic vessels operating large airgun systems. 
However, some dolphins seem to be attracted to the seismic vessel and 
floats, and some ride the bow wave of the seismic vessel even when 
large arrays of airguns are firing. Nonetheless, there have been 
indications that small toothed whales sometimes move away or maintain a 
somewhat greater distance from the vessel when a large array of airguns 
is operating than when it is silent (e.g., Goold, 1996a,b,c; 
Calambokidis and Osmek, 1998; Stone, 2003). The beluga may be a species 
that (at least in certain geographic areas) shows long-distance 
avoidance of seismic vessels. Aerial surveys during seismic operations 
in the southeastern Beaufort Sea recorded much lower sighting rates of 
beluga whales within 10-20 km (6.2-12.4 mi) of an active seismic 
vessel. These results were consistent with the low number of beluga 
sightings reported by observers aboard the seismic vessel, indicating 
that belugas may avoid seismic operations at distances of 10-20 km 
(6.2-12.4 mi) (Miller et al., 2005).
    Captive bottlenose dolphins and beluga whales exhibit changes in 
behavior when exposed to strong pulsed sounds similar in duration to 
those typically used in seismic surveys (Finneran et al., 2002, 2005). 
However, the animals tolerated high received levels of sound (pk-pk 
level >200 dB re 1 [mu]Pa) before exhibiting aversive behaviors.
    Observers stationed on seismic vessels operating off the United 
Kingdom from 1997-2000 have provided data on the occurrence and 
behavior of various toothed whales exposed to seismic pulses (Stone, 
2003; Gordon et al., 2004). Killer whales were found to be 
significantly farther from large airgun arrays during periods of 
shooting compared with periods of no shooting. The displacement of the 
median distance from the array was approximately 0.5 km (0.3 mi) or 
more. Killer whales also appear to be more tolerant of seismic shooting 
in deeper water (illustrating another example of the importance of 
context in predicting responses).
    Reactions of toothed whales to large arrays of airguns are variable 
and, at least for delphinids, seem to be confined to a smaller radius 
than has been observed for mysticetes. However, based on the limited 
existing evidence, belugas should not necessarily be grouped with 
delphinids in the ``less responsive'' category.
    Pinnipeds. Pinnipeds are not likely to show a strong avoidance 
reaction to the airgun sources used. Visual monitoring from seismic 
vessels has shown only slight (if any) avoidance of airguns by 
pinnipeds and only slight (if any) changes in behavior. Monitoring work 
in the Alaskan Beaufort Sea during 1996-2001 provided considerable 
information regarding the behavior of Arctic ice seals exposed to 
seismic pulses (Harris et al., 2001; Moulton and Lawson, 2002). These 
seismic projects usually involved arrays of 6 to 16 airguns with total 
displacement volumes of 560 to 1,500 in\3\. The combined results 
suggest that some seals avoid the immediate area around seismic 
vessels. In most survey years, ringed seal sightings tended to be 
farther away from the seismic vessel when the airguns were operating 
than when they were not (Moulton and Lawson, 2002). However, these 
avoidance movements were relatively small, on the order of 100 m (328 
ft) to a few hundreds of meters, and many seals remained within 100-200 
m (328-656 ft) of the trackline as the operating airgun array passed 
by. Seal sighting rates at the water surface were lower during airgun 
array operations than during no-airgun periods in each survey year 
except 1997. Similarly, seals are often very tolerant of pulsed sounds 
from seal-scaring devices (Mate and Harvey, 1987; Jefferson and Curry, 
1994; Richardson et al., 1995a). However, initial telemetry work 
suggests that avoidance and other behavioral reactions by two other 
species of seals, grey and harbor seals, to small airgun sources may at 
times be stronger than evident to date from visual studies of pinniped 
reactions to airguns (Thompson et al., 1998). Even if reactions of the 
species occurring in the activity area are as strong as those evident 
in the telemetry study, reactions are expected to be confined to 
relatively small distances and durations, with no long-term effects on 
pinniped individuals or populations.
    Masking: Masking is the obscuring of sounds of interest by other 
sounds, often at similar frequencies. Marine mammals use acoustic 
signals for a variety of purposes, which differ among species, but 
include communication between individuals, navigation, foraging, 
reproduction, avoiding predators, and learning about their environment 
(Erbe and Farmer, 2000; Tyack, 2000). Masking, or auditory 
interference, generally occurs when sounds in the environment are 
louder than, and of a similar frequency to, auditory signals an animal 
is trying to receive. Masking is a phenomenon that affects animals 
trying to receive acoustic information about their environment, 
including sounds from other members of their species, predators, prey, 
and sounds that allow them to orient in their environment. Masking 
these acoustic signals can disturb the behavior of individual animals, 
groups of animals, or entire populations.
    Masking occurs when anthropogenic sounds and signals (that the 
animal utilizes) overlap at both spectral and temporal scales. For the 
airgun sound generated from the seismic surveys, sound will consist of 
low frequency (under 500 Hz) pulses with extremely short durations 
(less than one second). Lower frequency man-made sounds are more likely 
to affect detection of potentially important natural sounds such as 
surf and prey noise, or communication calls for low frequency 
specialists. There is little concern regarding masking near the sound 
source due to the brief duration of these pulses and relatively longer 
silence between air gun shots (approximately 12 seconds). However, at 
long distances (over tens of kilometers away), due to multipath 
propagation and

[[Page 47255]]

reverberation, the durations of airgun pulses can be ``stretched'' to 
seconds with long decays (Madsen et al., 2006), and shorter intervals 
between pulses, although the intensity of the sound is greatly reduced.
    This could affect communication signals used by low frequency 
mysticetes when they occur near the noise band and thus reduce the 
communication space of animals (e.g., Clark et al., 2009) and cause 
increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009); 
however, few baleen whales are expected to occur within the action 
area. Marine mammals are thought to be able to compensate for masking 
by adjusting their acoustic behavior by shifting call frequencies, and/
or increasing call volume and vocalization rates. For example, blue 
whales were found to increase call rates when exposed to seismic survey 
noise in the St. Lawrence Estuary (Di Iorio and Clark, 2010). The North 
Atlantic right whales (Eubalaena glacialis) exposed to high shipping 
noise increase call frequency (Parks et al., 2007), while some humpback 
whales respond to low-frequency active sonar playbacks by increasing 
song length (Miller et al., 2000). Additionally, beluga whales have 
been known to change their vocalizations in the presence of high 
background noise possibly to avoid masking calls (Au et al., 1985; 
Lesage et al., 1999; Scheifele et al., 2005). Although some degree of 
masking is inevitable when high levels of manmade broadband sounds are 
introduced into the sea, marine mammals have evolved systems and 
behavior that function to reduce the impacts of masking. Structured 
signals, such as the echolocation click sequences of small toothed 
whales, may be readily detected even in the presence of strong 
background noise because their frequency content and temporal features 
usually differ strongly from those of the background noise (Au and 
Moore, 1988, 1990). The components of background noise that are similar 
in frequency to the sound signal in question primarily determine the 
degree of masking of that signal.
    Redundancy and context can also facilitate detection of weak 
signals. These phenomena may help marine mammals detect weak sounds in 
the presence of natural or manmade noise. Most masking studies in 
marine mammals present the test signal and the masking noise from the 
same direction. The sound localization abilities of marine mammals 
suggest that, if signal and noise come from different directions, 
masking would not be as severe as the usual types of masking studies 
might suggest (Richardson et al., 1995). The dominant background noise 
may be highly directional if it comes from a particular anthropogenic 
source such as a ship or industrial site. Directional hearing may 
significantly reduce the masking effects of these sounds by improving 
the effective signal-to-noise ratio. In the cases of higher frequency 
hearing by the bottlenose dolphin, beluga whale, and killer whale, 
empirical evidence confirms that masking depends strongly on the 
relative directions of arrival of sound signals and the masking noise 
(Penner et al., 1986; Dubrovskiy, 1990; Bain et al., 1993; Bain and 
Dahlheim, 1994). Toothed whales and probably other marine mammals as 
well, have additional capabilities besides directional hearing that can 
facilitate detection of sounds in the presence of background noise. 
There is evidence that some toothed whales can shift the dominant 
frequencies of their echolocation signals from a frequency range with a 
lot of ambient noise toward frequencies with less noise (Au et al., 
1974, 1985; Moore and Pawloski, 1990; Thomas and Turl, 1990; Romanenko 
and Kitain, 1992; Lesage et al., 1999). A few marine mammal species are 
known to increase the source levels or alter the frequency of their 
calls in the presence of elevated sound levels (Dahlheim, 1987; Au, 
1993; Lesage et al., 1993, 1999; Terhune, 1999; Foote et al., 2004; 
Parks et al., 2007, 2009; Di Iorio and Clark, 2009; Holt et al., 2009).
    These data demonstrating adaptations for reduced masking pertain 
mainly to the very high frequency echolocation signals of toothed 
whales. There is less information about the existence of corresponding 
mechanisms at moderate or low frequencies or in other types of marine 
mammals. For example, Zaitseva et al. (1980) found that, for the 
bottlenose dolphin, the angular separation between a sound source and a 
masking noise source had little effect on the degree of masking when 
the sound frequency was 18 kHz, in contrast to the pronounced effect at 
higher frequencies. Directional hearing has been demonstrated at 
frequencies as low as 0.5-2 kHz in several marine mammals, including 
killer whales (Richardson et al., 1995a). This ability may be useful in 
reducing masking at these frequencies. In summary, high levels of sound 
generated by anthropogenic activities may act to mask the detection of 
weaker biologically important sounds by some marine mammals. This 
masking may be more prominent for lower frequencies. For higher 
frequencies, such as that used in echolocation by toothed whales, 
several mechanisms are available that may allow them to reduce the 
effects of such masking.
    Threshold Shift (noise-induced loss of hearing)--When animals 
exhibit reduced hearing sensitivity (i.e., sounds must be louder for an 
animal to detect them) following exposure to loud and/or persistent 
sound, it is referred to as a noise-induced threshold shift (TS). An 
animal can experience temporary threshold shift (TTS) or permanent 
threshold shift (PTS). TTS can last from minutes or hours to days 
(i.e., there is complete recovery), can occur in specific frequency 
ranges (i.e., an animal might only have a temporary loss of hearing 
sensitivity between the frequencies of 1 and 10 kHz), and can be of 
varying amounts (for example, an animal's hearing sensitivity might be 
reduced initially by only 6 dB or reduced by 30 dB). PTS is permanent, 
but some recovery is possible. PTS can also occur in a specific 
frequency range and amount as mentioned above for TTS.
    The following physiological mechanisms are thought to play a role 
in inducing auditory TS: Effects to sensory hair cells in the inner ear 
that reduce their sensitivity, modification of the chemical environment 
within the sensory cells, residual muscular activity in the middle ear, 
displacement of certain inner ear membranes, increased blood flow, and 
post-stimulatory reduction in both efferent and sensory neural output 
(Southall et al., 2007). The amplitude, duration, frequency, temporal 
pattern, and energy distribution of sound exposure all can affect the 
amount of associated TS and the frequency range in which it occurs. As 
amplitude and duration of sound exposure increase, so, generally, does 
the amount of TS, along with the recovery time. For intermittent 
sounds, less TS could occur than compared to a continuous exposure with 
the same energy (some recovery could occur between intermittent 
exposures depending on the duty cycle between sounds) (Kryter et al., 
1966; Ward, 1997). For example, one short but loud (higher SPL) sound 
exposure may induce the same impairment as one longer but softer sound, 
which in turn may cause more impairment than a series of several 
intermittent softer sounds with the same total energy (Ward, 1997). 
Additionally, though TTS is temporary, prolonged exposure to sounds 
strong enough to elicit TTS, or shorter-term exposure to sound levels 
well above the TTS threshold, can cause PTS, at least in terrestrial 
mammals (Kryter, 1985). In the case of the seismic

[[Page 47256]]

survey, animals are not expected to be exposed to levels high enough or 
durations long enough to result in PTS.
    PTS is considered auditory injury (Southall et al., 2007). 
Irreparable damage to the inner or outer cochlear hair cells may cause 
PTS; however, other mechanisms are also involved, such as exceeding the 
elastic limits of certain tissues and membranes in the middle and inner 
ears and resultant changes in the chemical composition of the inner ear 
fluids (Southall et al., 2007).
    Although the published body of scientific literature contains 
numerous theoretical studies and discussion papers on hearing 
impairments that can occur with exposure to a loud sound, only a few 
studies provide empirical information on the levels at which noise-
induced loss in hearing sensitivity occurs in nonhuman animals. For 
marine mammals, published data are limited to the captive bottlenose 
dolphin, beluga, harbor porpoise, and Yangtze finless porpoise 
(Finneran et al., 2000, 2002, 2003, 2005, 2007, 2010a, 2010b; Finneran 
and Schlundt, 2010; Lucke et al., 2009; Mooney et al., 2009a, 2009b; 
Popov et al., 2011a, 2011b; Kastelein et al., 2012a; Schlundt et al., 
2000; Nachtigall et al., 2003, 2004). For pinnipeds in water, data are 
limited to measurements of TTS in harbor seals, an elephant seal, and 
California sea lions (Kastak et al., 1999, 2005; Kastelein et al., 
2012b).
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to serious 
(similar to those discussed in auditory masking, below). For example, a 
marine mammal may be able to readily compensate for a brief, relatively 
small amount of TTS in a non-critical frequency range that occurs 
during a time where ambient noise is lower and there are not as many 
competing sounds present. Alternatively, a larger amount and longer 
duration of TTS sustained during time when communication is critical 
for successful mother/calf interactions could have more serious 
impacts. Similarly, depending on the degree and frequency range, the 
effects of PTS on an animal could range in severity, although it is 
considered generally more serious because it is a permanent condition. 
Of note, reduced hearing sensitivity as a simple function of aging has 
been observed in marine mammals, as well as humans and other taxa 
(Southall et al., 2007), so we can infer that strategies exist for 
coping with this condition to some degree, though likely not without 
cost.
    Given the higher level of sound necessary to cause PTS as compared 
with TTS, it is considerably less likely that PTS would occur during 
the seismic surveys in Cook Inlet. Cetaceans generally avoid the 
immediate area around operating seismic vessels, as do some other 
marine mammals. Some pinnipeds show avoidance reactions to airguns, but 
their avoidance reactions are generally not as strong or consistent as 
those of cetaceans, and occasionally they seem to be attracted to 
operating seismic vessels (NMFS, 2010).
    Non-Auditory Physical Effects: Non-auditory physical effects might 
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. Some marine mammal species (i.e., beaked 
whales) may be especially susceptible to injury and/or stranding when 
exposed to strong pulsed sounds.
    Classic stress responses begin when an animal's central nervous 
system perceives a potential threat to its homeostasis. That perception 
triggers stress responses regardless of whether a stimulus actually 
threatens the animal; the mere perception of a threat is sufficient to 
trigger a stress response (Moberg, 2000; Sapolsky et al., 2005; Seyle, 
1950). Once an animal's central nervous system perceives a threat, it 
mounts a biological response or defense that consists of a combination 
of the four general biological defense responses: Behavioral responses; 
autonomic nervous system responses; neuroendocrine responses; or immune 
responses.
    In the case of many stressors, an animal's first and most 
economical (in terms of biotic costs) response is behavioral avoidance 
of the potential stressor or avoidance of continued exposure to a 
stressor. An animal's second line of defense to stressors involves the 
sympathetic part of the autonomic nervous system and the classical 
``fight or flight'' response, which includes the cardiovascular system, 
the gastrointestinal system, the exocrine glands, and the adrenal 
medulla to produce changes in heart rate, blood pressure, and 
gastrointestinal activity that humans commonly associate with 
``stress.'' These responses have a relatively short duration and may or 
may not have significant long-term effects on an animal's welfare.
    An animal's third line of defense to stressors involves its 
neuroendocrine or sympathetic nervous systems; the system that has 
received the most study has been the hypothalmus-pituitary-adrenal 
system (also known as the HPA axis in mammals or the hypothalamus-
pituitary-interrenal axis in fish and some reptiles). Unlike stress 
responses associated with the autonomic nervous system, virtually all 
neuroendocrine functions that are affected by stress--including immune 
competence, reproduction, metabolism, and behavior--are regulated by 
pituitary hormones. Stress-induced changes in the secretion of 
pituitary hormones have been implicated in failed reproduction (Moberg, 
1987; Rivier, 1995), altered metabolism (Elasser et al., 2000), reduced 
immune competence (Blecha, 2000), and behavioral disturbance. Increases 
in the circulation of glucocorticosteroids (cortisol, corticosterone, 
and aldosterone in marine mammals; see Romano et al., 2004) have been 
equated with stress for many years.
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and distress is the biotic cost 
of the response. During a stress response, an animal uses glycogen 
stores that can be quickly replenished once the stress is alleviated. 
In such circumstances, the cost of the stress response would not pose a 
risk to the animal's welfare. However, when an animal does not have 
sufficient energy reserves to satisfy the energetic costs of a stress 
response, energy resources must be diverted from other biotic 
functions, which impair those functions that experience the diversion. 
For example, when mounting a stress response diverts energy away from 
growth in young animals, those animals may experience stunted growth. 
When mounting a stress response diverts energy from a fetus, an 
animal's reproductive success and fitness will suffer. In these cases, 
the animals will have entered a pre-pathological or pathological state 
which is called ``distress'' (sensu Seyle, 1950) or ``allostatic 
loading'' (sensu McEwen and Wingfield, 2003). This pathological state 
will last until the animal replenishes its biotic reserves sufficient 
to restore normal function. Note that these examples involved a long-
term (days or weeks) stress response due to exposure to stimuli.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress

[[Page 47257]]

responses have also been documented fairly well through controlled 
experiment; because this physiology exists in every vertebrate that has 
been studied, it is not surprising that stress responses and their 
costs have been documented in both laboratory and free-living animals 
(for examples see, Holberton et al., 1996; Hood et al., 1998; Jessop et 
al., 2003; Krausman et al., 2004; Lankford et al., 2005; Reneerkens et 
al., 2002; Thompson and Hamer, 2000). Although no information has been 
collected on the physiological responses of marine mammals to 
anthropogenic sound exposure, studies of other marine animals and 
terrestrial animals would lead us to expect some marine mammals to 
experience physiological stress responses and, perhaps, physiological 
responses that would be classified as ``distress'' upon exposure to 
anthropogenic sounds.
    For example, Jansen (1998) reported on the relationship between 
acoustic exposures and physiological responses that are indicative of 
stress responses in humans (e.g., elevated respiration and increased 
heart rates). Jones (1998) reported on reductions in human performance 
when faced with acute, repetitive exposures to acoustic disturbance. 
Trimper et al. (1998) reported on the physiological stress responses of 
osprey to low-level aircraft noise while Krausman et al. (2004) 
reported on the auditory and physiology stress responses of endangered 
Sonoran pronghorn to military overflights. Smith et al. (2004a, 2004b) 
identified noise-induced physiological transient stress responses in 
hearing-specialist fish (i.e., goldfish) that accompanied short- and 
long-term hearing losses. Welch and Welch (1970) reported physiological 
and behavioral stress responses that accompanied damage to the inner 
ears of fish and several mammals.
    Hearing is one of the primary senses marine mammals use to gather 
information about their environment and communicate with conspecifics. 
Although empirical information on the effects of sensory impairment 
(TTS, PTS, and acoustic masking) on marine mammals remains limited, we 
assume that reducing a marine mammal's ability to gather information 
about its environment and communicate with other members of its species 
would induce stress, based on data that terrestrial animals exhibit 
those responses under similar conditions (NRC, 2003) and because marine 
mammals use hearing as their primary sensory mechanism. Therefore, we 
assume that acoustic exposures sufficient to trigger onset PTS or TTS 
would be accompanied by physiological stress responses. However, marine 
mammals also might experience stress responses at received levels lower 
than those necessary to trigger onset TTS. Based on empirical studies 
of the time required to recover from stress responses (Moberg, 2000), 
NMFS also assumes that stress responses could persist beyond the time 
interval required for animals to recover from TTS and might result in 
pathological and pre-pathological states that would be as significant 
as behavioral responses to TTS. Resonance effects (Gentry, 2002) and 
direct noise-induced bubble formations (Crum et al., 2005) are 
implausible in the case of exposure to an impulsive broadband source 
like an airgun array. If seismic surveys disrupt diving patterns of 
deep-diving species, this might result in bubble formation and a form 
of the bends, as speculated to occur in beaked whales exposed to sonar. 
However, there is no specific evidence of this upon exposure to airgun 
pulses, and no beaked whale species occur in Apache's seismic survey 
area.
    In general, very little is known about the potential for strong, 
anthropogenic underwater sounds to cause non-auditory physical effects 
in marine mammals. Such effects, if they occur at all, would presumably 
be limited to short distances and to activities that extend over a 
prolonged period. The available data do not allow identification of a 
specific exposure level above which non-auditory effects can be 
expected (Southall et al., 2007) or any meaningful quantitative 
predictions of the numbers (if any) of marine mammals that might be 
affected in those ways. There is no definitive evidence that any of 
these effects occur even for marine mammals in close proximity to large 
arrays of airguns. In addition, marine mammals that show behavioral 
avoidance of seismic vessels, including belugas and some pinnipeds, are 
especially unlikely to incur non-auditory impairment or other physical 
effects. Therefore, it is unlikely that such effects would occur during 
Apache's surveys given the brief duration of exposure and the planned 
monitoring and mitigation measures described later in this document.
    Stranding and Mortality: Marine mammals close to underwater 
detonations of high explosives 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 their 
peak amplitudes have slower rise times. To date, there is no evidence 
that serious injury, death, or stranding by marine mammals can occur 
from exposure to air gun pulses, even in the case of large air gun 
arrays.
    However, in past IHA notices for seismic surveys, commenters have 
referenced two stranding events allegedly associated with seismic 
activities, one off Baja California and a second off Brazil. NMFS has 
addressed this concern several times, including in the Federal Register 
notice announcing the IHA for Apache Alaska's first seismic survey in 
2012. Readers are encouraged to review NMFS's response to comments on 
this matter found in 69 FR 74905 (December 14, 2004), 71 FR 43112 (July 
31, 2006), 71 FR 50027 (August 24, 2006), 71 FR 49418 (August 23, 
2006), and 77 FR 27720 (May 11, 2012).
    Beluga whale strandings in Cook Inlet are not uncommon; however, 
these events often coincide with extreme tidal fluctuations (``spring 
tides'') or killer whale sightings (Shelden et al., 2003). For example, 
in August 2012, a group of Cook Inlet beluga whales stranded in the mud 
flats of Turnagain Arm during low tide and were able to swim free with 
the flood tide. No strandings or marine mammals in distress were 
observed during the 2D test survey conducted by Apache in March 2011, 
and none were reported by Cook Inlet inhabitants. Based on our 
consideration of the best available information, NMFS does not expect 
any marine mammals will incur serious injury or mortality in Cook Inlet 
or strand as a result of the seismic survey.
2. Potential Effects From Pingers on Marine Mammals
    Active acoustic sources other than the airguns will be used for 
Apache's 5-year oil and gas exploration seismic survey program in Cook 
Inlet. The specifications for the pingers (source levels and frequency 
ranges) were provided in the FR notice of the proposed rule (80 FR 
9510). In general, pingers are known to cause behavioral disturbance 
and are commonly used to deter marine mammals from commercial fishing 
gear or fish farms.
3. Potential Effects From Aircraft Noise on Marine Mammals
    Apache plans to utilize aircraft to conduct aerial surveys near 
river mouths in order to identify locations or congregations of beluga 
whales and other marine mammals prior to the commencement of 
operations. The aircraft will not be used every day but will be used 
for surveys near river mouths. Survey aircraft will fly at an altitude 
of about 300 m (1,000 ft) when practicable and when weather conditions 
allow. In the event of a

[[Page 47258]]

marine mammal sighting, aircraft will try to maintain a radial distance 
of 457 m (1,500 ft) from the marine mammal(s). Aircraft will avoid 
approaching marine mammals from head-on, flying over or passing the 
shadow of the aircraft over the marine mammals.
    Studies on the reactions of cetaceans to aircraft show little 
negative response (Richardson et al., 1995). In general, reactions 
range from sudden dives and turns and are typically found to decrease 
if the animals are engaged in feeding or social behavior. Whales with 
calves or in confined waters may show more of a response. There has 
been little or no evidence of marine mammals in the Arctic responding 
to aircraft at altitudes greater than about 300 m (1,000 ft), during 
the past three decades. (NMFS, unpublished data). No change in beluga 
swim directions or other noticeable reactions have been observed during 
the Cook Inlet aerial surveys flown from 183 to 244 m (600 to 800 ft) 
since 1993 (e.g., Rugh et al., 2000). Therefore, NMFS expects no 
effects on beluga whales or other cetaceans due to aerial surveys 
associated with this action.
    The majority of observations of pinnipeds reacting to aircraft 
noise are associated with animals hauled out on land or ice. There are 
few data describing the reactions of pinnipeds in water to aircraft 
(Richardson et al., 1995). In the presence of aircraft, pinnipeds 
hauled out for pupping or molting generally became alert and then 
rushed or slipped (when on ice) into the water. Stampedes often result 
from this response and may increase pup mortality due to crushing or an 
increased rate of pup abandonment. The greatest reactions from hauled-
out pinnipeds were observed when low flying aircraft passed directly 
above the animal(s) (Richardson et al., 1995). Although noise 
associated with aircraft activity could cause hauled out pinnipeds to 
rush into the water, there are no known haul out sites in the vicinity 
of the survey site. Therefore, the operation of aircraft during the 
seismic survey is not expected to result in the harassment of 
pinnipeds. To minimize the noise generated by aircraft, Apache will 
follow NMFS's Marine Mammal Viewing Guidelines and Regulations found on 
the Internet at: http://www.alaskafisheries.noaa.gov/protectedresources/mmv/guide.htm.
4. Vessel Impacts
    Vessel activity and noise associated with vessel activity will 
temporarily increase in the action area during Apache's seismic survey 
as a result of the operation of nine vessels. To minimize the effects 
of vessels and noise associated with vessel activity, Apache will 
follow NMFS's Marine Mammal Viewing Guidelines and Regulations and will 
alter heading or speed if a marine mammal gets too close to a vessel. 
In addition, vessels will be operating at slow speed (2-4 knots) when 
conducting surveys and in a purposeful manner to and from work sites in 
as direct a route as possible. Marine mammal monitoring observers and 
passive acoustic devices will alert vessel captains as animals are 
detected to ensure safe and effective measures are applied to avoid 
coming into direct contact with marine mammals. Therefore, NMFS neither 
anticipates nor authorizes takes of marine mammals from ship strikes.
    Odontocetes, such as beluga whales, killer whales, and harbor 
porpoises, often show tolerance to vessel activity; however, they may 
react at long distances if they are confined by ice, shallow water, or 
were previously harassed by vessels (Richardson et al., 1995). Beluga 
whale response to vessel noise varies greatly from tolerance to extreme 
sensitivity depending on the activity of the whale and previous 
experience with vessels (Richardson et al., 1995). Reactions to vessels 
depend on whale activities and experience, habitat, boat type, and boat 
behavior (Richardson et al., 1995) and may include behavioral 
responses, such as altered headings or avoidance (Blane and Jaakson, 
1994; Erbe and Farmer, 2000); fast swimming; changes in vocalizations 
(Lesage et al., 1999; Scheifele et al., 2005); and changes in dive, 
surfacing, and respiration patterns.
    There are few data published on pinniped responses to vessel 
activity, and most of the information is anecdotal (Richardson et al., 
1995). Generally, sea lions in water show tolerance to close 
approaching vessels and sometimes show interest in fishing vessels. 
They are less tolerant when hauled out on land; however, they rarely 
react unless the vessel approaches within 100-200 m (330-660 ft; 
reviewed in Richardson et al., 1995).
5. Entanglement
    Although some of Apache's equipment contains cables or lines, the 
risk of entanglement is extremely remote. The material used by Apache 
and the amount of slack in lines is not anticipated to allow for marine 
mammal entanglements. No incidents of entanglement have been reported 
from any seismic operators in Cook Inlet, and therefore injury or 
mortality from entanglement is not anticipated.

Anticipated Effects on Marine Mammal Habitat

    This section describes the potential impacts to marine mammal 
habitat from the specified activity. Because the marine mammals in the 
area feed on fish and/or invertebrates there is also information on the 
species typically preyed upon by the marine mammals in the area. As 
noted earlier, upper Cook Inlet is an important feeding and calving 
area for the Cook Inlet beluga whale, and critical habitat has been 
designated for this species in the seismic survey area.

Common Marine Mammal Prey in the Project Area

    Fish are the primary prey species for marine mammals in upper Cook 
Inlet. Beluga whales feed on a variety of fish, shrimp, squid, and 
octopus (Burns and Seaman, 1986). Common prey species in Cook Inlet 
include salmon, eulachon and cod. Harbor seals feed on fish such as 
pollock, cod, capelin, eulachon, Pacific herring, and salmon, as well 
as a variety of benthic species, including crabs, shrimp, and 
cephalopods. Harbor seals are also opportunistic feeders with their 
diet varying with season and location. The preferred diet of the harbor 
seal in the Gulf of Alaska consists of pollock, octopus, capelin, 
eulachon, and Pacific herring (Calkins, 1989). Other prey species 
include cod, flat fishes, shrimp, salmon, and squid (Hoover, 1988). 
Harbor porpoises feed primarily on Pacific herring, cod, whiting 
(hake), pollock, squid, and octopus (Leatherwood et al., 1982). In the 
upper Cook Inlet area, harbor porpoise feed on squid and a variety of 
small schooling fish, which would likely include Pacific herring and 
eulachon (Bowen and Siniff, 1999; NMFS, unpublished data). Killer 
whales feed on either fish or other marine mammals depending on genetic 
type (resident versus transient respectively). Killer whales in Knik 
Arm are typically the transient type (Shelden et al., 2003) and feed on 
beluga whales and other marine mammals, such as harbor seal and harbor 
porpoise. The Steller sea lion diet consists of a variety of fishes 
(capelin, cod, herring, mackerel, pollock, rockfish, salmon, sand 
lance, etc.), bivalves, squid, octopus, and gastropods.

Potential Impacts of Sound on Prey Species

    With regard to fish as a prey source for cetaceans and pinnipeds, 
fish are known to hear and react to sounds and to use sound to 
communicate (Tavolga et al., 1981) and possibly avoid

[[Page 47259]]

predators (Wilson and Dill, 2002). Experiments have shown that fish can 
sense both the strength and direction of sound (Hawkins, 1981). Primary 
factors determining whether a fish can sense a sound signal, and 
potentially react to it, are the frequency of the signal and the 
strength of the signal in relation to the natural background sound 
level.
    Fishes have evolved a diversity of sound generating organs and 
acoustic signals of various temporal and spectral contents. Fish sounds 
vary in structure, depending on the mechanism used to produce them 
(Hawkins, 1993). Generally, fish sounds are predominantly composed of 
low frequencies (less than 3 kHz). Fishes produce sounds that are 
associated with behaviors that include territoriality, mate search, 
courtship, and aggression. It has also been speculated that sound 
production may provide the means for long distance communication and 
communication under poor underwater visibility conditions (Zelick et 
al., 1999), although the fact that fish communicate at low-frequency 
sound levels where the masking effects of ambient noise are naturally 
highest suggests that very long distance communication would rarely be 
possible.
    Since objects in the water scatter sound, fish are able to detect 
these objects through monitoring the ambient noise. Therefore, fish are 
probably able to detect prey, predators, conspecifics, and physical 
features by listening to environmental sounds (Hawkins, 1981). There 
are two sensory systems that enable fish to monitor the vibration-based 
information of their surroundings. The two sensory systems, the inner 
ear and the lateral line, constitute the acoustico-lateralis system.
    Although the hearing sensitivities of very few fish species have 
been studied to date, it is becoming obvious that the intra- and inter-
specific variability is considerable (Coombs, 1981). Nedwell et al. 
(2004) compiled and published available fish audiogram information. A 
noninvasive electrophysiological recording method known as auditory 
brainstem response is now commonly used in the production of fish 
audiograms (Yan, 2004). Popper and Carlson (1998) and the Navy (2001) 
found that fish generally perceive underwater sounds in the frequency 
range of 50-2,000 Hz, with peak sensitivities below 800 Hz. Even though 
some fish are able to detect sounds in the ultrasonic frequency range, 
the hearing thresholds at these higher frequencies tend to be 
considerably higher than those at the lower end of the auditory hearing 
frequency range.
    Fish are sensitive to underwater impulsive sounds due to swim 
bladder resonance. As the pressure wave passes through a fish, the swim 
bladder is rapidly squeezed as the high pressure wave, and then the 
under pressure component of the wave, passes through the fish. The swim 
bladder may repeatedly expand and contract at the high sound pressure 
levels, creating pressure on the internal organs surrounding the swim 
bladder.
    Literature relating to the impacts of sound on marine fish species 
can be divided into the following categories: (1) Pathological effects; 
(2) physiological effects; and (3) behavioral effects. Pathological 
effects include lethal and sub-lethal physical damage to fish; 
physiological effects include primary and secondary stress responses; 
and behavioral effects include changes in exhibited behaviors of fish. 
Behavioral changes might be a direct reaction to a detected sound or a 
result of the anthropogenic sound masking natural sounds that the fish 
normally detect and to which they respond. The three types of effects 
are often interrelated in complex ways. For example, some physiological 
and behavioral effects could potentially lead to the ultimate 
pathological effect of mortality. Hastings and Popper (2005) reviewed 
what is known about the effects of sound on fishes and identified 
studies needed to address areas of uncertainty relative to measurement 
of sound and the responses of fishes. Popper et al. (2003/2004) also 
published a paper that reviews the effects of anthropogenic sound on 
the behavior and physiology of fishes.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB (Ona, 1988); however, the response threshold 
can depend on the time of year and the fish's physiological condition 
(Engas et al., 1993). In general, fish react more strongly to pulses of 
sound rather than a continuous signal (Blaxter et al., 1981), and a 
quicker alarm response is elicited when the sound signal intensity 
rises rapidly compared to sound rising more slowly to the same level.
    Investigations of fish behavior in relation to vessel noise (Olsen 
et al., 1983; Ona, 1988; Ona and Godo, 1990) have shown that fish react 
when the sound from the engines and propeller exceeds a certain level. 
Avoidance reactions have been observed in fish such as cod and herring 
when vessels approached close enough that received sound levels are 110 
dB to 130 dB (Nakken, 1992; Olsen, 1979; Ona and Godo, 1990; Ona and 
Toresen, 1988). However, other researchers have found that fish such as 
polar cod, herring, and capelin are often attracted to vessels 
(apparently by the noise) and swim toward the vessel (Rostad et al., 
2006). Typical sound source levels of vessel noise in the audible range 
for fish are 150 dB to 170 dB (Richardson et al., 1995).
    Carlson (1994), in a review of 40 years of studies concerning the 
use of underwater sound to deter salmonids from hazardous areas at 
hydroelectric dams and other facilities, concluded that salmonids were 
able to respond to low-frequency sound and to react to sound sources 
within a few feet of the source. He speculated that the reason that 
underwater sound had no effect on salmonids at distances greater than a 
few feet is because they react to water particle motion/acceleration, 
not sound pressures. Detectable particle motion is produced within very 
short distances of a sound source, although sound pressure waves travel 
farther.

Potential Impacts to the Benthic Environment

    Apache's seismic survey requires the deployment of a submersible 
recording system in the inter-tidal and marine zones. An autonomous 
``nodal'' (i.e., no cables) system would be placed on the seafloor by 
specific vessels in lines parallel to each other with a node line 
spacing of 402 m (0.25 mi). Each nodal ``patch'' would have six to 
eight node lines parallel to each other. The lines generally run 
perpendicular to the shoreline. An entire patch would be placed on the 
seafloor prior to airgun activity. As the patches are surveyed, the 
node lines would be moved either side to side or inline to the next 
location. Placement and retrieval of the nodes may cause temporary and 
localized increases in turbidity on the seafloor. The substrate of Cook 
Inlet consists of glacial silt, clay, cobbles, pebbles, and sand 
(Sharma and Burrell, 1970). Sediments like sand and cobble dissipate 
quickly when suspended, but finer materials like clay and silt can 
create thicker plumes that may harm fish; however, the turbidity 
created by placing and removing nodes on the seafloor would settle to 
background levels within minutes after the cessation of activity. In 
addition, seismic noise will radiate throughout the water column from 
airguns and pingers until it dissipates to background levels.

[[Page 47260]]

Habitat Impacts--Conclusion

    No studies have demonstrated that seismic noise affects the life 
stages, condition, or amount of food resources (fish, invertebrates, 
eggs) used by marine mammals, except when exposed to sound levels 
within a few meters of the seismic source or in a few very isolated 
cases. Where fish or invertebrates did respond to seismic noise, the 
effects were temporary and of short duration. The effects are also 
largely behavioral, rather than physiological. Consequently, 
disturbance to fish species due to the activities associated with the 
seismic survey (i.e., placement and retrieval of nodes and noise from 
sound sources) would be short term and fish would be expected to return 
to their pre-disturbance behavior once seismic survey activities cease.
    Based on the preceding discussion, the activity is not expected to 
have any habitat-related effects that could cause significant or long-
term consequences for individual marine mammals or their populations. 
Behavioral effects may be exhibited by fish species but as discussed 
above, these are also expected to be short term behavioral effects.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking for certain subsistence uses (where relevant).

Mitigation Measures in Apache's Application

    For the mitigation measures, Apache listed the following protocols 
to be implemented during its seismic survey program in Cook Inlet, 
which were incorporated into NMFS' proposed rule.
1. Operation of Mitigation Airgun at Night
    Apache will conduct both daytime and nighttime operations. 
Nighttime operations would be initiated only if a ``mitigation airgun'' 
(typically the 10 in\3\) has been continuously operational from the 
time that PSO monitoring has ceased for the day. Seismic activity would 
not ramp up from an extended shut-down (i.e., when the airgun has been 
down with no activity for at least 10 minutes) during nighttime 
operations, and survey activities would be suspended until the 
following day. At night, the vessel captain and crew would maintain 
lookout for marine mammals and would order the airgun(s) to be shut 
down if marine mammals are observed in or about to enter the 
established exclusion zones.
2. Exclusion and Disturbance Zones
    Apache will establish exclusion zones to avoid Level A harassment 
(``injury exclusion zone'') of all marine mammals and to minimize Level 
B harassment (``disturbance exclusion zone'') for any number of belugas 
and for groups of five or more killer whales or harbor porpoises 
detected within the designated zones. The injury exclusion zone will 
correspond to the area around the source within which received levels 
equal or exceed 180 dB re 1 [micro]Pa [rms] for cetaceans and 190 dB re 
1 [micro]Pa [rms] for pinnipeds and Apache will shut down or power down 
operations if any marine mammals are seen approaching or entering this 
zone (more detail below). The disturbance exclusion zone will 
correspond to the area around the source within which received levels 
equal or exceed 160 dB re 1 [micro]Pa [rms] and Apache will implement 
power down and/or shutdown measures, as appropriate, if any beluga 
whales or group of five or more killer whales or harbor porpoises are 
seen entering or approaching the disturbance exclusion zone.
3. Power Down and Shutdown Procedures
    A power down is the immediate reduction in the number of operating 
energy sources from a full array firing to a mitigation airgun. A 
shutdown is the immediate cessation of firing of all energy sources. 
The arrays will be immediately powered down whenever a marine mammal is 
sighted approaching close to or within the applicable exclusion zone of 
the full arrays but is outside the applicable exclusion zone of the 
single source. If a marine mammal is sighted within the applicable 
exclusion zone of the single energy source, the entire array will be 
shutdown (i.e., no sources firing). Following a power down or a 
shutdown, airgun activity will not resume until the marine mammal has 
clearly left the applicable injury or disturbance exclusion zone. The 
animal will be considered to have cleared the zone if it: (1) Is 
visually observed to have left the zone; (2) has not been seen within 
the zone for 15 minutes in the case of pinnipeds and small odontocetes; 
or (3) has not been seen within the zone for 30 minutes in the case of 
large odontocetes, including killer whales and belugas.
4. Ramp-Up Procedures
    A ramp-up of an airgun array provides a gradual increase in sound 
levels, and involves a step-wise increase in the number and total 
volume of air guns firing until the full volume is achieved. The 
purpose of a ramp-up (or ``soft start'') is to ``warn'' cetaceans and 
pinnipeds in the vicinity of the airguns and to provide the time for 
them to leave the area and thus avoid any potential injury or 
impairment of their hearing abilities.
    During the seismic survey, the seismic operator will ramp up the 
airgun array slowly. NMFS requires that the rate of ramp-up to be no 
more than 6 dB per 5-minute period. Ramp-up is used at the start of 
airgun operations, after a power- or shut-down, and after any period of 
greater than 10 minutes in duration without airgun operations (i.e., 
extended shutdown).
    A full ramp-up after a shutdown will not begin until there has been 
a minimum of 30 minutes of observation of the applicable exclusion zone 
by PSOs to assure that no marine mammals are present. The entire 
exclusion zone must be visible during the 30-minute lead-in to a full 
ramp up. If the entire exclusion zone is not visible, then ramp-up from 
a cold start cannot begin. If a marine mammal(s) is sighted within the 
injury exclusion zone during the 30-minute watch prior to ramp-up, 
ramp-up will be delayed until the marine mammal(s) is sighted outside 
of the zone or the animal(s) is not sighted for at least 15-30 minutes: 
15 minutes for small odontocetes and pinnipeds (e.g. harbor porpoises, 
harbor seals, and Steller sea lions), or 30 minutes for large 
odontocetes (e.g., killer whales and beluga whales).
5. Speed or Course Alteration
    If a marine mammal is detected outside the Level A injury exclusion 
zone and, based on its position and the relative motion, is likely to 
enter that zone, the vessel's speed and/or direct course may, when 
practical and safe, be changed to also minimize the effect on the 
seismic program. This can be used in coordination with a power down 
procedure. The marine mammal activities and movements relative to the 
seismic and support vessels will be closely monitored to ensure that 
the marine mammal does not approach within the applicable exclusion 
radius. If the mammal appears likely to enter the exclusion radius, 
further mitigative actions will be taken, i.e., either further

[[Page 47261]]

course alterations, power down, or shut down of the airgun(s).
6. Measures for Beluga Whales and Groups of Killer Whales and Harbor 
Porpoises
    The following additional protective measures for beluga whales and 
groups of five or more killer whales and harbor porpoises are required. 
Specifically, a 160-dB vessel monitoring zone would be established and 
monitored in Cook Inlet during all seismic surveys. If a beluga whale 
or groups of five or more killer whales and/or harbor porpoises are 
visually sighted approaching or within the 160-dB disturbance zone, 
survey activity would not commence until the animals are no longer 
present within the 160-dB disturbance zone. Whenever beluga whales or 
groups of five or more killer whales and/or harbor porpoises are 
detected approaching or within the 160-dB disturbance zone, the airguns 
may be powered down before the animal is within the 160-dB disturbance 
zone, as an alternative to a complete shutdown. If a power down is not 
sufficient, the sound source(s) shall be shut-down until the animals 
are no longer present within the 160-dB zone.

Additional Mitigation Measures Required by NMFS

    In addition to the mitigation measures proposed by Apache, NMFS 
requires implementation of the following mitigation measures.
Susitna Delta Exclusion Zone
    Apache must not operate airguns within 10 miles (16 km) of the mean 
lower low water (MLLW) line of the Susitna Delta (Beluga River to the 
Little Susitna River) between April 15 and October 15. The purpose of 
this mitigation measure is to protect beluga whales in this portion of 
designated critical habitat that is particularly important for beluga 
whale feeding and calving between mid-April and mid-October. This is a 
change from the proposed rule, which proposed an exclusion from the 
mean higher high water line (MHHW). The range of the setback required 
by NMFS is intended to protect this important habitat area during high 
beluga use and also to create an effective buffer where sound does not 
encroach on this habitat. This seasonal exclusion will be in effect 
from April 15-October 15. Seismic exploration and associated activities 
may occur within this area from October 16-April 14.
Mitigation Airgun
    The mitigation airgun will be operated at approximately one shot 
per minute, only during daylight and when there is good visibility, and 
will not be operated for longer than 3 hours in duration. In cases when 
the next start-up after the turn is expected to be during low light or 
low visibility, use of the mitigation airgun may be initiated 30 
minutes before local sunset or low visibility conditions occur and may 
be operated until the start of the next seismic acquisition line but 
not longer than three hours continuously. The mitigation gun must still 
be operated at approximately one shot per minute.

Passive Acoustic Monitoring (PAM)

    NMFS also requires that Apache use passive acoustic monitoring 
(PAM) during non-daylight hours for marine mammal detections as well as 
use PAM to confirm the lack of marine mammals in the potential 
ensonified area to ramp up airguns after a power down or shutdown in 
non-daylight hours, with the success and potential continuation of this 
method to be reviewed at the annual LOA stage. Following a power down 
or shutdown a trained PSO must use detection equipment and listen for 
30 minutes. When 30 minutes have passed without detection of beluga, 
humpback whale, or Steller sea lion detection, the ramp-up can begin. 
NMFS will work with Apache before issuance of an LOA to design an 
appropriate system for this detection and will evaluate the 
effectiveness when considering subsequent LOAs.

Stranding Measures

    NMFS requires that Apache suspend seismic operations if a live 
marine mammal stranding is reported in Cook Inlet coincident to, or 
within 72 hours of, seismic survey activities involving the use of 
airguns (regardless of any suspected cause of the stranding). The 
shutdown must occur if the stranding location is within a radius two 
times that of the 160 dB isopleth of the largest airgun array 
configuration in use. This distance was chosen to create an additional 
buffer beyond the distance at which animals would typically be 
considered harassed, as animals involved in a live stranding event are 
likely compromised, with potentially increased susceptibility to 
stressors, and the goal is to decrease the likelihood that they are 
further disturbed or impacted by the seismic survey, regardless of what 
the original cause of the stranding event was. Shutdown procedures will 
remain in effect until NMFS determines and advises Apache that all live 
animals involved in the stranding have left the area (either of their 
own volition or following herding by responders).

Measures for Unexpected Species

    Finally, NMFS requires that if during the seismic activities any 
marine mammal species are encountered for which take is not authorized, 
and that are likely to be exposed to sound pressure levels (SPLs) 
greater than or equal to 160 dB re 1 [micro]Pa (rms), then Apache must 
alter speed or course or power down or shut-down the sound source to 
avoid take of those species.

Mitigation Conclusions

    NMFS has carefully evaluated Apache's proposed mitigation measures 
and considered a range of other measures in the context of ensuring 
that NMFS prescribes the means of effecting the least practicable 
adverse impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measures are expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of seismic airguns, or other activities expected to result in 
the take of marine mammals (this goal may contribute to 1, above, or to 
reducing harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of seismic airguns or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of seismic airguns or other activities expected to

[[Page 47262]]

result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing the severity of harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
required mitigation measures provide the means of effecting the least 
practicable adverse impact on marine mammals species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the action area. Apache 
submitted information regarding marine mammal monitoring to be 
conducted during seismic operations as part of the proposed rule 
application. That information can be found in Sections 12 and 14 of the 
application.
    Monitoring measures proposed by the applicant or prescribed by NMFS 
should contribute to or accomplish one or more of the following top-
level goals:
    1. An increase in our understanding of the likely occurrence of 
marine mammal species in the vicinity of the action, i.e., presence, 
abundance, distribution, and/or density of species.
    2. An increase in our understanding of the nature, scope, or 
context of the likely exposure of marine mammal species to any of the 
potential stressor(s) associated with the action (e.g. sound or visual 
stimuli), through better understanding of one or more of the following: 
The action itself and its environment (e.g. sound source 
characterization, propagation, and ambient noise levels); the affected 
species (e.g. life history or dive pattern); the likely co-occurrence 
of marine mammal species with the action (in whole or part) associated 
with specific adverse effects; and/or the likely biological or 
behavioral context of exposure to the stressor for the marine mammal 
(e.g. age class of exposed animals or known pupping, calving or feeding 
areas).
    3. An increase in our understanding of how individual marine 
mammals respond (behaviorally or physiologically) to the specific 
stressors associated with the action (in specific contexts, where 
possible, e.g., at what distance or received level).
    4. An increase in our understanding of how anticipated individual 
responses, to individual stressors or anticipated combinations of 
stressors, may impact either: The long-term fitness and survival of an 
individual; or the population, species, or stock (e.g., through effects 
on annual rates of recruitment or survival).
    5. An increase in our understanding of how the activity affects 
marine mammal habitat, such as through effects on prey sources or 
acoustic habitat (e.g., through characterization of longer-term 
contributions of multiple sound sources to rising ambient noise levels 
and assessment of the potential chronic effects on marine mammals).
    6. An increase in understanding of the impacts of the activity on 
marine mammals in combination with the impacts of other anthropogenic 
activities or natural factors occurring in the region.
    7. An increase in our understanding of the effectiveness of 
mitigation and monitoring measures.
    8. An increase in the probability of detecting marine mammals 
(through improved technology or methodology), both specifically within 
the safety zone (thus allowing for more effective implementation of the 
mitigation) and in general, to better achieve the above goals.

Monitoring Results From Previously Authorized Activities

    As noted earlier in this document, NMFS has issued three IHAs to 
Apache for this same type of activity. No seismic surveys were 
conducted under the IHA issued in February 2013 (became effective March 
1, 2013). Apache conducted seismic operations under the first IHA 
issued in April 2012. Below is a summary of the results from the 
monitoring conducted in accordance with the 2012 and 2014 IHAs.
    Marine mammal monitoring was conducted in central Cook Inlet 
between May 6 and September 30, 2012, which resulted in a total of 
6,912 hours of observations. There was also monitoring from April 2, 
2014, through June 27, 2014, which resulted in a total of 3,029 hours 
of observations. Monitoring was conducted from the two seismic survey 
vessels, a mitigation/monitoring vessel, four land platforms, and an 
aerial platform (either a helicopter or small fixed wing aircraft). 
PSOs monitored from the seismic vessels, mitigation/monitoring vessel, 
and land platforms during all daytime seismic operations. Aerial 
overflights were conducted 1-2 times daily over the survey area and 
surrounding coastline, including the major river mouths, to monitor for 
larger concentrations of marine mammals in and around the survey site. 
PAM took place from the mitigation/monitoring vessel during all 
nighttime seismic survey operations and most daytime seismic survey 
operations in 2012. During the entire 2012 survey season, Apache's PAM 
equipment yielded only six confirmed marine mammal detections, one of 
which was a Cook Inlet beluga whale.
    Six identified species and three unidentified species of marine 
mammals were observed from the vessel, land, and aerial platforms 
between May 6 and September 30, 2012. Eight identified species and 
three unidentified species were observed in 2014. The species observed 
included Cook Inlet beluga whales, harbor seals, harbor porpoises, 
Dall's porpoises, humpback whale, minke whale, Steller sea lions, gray 
whales, and California sea lions. PSOs also observed unidentified 
species, including a large cetacean, pinniped, and marine mammal. There 
were a total of 882 sightings and an estimated 5,232 individuals (the 
number of individuals is typically higher than the number of sightings 
because a single sighting may consist of multiple individuals) in 2012. 
There were a total of 645 sightings and an estimated 922 individuals in 
2014. Harbor seals were the most frequently observed marine mammal at 
563 sightings of approximately 3,471 individuals in 2012 and 492 
sightings of approximately 613 individuals in 2014. In 2012 there were 
151 sightings of approximately 1,463 individual belugas, and 57 
sightings of approximately 170 individual belugas in 2014. In 2012, 
there were 137 sightings of approximately 190 individual harbor 
porpoises, with 77 sightings of approximately 113 individuals in 2014.

[[Page 47263]]

There were nine grey whales seen in 2012 but only one seen in 2014. 
Steller sea lions were observed on three separate occasions in 2012 (4 
individuals), while seen only twice (2 individuals) in 2014. No killer 
whales were observed during seismic survey operations conducted under 
the 2012 or 2014 IHA. Mitigation measures were implemented for species 
not included in the IHA to prevent unauthorized takes. In 2012 there 
were 17 recorded instances of Level B take, which consisted of four 
harbor porpoises and 13 harbor seals. In 2014, only 29 exposures to the 
160dB isopleth were reported: 12 beluga whales, 6 harbor porpoise, 9 
harbor seals, and 2 humpback whales. Across both years of activity, 
behavioral reactions included swimming and traveling, as well as 
bottlenosing (for harbor porpoises) and diving, sinking, or other 
submerging behaviors. None of the behavioral responses reported 
indicate that the impacts of the seismic activity were more severe than 
anticipated. Many of the observations recorded during these monitoring 
efforts were sightings made during non-seismic observation efforts.
    A total of 88 exclusion zone clearing delays, 154 shutdowns, 7 
power downs, 23 shutdowns following a power down, and one speed and 
course alteration were implemented under the 2012 IHA. In 2014 there 
were 7 ramp-up delays, and 13 shutdowns.
    Based on the information from the 2012 and 2014 monitoring reports, 
NMFS has determined that Apache complied with the conditions of their 
IHAs, and we conclude that these results support our original findings 
that the mitigation measures set forth in the Authorizations effected 
the least practicable impact on the species or stocks. The monitoring 
efforts support the take estimation calculations found later in this 
document for all species, but suggest that the calculation for harbor 
seals is an overestimate.
    Although Apache did not conduct any seismic survey operations under 
the 2013 IHA, they still conducted marine mammal monitoring surveys 
between May and August 2013. During those aerial surveys, Apache 
detected a total of three marine mammal species: Beluga whale; harbor 
porpoise; and harbor seal. A total of 718 individual belugas, three 
harbor porpoises, and 919 harbor seals were sighted. Of the 718 
observed belugas, 61 were calves. All of the calf sightings occurred in 
the Susitna Delta area, with the exception of a couple south of the 
Beluga River and a couple in Turnagain Arm. More than 60 percent of the 
beluga calf sightings occurred in June (n=39).

Monitoring Measures

1. Visual Vessel-Based Monitoring
    Vessel-based monitoring for marine mammals will be done by 
experienced PSOs throughout the period of marine survey activities. 
PSOs would monitor the occurrence and behavior of marine mammals near 
the survey vessel during all daylight periods (nautical dawn to 
nautical dusk) during operation and during most daylight periods when 
airgun operations are not occurring. PSO duties would include watching 
for and identifying marine mammals, recording their numbers, distances, 
and reactions to the survey operations, and documenting ``take by 
harassment'' as defined by NMFS, i.e., exposures above the associated 
take thresholds.
    A minimum number of six PSOs (two per source vessel and two per 
support vessel) is required onboard the survey vessel to meet the 
following criteria: (1) 100 percent monitoring coverage during all 
periods of survey operations in daylight (nautical twilight-dawn to 
nautical twilight-dusk; (2) maximum of 4 consecutive hours on watch per 
PSO with at least one hour break between shifts; and (3) maximum of 12 
hours of watch time per day per PSO.
    PSO teams would consist of NMFS-approved field biologists. An 
experienced field crew leader would supervise the PSO team onboard the 
survey vessel. Apache currently plans to have PSOs aboard three 
vessels: The two source vessels (M/V Peregrine Falcon and M/V Arctic 
Wolf) and one support vessel (M/V Dreamcatcher). Two PSOs would be on 
the source vessels, and two PSOs would be on the support vessel to 
observe and implement the exclusion, power down, and shut down areas. 
When marine mammals are about to enter or are sighted within designated 
harassment and exclusion zones, airgun or pinger operations would be 
powered down (when applicable) or shut down immediately. The vessel-
based observers would watch for marine mammals during all periods when 
sound sources are in operation and for a minimum of 30 minutes prior to 
the start of airgun or pinger operations after an extended shut down.
    Crew leaders and most other biologists serving as observers would 
be individuals with experience as observers during seismic surveys in 
Alaska or other areas in recent years.
    The observer(s) would watch for marine mammals from the best 
available vantage point on the source and support vessels, typically 
the flying bridge. The observer(s) would scan systematically with the 
unaided eye and 7x50 reticle binoculars. Laser range finders would be 
available to assist with estimating distance on the two source vessels. 
Personnel on the bridge would assist the observer(s) in watching for 
marine mammals.
    All observations would be recorded in a standardized format. Data 
would be entered into a custom database using a notebook computer. The 
accuracy of the data would be verified by computerized validity data 
checks as the data are entered and by subsequent manual checks of the 
database. These procedures would allow for initial summaries of the 
data to be prepared during and shortly after the completion of the 
field program, and would facilitate transfer of the data to 
statistical, geographical, or other programs for future processing and 
archiving. When a mammal sighting is made, the following information 
about the sighting would be recorded:
     Species, group size, age/size/sex categories (if 
determinable), behavior when first sighted and after initial sighting, 
heading (if consistent), bearing and distance from the PSO, apparent 
reaction to activities (e.g., none, avoidance, approach, paralleling, 
etc.), closest point of approach, and behavioral pace;
     Time, location, speed, activity of the vessel (e.g., 
seismic airguns off, pingers on, etc.), sea state, ice cover, 
visibility, and sun glare; and
     The positions of other vessel(s) in the vicinity of the 
PSO location.
    The ship's position, speed of support vessels, and water 
temperature, water depth, sea state, ice cover, visibility, and sun 
glare would also be recorded at the start and end of each observation 
watch, every 30 minutes during a watch, and whenever there is a change 
in any of those variables.
    Apache will also monitor for at least 30 minutes following the 
cessation of seismic surveying. This post-activity monitoring period 
will provide data for comparisons to marine mammal presence and 
behavior during seismic activity.
2. Visual Shore-Based Monitoring
    In addition to the vessel-based PSOs, Apache will utilize a shore-
based station daily, to visually monitor for marine mammals. The 
location of the shore-based station would need to be sufficiently high 
to observe marine mammals; the PSOs would be equipped with pedestal 
mounted ``big eye'' (20x110) binoculars. The shore-based PSOs would 
scan the area prior to, during, and after the airgun operations and 
would be in contact with the vessel-based PSOs via radio to communicate

[[Page 47264]]

sightings of marine mammals approaching or within the project area. 
This communication will allow the vessel-based observers to go on a 
``heightened'' state of alert regarding occurrence of marine mammals in 
the area and aid in timely implementation of mitigation measures. 
Observations from land-based observers will also be recorded and 
included in monitoring reports.
3. Aerial-Based Monitoring
    Weather and safety permitting, Apache will utilize helicopter or 
fixed-wing aircraft to conduct aerial surveys of the project area prior 
to the commencement of operations in order to identify locations of 
congregations of beluga whales. Apache will conduct daily aerial 
surveys. Daily surveys to assess the area intended to be surveyed on 
each day will be scheduled to occur at least 30 minutes and no more 
than 120 minutes prior to any seismic-related activities (including but 
not limited to node laying/retrieval or airgun operations). Aerial 
surveys will occur along and parallel to the shoreline throughout the 
project area as well as the eastern and western shores of central and 
northern Cook Inlet on a weekly basis.
    Survey aircraft would fly at an altitude of 305 m (1,000 ft). In 
the event of a marine mammal sighting, aircraft would attempt to 
maintain a radial distance of 457 m (1,500 ft) from the marine 
mammal(s). Aircraft would avoid approaching marine mammals from head-
on, flying over or passing the shadow of the aircraft over the marine 
mammal(s). By following these operational requirements, aerial surveys 
are not expected to harass marine mammals (Richardson et al., 1995; 
Blackwell et al., 2002).
    Based on data collected from Apache during its survey operations 
conducted under the April 2012 and March 2014 IHAs, NMFS determined 
that the foregoing monitoring measures will allow Apache to identify 
animals nearing or entering the Level B disturbance exclusion zone with 
a reasonably high degree of accuracy.
4. Passive Acoustic Monitoring (PAM)
    NMFS will work with Apache to execute a viable attempt at using PAM 
to acoustically clear the area during low-light conditions, when 
visually clearing an area is not possible. The exact technologies 
required for PAM will be determined during review of the LOA 
applications to ensure effectiveness of the required measure. This will 
primarily be for ramping up airguns after a power down or shutdown in 
non-daylight hours. In addition, Apache must conduct PAM throughout all 
seismic airgun array operations occurring between local sunset and 
local sunrise when the zone of influence extends to Cook Inlet waters 
north of 60[deg] 43'N at any time of year, and south of 60[deg] 43' 
from October 15 to April 15. NMFS will require Apache to use a fixed, 
nearshore PAM system, with at least one protected species observer 
trained in PAM to listen to the hydrophone. The continued use of this 
system will depend on its effectiveness and practicability and will be 
addressed through the adaptive management process and in annual LOAs 
issued under this rulemaking.

Reporting Measures

    Apache will immediately contact NMFS if the total number of belugas 
detected in the Level B disturbance exclusion zone over the course of 
the survey exceeds 25 to allow NMFS to evaluate and make any necessary 
adjustments to monitoring and mitigation to ensure continuing 
compliance. Apache will also report when the take calculation using the 
methodology described in the Estimating Take section below reaches 25 
belugas. If the number of detected takes for any marine mammal species 
meets or exceeds the number of takes authorized, Apache will 
immediately cease survey operations involving the use of active sound 
sources (e.g., airguns and pingers) and notify NMFS. Resumption of 
seismic operations may only occur if and when NMFS confirms that 
operations may proceed in compliance with both the MMPA and the ESA.
1. Weekly Reports
    Apache will submit a weekly field report to NMFS Headquarters as 
well as the Alaska Regional Office, no later than close of business 
each Thursday during the weeks when in-water seismic survey activities 
take place. The weekly field reports will summarize species detected 
(number, location, distance from seismic vessel, behavior), in-water 
activity occurring at the time of the sighting (discharge volume of 
array at time of sighting, seismic activity at time of sighting, visual 
plots of sightings, and number of power downs and shutdowns), 
behavioral reactions to in-water activities, and the number of marine 
mammals exposed. Additionally, due to the adaptive management component 
of this rule, Apache must include which km\2\ grid cells were surveyed 
during that week and the resulting number of belugas that may have been 
taken using the methods outlined in this notice below, which use the 
Goetz et al. (2012) density model as part of the basis for the 
calculation. Apache must provide the cells, corresponding density, and 
estimated number of beluga exposures using this methodology for that 
week, as well as the total from the preceding weeks.
2. Monthly Reports
    Monthly reports will be submitted to NMFS for all months during 
which in-water seismic activities take place. The monthly report will 
contain and summarize the following information:
     Dates, times, locations, heading, speed, weather, sea 
conditions (including Beaufort sea state and wind force), and 
associated activities during all seismic operations and marine mammal 
sightings.
     Species, number, location, distance from the vessel, and 
behavior of any sighted marine mammals, as well as associated seismic 
activity (number of power-downs and shutdowns), observed throughout all 
monitoring activities.
     An estimate of the number (by species) of: (i) Pinnipeds 
that have been exposed to the seismic activity (based on visual 
observation) at received levels greater than or equal to 160 dB re 1 
[micro]Pa (rms) and/or 190 dB re 1 [micro]Pa (rms) with a discussion of 
any specific behaviors those individuals exhibited; and (ii) cetaceans 
that have been exposed to the seismic activity (based on visual 
observation) at received levels greater than or equal to 160 dB re 1 
[micro]Pa (rms) and/or 180 dB re 1 [micro]Pa (rms) with a discussion of 
any specific behaviors those individuals exhibited.
     A description of the implementation and effectiveness of 
the: (i) Terms and conditions of the Biological Opinion's Incidental 
Take Statement (ITS); and (ii) mitigation measures of the LOA. For the 
Biological Opinion, the report shall confirm the implementation of each 
Term and Condition, as well as any conservation recommendations, and 
describe their effectiveness for minimizing the adverse effects of the 
action on ESA-listed marine mammals.
3. Annual Reports
    Apache will submit an annual report to NMFS's Permits and 
Conservation Division within 90 days after the end of every operating 
season but no later than 60 days before the expiration of each annual 
LOA during the five-year period. The annual report will include:
     Summaries of monitoring effort (e.g., total hours, total 
distances, and marine mammal distribution through the study period, 
accounting for sea state and other factors affecting

[[Page 47265]]

visibility and detectability of marine mammals).
     Descriptions of various factors influencing detectability 
of marine mammals (e.g., sea state, number of observers, and fog/glare) 
and how they may affect detection rates.
     Species composition, occurrence, and distribution of 
marine mammal sightings, including date, water depth, numbers, age/
size/gender categories (if determinable), group sizes, and ice cover.
     Analyses of the effects of survey operations.
     Sighting rates of marine mammals during periods with and 
without seismic survey activities (and other variables that could 
affect detectability), such as: (i) Initial sighting distances versus 
survey activity state; (ii) closest point of approach versus survey 
activity state; (iii) observed behaviors and types of movements versus 
survey activity state; (iv) numbers of sightings/individuals seen 
versus survey activity state; (v) distribution around the source 
vessels versus survey activity state; (vi) numbers of animals detected 
in the 160 dB harassment (disturbance exclusion) zone; and (vii) number 
and type of mitigation measures implemented including shutdowns and 
powerdowns.
    NMFS will review the draft annual reports. Apache must then submit 
a final annual report to the Chief, Permits and Conservation Division, 
Office of Protected Resources, NMFS, within 30 days after receiving 
comments from NMFS on the draft annual report. If NMFS determines it 
has no comments, the draft report shall be considered to be the final 
report.
4. Notification of Injured or Dead Marine Mammals
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this 
Authorization, such as an injury (Level A harassment), serious injury 
or mortality (e.g., ship-strike, gear interaction, and/or 
entanglement), Apache will immediately cease the specified activities 
and immediately report the incident to the Chief of the Permits and 
Conservation Division, Office of Protected Resources, NMFS, her 
designees, and the Alaska Regional Stranding Coordinators. The report 
must include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with Apache to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Apache may not resume their 
activities until notified by NMFS that it may do so, via letter or 
email, or telephone.
    In the event that Apache discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
Apache will immediately report the incident to the Chief of the Permits 
and Conservation Division, Office of Protected Resources, NMFS, her 
designees, and the NMFS Alaska Stranding Hotline. The report must 
include the same information identified in the paragraph above. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with Apache to determine whether modifications 
in the activities are appropriate.
    In the event that Apache discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the authorized activities (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Apache will report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, her designees, the NMFS Alaska Stranding Hotline, and 
the Alaska Regional Stranding Coordinators within 24 hours of the 
discovery. Apache will provide photographs or video footage (if 
available) or other documentation of the stranded animal sighting to 
NMFS and the Marine Mammal Stranding Network. Activities may continue 
while NMFS reviews the circumstances of the incident.
    NMFS requires that Apache must suspend seismic operations if a live 
marine mammal stranding is reported in Cook Inlet coincident to, or 
within 72 hours of, seismic survey activities involving the use of 
airguns (regardless of any suspected cause of the stranding). The 
shutdown must occur if the animal is within a distance two times that 
of the 160 dB isopleth of the largest airgun array configuration in 
use. This distance was chosen to create an additional buffer beyond the 
distance at which animals would typically be considered harassed, as 
animals involved in a live stranding event are likely compromised, with 
potentially increased susceptibility to stressors, and the goal is to 
decrease the likelihood that they are further disturbed or impacted by 
the seismic survey, regardless of what the original cause of the 
stranding event was. Shutdown procedures will remain in effect until 
NMFS determines and advises Apache that all live animals involved in 
the stranding have left the area (either of their own volition or 
following herding by responders).

Estimated Take by Incidental 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]. Only take by Level B behavioral 
harassment is anticipated as a result of the seismic survey program 
with required mitigation and monitoring. Anticipated impacts to marine 
mammals are associated with noise propagation from the sound sources 
(e.g., airguns and pingers) used in the seismic survey as supported by 
the SSV study, not from vessel strikes because of the slow speed of the 
vessels (2-4 knots), or from aircraft overflights, as surveys will be 
flown at a minimum altitude of 305 m (1,000 ft) and at 457 m (1,500 ft) 
when marine mammals are detected.
    Apache requested authorization to take six marine mammal species by 
Level B harassment: Cook Inlet beluga whale; killer whale; harbor 
porpoise; gray whale; harbor seal; and Steller sea lion. Due to the 
reported sightings in Cook Inlet as well as public comment, NMFS has 
also included take of humpback whales, minke whales, and Dall's 
porpoise in this final rule.

[[Page 47266]]

    For impulse sounds, such as those produced by airgun(s) used in the 
seismic survey, NMFS used the 160 dB re 1 [mu]Pa (rms) isopleth to 
indicate the onset of Level B harassment. The current Level A (injury) 
harassment threshold is 180 dB (rms) for cetaceans and 190 dB (rms) for 
pinnipeds. The NMFS annual aerial survey data provided in Table 5 of 
Apache's application was used to derive density estimates for each 
species other than belugas (number of individuals/km\2\). Beluga 
densities were extracted from the predictive habitat model created by 
Goetz et al. (2012). The Goetz model also is constructed from NMML 
summer months aerial survey data from 1993-2008.

Applicable Zones for Estimating ``Take by Harassment''

    To estimate takes by Level B harassment for this rule, as well as 
for mitigation radii to be monitored by PSOs, ranges to the 160 dB 
(rms) isopleths were estimated at three different water depths (5 m, 25 
m, and 45 m) for nearshore surveys and at 80 m for channel surveys. The 
distances to this threshold for the nearshore survey locations are 
provided in Table 2 below.

                     Table 2--Distances to Sound Level Thresholds for the Nearshore Surveys
----------------------------------------------------------------------------------------------------------------
                                                                    Distance in     Distance in     Distance in
                                                  Water depth at    the onshore    the offshore    the parallel
    Sound level threshold  (dB re 1[micro]Pa)         source         direction       direction       to shore
                                                   location  (m)       (km)            (km)       direction (km)
----------------------------------------------------------------------------------------------------------------
160.............................................               5            1.03            4.73            2.22
160.............................................              25            5.69            7.77             9.5
160.............................................              45            6.75            5.95            9.15
180.............................................               5            0.46             0.6            0.54
180.............................................              25            1.06            1.07            1.42
180.............................................              45             0.7            0.83            0.89
190.............................................               5            0.28            0.33            0.33
190.............................................              25            0.35            0.36            0.44
190.............................................              45             0.1             0.1            0.51
----------------------------------------------------------------------------------------------------------------

    To estimate take by Level B harassment, Apache used the largest 
value from each category. The distances to the thresholds for the 
channel survey locations are provided in Table 3 below and correspond 
to the broadside and endfire directions.

                            Table 3--Distances to Sound Threshold for Channel Surveys
----------------------------------------------------------------------------------------------------------------
                                                                                    Distance in     Distance in
                                                                  Water depth at   the broadside    the endfire
           Sound level threshold  (dB re 1 [micro]Pa)                 source         direction       direction
                                                                   location  (m)       (km)            (km)
----------------------------------------------------------------------------------------------------------------
160.............................................................              80            5.14            7.33
189.............................................................              80            0.91            0.98
190.............................................................              80            0.15            0.18
----------------------------------------------------------------------------------------------------------------

    The areas ensonified to the 160 dB isopleth for the nearshore 
survey are also provided in Table 3 in Apache's application. The 
estimated daily acoustic footprint (ensonified to the 160 dB threshold) 
for each survey day is 517 km\2\.
    Compared to the airguns, the relevant isopleths for the positioning 
pinger are quite small. The distances to the 190, 180, and 160 dB (rms) 
isopleths are 1 m, 3 m, and 25 m (3.3, 10, and 82 ft), respectively. 
Due to the small isopleths and the existing mitigation for the airgun 
isopleths, which are much larger, pingers are not considered in the 
take estimation section.

Estimates of Marine Mammal Density

    Based on the available data, Apache used one method to estimate 
densities for Cook Inlet beluga whales and another method for the other 
marine mammals in the area expected to be taken by harassment. Both 
methods are described in this document.
1. Beluga Whale Density Estimates
    In consultation with staff from NMFS's National Marine Mammal 
Laboratory (NMML) during development of the second IHA in early 2013, 
Apache used a habitat-based model developed by Goetz et al. (2012a). 
Information from that model has once again been used to estimate 
densities of beluga whales in Cook Inlet and we consider it to be the 
best available information on beluga density. A summary of the model is 
provided here, and additional detail can be found in Goetz et al. 
(2012a). Using NMML's beluga aerial survey data, Goetz et al. (2012a) 
developed a model based on sightings, depth soundings, coastal 
substrate type, environmental sensitivity index, anthropogenic 
disturbance, and anadromous fish streams to predict beluga densities 
throughout Cook Inlet. The result of this work is a beluga density map 
of Cook Inlet, which predicts spatially explicit density estimates for 
Cook Inlet belugas. This predictive habitat model is based on data 
about distribution and group size of beluga whales observed between 
1994 and 2008 during aerial surveying in summer months. A 2-part 
``hurdle'' model (a hurdle model in which there are two processes, one 
generating the zeroes and one generating the positive values) was 
applied to describe the physical and anthropogenic factors that 
influence (1) beluga presence (mixed model logistic regression) and (2) 
beluga count data (mixed model Poisson regression). Beluga presence was 
negatively associated with sources of anthropogenic disturbance and 
positively associated with fish availability and access to tidal flats 
and sandy substrates. Beluga group size was

[[Page 47267]]

positively associated with tidal flats and proxies for seasonally 
available fish. Using this analysis, Goetz et al. (2012) produced 
habitat maps for beluga presence, group size, and the expected number 
of belugas in each 1 km\2\ cell of Cook Inlet. The habitat-based model 
developed by Goetz et al. (2012) was developed using a Geographic 
Information System (GIS). A GIS is a computer system capable of 
capturing, storing, analyzing, and displaying geographically referenced 
information; that is, data identified according to location. However, 
the Goetz et al. (2012) model does not incorporate seasonality into the 
density estimates, as the data used to feed the model is from NMML 
survey data largely collected in June. However, Apache factors in 
seasonal considerations of beluga density into the design of the survey 
tracklines and locations based around mitigation measures such as 
seasonal closure of the Susitna Delta region in addition to other 
factors such as weather, ice conditions, and seismic needs.
    As a result of discussions with NMFS, Apache used the NMML model 
(Goetz et al., 2012a) in their calculation for the estimate of takes. 
Apache has established two zones (Zone 1--North of the Forelands, Zone 
2--South of the Forelands) and will conduct seismic surveys within all, 
or part of these zones; to be determined as weather, ice, and 
priorities dictate. Based on information using Goetz et al. (2012a) 
model, Apache derived one density estimate for beluga whales in Zone 1 
(i.e., upper Cook Inlet) and another density estimate for beluga whales 
in Zone 2 (i.e., lower Cook Inlet). The density estimates calculated by 
Apache in their application for surveys areas in Upper Cook Inlet and 
lower Cook Inlet are, respectively, 0.0212 and 0.0056 whales/km\2\.
2. Other (Non-Beluga Whale) Species Density Estimates
    Densities of other marine mammals in the project area were 
estimated from the annual aerial surveys conducted by NMFS for Cook 
Inlet beluga whale between 2000 and 2012 in June (Rugh et al., 2000, 
2001, 2002, 2003, 2004b, 2005b, 2006, 2007; Shelden et al., 2008, 2009, 
2010, 2012; Hobbs et al., 2011). These surveys were flown in June to 
collect abundance data of beluga whales, but sightings of other marine 
mammals were also reported. Although these data were only collected in 
one month each year, these surveys provide the best available 
relatively long term data set for sighting information in the project 
area. The general trend in marine mammal sighting is that beluga whales 
and harbor seals are the species seen most frequently in upper Cook 
Inlet, with higher concentrations of harbor seals near haul out sites 
on Kalgin Island and of beluga whales near river mouths, particularly 
the Susitna River. The other marine mammals of interest for this rule 
(killer whales, gray whales, harbor porpoises, Steller sea lions) are 
observed infrequently in upper Cook Inlet and more commonly in lower 
Cook Inlet. These densities are calculated based on a relatively large 
area that was surveyed, much larger than the survey area for a given 
year of seismic data acquisition.
    Table 5 in Apache's application provides a summary of the results 
of each annual NMFS aerial survey conducted in June from 2000 to 2012. 
The total number of individuals sighted for each survey by year is 
reported, as well as total hours for the entire survey and total area 
surveyed. To estimate density of marine mammals, total number of 
individuals (other species) observed for the entire survey area by year 
(surveys usually last several days) was divided by the approximate 
total area surveyed for each year (density = individuals/km\2\). As 
noted previously, the total number of animals observed for the entire 
survey includes both lower and upper Cook Inlet, so the total number of 
each species reported and used to calculate density is higher than the 
number of marine mammals anticipated to be observed in the project 
area.

Harbor Seals

    In particular, the total number of harbor seals observed on several 
surveys is very high due to several large haul outs in lower and middle 
Cook Inlet. The focus of these NMML aerial surveys is on coastal 
environments, where beluga occurrence is high, which likely inflates 
the densities derived for harbor seals, as they also exhibit coastal 
habitat preference. Additionally, large haulouts for harbor seals are 
included in the NMML survey tracklines. These inclusions make it 
difficult to extrapolate the density derived as a uniform distribution 
across the entire portion of Apache's survey, 100 days of which are in 
deep water and removed from the harbor seal's preferred coastal 
habitat.
    The table below (Table 4) provides average density estimates for 
gray whales, harbor seals, harbor porpoises, killer whales, and Steller 
sea lions over the 2000-2012 period.

                 Table 4--Animal Densities in Cook Inlet
------------------------------------------------------------------------
                                                              Average
                                                              density
                         Species                             (animals/
                                                              km\2\)
------------------------------------------------------------------------
Humpback whale..........................................          0.0024
Gray whale..............................................        5.33E-05
Harbor seal.............................................            0.25
Minke whale.............................................        1.14E-05
Dall's porpoise.........................................          0.0002
Harbor porpoise.........................................          0.0039
Killer whale............................................         0.00075
Steller sea lion........................................          0.0083
------------------------------------------------------------------------

Calculation of Takes by Harassment

1. Beluga Whales
    Apache will limit surveying in the seismic survey area to ensure 
takes do no exceed a maximum of 30 beluga takes during each open water 
season. The following equation allows Apache to ensure that the beluga 
takes do not exceed 30 when contemplating the amount of seismic effort 
that will be conducted in different areas with different densities 
across days:
[GRAPHIC] [TIFF OMITTED] TR20JY16.001

    This formula also allows Apache flexibility to prioritize survey 
locations in response to local weather, ice, and operational 
constraints. Apache may choose to survey portions of a zone or a zone 
in its entirety, and the analysis in this rule takes this into account. 
For the 2016 season, Apache will survey the same area that was 
authorized in 2014. Using the above formula, if Apache surveys the 
entire area of Zone 1 (1,319 km\2\) as delineated in their 2014 IHA,

[[Page 47268]]

then essentially none of Zone 2 will be surveyed because the input in 
the calculation denoted by d2A2 would essentially 
need to be zero to ensure that the total assessed take of beluga whales 
is not exceeded. The use of this formula, combined with required weekly 
reporting to NMFS, will ensure that Apache's seismic program, including 
the 160 dB buffer, will not exceed 30 calculated beluga takes annually.

      Table 5--Expected Beluga Whale Takes, Total Area of Zone, and Average Beluga Whale Density Estimates
----------------------------------------------------------------------------------------------------------------
                                  Expected beluga takes
                                     from NMML model         Total area of zone
                                  (including the 160 dB    (km2)  (including the     Average take density (dx)
                                         buffer)               160 dB buffer)
----------------------------------------------------------------------------------------------------------------
Zone 1.........................                       28                     1319  d1 = 0.0212
Zone 2.........................                       29                     5160  d2 = 0.0056
----------------------------------------------------------------------------------------------------------------

    Apache will initially limit actual survey areas, including 160-dB 
buffer zones, to satisfy the formula denoted here. Operations are 
required to cease for the year once Apache has conducted seismic data 
acquisition in an area where multiplying the applicable density by the 
total ensonified area out to the 160-dB isopleth equals 30 beluga 
whales, using the equation provided above. Apache's annual seismic 
operational area would be determined as weather, ice, and priorities 
dictate. Apache has requested a maximum allowed take for Cook Inlet 
beluga whales of 30 individuals. During each annual LOA, Apache would 
operate in a portion of the total seismic operation area of 5,684 km\2\ 
(2,195 mi\2\), such that when one multiplies the modeled beluga whale 
density for each daily operational area times the area to be ensonified 
to the 160-dB isopleth of 9.5 km (5.9 mi), the sum of the estimated 
takes will not exceed 30 beluga whales in a given year.
2. Other Marine Mammal Species
    The estimated number of other Cook Inlet marine mammals that may be 
harassed during the seismic surveys was calculated by multiplying the 
average density estimates (presented in Table 2 in this document) by 
the area ensonified per day by levels >=160 dB re [micro]Pa rms by the 
number of days of surveying (see Appendix C and Appendix D in Apache's 
application for more information).
    Apache anticipates that a crew will collect seismic data for 8-12 
hours per day over approximately 160 days over the course of 8 to 9 
months each year. It is assumed that over the course of these 160 days, 
100 days would be working in the offshore region and 60 days in the 
shallow, intermediate, and deep nearshore region. Of those 60 days in 
the nearshore region, 20 days would be in each depth. It is important 
to note that environmental conditions (such as ice, wind, fog) will 
play a significant role in the actual operating days.
    NMFS calculated the number of potential exposure instances for each 
non-beluga species using the density information derived from NMFS 
aerial surveys conducted from 2000-2012. These animal densities were 
multiplied by the number of days in each water depth (shallow, 
intermediate, deep, or offshore) as well as the estimated ensonified 
area per day for each water depth. This method is likely an 
overestimation of the number of individuals taken as it represents the 
likely number of instances of take, without accounting for repeated 
take of individuals, which is especially likely to occur with resident 
species such as harbor seals as detailed below.
    Table 6 below outlines the calculation of annual exposures for non-
beluga species.

 Table 6--Annual Instances of Exposure Calculated for Non-Beluga Species
------------------------------------------------------------------------
                                                              Annual
                                                             exposures
------------------------------------------------------------------------
Gray Whale..............................................            8.13
Harbor seal.............................................        24279.35
Harbor porpoise.........................................          283.26
Killer whale............................................           70.33
Steller sea lion........................................          701.98
Humpback whale..........................................          203.66
Minke whale.............................................            0.98
Dall's porpoise.........................................           17.30
------------------------------------------------------------------------

    NMFS has further refined the annual estimates of Level B take. In 
consultation with the Alaska Regional Office and their access to 
sightings data for listed species, NMFS was able to derive estimates of 
the number of individuals likely to be taken by these activities for 
certain species. The NMFS aerial surveys from which density is derived 
include large portions of the lower Inlet that are not part of Apache's 
action area and coincide with some of the highest densities of Steller 
sea lions in Cook Inlet. Particularly in the Upper Inlet, Steller sea 
lions are sighted as singles or in pairs. Additionally, Apache's 
activity will not occur near any haulouts where Steller sea lions have 
been reported in large numbers. Due to their infrequency of occurrence 
in the northern parts of Cook Inlet, NMFS will authorize annual take of 
Steller sea lions equal to the maximum number of animals sighted in a 
single occurrence, 20 individuals.
    Humpback whales are also sighted infrequently in Cook Inlet, with 
several sighted each summer, largely in the lower Inlet. Due to the 
well documented and seasonal nature of their occurrence in Cook Inlet, 
NMFS determined it appropriate to authorize an annual take of two 
humpback whales, which is expected to be the maximum number encountered 
in the action area during a season.
    As noted above, using the (daily ensonified area x number of survey 
days x density) method results in a reasonable estimate of the 
instances of take, but likely significantly overestimates the number of 
individual animals expected to be taken. With most species, even this 
overestimated number is still very small, and additional analysis is 
not really necessary to ensure minor impacts. However, because of the 
number and density of harbor seals in the area, a more accurate 
understanding of the number of individuals likely taken is necessary to 
fully analyze the impacts and ensure that the total number of harbor 
seals taken is small.
    As described below, we believe that the modeled number of estimated 
instances of take may actually be high, based on monitoring results 
from the area. The density estimate from NMFS aerial surveys includes 
harbor seal haulouts far south of the action area that may never move 
to an ensonified area. Further, we believe that we can reasonably 
estimate the comparative number of individual harbor seals that will 
likely be taken, based both on monitoring data, operational 
information, and on a general understanding of harbor seal habitat use 
within Cook Inlet.

[[Page 47269]]

    Using the (daily ensonified area x number of survey days x density) 
formula, the number of instances of exposure above the 160 dB threshold 
estimated for Apache's activity in Cook Inlet is 24,279. However, based 
on monitoring data from previous activities, it is clear this number is 
an overestimate--compared to both aerial and vessel based observation 
efforts. Apache's monitoring report from 2014 details that they saw 652 
harbor seals from 76 aerial flights in the vicinity of the survey 
primarily during the months of May and June, which are the peak months 
for harbor seal haulout. In surveying the literature, correction 
factors to account for harbor seals in water based on land counts from 
aerial surveys vary from 1.2 to 1.65 (Harvey & Goley, 2011). Using the 
most conservative factor of 1.65 (allowing us to consider that some of 
the individuals on land may have entered the water at other points in 
day), if Apache saw 652 seals hauled out then there were an estimated 
1076 seals in the water during those 76 days. If, because there were 
only 76 survey days, we conservatively multiply by 2.1 to estimate the 
number of seals that might have been seen if the aerial surveys were 
conducted for 160 days, this yields an estimate of 2,260 instances of 
seal exposure in the water, which is far less than the estimated 
24,279. That the number of potential instances of exposure is likely 
less than 24,279 is also supported by the visual observations from PSOs 
on board other seismic vessels. PSOs for SAE's 2015 work sighted 1,680 
seals in water over 135 days of activity which is a similar operational 
period to Apache's annual requested window of operation. Given the size 
of the disturbance zone for these activities, it is likely that not all 
harbor seals that were exposed were seen by PSOs, however 1,680 is 
still far less than the estimate of 24,279 given by the density 
calculations.
    Further, based on the residential nature of harbor seals and the 
number of patches Apache plans to shoot, it is possible to reasonably 
estimate the number of individual harbor seals exposed, given the 
instances of exposures. Based on provided estimates, Apache will shoot 
one patch in 5 days. If seals are generally returning to haulouts in 
the survey area over the 5 days of any given patch shoot, than any 
given seal in the area could be exposed a minimum of one day and a 
maximum of all five days, with an average of 3 days. If the original 
exposure estimate using density is 22,279 exposures, then when divided 
by three (the average number of times an animal could be exposed during 
the shooting of one patch), the expected number of individuals exposed 
is 7,426, which is approximately 32% of the population. This number is 
also likely an overestimate given that adjoining patches may be shot, 
meaning the same seals could be exposed over multiple patches. Given 
these multiple methods, as well as the behavioral preferences of harbor 
seals for haulouts in certain parts of the Inlet (Montgomery et al., 
2007), and high concentrations at haulouts in the lower Inlet (Boveng 
et al.), it is unreasonable to expect that more than 25% of the 
population, or 5,725 individuals, will be taken by Level B harassment 
during Apache's activity in any given year.

Summary of Level B Harassment Takes

    Table 5 outlines the density estimates used in abundance and Level 
B harassment take calculations, the abundance of each species in Cook 
Inlet, the percentage of each species or stock estimated to be taken if 
each take were equivalent to an individual, and current population 
trends. Note that for harbor seals, however, that the authorized number 
of takes specifically does not represent the number of individuals, but 
rather the number of instances of take. The number of individual harbor 
seals taken is anticipated to be significantly smaller as described 
below in the Negligible Impact section. While the estimated number of 
individuals cannot be calculated as easily, it is semi-quantitatively 
assessed and that assessment has been used to estimate the percentage 
of the population that will be taken.

  Table 7--Density Estimates, Annual Instances of Level B Harassment Take Authorized, Species or Stock Abundance, Percentage of Population To Be Taken,
                                                                and Species Trend Status
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Authorized                                      Percentage
             Species                Average density  (# individuals/    Level B                Abundance                   of              Trend
                                                 km\2\)                   take                                         population
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beluga Whale.....................  Upper = 0.0212...................           30  340..............................          8.8  Stable.
                                   Lower = 0.0056...................
Harbor Seal......................  0.282............................       24,279  22,900...........................          (*)  Stable.
Harbor Porpoise..................  0.00339..........................          283  31,046...........................         0.91  No reliable
                                                                                                                                    information.
Killer Whale.....................  0.00081..........................           70  1,123 (resident).................         6.26  Resident stock
                                                                                   345 (transient)..................        12.74   possibly increasing.
                                                                                                                                   Transient stock
                                                                                                                                    stable.
Steller Sea Lion.................  0.0082...........................           20  79,300...........................        0.025  Decreasing but with
                                                                                                                                    regional variability
                                                                                                                                    (some stable or
                                                                                                                                    increasing).
Gray Whale.......................  9.46E-05.........................            8  19,126...........................        0.043  Stable/increasing.
Humpback Whale...................  0.00237..........................            2  7,469............................        0.027  Southeast Alaska
                                                                                                                                    increasing.
Minke whale......................  0.98.............................            1  1233.............................        0.080  No reliable
                                                                                                                                    information.
Dall's porpoise..................  17.30............................           17  106,000..........................        0.016  No reliable
                                                                                                                                    information.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* For harbor seals, the authorized instances of take represented here are expected to be significant overestimates of the number of individuals taken.
  Additional analysis has been conducted to refine the estimated percentage of the population that is likely to be taken.

    The following Table 8 applies the authorized Level B harassment 
take levels from Table 7 and expands them to a 5 year timeline, 
spanning the entire duration of the rule.

[[Page 47270]]



  Table 8--Authorized Level B Harassment Take Levels for 5 Year Period
------------------------------------------------------------------------
                                    Annual Level B     Project total (5
             Species                     take         year) Level B take
------------------------------------------------------------------------
Beluga Whale....................                  30                 150
Harbor Seal.....................             * 5,725              28,625
Harbor Porpoise.................                 283               1,415
Killer Whale....................                  70                 350
Steller Sea Lion................                  20                 100
Gray Whale......................                   8                  40
Humpback Whale..................                   2                  10
Minke whale.....................                   1                   5
Dall's porpoise.................                  17                  85
------------------------------------------------------------------------
* This number represents the number of harbor seal individuals
  authorized to be taken, rather than instances of exposure.

Analysis and Determinations

Negligible Impact Analysis

    Negligible impact is ``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'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, feeding, migration, 
etc.), as well as the number and nature of estimated Level A harassment 
takes, the number of estimated mortalities, effects on habitat, and the 
status of the species.
1. General Discussion (All Species)
    Given the required mitigation and related monitoring, no injuries 
or mortalities are anticipated to occur as a result of Apache's seismic 
survey in Cook Inlet, and none are authorized. Animals in the area are 
not expected to incur hearing impairment (i.e., TTS or PTS) or non-
auditory physiological effects. The takes that are anticipated are 
expected to be limited to relatively short-term Level B behavioral 
harassment. The seismic airguns do not operate continuously over a 24-
hour period. Rather airguns are operational for a few hours at a time 
totaling about 12 hours a day.
    Taking into account the mitigation measures that are planned, 
effects on marine mammals are generally expected to be restricted to 
avoidance of a limited area around the survey operation and short-term 
changes in behavior, falling within the MMPA definition of ``Level B 
harassment.'' Animals are not expected to permanently abandon any area 
that is surveyed, and any behaviors that are interrupted during the 
activity are expected to resume once the activity ceases or moves away. 
Only a relatively small portion of marine mammal habitat will be 
affected at any time, and other adjacent areas of Cook Inlet of 
equivalent value will be available for necessary biological functions.
    The addition of nine vessels, and noise due to vessel operations 
associated with the seismic survey, would not be outside the present 
experience of marine mammals in Cook Inlet, although levels may 
increase locally to the seismic survey. Given the large number of 
vessels in Cook Inlet and the observed apparent habituation to vessels 
by some individual Cook Inlet beluga whales and other marine mammals 
that may occur in the area (NMFS, 2008a), as well as the fact that the 
increased noise from the seismic survey will not be focused in one 
concentrated area in which individual animals are known to concentrate 
for longer times, vessel activity and noise is not expected to have 
effects that could cause significant or long-term consequences for 
individual marine mammals or their populations (Lerczak et al., 2000).
    Mitigation measures such as controlled vessel speed, dedicated 
marine mammal observers, non-pursuit, and shutdowns or power downs when 
marine mammals are seen within defined ranges designed both to avoid 
injury and disturbance will further reduce short-term reactions and 
minimize any effects on hearing sensitivity. In all cases, the effects 
of the seismic survey are expected to be short-term, with no lasting 
biological consequence.
    Potential impacts to marine mammal habitat were discussed 
previously in this document (see the ``Anticipated Effects on Habitat'' 
section). Although some disturbance is possible to food sources of 
marine mammals, the impacts are anticipated to be minor enough as to 
not affect an individual's ability to forage. Based on the size of Cook 
Inlet where feeding by marine mammals occurs versus the localized area 
of the marine survey activities, any missed feeding opportunities in 
the direct project area would be minor based on the fact that other 
feeding areas exist elsewhere.
2. Mysticetes
    Of the three mysticete species for which take is authorized, one 
species (humpback whale) is listed under the ESA. The Central North 
Pacific stock of humpback whales winters in Hawaii but travels to the 
Gulf of Alaska for summer feeding. There is no critical habitat 
designated for humpback whales in Cook Inlet. Gray whales and minke 
whales are also seen in Cook Inlet infrequently, with no known 
biologically important areas of these species in Cook Inlet. While low 
frequency specialists (e.g., mysticetes) may be more sensitive to the 
low frequency sounds of seismic airguns, and the sounds may me more 
likely to temporarily mask their calls than the calls of odontocetes, 
due to the very limited anticipated spatial and temporal overlap of any 
individual mysticetes with this activity, only relatively short-term 
and lower-level behavioral impacts are anticipated. The exposure of 
mysticetes to sounds produced by Apache's seismic survey operation is 
not anticipated to have an effect on annual rates of recruitment or 
survival of the affected species or stocks.
3. Odontocetes
    Odontocete (including Cook Inlet beluga whales, killer whales, 
Dall's porpoise, and harbor porpoises) reactions to seismic energy 
pulses are usually assumed to be limited to shorter distances from the 
airgun(s) than are those of mysticetes, in part because

[[Page 47271]]

odontocete hearing is assumed to be less sensitive to lower frequency 
sources than that of mysticetes. Harbor porpoises are seen with 
regularity in Cook Inlet but the relevant stock is a stable population, 
of which Cook Inlet is only a portion of its total Gulf of Alaska 
range. Killer whales and Dall's porpoise are sighted infrequently in 
upper Cook Inlet and there are no known areas of biological importance 
to these species in upper Cook Inlet. The exposure of odontocetes to 
sounds produced by Apache's seismic survey operation is not anticipated 
to have an effect on annual rates of recruitment or survival of the 
affected species or stocks.
3a. Belugas
    Endangered Cook Inlet beluga whales are resident species in Cook 
Inlet with two areas of critical habitat designated under the ESA: 
Critical Habitat Area 1 in the Upper Inlet, and Critical Habitat Area 2 
farther south in the Inlet. The estimated annual rate of decline for 
Cook Inlet beluga whales was 0.6 percent between 2002 and 2012. Despite 
a moratorium on the subsistence hunting of belugas, the population has 
been slow to increase, with the most recent abundance estimate 
calculating a population of 340 individuals (Shelden et al., 2015). The 
causes contributing to the lack of recovery are still largely unknown. 
With this in mind, NMFS has included several measures, described below, 
to further minimize impacts on beluga whales.
    Due to the dispersed distribution of beluga whales in Cook Inlet 
during winter and the concentration of beluga whales in upper Cook 
Inlet from late April through early fall, belugas will likely occur in 
the majority of Apache's survey area during the majority of Apache's 
annual operational timeframe of March through December. Due to 
extensive mitigation measures including a shutdown requirement if 
belugas are sighted within the Level B harassment zone, it is likely 
that only few animals would be exposed to received sound levels 
associated with behavioral disturbance, and highly unlikely that any 
would be exposed to received sound levels equal to or greater than 
those that may cause injury.
    Additionally, NMFS will seasonally restrict seismic survey 
operations in the Susitna Delta region of upper Cook Inlet, a location 
known to be important for beluga whale feeding, calving, and nursing. 
NMFS will implement a 16 km (10 mi) seasonal exclusion from seismic 
survey operations in this region from April 15-October 15. NMFS is 
implementing this exclusion zone from the mean lower low water line 
(MLLW), which excludes a large portion of the Inlet north of the 
Forelands from seismic surveying activity during periods of high use 
and biological importance to belugas. The highest concentrations of 
belugas are typically found in this area from early May through 
September each year. NMFS has incorporated a 2-week buffer on each end 
of this seasonal use timeframe to account for any anomalies in 
distribution and marine mammal usage. To further minimize impacts, 
Apache will be required to power down or shutdown when any beluga is 
seen approaching or within the 160dB behavioral disturbance zone. This 
mitigation measure is expected to further lower the number of belugas 
taken, but more importantly, to reduce the anticipated consequences of 
any behavioral disturbance by ensuring that it does not occur at this 
important area in a time when animals need to specifically focus on, 
and expend energy towards, feeding, calving, or nursing.
    There is little available literature regarding behavioral response 
of Cook Inlet belugas to seismic surveys. When in the Canadian Beaufort 
Sea in summer, belugas appear responsive to seismic energy, with few 
being sighted within 10-20 km (6-12 mi) of seismic vessels during 
aerial surveys (Miller et al., 2005). However, it has been documented 
that beluga responses to anthropogenic noise vary depending upon 
location and so the results from the Beaufort Sea surveys may or may 
not be directly relevant to potential reactions of Cook Inlet beluga 
whales (Wartzok et al., 2003; Huntington, 2002).
4. Pinnipeds
    Steller sea lion trends for the western stock are variable 
throughout the region with some decreasing and others remaining stable 
or even indicating slight increases. While Steller sea lions are 
sighted regularly in Cook Inlet, these sightings occur much farther 
south than Apache's proposed action area. They are rarely sighted north 
of the Forelands, and when they are sighted it is largely as pairs or 
individuals.
    Some individual pinnipeds may be exposed to sound from the seismic 
surveys more than once during the timeframe of the project. Taking into 
account the mitigation measures that are planned, effects on pinnipeds 
are generally expected to be restricted to avoidance of a limited area 
around the survey operation and short-term changes in behavior, falling 
within the MMPA definition of ``Level B harassment''. Animals are not 
expected to permanently abandon any area that is surveyed, and any 
behaviors that are interrupted during the activity are expected to 
resume once the activity ceases or moves to another location. Only a 
small portion of pinniped habitat will be affected at any time, and 
other areas within Cook Inlet will be available for necessary 
biological functions. In addition, the area where the survey will take 
place is not known to be an important location where pinnipeds haul 
out. The closest known haul-out site is located on Kalgin Island, which 
is about 22 km from the McArther River. More recently, some large 
congregations of harbor seals have been observed hauling out in upper 
Cook Inlet. However, it is still rare to encounter large numbers of 
harbor seals during in-water activity. Additionally, most known large 
harbor seal haulouts are in the southern portion of Cook Inlet, well 
south of the area Apache plans to survey. Therefore, the exposure of 
pinnipeds to sounds produced by this phase of Apache's seismic survey 
is not anticipated to have an effect on annual rates of recruitment or 
survival on those species or stocks.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total per-species or per-stock annual 
marine mammal take from Apache's seismic survey over the course of the 
5-year period of this rule will have a negligible impact on the 
affected marine mammal species or stocks. NMFS has made the necessary 
findings to issue the 5-year regulations for Apache's activities but 
believes a cautious approach is appropriate in the management of 
impacts on this small resident beluga population with declining 
abundance and constricted range. Accordingly, NMFS will issue annual 
Letters of Authorization (LOAs), as appropriate, instead of a single 5-
year LOA. Apache will be required to submit a draft monitoring report 
from their season of work by October 31st of each year so that NMFS can 
review the report and provide any comments so that Apache can submit a 
final report by November 30th. This will allow the agency to take into 
account annually Apache monitoring reports and any other new 
information on anticipated impacts or Cook Inlet belugas, to inform our 
evaluation of subsequent LOA applications and ensure that we are able 
to confirm the necessary findings. LOA applications must be submitted 
by

[[Page 47272]]

December 31st preceding the requested start date of operations. 
Additionally, the regulations contain an adaptive management provision 
that allows for the modification of mitigation or monitoring 
requirements at any time (in response to new information) to ensure the 
least practicable adverse impact on the affected species and maximize 
the effectiveness of the monitoring program. Consistent with our 
implementing regulations, if NMFS determines that the level of taking 
is having or may have a more than negligible impact on a species or 
stock, NMFS may suspend or modify an LOA, as appropriate, following 
notice and comment.

Small Numbers Analysis

    The requested and authorized takes represent 9.6 percent of the 
Cook Inlet beluga whale population of approximately 312 animals (Allen 
and Angliss, 2014), 6.26 percent of the Alaska resident stock and 12.74 
percent of the Gulf of Alaska, Aleutian Island and Bering Sea stock of 
345 transient killer whales, 0.91 percent of the Gulf of Alaska stock 
of approximately 31,046 harbor porpoises, 0.27 percent of the Central 
North Pacific stock of approximately 7,469 humpback whales, 0.016 
percent of the Alaska stock of 106,000 Dall's porpoise, 0.08 percent of 
the Alaska stock of 1,233 minke whales, and 0.042 percent of the 
eastern North Pacific stock of approximately 19,126 gray whales. The 
requested takes for Steller sea lions represent 0.025 percent of the 
western stock of approximately 79,300 animals.
    The take estimates for beluga whales, humpback whales, and Steller 
sea lions represent the number of individuals of each species or stock 
that could be taken by Level B behavioral harassment. For the remaining 
species (killer whales, harbor porpoise, Dall's porpoise, minke whales, 
and gray whales), the Level B take estimates represent the instances of 
exposure that may occur as a result of Apache's activity, meaning that 
the number of unique individuals taken will likely be lower.
    The take request presented for harbor seals would represent 106 
percent of the Cook Inlet/Shelikof stock of approximately 22,900 
animals if each instance of exposure represented a unique individual, 
however, that is not the case. The mathematical calculation that 
resulted in 22,900 does not account for other factors that, when 
considered appropriately, suggest that far fewer individuals will be 
taken. The species' coastal nature, affinity for haulout sites in the 
southern Inlet, and absence during previous seismic surveys suggests 
that the number of individuals seals exposed to noise at or above the 
Level B harassment threshold, which likely represent repeated exposures 
of the same individual, is at a low enough level for NMFS to consider 
small.
    When calculating take using the method used by NMFS in previous 
Apache IHAs to estimate the number of individuals taken (total area 
multiplied by density) the number of harbor seals taken is 1,769. This 
previous method calculated take by multiplying density times the total 
ensonified area (over the whole survey) and represents a good way to 
gauge the minimum number of individuals exposed, but tends to 
underestimate take over the course of a survey that extends multiple 
days and repeated exposures of the same areas across multiple days. 
This method is useful to more closely gauge the actual number of 
individuals in situations with resident populations or where the same 
individuals are expected to remain around the action area for extended 
periods of time. The true number of individual seals likely to be taken 
in this situation may be greater than 1,769 but is expected to be 
considerably lower than the 24,279 instances of take analyzed for 
authorization here (as described previously). Moreover, the Cook Inlet/
Shelikof stock of harbor seals extends well south and west of Cook 
Inlet, with Apache's activity overlapping only a small portion of the 
stock's habitat. Harbor seals are known to haul out in large numbers in 
Kachemak Bay and at the mouth of several rivers, including Fox River, 
with both of these locations well south of Apache's survey area.
    Previous monitoring reports also help to provide context for the 
number of individual harbor seals likely to be taken. In 2012, 
SAExploration Inc. observers detected fewer than 300 seals during 116 
days of operations, with 100 seals the most seen at once, at a river 
mouth, hauled out, not in the water or exposed to seismic activity. In 
2014, Apache observers saw an estimated 613 individuals in 82 days of 
operation, mostly during non-seismic periods. Most harbor seals were 
recorded from the land station, not source vessels. Of the 492 groups 
of harbor seals seen, 441 were seen during non-seismic operations. The 
number of harbor seals observed and reported within the take zone in 
previous surveys suggests that the predicted instances of take of 
harbor seals for Apache's surveys may be overestimates. Further, the 
known distribution of this harbor seal stock, including the known 
preference for haulouts at river mouths as well as the southern portion 
of Cook Inlet, suggest that the number of exposures calculated through 
the daily ensonified method is a notable overestimate of the number of 
individual seals likely to be taken. We have estimated for 
authorization the calculated number of instances of take, however, when 
these factors regarding the spatiotemporal distribution of this harbor 
seal stock throughout its range are considered, we believe that it is a 
reasonable prediction that not more than 25% of the individuals in the 
population will be taken.
    NMFS finds that the numbers of animals estimated for take 
authorization here are small on a per-species or per-stock basis when 
considered relative to the relevant stock abundances. In addition to 
the quantitative methods used to estimate take, NMFS also considered 
qualitative factors that further support the ``small numbers'' 
determination, including: (1) The seasonal distribution and habitat use 
patterns of Cook Inlet beluga whales, which suggest that for much of 
the time only a small portion of the population would be accessible to 
impacts from Apache's activity, as most animals are found in the 
Susitna Delta region of Upper Cook Inlet from early May through 
September, during which seismic activity in the Susitna Delta area is 
restricted; (2) other cetacean species and Steller sea lions are not 
common in the seismic survey area. Therefore, NMFS determined that the 
numbers of animals likely to be taken is small.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

Relevant Subsistence Uses

    The subsistence harvest of marine mammals is an integral part of 
the cultural identity of the region's Alaska Native communities. 
Inedible parts of the whale provide Native artisans with materials for 
cultural handicrafts, and the hunting itself perpetuates Native 
traditions by transmitting traditional skills and knowledge to younger 
generations (NOAA, 2007).
    The Cook Inlet beluga whale has traditionally been hunted by Alaska 
Natives for subsistence purposes. For several decades prior to the 
1980s, the Native Village of Tyonek residents were the primary 
subsistence hunters of Cook Inlet beluga whales. During the 1980s and 
1990s, Alaska Natives from villages in the western, northwestern, and 
North Slope regions of Alaska either moved to or visited the south 
central region and participated in the yearly subsistence harvest 
(Stanek, 1994). From 1994 to 1998, NMFS estimated 65 whales per year 
(range 21-123) were taken in this harvest, including those successfully 
taken for food and those struck and lost.

[[Page 47273]]

NMFS has concluded that this number is high enough to account for the 
estimated 14 percent annual decline in the population during this time 
(Hobbs et al., 2008). Actual mortality may have been higher, given the 
difficulty of estimating the number of whales struck and lost during 
the hunts. In 1999, a moratorium was enacted (Pub. L. 106-31) 
prohibiting the subsistence take of Cook Inlet beluga whales except 
through a cooperative agreement between NMFS and the affected Alaska 
Native organizations. Since the Cook Inlet beluga whale harvest was 
regulated in 1999 requiring cooperative agreements, five beluga whales 
have been struck and harvested. Those beluga whales were harvested in 
2001 (one animal), 2002 (one animal), 2003 (one animal), and 2005 (two 
animals). The Native Village of Tyonek agreed not to hunt or request a 
hunt in 2007, when no co-management agreement was to be signed (NMFS, 
2008a).
    On October 15, 2008, NMFS published a final rule that established 
long-term harvest limits on the Cook Inlet beluga whales that may be 
taken by Alaska Natives for subsistence purposes (73 FR 60976). That 
rule prohibits harvest for a 5-year period (2008-2012), if the average 
abundance for the Cook Inlet beluga whales from the prior five years 
(2003-2007) is below 350 whales. The next 5-year period that could 
allow for a harvest (2013-2017), would require the previous five-year 
average (2008-2012) to be above 350 whales. The 2008 Cook Inlet Beluga 
Whale Subsistence Harvest Final Supplemental Environmental Impact 
Statement (NMFS, 2008a) authorizes how many beluga whales can be taken 
during a 5-year interval based on the 5-year population estimates and 
10-year measure of the population growth rate. Based on the 2008-2012 
5-year abundance estimates, no hunt occurred between 2008 and 2012 
(NMFS, 2008a). The Cook Inlet Marine Mammal Council, which managed the 
Alaska Native Subsistence fishery with NMFS, was disbanded by a 
unanimous vote of the Tribes' representatives on June 20, 2012. No 
harvest occurred in 2015 or is likely in 2016. Residents of the Native 
Village of Tyonek are the primary subsistence users in the Knik Arm 
area.
    Data on the harvest of other marine mammals in Cook Inlet are 
lacking. There is a low level of subsistence hunting for harbor seals 
in Cook Inlet. Seal hunting occurs opportunistically among Alaska 
Natives who may be fishing or travelling in the upper Inlet near the 
mouths of the Susitna River, Beluga River, and Little Susitna River. 
Some data are available on the subsistence harvest of harbor seals, 
harbor porpoises, and killer whales in Alaska in the marine mammal 
stock assessments. However, these numbers are for the Gulf of Alaska 
including Cook Inlet, and they are not indicative of the harvest in 
Cook Inlet. Some detailed information on the subsistence harvest of 
harbor seals is available from past studies conducted by the Alaska 
Department of Fish & Game (Wolfe et al., 2009). In 2008, 33 harbor 
seals were taken for harvest in the Upper Kenai-Cook Inlet area. In the 
same study, reports from hunters stated that harbor seal populations in 
the area were increasing (28.6%) or remaining stable (71.4%). The 
specific hunting regions identified were Anchorage, Homer, Kenai, and 
Tyonek, and hunting generally peaks in March, September, and November 
(Wolfe et al., 2009).

Potential Impacts on Availability for Subsistence Uses

    Section 101(a)(5)(A) also requires NMFS to determine that the 
taking will not have an unmitigable adverse effect on the availability 
of marine mammal species or stocks for subsistence use. NMFS has 
defined ``unmitigable adverse impact'' in 50 CFR 216.103 as an impact 
resulting from the specified activity: (1) That is likely to reduce the 
availability of the species to a level insufficient for a harvest to 
meet subsistence needs by: (i) Causing the marine mammals to abandon or 
avoid hunting areas; (ii) Directly displacing subsistence users; or 
(iii) Placing physical barriers between the marine mammals and the 
subsistence hunters; and (2) That cannot be sufficiently mitigated by 
other measures to increase the availability of marine mammals to allow 
subsistence needs to be met.
    The primary concern is the disturbance of marine mammals through 
the introduction of anthropogenic sound into the marine environment 
during the seismic survey. Marine mammals could be behaviorally 
harassed and either become more difficult to hunt or temporarily 
abandon traditional hunting grounds. However, the seismic survey will 
not have any impacts to beluga harvests as none currently occur in Cook 
Inlet. Additionally, subsistence harvests of other marine mammal 
species are limited in Cook Inlet.

Plan of Cooperation or Measures To Minimize Impacts to Subsistence 
Hunts

    Regulations at 50 CFR 216.104(a)(12) require LOA applicants for 
activities that take place in Arctic waters to provide a Plan of 
Cooperation or information that identifies what measures have been 
taken and/or will be taken to minimize adverse effects on the 
availability of marine mammals for subsistence purposes. NMFS 
regulations define Arctic waters as waters above 60[deg] N. latitude. 
Much of Cook Inlet is north of 60[deg] latitude.
    Since November 2010, Apache has met and continues to meet with many 
of the villages and traditional councils throughout the Cook Inlet 
region. During these meetings, no concerns have been raised regarding 
potential conflict with subsistence harvest. Past meetings have been 
held with Alexander Creek, Knikatnu, Native Village of Tyonek, 
Salamatof, Tyonek Native Corporation, Ninilchik Traditional Council, 
Ninilchik Native Association, Village of Eklutna, Kenaitze Indian 
Tribe, and Cook Inlet Region, Inc.
    Additionally, Apache met with the Cook Inlet Marine Mammal Council 
(CIMMC) to describe the project activities and discuss subsistence 
concerns. The meeting provided information on the time, location, and 
features of the program, opportunities for involvement by local people, 
potential impacts to marine mammals, and mitigation measures to avoid 
impacts. Discussions regarding marine seismic operations continued with 
the CIMMC until its disbandment.
    In 2014, Apache held meetings or discussions regarding project 
activities associated with this rule with the following entities: 
Native Village of Tyonek, Tyonek Native Corporation, Cook Inlet Region, 
Inc., Ninilchik Native Association, Ninilchik Tribal Council, Salamatof 
Native Association, Cook Inlet Keeper, Alaska Salmon Alliance, Upper 
Cook Inlet Drift Association, and the Kenai Peninsula Fisherman's 
Association. Further, Apache has placed posters in local businesses, 
offices, and stores in nearby communities and published newspaper ads 
in the Peninsula Clarion.
    Apache has identified the following features that are intended to 
reduce impacts to subsistence users:
     In-water seismic activities will follow mitigation 
procedures to minimize effects on the behavior of marine mammals and, 
therefore, opportunities for harvest by Alaska Native communities; and
     Regional subsistence representatives may support or join 
PSO efforts recording marine mammal observations along with marine 
mammal biologists during the monitoring programs and will be provided 
with annual reports.
    Apache and NMFS recognize the importance of ensuring that ANOs and 
federally recognized tribes are informed,

[[Page 47274]]

engaged, and involved during the permitting process and will continue 
to work with the ANOs and tribes to discuss operations and activities. 
On February 6, 2012, in response to requests for government-to-
government consultations by the CIMMC and Native Village of Eklutna, 
NMFS met with representatives of these two groups and a representative 
from the Ninilchik. We engaged in a discussion about the proposed IHA 
for phase 1 of Apache's seismic program, the MMPA process for issuing 
an IHA, concerns regarding Cook Inlet beluga whales, and how to achieve 
greater coordination with NMFS on issues that impact tribal concerns. 
NMFS contacted the local Native Villages in August 2014 to inform them 
of our receipt of an application from Apache to promulgate regulations 
and issue subsequent annual LOAs.

Unmitigable Adverse Impact Analysis and Determination

    The project will not have any effect on beluga whale harvests 
because no beluga harvest will take place in 2016, nor is one likely to 
occur in the other years that would be covered by the 5-year 
regulations and associated LOAs. Additionally, the seismic survey area 
is not an important site for the subsistence harvest of other species 
of marine mammals. Also, because of the relatively small proportion of 
marine mammals utilizing upper Cook Inlet, the number harvested is 
expected to be extremely low. Therefore, because the program would 
result in only temporary disturbances, the seismic program would not 
impact the availability of these other marine mammal species for 
subsistence uses.
    The timing and location of subsistence harvest of Cook Inlet harbor 
seals may coincide with Apache's project, but because this subsistence 
hunt is conducted opportunistically and at such a low level (NMFS, 
2013c), Apache's program is not expected to have an impact on the 
subsistence use of harbor seals.
    NMFS anticipates that any effects from Apache's seismic survey on 
marine mammals, especially harbor seals and Cook Inlet beluga whales, 
which are or have been taken for subsistence uses, would be short-term, 
site specific, and limited to inconsequential changes in behavior and 
mild stress responses. NMFS does not anticipate that the authorized 
taking of affected species or stocks will reduce the availability of 
the species to a level insufficient for a harvest to meet subsistence 
needs by: (1) Causing the marine mammals to abandon or avoid hunting 
areas; (2) directly displacing subsistence users; or (3) placing 
physical barriers between the marine mammals and the subsistence 
hunters; and that cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to allow subsistence needs 
to be met. Based on the description of the specified activity, the 
measures described to minimize adverse effects on the availability of 
marine mammals for subsistence purposes, and the mitigation and 
monitoring measures, NMFS has determined that there will not be an 
unmitigable adverse impact on subsistence uses from Apache's 
activities. Additionally, the adaptive management component of this 
rulemaking allows NMFS to adjust mitigation and monitoring requirements 
as appropriate to minimize severity and level of take of marine mammals 
due to Apache's activity.

Endangered Species Act (ESA)

    There are three marine mammal species listed as endangered under 
the ESA with confirmed or possible occurrence in the project area: The 
Cook Inlet beluga whale, the western DPS of Steller sea lion, and the 
Central North Pacific humpback whale. In addition, the action will 
occur within designated critical habitat for the Cook Inlet beluga 
whale. NMFS's Permits and Conservation Division consulted with NMFS' 
Alaska Region Protected Resources Division under section 7 of the ESA. 
This consultation concluded on February 3, 2016, when a Biological 
Opinion was issued. The Biological Opinion determined that the issuance 
of an IHA is not likely to jeopardize the continued existence of the 
Cook Inlet beluga whales, Central North Pacific humpback whales, or 
western distinct population segment of Steller sea lions or destroy or 
adversely modify Cook Inlet beluga whale critical habitat. Finally, the 
Alaska region issued an ITS for Cook Inlet beluga whales, humpback 
whales, and Steller sea lions. The ITS contains reasonable and prudent 
measures implemented by the terms and conditions to minimize the 
effects of take.

National Environmental Policy Act (NEPA)

    NMFS prepared an EA that includes an analysis of potential 
environmental effects associated with NMFS' issuance of five-year 
regulations to Apache to take marine mammals incidental to conducting a 
3D seismic survey program in Cook Inlet, Alaska. NMFS has finalized the 
EA and prepared a FONSI for this action. Therefore, preparation of an 
Environmental Impact Statement is not necessary.

Classification

    The Office of Management and Budget has determined that this rule 
is not significant for purposes of Executive Order 12866.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule will not have a significant economic 
impact on a substantial number of small entities. Apache Alaska 
Corporation is the only entity that would be subject to the 
requirements in these regulations. Apache Alaska Corporation is a part 
of Apache Corporation, which has operations and locations in the United 
State, Canada, Australia, Egypt, and the United Kingdom (North Sea), 
employs thousands of people worldwide, and has a market value in the 
billions of dollars. Therefore, Apache is not a small governmental 
jurisdiction, small organization, or small business, as defined by the 
RFA. Because of this certification, a regulatory flexibility analysis 
is not required and none has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. This rule contains 
collection-of-information requirements subject to the provisions of the 
PRA. These requirements have been approved by OMB under control number 
0648-0151 and include applications for regulations, subsequent LOAs, 
and reports. Send comments regarding any aspect of this data 
collection, including suggestions for reducing the burden, to NMFS and 
the OMB Desk Officer (see ADDRESSES).

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is amended 
as follows:

[[Page 47275]]

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.


0
2. Subpart N is added to part 217 to read as follows:
Subpart N--Taking Marine Mammals Incidental to Seismic Surveys in Cook 
Inlet, Alaska
Sec.
217.130 Specified activity and specified geographical region.
217.131 Effective dates.
217.132 Permissible methods of taking.
217.133 Prohibitions.
217.134 Mitigation requirements.
217.135 Requirements for monitoring and reporting.
217.136 Letters of Authorization.
217.137 Renewals and modifications of Letters of Authorization and 
Adaptive Management.

Subpart N--Taking Marine Mammals Incidental to Seismic Surveys in 
Cook Inlet, Alaska


Sec.  217.130  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to Apache Alaska 
Corporation (Apache), and those persons it authorizes to conduct 
activities on its behalf, for the taking of marine mammals that occurs 
in the area outlined in paragraph (b) of this section incidental to 
Apache's oil and gas exploration seismic survey program operations.
    (b) The taking of marine mammals by Apache may be authorized in a 
Letter of Authorization (LOA) only if it occurs in Cook Inlet, Alaska.


Sec.  217.131  Effective dates.

    Regulations in this subpart are effective from August 19, 2016 
through July 20, 2021.


Sec.  217.132  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec.  216.106 of this chapter and 
Sec.  217.136, the Holder of the LOA (hereinafter ``Apache'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.130(b), provided the activity is in 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.
    (b) The incidental take of marine mammals under the activities 
identified in Sec.  217.130(a) is limited to the indicated number of 
takes of individuals of the following species and is limited to Level B 
harassment:
    (1) Cetaceans:
    (i) Beluga whale (Delphinapterus leucas)--150 over the five-year 
period, with no more than 30 in any year;
    (ii) Harbor porpoise (Phocoena phocoena)--1,455 over the five-year 
period, with an average of 283 annually;
    (iii) Killer whale (Orcinus orca)--350 over the five-year period, 
with an average of 70 annually;
    (iv) Gray whale (Eschrichtius robustus)--40 over the five-year 
period, with an average of 8 annually;
    (v) Humpback whale (Megaptera noveangliae)--10 over the five-year 
period, with an average of 2 annually;
    (vi) Minke whale (Balaenoptera acutorostra)--5 over the five-year 
period, with an average of 1 annually;
    (vii) Dall's porpoise (Phocoenoides dalli)--85 over the five-year 
period, with an average of 17 annually;
    (2) Pinnipeds:
    (i) Harbor seal (Phoca vitulina)--28, 625 over the five-year 
period, with no more than 5,725 in any year; and
    (ii) Steller sea lion (Eumetopias jubatus)--20.


Sec.  217.133  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.130 and 
authorized by a LOA issued under Sec.  216.106 of this chapter and 
Sec.  217.136, no person in connection with the activities described in 
Sec.  217.130 may:
    (a) Take any marine mammal not specified in Sec.  217.132(b);
    (b) Take any marine mammal specified in Sec.  217.132(b) other than 
by incidental Level B harassment;
    (c) Take any marine mammal in excedance of the numbers specified in 
217.132(b)(1);
    (d) Take a marine mammal specified in Sec.  217.132(b) if the 
National Marine Fisheries Service (NMFS) determines such taking is 
resulting or will result in more than a negligible impact on the 
species or stocks of such marine mammal;
    (e) Take a marine mammal specified in Sec.  217.132(b) if NMFS 
determines such taking is resulting in or will result in an unmitigable 
adverse impact on the species or stock of such marine mammal for taking 
for subsistence uses; or
    (f) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec.  216.106 and 
Sec.  217.136 of this chapter.


Sec.  217.134  Mitigation requirements.

    When conducting the activities identified in Sec.  217.130(a), the 
mitigation measures contained in any LOA issued under Sec.  216.106 and 
Sec.  217.136 of this chapter must be implemented. These mitigation 
measures include but are not limited to:
    (a) General conditions:
    (1) If any marine mammal species not listed in Sec.  217.132(b) are 
observed during conduct of the activities identified in Sec.  
217.130(a) and are likely to be exposed to sound pressure levels (SPLs) 
greater than or equal to 160 dB re 1 [micro]Pa (rms), Apache must avoid 
such exposure (e.g., by altering speed or course or by power down or 
shutdown of the sound source).
    (2) If the allowable number of takes on an annual basis listed for 
any marine mammal species in Sec.  217.132(b) is exceeded, or if any 
marine mammal species not listed in Sec.  217.132(b) is exposed to SPLs 
greater than or equal to 160 dB re 1 [micro]Pa (rms), Apache shall 
immediately cease survey operations involving the use of active sound 
sources (e.g., airguns and pingers), record the observation, and notify 
NMFS Office of Protected Resources.
    (3) Apache must notify the Office of Protected Resources, NMFS, at 
least 48 hours prior to the start of seismic survey activities each 
year.
    (4) Apache shall conduct briefings as necessary between vessel 
crews, marine mammal monitoring team, and other relevant personnel 
prior to the start of all survey activity, and when new personnel join 
the work, in order to explain responsibilities, communication 
procedures, marine mammal monitoring protocol, operational procedures, 
and reporting requirements.
    (b) Visual monitoring. (1) Apache shall establish zones 
corresponding to the area around the source within which SPLs are 
expected to equal or exceed relevant acoustic criteria for Level A and 
Level B harassment. These zones shall be established as exclusion zones 
(shutdown zones, described in in Sec.  217.134 (c)(2)) to avoid Level A 
harassment of any marine mammal, Level B harassment of beluga whales, 
or Level B harassment of aggregations of five or more killer whales or 
harbor porpoises. For all marine mammals other than beluga whales or 
aggregations of five or more harbor porpoises or killer whales, the 
Level B harassment zone shall be established as a disturbance zone and 
monitored as described in Sec.  217.135(a)(1). These zones shall be 
defined in each annual LOA to allow for incorporation of new field 
measurements.
    (2) Vessel-based monitoring for marine mammals must be conducted 
before, during, and after all activity identified in Sec.  217.130(a) 
that is conducted during daylight hours (defined as nautical twilight-
dawn to

[[Page 47276]]

nautical twilight-dusk), and shall begin at least thirty minutes prior 
to the beginning of survey activity, continue throughout all survey 
activity that occurs during daylight hours, and conclude no less than 
thirty minutes following the cessation of survey activity. Apache shall 
use a sufficient number of qualified protected species observers (PSO), 
at least two PSOs per vessel, to ensure continuous visual observation 
coverage during all periods of daylight survey operations with maximum 
limits of four consecutive hours on watch and twelve hours of watch 
time per day per PSO. One PSO must be a supervisory field crew leader. 
A minimum of two qualified PSOs shall be on watch at all times during 
daylight hours on each source and support vessel (except during brief 
meal and restroom breaks, when at least one PSO shall be on watch).
    (i) A qualified PSO is a third-party trained biologist, with prior 
experience as a PSO during seismic surveys and the following minimum 
qualifications:
    (A) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
    (B) Advanced education in biological science or related field 
(undergraduate degree or higher required);
    (C) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
    (D) Experience or training in the field identification of marine 
mammals, including the identification of behaviors;
    (E) Sufficient training, orientation, or experience with the survey 
operation to provide for personal safety during observations;
    (F) Writing skills sufficient to prepare a report of observations 
including but not limited to the number and species of marine mammals 
observed; dates and times when survey activities were conducted; dates 
and times when survey activities were suspended to avoid exposure of 
marine mammals to sound within defined exclusion zones; and marine 
mammal behavior; and
    (G) Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    (ii) PSOs must have access to binoculars (7 x 50 with reticle 
rangefinder; Fujinon or equivalent quality), and optical rangefinders, 
and shall scan the surrounding waters from the best available suitable 
vantage point with the naked eye and binoculars. At least one PSO shall 
scan the surrounding waters during all daylight hours using bigeye 
binoculars.
    (iii) PSOs shall also conduct visual monitoring:
    (A) While the airgun array and nodes are being deployed or 
recovered from the water; and
    (B) During periods of good visibility when the sound sources are 
not operating for comparison of animal abundance and behavior.
    (iv) PSOs shall be on watch at all times during daylight hours when 
survey operations are being conducted, unless conditions (e.g., fog, 
rain, darkness) make observations impossible. The lead PSO on duty 
shall make this determination. If conditions deteriorate during 
daylight hours such that the sea surface observations are halted, 
visual observations must resume as soon as conditions permit.
    (3) Survey activity must begin during periods of good visibility, 
which is defined as daylight hours when weather (e.g., fog, rain) does 
not obscure the relevant exclusion zones within maximum line-of-sight. 
In order to begin survey activity, the relevant taxa-specific exclusion 
zones must be clear of marine mammals for not less than thirty minutes. 
If marine mammals are present within or are observed approaching the 
relevant exclusion zone during this thirty-minute pre-clearance period, 
the start of survey activity shall be delayed until the animals are 
observed leaving the zone of their own volition and/or outside the zone 
or until fifteen minutes (for pinnipeds and harbor porpoises) or thirty 
minutes (for beluga whales, killer whales, and gray whales) have 
elapsed without observing the animal. While activities will be 
permitted to continue during low-visibility conditions, they must have 
been initiated following proper clearance of the exclusion zone under 
acceptable observation conditions and must be restarted, if shut down 
for greater than ten minutes for any reason, using the appropriate 
exclusion zone clearance procedures.
    (c) Ramp-up and shutdown. (1) Survey activity involving the full-
power airgun array or shallow-water source must be initiated, following 
appropriate clearance of the exclusion zone, using accepted ramp-up 
procedures. Ramp-up is required at the start of survey activity and at 
any time following a shutdown of ten minutes or greater. Ramp-up shall 
be implemented by starting the smallest single gun available and 
increasing the operational array volume in a defined sequence such that 
the source level of the array shall increase in steps not exceeding 
approximately 6 dB per five-minute period. PSOs shall continue 
monitoring the relevant exclusion zones throughout the ramp-up process 
and, if marine mammals are observed within or approaching the zones, a 
power down or shutdown shall be implemented and ramp-up restarted 
following appropriate exclusion zone clearance procedures as described 
in paragraph (b)(3) of this section.
    (2) Apache must shut down or power down the source, as appropriate, 
immediately upon detection of any marine mammal approaching or within 
the relevant Level A exclusion zone or upon detection of any beluga 
whale or aggregation of five or more harbor porpoises or killer whales 
approaching or within the relevant Level B exclusion zone. Power down 
is defined as reduction of total airgun array volume from either the 
full-power airgun array (2,400 in\3\) or the shallow-water source (440 
in\3\) to a single mitigation gun (maximum 10 in\3\). Power down must 
be followed by shutdown in the event that the animal(s) approach the 
exclusion zones defined for the mitigation gun. Detection of any marine 
mammal within an exclusion zone shall be recorded and reported weekly, 
as described in Sec.  217.135(c)(2), to NMFS Office of Protected 
Resources.
    (i) When a requirement for power down or shutdown is triggered, the 
call for implementation shall be made by the lead PSO on duty and 
Apache shall comply. Any disagreement with a determination made by the 
lead PSO on duty shall be discussed after implementation of power down 
or shutdown, as appropriate.
    (ii) Following a power down or shutdown not exceeding ten minutes, 
Apache shall follow the ramp-up procedure described in paragraph (c)(1) 
of this section to return to full-power operation.
    (iii) Following a shutdown exceeding ten minutes, Apache shall 
follow the exclusion zone clearance, described in paragraph (b)(3) of 
this section, and ramp-up procedures, described in paragraph (c)(1) of 
this section, before returning to full-power operation.
    (3) Survey operations may be conducted during low-visibility 
conditions (e.g., darkness, fog, rain) only when such activity was 
initiated following proper clearance of the exclusion zone under 
acceptable observation conditions, as described in paragraph (b)(3) of 
this section, and there has not been a shutdown exceeding ten minutes. 
Passive acoustic monitoring is required during all non-daylight hours. 
Following a shutdown

[[Page 47277]]

exceeding ten minutes during low-visibility conditions, survey 
operations must be suspended until the return of good visibility or the 
use of passive acoustic monitoring must be implemented. Use of a NMFS-
approved passive acoustic monitoring scheme, which will be detailed in 
each LOA, monitored by a trained PSO, will be used to listen for marine 
mammal vocalizations. If no vocalizations are observed for 30 minutes, 
Apache may consider the zone clear and commence ramp-up of airguns. 
During low-visibility conditions, vessel bridge crew must implement 
shutdown procedures if marine mammals are observed.
    (d) Additional mitigation. (1) The mitigation airgun must be 
operated at no more than approximately one shot per minute, and use of 
the gun may not exceed three consecutive hours. Ramp-up may not be used 
to circumvent the three-hour limitation on mitigation gun usage by 
returning guns to higher power momentarily and then returning to 
mitigation airgun.
    (2) Apache shall alter speed or course during seismic operations if 
a marine mammal, based on its position and relative motion, appears 
likely to enter the relevant exclusion zone and such alteration may 
result in the animal not entering the zone. If speed or course 
alteration is not safe or practicable, or if after alteration the 
marine mammal still appears likely to enter the zone, power down or 
shutdown must be implemented.
    (3) Apache shall not operate airguns within 16 km of the Mean Lower 
low water (MLLW) line of the Susitna Delta (Beluga River to the Little 
Susitna River) between April 15 and October 15.
    (4) Apache must suspend survey operations if a live marine mammal 
stranding is reported within a distance of two times the 160dB isopleth 
of the seismic source vessel coincident to or within 72 hours of survey 
activities involving the use of airguns, regardless of any suspected 
cause of the stranding. A live stranding event is defined as a marine 
mammal found on a beach or shore and unable to return to the water; on 
a beach or shore and able to return to the water but in apparent need 
of medical attention; or in the water but unable to return to its 
natural habitat under its own power or without assistance.
    (i) Apache must immediately implement a shutdown of the airgun 
array upon becoming aware of the live stranding event within 19 km of 
the seismic array.
    (ii) Shutdown procedures shall remain in effect until NMFS 
determines that all live animals involved in the stranding have left 
the area (either of their own volition or following responder 
assistance).
    (iii) Within 48 hours of the notification of the live stranding 
event, Apache must inform NMFS where and when they were operating 
airguns, beginning 72 hours before the stranding was first observed, 
and at what discharge volumes.
    (iv) Apache must appoint a contact who can be reached at any time 
for notification of live stranding events. Immediately upon 
notification of the live stranding event, this person must order the 
immediate shutdown of the survey operations.


Sec.  217.135  Requirements for monitoring and reporting.

    (a) Visual monitoring program. (1) Disturbance zones shall be 
established as described in Sec.  217.134(b)(1), and shall encompass 
the Level B harassment zones not defined as exclusion zones in Sec.  
217.134(b)(1). These zones shall be monitored to maximum line-of-sight 
distance from established vessel- and shore-based monitoring locations. 
If belugas or groups of five or more killer whales or harbor porpoises 
are observed approaching the 180 dB exclusion zone, operations will 
power down or shut down. If marine mammals other than beluga whales or 
aggregations of five or greater harbor porpoises or killer whales are 
observed within the 160 dB disturbance zone, the observation shall be 
recorded and communicated as necessary to other PSOs responsible for 
implementing shutdown/power down requirements and any behaviors 
documented.
    (2) Apache shall utilize a shore-based station to visually monitor 
for marine mammals. The shore-based station must be staffed by PSOs 
under the same minimum requirements described in Sec.  217.134(b)(2), 
must be located at an appropriate height to monitor the area ensonified 
by that day's survey operations, must be of sufficient height to 
observe marine mammals within the ensonified area; and must be equipped 
with pedestal-mounted bigeye (25 x 150) binoculars. The shore-based 
PSOs shall scan the defined exclusion and disturbance zones prior to, 
during, and after survey operations, and shall be in contact with 
vessel-based PSOs via radio to communicate sightings of marine mammals 
approaching or within the defined zones.
    (3) When weather conditions allow for safety, Apache shall utilize 
helicopter or fixed-wing aircraft to conduct daily aerial surveys of 
the area that they expect to survey prior to the commencement of 
operations in order to identify locations of beluga whale aggregations 
(five or more whales) or cow-calf pairs. Daily surveys that cover all 
the area potentially surveyed by vessel in that particular day shall be 
scheduled to occur at least thirty but no more than 120 minutes prior 
to any seismic survey-related activities (including but not limited to 
node laying/retrieval or airgun operations) and surveys of similar size 
shall also occur on days when there may be no seismic activities. 
Additionally, weekly comprehensive aerial surveys shall occur along and 
parallel to the shoreline throughout the project area as well as the 
eastern and western shores of central and northern Cook Inlet in the 
vicinity of the survey area.
    (i) When weather conditions allow for safety, aerial surveys shall 
fly at an altitude of 305 m (1,000 ft). In the event of a marine mammal 
sighting, aircraft shall attempt to maintain a lateral distance of 457 
m (1,500 ft) from the animal(s). Aircraft shall avoid approaching 
marine mammals head-on, flying over or passing the shadow of the 
aircraft over the animal(s).
    (ii) [Reserved]
    (4) PSOs must use NMFS-approved data forms and shall record the 
following information:
    (i) Effort information, including vessel name; PSO name; survey 
type; date; time when survey (observing and activities) began and 
ended; vessel location (latitude/longitude) when survey (observing and 
activities) began and ended; vessel heading and speed (knots).
    (ii) Environmental conditions while on visual survey, including 
wind speed and direction, Beaufort sea state, Beaufort wind force, 
swell height, weather conditions, ice cover (percent of surface, ice 
type, and distance to ice if applicable), cloud cover, sun glare, and 
overall visibility to the horizon (in distance).
    (iii) Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions).
    (iv) Activity information, such as the number and volume of airguns 
operating in the array, tow depth of the array, and any other notes of 
significance (e.g., pre-ramp-up survey, ramp-up, power down, shutdown, 
testing, shooting, ramp-up completion, end of operations, nodes).
    (v) When a marine mammal is observed, the following information 
shall be recorded:
    (A) Information related to the PSO including: Watch status 
(sighting made by PSO on/off effort, opportunistic,

[[Page 47278]]

crew, alternate vessel/platform, aerial, land); PSO who sighted the 
animal; time of sighting;
    (B) Vessel information including: Vessel location at time of 
sighting; water depth; direction of vessel's travel (compass 
direction);
    (C) Mammal-specific physical observations including: Direction of 
animal's travel relative to the vessel (drawing is preferred); pace of 
the animal; estimated distance to the animal and its heading relative 
to vessel at initial sighting; identification of the animal (genus/
species/sub-species, lowest possible taxonomic level, or unidentified; 
also note the composition of the group if there is a mix of species); 
estimated number of animals (high/low/best); estimated number of 
animals by cohort (when possible; adults, yearlings, juveniles, calves, 
group composition, etc.); description (as many distinguishing features 
as possible of each individual seen, including length, shape, color, 
pattern, scars or markings, shape and size of dorsal fin, shape of 
head, and blow characteristics);
    (D) Mammal-specific behavioral observations including: Detailed 
behavioral observations (e.g., number of blows, number of surfaces, 
breaching, spyhopping, diving, feeding, traveling; as explicit and 
detailed as possible; note any observed changes in behavior); animal's 
closest point of approach and/or closest distance from the center point 
of the airgun array; platform activity at time of sighting (e.g., 
deploying, recovering, testing, shooting, data acquisition, other).
    (vi) Description of any actions implemented in response to the 
sighting (e.g., delays, power down, shutdown, ramp-up, speed or course 
alteration); time and location of the action should also be recorded.
    (vii) If mitigation action was not implemented when required, 
description of circumstances.
    (viii) Description of all use of mitigation gun including running 
time, start and stop time, and reason for implementation.
    (5) The data listed in Sec.  217.135(a)(4)(i) and (ii) shall also 
be recorded at the start and end of each watch and during a watch 
whenever there is a change in one or more of the variables.
    (b) Onshore seismic effort. (1) When conducting onshore seismic 
effort, in the event that a shot hole charge depth of 10 m is not 
consistently attainable due to loose sediments collapsing the bore 
hole, a sound source verification study must be conducted on the new 
land-based charge depths.
    (2) [Reserved]
    (c) Reporting. (1) Apache must immediately report to NMFS at such 
time as 25 total beluga whales (cumulative total during period of 
validity of annual LOA) have been detected within the 160-dB re 1 
[micro]Pa (rms) exclusion zone, regardless of shutdown or power down 
procedures implemented, during seismic survey operations.
    (2) Apache must submit a weekly field report to NMFS Office of 
Protected Resources each Thursday during the weeks when in-water 
seismic survey activities take place. The weekly field reports shall 
summarize species detected (number, location, distance from seismic 
vessel, behavior), in-water activity occurring at the time of the 
sighting (discharge volume of array at time of sighting, seismic 
activity at time of sighting, visual plots of sightings, and number of 
power downs and shutdowns), behavioral reactions to in-water 
activities, and the number of marine mammals exposed to sound at or 
exceeding relevant thresholds. Additionally, Apache must include which 
km\2\ grid cells were surveyed during that week and the resulting 
number of belugas that may have been taken using the Goetz et al. 
(2012) model. Apache must provide the cells, corresponding density, and 
possible number of beluga exposures using the Goetz model for that 
week, as well as the total from the preceding weeks.
    (3) Apache must submit a monthly report, no later than the 
fifteenth of each month, to NMFS Office of Protected Resources for all 
months during which in-water seismic survey activities occur. These 
reports must summarize the information described in paragraph (a)(4) of 
this section and shall also include:
    (i) An estimate of the number (by species) of:
    (A) Pinnipeds that have been exposed to sound (based on visual 
observation) at received levels greater than or equal to 160 dB re 1 
[micro]Pa (rms) and/or 190 dB re 1 [micro]Pa (rms) with a discussion of 
any specific behaviors those individuals exhibited; and
    (B) Cetaceans that have been exposed to sound (based on visual 
observation) at received levels greater than or equal to 160 dB re 1 
[micro]Pa (rms) and/or 180 dB re 1 [micro]Pa (rms) with a discussion of 
any specific behaviors those individuals exhibited.
    (ii) A description of the implementation and effectiveness of the 
terms and conditions of the Biological Opinion's Incidental Take 
Statement and mitigation measures of the LOA. For the Biological 
Opinion, the report shall confirm the implementation of each Term and 
Condition, as well as any conservation recommendations, and describe 
their effectiveness in minimizing the adverse effects of the action on 
Endangered Species Act-listed marine mammals.
    (4) Apache shall submit an annual report to NMFS Office of 
Protected Resources covering a given calendar year by October 31st 
annually. The annual report shall include summaries of the information 
described in paragraph (a)(4) of this section and shall also include:
    (i) Summaries of monitoring effort (e.g., total hours, total 
distances, and marine mammal distribution through the study period, 
accounting for sea state and other factors affecting visibility and 
detectability of marine mammals);
    (ii) Analyses of the effects of various factors influencing 
detectability of marine mammals (e.g., sea state, number of observers, 
and fog/glare);
    (iii) Species composition, occurrence, and distribution of marine 
mammal sightings, including date, water depth, numbers, age/size/gender 
categories (if determinable), group sizes, and ice cover;
    (iv) Analyses of the effects of survey operations; and
    (v) Sighting rates of marine mammals during periods with and 
without seismic survey activities (and other variables that could 
affect detectability), such as:
    (A) Initial sighting distances versus survey activity state;
    (B) Closest point of approach versus survey activity state;
    (C) Observed behaviors and types of movements versus survey 
activity state;
    (D) Numbers of sightings/individuals seen versus survey activity 
state;
    (E) Distribution around the source vessels versus survey activity 
state; and
    (F) Numbers of marine mammals (by species) detected in the 160, 
180, and 190 dB re 1 [micro]Pa (rms) zones.
    (5) Apache shall submit a final annual report to the Office of 
Protected Resources, NMFS, within thirty days after receiving comments 
from NMFS on the draft report, by November 30th annually.
    (d) Notification of dead or injured marine mammals. (1) In the 
event that the specified activity clearly causes the take of a marine 
mammal in a manner prohibited by this Authorization, such as an injury 
(Level A harassment), serious injury, or mortality, Apache shall 
immediately cease the specified activities and report the incident to 
the Office of Protected Resources, NMFS, and the Alaska Regional 
Stranding

[[Page 47279]]

Coordinator, NMFS. The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (iv) Description of marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s).
    (2) Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with Apache to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Apache may not 
resume their activities until notified by NMFS that they may do so.
    (3) In the event that Apache discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (e.g., in less than 
a moderate state of decomposition), Apache shall immediately report the 
incident to the Office of Protected Resources, NMFS, and the Alaska 
Regional Stranding Coordinator, NMFS. The report must include the same 
information identified in Sec.  217.135(d)(1). If the observed marine 
mammal is dead, activities may continue while NMFS reviews the 
circumstances of the incident. If the observed marine mammal is 
injured, measures described in Sec.  217.134(d)(4) must be implemented. 
NMFS will work with Apache to determine whether additional mitigation 
measures or modifications to the activities are appropriate.
    (4) In the event that Apache discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the LOA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), Apache shall report the incident to 
the Office of Protected Resources, NMFS, and the Alaska Regional 
Stranding Coordinator, NMFS, within 24 hours of the discovery. Apache 
shall provide photographs or video footage or other documentation of 
the stranded animal sighting to NMFS. If the observed marine mammal is 
dead, activities may continue while NMFS reviews the circumstances of 
the incident. If the observed marine mammal is injured, measures 
described in Sec.  217.134(d)(4) must be implemented and Apache may not 
resume activities until notified by NMFS that they may do so.


Sec.  217.136  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
Apache must apply for and obtain an LOA, as required by Sec.  216.106 
of this chapter.
    (b) LOAs issued to Apache, unless suspended or revoked, may be 
effective for a period of time not to exceed one year or the period of 
validity of this subpart.
    (c) An LOA application must be submitted to the Director, Office of 
Protected Resources, NMFS, by December 31st of the year preceding the 
desired start date.
    (d) An LOA application must include the following information:
    (1) The date(s), duration, and the area(s) where the activity will 
occur;
    (2) The species and/or stock(s) of marine mammals likely to be 
found within each area;
    (3) The estimated percentage and numbers of marine mammal species/
stocks potentially affected in each area for the period of 
effectiveness of the Letter of Authorization.
    (4) If an application is for an LOA renewal, it must meet the 
requirements set forth in Sec.  217.137.
    (e) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, Apache must 
apply for and obtain a modification of the Letter of Authorization as 
described in Sec.  217.137.
    (f) An LOA will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, their habitat, and on the availability of 
the species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (g) Issuance of an LOA (including renewals and modifications) will 
be based on a determination by NMFS that the level of taking will be 
consistent with the findings made for the total taking allowable under 
this subpart.
    (h) If NMFS determines that the level of taking is resulting or may 
result in more than a negligible impact on the species or stocks of 
such marine mammal, the LOA may be modified or suspended after notice 
and a public comment period.
    (i) Notice of issuance or denial of a LOA shall be published in the 
Federal Register within 30 days of a determination.


Sec.  217.137  Renewals and modifications of Letters of Authorization 
and Adaptive Management.

    (a) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.136 for the activity identified in Sec.  217.130(a) may be renewed 
or modified upon request by the applicant, provided the following are 
met (in addition to the determination in Sec.  216.136(e)):
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  217.130(a) will be undertaken and 
that there will not be a substantial modification to the described 
work, mitigation or monitoring undertaken during the upcoming or 
remaining LOA period;
    (2) Timely receipt (by the dates indicated) of monitoring reports, 
as required under Sec.  217.135(c)(3).
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  217.135(c) and the LOA issued 
under Sec.  216.106 and Sec.  217.136, were undertaken and are expected 
to be undertaken during the period of validity of the LOA.
    (b) If a request for a renewal of a Letter of Authorization 
indicates that a substantial modification, as determined by NMFS, to 
the described work, mitigation or monitoring undertaken during the 
upcoming season will occur, the NMFS will provide the public a period 
of 30 days for review and comment on the request as well as the 
proposed modification to the LOA. Review and comment on renewals of 
Letters of Authorization are restricted to:
    (1) New cited information and data indicating that the original 
determinations made for the regulations are in need of reconsideration, 
and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in this subpart or in the current Letter of Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.
    (d) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.136 for the activity identified in Sec.  217.130 may be modified by 
NMFS under the following circumstances:
    (1) Adaptive management. NMFS, in response to new information and 
in consultation with Apache, may modify the mitigation or monitoring 
measures in subsequent LOAs if doing so creates a reasonable likelihood 
of more

[[Page 47280]]

effectively accomplishing the goals of mitigation and monitoring.
    (i) Possible sources of new data that could contribute to the 
decision to modify the mitigation or monitoring measures include:
    (A) Results from Apache's monitoring from the previous year(s).
    (B) Results from marine mammal and/or sound research or studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by this subpart or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) NMFS will withdraw or suspend an LOA if, after notice and 
opportunity for public comment, NMFS determines this subpart is not 
being substantially complied with or that the taking allowed is or may 
be having more than a negligible impact on an affected species or stock 
specified in Sec.  217.132(b) or an unmitigable adverse impact on the 
availability of the species or stock for subsistence uses. The 
requirement for notice and comment will not apply if NMFS determines 
that an emergency exists that poses a significant risk to the well-
being of the species or stocks of marine mammals. Notice would be 
published in the Federal Register within 30 days of such action.

[FR Doc. 2016-16695 Filed 7-19-16; 8:45 am]
 BILLING CODE 3510-22-P


Current View
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective August 19, 2016 through July 20, 2021.
ContactSara Young, Office of Protected Resources, NMFS, (301) 427-8484.
FR Citation81 FR 47240 
RIN Number0648-BE53
CFR AssociatedExports; Fish; Imports; Indians; Labeling; Marine Mammals; Penalties; Reporting and Recordkeeping Requirements; Seafood and Transportation

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