[Federal Register Volume 74, Number 156 (Friday, August 14, 2009)]
[Notices]
[Pages 41260-41322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19459]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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Incidental Takes of Marine Mammals During Specified Activities; Marine 
Geophysical Survey in Southeast Asia, March-July 2009; Notice

  Federal Register / Vol. 74 , No. 156 / Friday, August 14, 2009 / 
Notices  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XL89


Incidental Takes of Marine Mammals During Specified Activities; 
Marine Geophysical Survey in Southeast Asia, March-July 2009

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

ACTION: Notice; issuance and modification of an incidental take 
authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS issued and modified 
an Incidental Harassment Authorization (IHA) to Lamont-Doherty Earth 
Observatory (L-DEO), a part of Columbia University, for the take small 
numbers of marine mammals, by harassment, incidental to conducting a 
marine seismic survey in Southeast (SE) Asia during March-July 2009.

DATES: Effective March 31, 2009, through August 20, 2009.

ADDRESSES: A copy of the IHA and application are available by writing 
to P. Michael Payne, Chief, Permits, Conservation, and Education 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3235 or by 
telephoning the contact listed here. A copy of the application 
containing a list of the references used in this document may be 
obtained by writing to the address specified above, telephoning the 
contact listed below (see FOR FURTHER INFORMATION CONTACT), or online 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited 
in this notice may be viewed, by appointment, during regular business 
hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Howard Goldstein or Ken Hollingshead, 
Office of Protected Resources, NMFS, 301-713-2289.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of marine mammals by United 
States (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 taking shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as `` * * * an impact resulting from the specified activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. Except 
with respect to certain activities not pertinent here, the MMPA defines 
``harassment'' as:

    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [``Level A harassment'']; or (ii) has the potential to disturb 
a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[``Level B harassment''].

16 U.S.C. 1362(18)
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.
Summary of Request
    On October 27, 2008, NMFS received an application from L-DEO for 
the taking, by Level B harassment only, of small numbers of marine 
mammals incidental to conducting, under cooperative agreement with the 
National Science Foundation (NSF), a marine seismic survey in SE Asia. 
The funding for the Taiwan Integrated Geodynamics Research (TAIGER) 
survey is provided by the NSF. The proposed survey will encompass the 
area 17[deg]30'-26[deg]30' N, 113[deg]30'-126[deg] E within the 
Exclusive Economic Zones (EEZ) of Taiwan, Japan, and the Philippines, 
and on the high seas, and is scheduled to occur from March 31 to July 
20, 2009. Some minor deviation from these dates is possible, depending 
on logistics and weather.
    Taiwan is one of only a few sites of arc-continent collision 
worldwide; and one of the primary tectonic environments for large scale 
mountain building. The primary purpose of the TAIGER project is to 
investigate the processes of mountain building, a fundamental set of 
processes which plays a major role in shaping the face of the Earth. 
The vicinity of Taiwan is particularly well-suited for this type of 
study, because the collision can be observed at different stages of its 
evolution, from incipient, to mature, and finally to post-collision.
    As a result of its location in an ongoing tectonic collision zone, 
Taiwan experiences a great number of earthquakes, most are small, but 
many are large and destructive. This project will provide a great deal 
of information about the nature of the earthquakes around Taiwan and 
will lead to a better assessment of the earthquake hazards in the area. 
The information obtained from this study will help the people and the 
earthquake hazards in the area. The information obtained from this 
study will help the people and government of Taiwan to better prepare 
for future seismic events and may thus mitigate some of the loss of 
life and economic disruptions that will inevitably occur.
    The action is planned to take place in the territorial seas and 
EEZ's of foreign nations, and will be continuous with the activity that 
takes place on the high seas. NMFS does not authorize the incidental 
take of marine mammals in the territorial seas of foreign nations, as 
the MMPA does not apply in those waters. However, NMFS still needs to 
calculate the level of incidental take in territorial seas as part of 
the analysis supporting issuance of an IHA in order to determine the 
biological accuracy of the small numbers and negligible impact 
determination.

Description of the Specified Activity

    The planned survey will involve one source vessel, the R/V Marcus 
G. Langseth (Langseth), which will occur in SE Asia. The Langseth will 
deploy an array of 36 airguns (6,600 in\3\) as an energy source at a 
tow depth of 6-9 m (20-30 ft). The receiving system will consist of a 
hydrophone streamer and approximately 100 ocean bottom seismometers 
(OBSs). The Langseth will deploy an 8 km (5 mi) long streamer for most 
transects requiring a streamer; however, a shorter streamer (500 m to 2

[[Page 41261]]

km or 1,640 ft to 1.2 mi) will be used during surveys in Taiwan 
(Formosa) Strait. As the airgun array is towed along the survey lines, 
the hydrophone streamer will receive the returning acoustic signals and 
transfer the data to the on-board processing system. The OBSs record 
the returning acoustic signals internally for later analysis. The OBSs 
to be used for the TAIGER program will be deployed and retrieved 
numerous times by a combination of 4 or 5 Taiwanese support vessels, as 
well as the Langseth. The Langseth will also retrieve 20 OBSs that were 
deployed in the study area during previous years to record earthquake 
activity.
    Approximately 100 OBSs will be deployed during the survey. OBSs 
will likely be deployed and retrieved by the Langseth as well as a 
combination of 4 to 5 Taiwanese vessels. The Taiwanese vessels to be 
used include two 30 m (98.4 ft) vessels (the R/V Ocean Researcher 2 and 
the R/V Ocean Researcher 3) and two vessels greater than 60 m (196.8 
ft) in length (R/V Fisheries Research I and the Navy ship Taquan). The 
R/V Ocean Research I may also be used if the Langseth is not used to 
deploy OBSs. The OBS deployment spacing will vary depending on the 
number of instruments available and shiptime. The nominal spacing is 15 
km (9.3 mi), but this will vary from as little as 5 km (3.1 mi) to 
perhaps as much as 25 km (15.5 mi). The OBSs will be deployed and 
recovered several (2 to 4) times. 60 of the 100 OBSs may be deployed 
from the Langseth. All OBSs will be retrieved at the end of the study.
    Up to 3 different types of OBSs may be used during the 2009 
program. The Woods Hole Oceanographic Institution (WHOI) ``D2'' OBS has 
a height of approximately 1 m (3.3 ft) and a maximum diameter of 50 cm. 
The anchor is made of hot-rolled steel and weighs 23 kg (50.7 lbs). The 
anchor dimensions are 2.5 x 30.5 x 38.1 cm. The LC4x4 OBS from the 
Scripps Institution of Oceanography (SIO) has a volume of approximately 
1 m\3\ (3.3 ft\2\), with an anchor that consists of a large piece of 
steel grating (approximately 1 m\2\ or 3.3 ft\2\). Taiwanese OBSs will 
also be used; their anchor is in the shape of an `x' with dimensions of 
51-76 cm\2\ (1.7-2.5 ft\2\). Once the OBS is ready to be retrieved an 
acoustic release transponder interrogates the OBS at a frequency of 9-
11 kHz, and a response is received at a frequency of 9-13 kHz. The burn 
wire release assembly is then activated, and the instrument is released 
from the anchor to float to the surface.
    The seismic survey as described in the Federal Register notice (73 
FR 78294, December 22, 2008) for the proposed IHA was 15,902 km (9,881 
mi) in length. After public comment, L-DEO revised the tracklines so 
that the seismic survey consists of approximately 14,515 km (9,019 mi) 
of transect lines within the South and East China Seas as well as the 
Philippine Sea, with the majority of the survey effort occurring in the 
South China Sea. The total length of the revised tracklines is 
approximately 9 percent less than the total length of the original 
tracklines. The survey will take place in water depths ranging from 
approximately 25 to 6,585 m (82-21,598 ft), but most of the survey 
effort (approximately 84.4 percent) will take place in water greater 
than 1,000 m (3,280 ft), 11.4 percent will take place in intermediate 
depth waters (100-1,000 m or 328-3,280 ft), and 4.2 percent will occur 
in shallow depth water (less than 100 m or 328 ft).
    All planned geophysical data acquisition activities will be 
conducted by L-DEO with onboard assistance by the scientists who have 
proposed the study. The scientific team consists of Dr. Francis Wu 
(State University of New York at Binghamton) and Dr. Kirk McIntosh 
(University of Texas at Austin, Institute of Geophysics). The vessel 
will be self-contained, and the crew will live aboard the vessel for 
the entire cruise.
    In addition to the operations of the airgun array, a 12 kHz Simrad 
EM 120 multibeam echosounder (MBES) and a 3.5 kHz sub-bottom profiler 
(SBP) will be operated from the Langseth continuously throughout the 
TAIGER cruise.

Dates, Duration, and Region of Activity

    The survey will encompass the area from approximately 
17[deg]30[min]-26[deg]30[min] N, 113[deg]30[min]-126[deg] E within the 
EEZs of Taiwan, Japan, and the Philippines. The vessel will approach 
mainland Taiwan within 5.2 km (3.2 mi) and mainland China within 116 km 
(72 mi). The vessel will approach within 3.7 km (2.3 mi) and 105 km (65 
mi) of islands off the coast of Taiwan and China, respectively. The 
closest approach to the Ryuku Islands and Okinawa Islands will be 51.5 
km (32 mi) and approximately 400 km (249 mi), respectively. Although 
the survey will occur at least 32 km (29.9 mi) from Luzon, Philippines, 
survey lines will take place approximately 28.6 km (17.8 mi) and 8.8 km 
(5.5 mi) from the Babuyan and Batan islands, respectively. Water depths 
in the survey area range from approximately 25 to 6,280 m (164-20,603 
ft). There are not seismic lines in less than 50 m (164 ft) water 
depth. The closest seismic line to land is approximately 3.7 km (2.3 
mi) from an island off the east coast of Taiwan. The TAIGER program 
consists of 4 legs, each starting and ending in Kao-hsiung, Taiwan. The 
first leg is expected to occur from approximately March 31 to April 28, 
2009 and will include the survey lines in the South China Sea. The 
second leg is scheduled for May 3 to June 3, 2009 and will include 
survey lines around Taiwan. The third leg (approximately June 7-14, 
2009) will involve OBS recovery by the Langseth only; no seismic 
acquisition will occur during this leg. The fourth leg, consisting of 
the survey lines in the Luzon Strait and Philippine Sea, is scheduled 
to occur from June 18 to July 20, 2009. The program will consist of 
approximately 103 days of seismic acquisition. The exact dates of the 
activities depend on logistics and weather conditions.

Safety Radii

    L-DEO estimated the safety radii around their operations using a 
model and by adjusting the model results based on empirical data 
gathered in the Gulf of Mexico in 2003. Additional information 
regarding safety radii in general, how the safety radii were 
calculated, and how the empirical measurements were used to correct the 
modeled numbers may be found in NMFS' proposed IHA notice (73 FR 78294, 
December 22, 2008) and L-DEO's application. Using the modeled distances 
and various correction factors, Table 1 outlines the distances at which 
three rms sound levels (190 dB, 180 dB, and 160 dB) are expected to be 
received from the various airgun configurations in shallow, 
intermediate, and deep water depths.

----------------------------------------------------------------------------------------------------------------
                                                                            Predicted RMS Distances (m)
       Source and volume         Tow depth (m)     Water depth   -----------------------------------------------
                                                                      190 dB          180 dB          160 dB
----------------------------------------------------------------------------------------------------------------
Single Bolt airgun 40 in\3\...            *6-9  Deep............              12              40             385
                                ..............  Intermediate....              18              60             578
                                ..............  Shallow.........             150             296           1,050
4 strings 36 airguns 6600                  6-7  Deep............             220             710           4,670
 in\3\.

[[Page 41262]]

 
                                ..............  Intermediate....             330           1,065           5,189
                                ..............  Shallow.........           1,600           2,761           6,227
                                           8-9  Deep............             300             950           6,000
                                ..............  Intermediate....             450           1,425           6,667
                                ..............  Shallow.........           2,182           3,694          8,000
----------------------------------------------------------------------------------------------------------------
Table 1. Predicted distances to which sound levels [gteqt]190, 180, and 160 dB re 1 [mu]Pa might be received in
  shallow (<100 m; 328 ft), intermediate (100-1,000 m; 328-3,280 ft), and deep (>1,000 m; 3,280 ft) water from
  the 36 airgun array, as well as a single airgun, used during the Central American SubFac and STEEP Gulf of
  Alaska survey, and planned during the TAIGER SE Asia survey. *The tow depth has minimal effect on the maximum
  near-field output and the shape of the frequency spectrum for the single 40 in\3\ airgun; thus, the predicted
  safety radii are essentially the same at each tow depth. The most precautionary distances (i.e., for the
  deepest tow depth, 9m) are shown.

    Because the predictions in Table 1 are based in part on empirical 
correction factors derived from acoustic calibration of airgun 
configurations different from those to be used on the Langseth (cf. 
Tolstoy et al., 2004a,b), L-DEO conducted an acoustic calibration study 
of the Langseth's 36 airgun (approximately 6,600 in\3\) array in late 
2007/early 2008 in the Gulf of Mexico (LGL Ltd., 2006). Distances where 
sound levels (e.g., 190, 180, and 160 dB re 1 [mu]Pa rms) were received 
in deep, intermediate, and shallow water will be determined for various 
airgun configurations. Acoustic data analysis is ongoing and a 
scientific paper on the Langseth calibration study is currently in 
review for future publication (Tolstoy, pers. comm.). After analysis, 
the empirical data from the 2007/2008 calibration study will be used to 
refine the exclusion zones (EZ) proposed above for use during the 
TAIGER cruise, if the data are appropriate and available for use at the 
time of the survey.
    A more detailed description of the authorized action, including 
vessel and acoustic source specifications, was included in the proposed 
IHA notice (73 FR 78294, December 22, 2008).

Comments and Responses

    A notice of receipt of the L-DEO application and proposed IHA was 
published in the Federal Register on December 22, 2008 (73 FR 78294). A 
notice extending the public comment period by 15 days, to February 5, 
2009, due to several Federal holidays, was published in the Federal 
Register on January 16, 2009 (74 FR 2995). During the comment period, 
NMFS received comments from the Marine Mammal Commission (Commission). 
NMFS also received comments from the Center for Regulatory 
Effectiveness (CRE), Natural Resources Defense Council (NRDC) (on 
behalf of International Fund for Animal Welfare, Whale and Dolphin 
Conservation Society, Cetacean Society International [CSI], Animals 
Asia Foundation [AAF], New York Whale and Dolphin Action League, Ocean 
Futures Society, and Jean-Michel Cousteau), Wild at Heart Legal Defense 
Association (WaH) (on behalf of Changhua County Environmental 
Protection Union, Clymene Enterprises, Green Party Taiwan, Taiwan 
Friends of the Global Greens, Leviathan Sciences, Environment and 
Animal Society of Taiwan, Wild Bird Society of Yunlin, Matsu's Fish 
Conservation Union, Blue Dolphin Alliance, Hong Kong Dolphin 
Conservation Society [HKDCS], Dr. Ellen Hines, Taiwan Sustainable 
Union, Jo Marie V. Acebes, APEX Environmental, Coral Triangle Oceanic 
Cetacean Program and IUCN Species Survival Commission--Cetacean 
Specialist Group, Kimberly Reihl, Changhua Coast Conservation Action, 
Ocean Park Corporation, Dr. Bradley White, Ketos Ecology, CSI, Dr. Wang 
Ding, Study Centre for Marine Conservation, AAF, International 
Laboratory for Dolphin Behaviour Research, Mary Speer, and American 
Cetacean Society), CSI, Linking Individuals for Nature Conservation 
(LINC), Humane Society International (HSI), Dr. John Wang, Eastern 
Taiwan Strait Sousa Technical Advisory Working Group (ETSSTAWG), AAF, 
HKDCS, Dr. Robert Brownell, Dr. Lien-Siang Chou, Dr. Linda Weilgart, 
Dr. Kirk McIntosh and Dr. Francis Wu (Dr. McIntosh and Dr. Wu), Dr. 
Lemnuel Aragones, Dr. Joseph Minor and Dr. Christine Wilson and James 
Minor and Susan Wilson (Minor and Wilson), and a private citizen. The 
public comments can be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    The following are their comments, and NMFS' responses.

Extension Requests

    Comment 1: Numerous parties expressed concern regarding L-DEO's IHA 
application under the MMPA to incidentally harass marine mammals during 
a proposed marine geophysical survey in SE Asia from March-July, 2009, 
as published in the Federal Register (73 FR 78294, December 22, 2008). 
Many interested persons and organizations requested an extension of the 
30-day public comment period to allow for the adequate review of 
lengthy documents associated with the proposed IHA and prepare 
responses.
    Response: NMFS considered these requests during the 30-day public 
comment period and published a notice in the Federal Register (74 FR 
2995, January 16, 2009) extending the public comment period for the 
proposed IHA from January 21 to February 5, 2009. The 15-day extension 
is due to the unique circumstances of the timing of the publication of 
the Federal Register notice (74 FR 2995, January 16, 2009) relative to 
several Federal holidays. The Federal Register notice (74 FR 2995, 
January 16, 2009) published three days before the Christmas holiday, 
which fell on Thursday, December 25, 2008. The following day, Friday, 
December 26, 2008 was declared a Federal holiday for executive branch 
departments and agencies. New Year's Day, a Federal holiday, was the 
following Thursday, January 1, 2009. The 15-day extension was given in 
recognition of the fact that the timing of these three holidays led 
many workers to be away for much of the two-week period and some non-
government organizations closed their offices during that period. NMFS 
is also aware that the proposed action was for a new geographical area 
rather than a renewal of a prior action, where the associated documents 
are lengthy and would likely not be familiar to many interested 
parties. NMFS believes that a 30-day comment period with a 15-day 
extension (for a total of 45 days) is more than an adequate time period 
for the public to address concerns and submit comments.

General Comments

    Comment 2: The CRE objects to the statement in the proposed IHA (73 
FR 78303, December 22, 2008) on page 78303, column one, paragraph 
three, that states: ``However, controlled exposure experiments in the 
Gulf of Mexico indicate that foraging behavior

[[Page 41263]]

was altered upon exposure to airgun sound (Jochens et al., 2006).'' CRE 
states that this statement is misleading, and does not accurately 
reflect the underlying data, and it is not based on the most recent 
assessment of those data. NMFS' statement cites a 2006 Sperm Whale 
Seismic Study (SWSS) in the Gulf of Mexico Report which discusses data 
on foraging behavior and avoidance movements of seven tagged sperm 
whales in the Gulf of Mexico during exposure to airguns. The CRE 
requests that NMFS cite the final 2008 Synthesis Report on SWSS which 
cautions that the ``* * * sample size of seven animals that conducted 
foraging dives during exposure was too small to provide definitive 
results * * * the power of the test to detect small changes in foraging 
success was low, and no conclusions on the biological significance of 
these effects for an individual animal or for the populations can be 
made from the data sets available.''
    Response: As CRE points out in their letter, L-DEO acknowledges in 
their application (see Section VI, page 37) that seismic energy alters 
sperm whale foraging behavior. NMFS acknowledges the commentor's 
interpretation of 2006 SSWS. However, after reviewing the 2008 
Synthesis Report, NMFS believes that the following statement: ``* * * 
sample size of 7 animals conducted foraging dives during exposure was 
too small to provide definitive results * * * the power of the test to 
detect small changes in foraging success was low and no conclusions on 
the biological significance of these effects for an individual animal 
or for the population can be made from the data sets available,'' 
refers to having the statistical power to detect small changes in 
foraging success. Conversely, page 264 of the 2008 Synthesis Report 
states the following: ``* * * Our data seem to indicate that airgun 
exposure--even at low exposure levels observed in this experiment--can 
result in large reductions in foraging rate for some individual sperm 
whales.'' Therefore, the proposed IHA notice statement that data 
indicated alterations in foraging behavior, is supported by one of the 
conclusions discussed in the 2008 Synthesis Report. NSF and L-DEO 
presented this study as one of several pieces of information that 
relate to this topic. Though the commenter has presented an alternate 
interpretation of the data related to foraging behavior, NMFS finds 
that the EA provides sufficient analysis of the available data and the 
information is not such that NMFS' findings.
    Comment 3: The Commission is concerned that most of the issues 
raised in its letter have been raised before and, to their knowledge, 
little is being done to resolve them. The Commission believes that the 
action agency and contractor should bear primary responsibility for 
carrying out the studies needed to reduce the existing uncertainty and 
that the authorizing and oversight agencies have a degree of 
responsibility as well.
    Response: NMFS has responded to the best of its ability regarding 
all of the Commission's concerns on various issues during the public 
comment process.
    Comment 4: The Commission is concerned that the opportunity for 
scientists, conservationists, and other interested parties from other 
countries to comment on research activities to be conducted by U.S. 
organizations in foreign waters. Scientists, conservationists, and 
others are generally unfamiliar with the procedures for permit review 
and authorization in the U.S. but may have a good understanding of the 
natural history and vulnerability of potentially affected species. The 
Commission believes that they should be provided with opportunities to 
contribute to the evaluation of the potential effects of seismic 
studies in the context of all other factors that may be affecting these 
species. If U.S. scientists and institutions are to engage in research 
activities in the waters of other countries, it stands to reason that 
our system of review should include sufficient opportunities for 
foreign parties to comment on potential effects. This might be 
accomplished in any number of ways, such as extending the comment 
period to give them additional time to comment and promoting 
interaction between the research organization and concerned parties 
from other countries. The Commission believes such participation is 
appropriate and, in the long run, will facilitate international 
cooperation on conservation issues, more informed comments, and more 
risk-averse research methods and mitigation procedures.
    Response: NMFS agrees with the Commission's comments. NMFS extended 
the 30 day public comment for the proposed IHA by an additional 15 days 
to accommodate requests from the public. See Extension Request above.
    Comment 5: Dr. McIntosh and Dr. Wu have provided some comments 
about the nature and significance of our project and also try to allay 
some of the expressed concerns. As an introductory statement, the 
research Dr. McIntosh and Dr. Wu plan targets fundamental Earth 
processes that remain inadequately understood; this includes topics 
such as the growth and composition of continents and the fundamental 
processes of building mountains. Dr. McIntosh and Dr. Wu choose to do 
this research in the Taiwan region because it is the best location, of 
only a few places globally, where we can study the collision of an 
oceanic island chain with a continent.
    Response: NMFS acknowledges Dr. McIntosh and Dr. Wu's comments.
    Comment 6: Dr. McIntosh and Dr. Wu state that as for marine mammal 
safety, the community of marine mammal biologists can be assured that 
their project is not a reckless intrusion into the marine habitat of 
endangered species. In fact, detailed studies have been conducted 
regarding the possible impacts of this project on marine mammal 
populations.
    Response: NMFS acknowledges Dr. McIntosh and Dr. Wu's comments. 
NMFS expects the principal scientists to abide by the requirements 
described in the IHA issued to L-DEO. After issuance of the proposed 
IHA, L-DEO negotiated with the project's principal scientists to modify 
the cruise plan and adopt more precautionary mitigation measures for 
purposes of marine mammal safety in the study area.
    Comment 7: Dr. McIntosh and Dr. Wu state that they expect to 
produce the most comprehensive subsurface images of the rapidly rising 
Taiwan mountains with their data. These images, along with seismicity 
recorded by L-DEO's arrays, will form a greatly enhanced basis for 
evaluating earthquake and tsunami potentials of Taiwan and can thus be 
used to improve the safety and security of the human population at risk 
to these phenomena.
    Response: NMFS acknowledges Dr. McIntosh and Dr. Wu's comments.
    Comment 8: CSI states that the IHA application and EA are similar 
in many respects to previous L-DEO EA's. The response, however, is not. 
The response to this authorization request will prove to be unique, a 
potential watershed in the manner all future seismic surveys should be 
critiqued by the scientific community. To be helpful, CSI has attached 
some relevant expert reviews to their comments, even if they are 
duplicated by others, to ensure that NMFS has the opportunity to 
include them in the deliberative process. The expert level of opinion 
and proof stimulated by the IHA application and EA challenges previous 
assumption and, CSI hopes, will stimulate adequate, directed research 
to enable appropriate

[[Page 41264]]

mitigations to satisfy various laws, including the MMPA.
    Response: NMFS received numerous comments from interested parties 
on L-DEO's proposed IHA for a marine geophysical survey in SE Asia, 
March to July 2009. NMFS acknowledges CSI's and other interested 
parties' comments on the proposed IHA and EA during the public comment 
period. After the issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's revised survey as well as the 
implementation of the monitoring and mitigation measures described in 
the IHA will have a negligible impact on the affected species or stocks 
of marine mammals in the study area.
    L-DEO and NSF have formally consulted with NMFS' Permits, 
Conservation, and Education Division under the MMPA regarding the IHA 
and NMFS' Endangered Species Division regarding a Biological Opinion 
under Section 7 of the ESA for the marine geophysical survey in SE 
Asia. NMFS believes L-DEO and NSF have satisfied their responsibilities 
under the laws of the MMPA and ESA.
    Comment 9: CSI states that the MMPA only authorizes the lethal 
taking of marine mammals under extraordinary circumstances that do not 
apply to the scientific research proposed by this project. In the 
opinion of experts, as expressed in the attachments, mortalities are 
likely. How can NMFS believe that all these experts are wrong, or that 
associated mortalities would not violate the MMPA? CSI urges NMFS to 
apply these experts comments to the EA and IHA application deficiencies 
and to require that the L-DEO proposal address them in the only legal 
format available to them, an application for a LOA under MMPA Section 
101(a)(5)(A-C).
    Because the L-DEO's geophysical research will have an incidental 
impact on marine mammals that experts predict will include mortalities 
and even extirpation it must apply for a letter of authorization under 
MMPA section 101(a)(5)(A-C).
    Response: While an authorization for taking marine mammals by 
mortality cannot be authorized under Section 101(a)(5)(D) of the MMPA, 
those paragraphs do authorize taking by Level A harassment. Level A 
harassment means any act of pursuit, torment, or annoyance which has 
the potential to injure a marine mammal or a marine mammal stock in the 
wild. While it is true that an injury can be so severe that it later 
may result in mortality, the MMPA does not preclude issuance of an 
authorization under Section 101(a)(5)(D) of the MMPA for activities 
that have the potential to cause injury. However, as NMFS shows in this 
document morality and serious injury are not anticipated to occur 
during this seismic survey cruise due to implementation of mitigation 
measures (e.g., ramp-up, power-down, shut-down, temporal and spatial 
avoidance, procedures for species of particular concern, passive 
acoustic and visual monitoring, and quiet acoustic periods). Nor is 
take by injury, serious injury, or mortality authorized. Therefore, 
issuance of an IHA is appropriate. Monitoring and mitigation measures 
are discussed later in this document.
    Comment 10: CSI states it is a relief to find so many experts 
willing to contribute their knowledge and experience to this process. 
They do a far better job than CSI or any NGO could of addressing the 
specific flaws found in this L-DEO IHA request. While some of these 
same flaws in previous L-DEO requests have been addressed, they may 
have been more easily dismissed by NMFS because very few were from 
world authorities and scientific experts. This time the experts have 
participated directly, and cannot be dismissed.
    Response: NMFS acknowledges CSI's comments and considers all 
relevant public comments before making a determination on the issuance 
of the IHA. After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures in the study area. NMFS believes that L-DEO's revised survey 
as well as the implementation of the required monitoring and mitigation 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures 
in the study area. NMFS believes that L-DEO's revised survey as well as 
the implementation of the monitoring and mitigation measures described 
in the IHA will have a negligible impact on the affected species or 
stocks of marine mammals in the study area.
    Comment 11: CSI states that the intent of LGL's comment is to 
manipulate NMFS into a fast and uncritical decision. By law, the 
schedules, as well as the scientific and economic values of this 
project, remain irrelevant to the scope of NMFS' deliberations on the 
fitness of the proposal.
    Response: Section 101(a)(5)(D) establishes a 45-day time limit for 
NMFS' review of an application followed by a 30-day public notice and 
comment period on any proposed authorizations for the incidental 
harassment of small numbers of marine mammals. Within 45 days of the 
close of the comment period, NMFS must either issue or deny issuance of 
the authorization. NMFS received an IHA application from L-DEO on 
October 27, 2008. NMFS published a notice for the proposed IHA in the 
Federal Register on December 22, 2008 (73 FR 78294). A notice on the 
15-day extension of the comment period for the proposed IHA was 
published on January 16, 2009. NMFS issued an IHA to L-DEO on March 31, 
2009 and amended the IHA on May 1, 2009.
    After issuance of the proposed IHA, L-DEO modified the cruise plan 
and adopted more precautionary monitoring and mitigation measures in 
the study area. NMFS believes that L-DEO's revised survey as well as 
the implementation of the required monitoring and mitigation described 
in the IHA will have a negligible impact on the affected species or 
stocks of marine mammals in the study area. See L-DEO's Supplemental 
EA.
    Comment 12: CSI states that it is well aware that the L-DEO, NSF, 
and other project supporters represent powerful influences that NMFS 
must respect. However, CSI trusts that these rational influences also 
recognize the overwhelming need to define and mitigate anthropogenic 
affects on the marine environment, with their rapidly accelerating 
influences on the planet and eventually human societies. Is it 
necessary to do significant, irrevocable damage to marine life in order 
to understand geophysical processes?
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures in the study area. NMFS believes that L-DEO's revised survey 
as well as the implementation of the required monitoring and mitigation 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area.
    On March 31, 2009, NMFS prepared a Finding of No Significant Impact 
for L-DEO's marine geophysical survey in SE Asia. NMFS determined that 
the issuance of an IHA for the take, by harassment, of small numbers of 
marine mammals incidental to L-DEO's March-July, 2009, seismic survey 
in SE Asia will not significantly impact the quality of the human 
environment.
    Comment 13: CSI states that in lieu of such loft concerns economic 
efficiency is an excellent rationale for increased support of 
appropriate science to

[[Page 41265]]

determine adequate mitigations. Without better science this and future 
proposals will face further challenges that will cause delays in the L-
DEO schedule that are likely to have economic consequence. The time and 
financial loss is neither the fault of the process or the 
responsibility of NMFS. Why not do the job responsibly?
    Response: NMFS acknowledges CSI's comments. An authorization for 
incidental taking of marine mammals shall be granted if NMFS finds that 
the taking will have a negligible impact on the species or stock(s), 
will 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.
    After issuance of the proposed IHA, L-DEO modified the cruise plan 
and adopted more precautionary monitoring and mitigation measures in 
the study area. NMFS believes that L-DEO's revised survey as well as 
the implementation of the required monitoring and mitigation described 
in the IHA will have a negligible impact on the affected species or 
stocks of marine mammals in the study area. NMFS and the applicant (L-
DEO) have fulfilled their responsibilities under the MMPA and ESA for 
the issuance of the subject IHA.
    Comment 14: CSI states that the fundamental point of CSI's comment 
and many others, is that this L-DEO project does not qualify for an 
IHA, according to the criteria at www.nmfs.noaa.gov/pr/permits/incidental.htm. The fact that previous L-DEO projects received IHAs 
does not provide a precedent under which this proposal also should 
receive an IHA, because no matter how NMFS rationalized those past IHAs 
this proposal is different, different in scale, scope, and expertise 
represented by the formal comments and less public complaints it has 
generated from scientific world authorities and regional and species 
experts. If these people had been consulted by LGL, the inadequate EA 
and request would never have been submitted for an IHA. The original 
intent of the IHA process was to expedite some requests, not all 
requests. Not this request.
    Response: NMFS disagrees with CSI's comments. L-DEO's marine 
geophysical survey in SE Asia, March to July 2009, qualifies for an IHA 
according to the criteria on the NMFS Office of Protected Resources 
Incidental Take Authorizations Web site. Portions of L-DEO's project 
occurs on the high seas, which is applicable to the MMPA and ESA. 
Section 101(a)(5)(D) of the MMPA established an expedited process by 
which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment.
    After issuance of the proposed IHA, L-DEO modified the cruise plan 
and adopted more precautionary monitoring and mitigation measures in 
the study area. NMFS believes that L-DEO's revised survey as well as 
the implementation of the required monitoring and mitigation described 
in the IHA will have a negligible impact on the affected species or 
stocks of marine mammals in the study area.
    Comment 15: CSI states that there is little knowledge available for 
most of the species that inhabit the waters of SE Asia. Even the most 
basic knowledge about the presence/absence of species is incomplete. 
Only a small proportion of the large expanse of sea in the region (and 
mostly coastal waters) has been surveyed systematically for marine 
mammals. Few estimates of abundance or distribution exists for SE Asian 
marine mammals an in most cases, this information is for a limited 
region, often bounded by political rather than biological borders. What 
little is known clearly shows the region to be an area with a high 
diversity of marine mammal (and other marine) species.
    Response: NMFS agrees that the SE Asia region is likely to have a 
high diversity of marine mammal species and that impacts on marine 
mammals should be assessed on the population or stock unit level 
whenever possible. L-DEO's IHA application provides information on 
stock abundance in SE Asia (when available), larger water bodies (such 
as the North Pacific Ocean), and the Eastern Tropical Pacific Ocean (if 
data was unavailable). NMFS believes that these data are the best 
scientific information available for estimating impacts on marine 
mammal species and stocks. However, Congress recognized that 
information on marine mammal stock abundance may not always be 
satisfactory. When information is lacking to define a particular 
population or stock of marine mammals then impacts are to be assessed 
with respect to the species as a whole (54 FR 40338, September 29, 
1989). See relevant discussions throughout this document and L-DEO's 
Supplemental EA.
    Comment 16: CSI states that the study area is a region where marine 
mammals are facing a myriad of serious threats that have made the 
continued existence of several marine mammal populations and possibly 
some species uncertain (note: some of the same threats and activities 
have resulted in the recent `functional extinction' of the baiji 
(Turvey et al. 2007), which is endemic to the Yangtze River of China).
    Response: L-DEO's EA acknowledges that there are numerous threats 
to cetaceans in SE Asia including vessel traffic, habitat loss, oil and 
gas industry, pollution, fisheries, and hunting.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures. 
NMFS believes that L-DEO's revised survey as well as the implementation 
of the required monitoring and mitigation measures described in the IHA 
will have a negligible impact on the affected species or stocks of 
marine mammals in the study area. See L-DEO's EA and Supplemental EA.
    Comment 17: CSI states that all small cetaceans in Taiwanese waters 
are threatened by fishermen using hand-harpoons, bycatch in fishing 
gear, and noise. Those that inhabit coastal waters of western Taiwan 
also face habitat degradation, pollution, and possibly prey reduction.
    Response: NMFS does not regulate activities (including fishing) in 
Taiwanese waters. L-DEO's EA discusses direct and indirect effects on 
marine mammals. The numerous threats to cetaceans in SE Asia include 
vessel traffic, habitat loss, oil and gas industry, pollution, 
fisheries, and hunting.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures. 
NMFS believes that L-DEO's revised survey as well as the implementation 
of the required monitoring and mitigation measures described in the IHA 
will have a negligible impact on the affected species or stocks of 
marine mammals in the study area.
    Comment 18: CSI states that some marine mammals have been reduced 
to numbers so low that even minimal `takes' will have a large impact on 
the remaining population.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures. NMFS believes that L-DEO's revised survey as well 
as the implementation of the required monitoring and mitigation 
measures described in the IHA will have a negligible impact on the 
affected species or stocks of marine mammals in the study area.
    Comment 19: CSI states that a number of marine mammals are 
discussed in their comments to NMFS based on what

[[Page 41266]]

is known about their biology, conservation status and threats in the 
region. This does not imply other marine mammals that are not 
specifically discussed in detail are ``safer'' from the seismic 
surveys, in most cases, too little information is available to 
understand the impacts, which may be as great as or greater than the 
marine mammals discussed in detail in their comments to NMFS.
    Response: NSF's and L-DEO's IHA application, EA, and Supplemental 
EA sufficiently discusses the marine mammals species and the possible 
impacts from seismic surveys in the SE Asia region. After issuance of 
the proposed IHA, L-DEO modified the cruise plan and adopted more 
precautionary monitoring and mitigation measures. NMFS believes that 
the implementation of the required monitoring and mitigation measures 
will result in a negligible impact on affected species and stocks of 
marine mammals in the study area.
    Comment 20: ETSSTAWG states that it should be noted that many 
seismic surveys are conducted in the Taiwan region every year without 
requesting IHAs. The actions of private oil and gas companies within 
the EEZ's of other countries is beyond the jurisdiction of the MMPA, 
thus they need no such U.S. authorizations. However, this means that L-
DEO could become a scapegoat for all survey operation in the region, 
purely because they have to apply for authorization, as they will 
clearly be operating partly on the high seas (and thus fall under MMPA 
jurisdiction) and as they have government funding. This is 
acknowledged, but until such time as NMFS enforcement confirms the 
locations and tracks of every survey undertaken globally this situation 
is unlikely to change.
    Response: NMFS is aware of seismic surveys and other activities 
undertaken worldwide that occur (that may result in incidental takes of 
marine mammals) without requesting IHAs or LOAs. NMFS may grant IHAs 
upon request by U.S. citizens who engage in a specified activity (other 
than commercial fishing) within a specified geographical region. L-DEO 
and NSF are considered U.S. citizens under the MMPA. The MMPA applies 
to U.S. citizens in U.S. waters, and the high seas, but does not apply 
or authorize the incidental take of marine mammals in the territorial 
seas of foreign nations. The MMPA does not apply to non-U.S. citizens, 
unless they are conducting a specified activity (other than commercial 
fishing) that may result in incidental takes of marine mammals in U.S. 
waters. NMFS can refer reports of possible violations of the MMPA and 
this subject IHA issued to L-DEO to NOAA Enforcement for investigation.
    The IHA is valid only for the Langseth's activities associated with 
seismic survey operations that are specified in L-DEO's EA, 
Supplemental EA, and IHA application. L-DEO is required to comply with 
the IHA and the terms and conditions of the Incidental Take Statement 
corresponding to NMFS' Biological Opinion. L-DEO and NSF will be 
required to reinitiate consultation with NMFS if the identified action 
is subsequently modified in a manner that causes an effect that was not 
considered during the analysis for making the necessary determinations 
for the issuance of the IHA. L-DEO is required to submit a draft report 
on all activities and monitoring results to the Office of Protected 
Resources, NMFS, within 90 days of the completion of the Langseth's 
cruise in SE Asia. The report must contain and summarize information 
stated in the IHA issued to L-DEO.
    Comment 21: WaH is aware that this L-DEO survey proposal is one of 
a very small number of requests for authorization for geophysical 
surveys while other user groups, including the oil and gas industry, 
are not carrying out such EAs or are not subjected to public scrutiny 
in this way. Rather than allowing the focus to be limited to geological 
surveys such as L-DEO's, WaH recommends that measures be taken to 
ensure that all future marine seismic surveys (whether of an academic 
or commercial nature) are made subject to the same level of scrutiny 
and transparency, such as by requiring EAs or EISs to be submitted for 
professional and public review and with all relevant documents 
(including post-survey reports and relevant local permits, 
authorizations and licenses) being made publicly available.
    Response: All applications submitted to NMFS are subject to public 
comment periods. During the public comment period, their NEPA documents 
and incidental take authorization applications are available on the 
NMFS Web site (http://www.nmfs.noaa.gov/pr/permits/incidental.htm) and 
are reviewed by the Commission. NMFS does not force an agency or other 
organization to apply for and consult on an incidental take 
authorization under the MMPA.

General Opposition

    Comment 22: A private citizen questioned why this research was 
being conducted in SE Asia. The commenter also believes the U.S. should 
not be doing work in the region.
    Response: Dr. McIntosh and Dr. Wu, the principal investigators on 
the seismic survey, state the primary purpose of the TAIGER project is 
to investigate the fundamental processes of mountain building, which 
plays a major role in shaping the face of the Earth. Oceanic island 
chains, or arcs, along convergent tectonic plate boundaries result from 
a process known as subduction where one of Earth's tectonic plates 
slides beneath another as they move toward each other. As the lower 
plate slides beneath the upper plate, its trajectory usually steepens 
with depth and eventually reaches depths of several hundred (to greater 
than 700) km. The arc is made up of a chain of volcanoes on the upper 
plate, and is typically situated above the point where the lower plate 
is at about 100 km (62 mi) depth. As this process of subduction and 
volcanism continues through time (millions of years) the crust of the 
upper plate becomes thicker, and develops properties more like 
continental crust, which is much thicker and less dense than ocean 
crust and allows for land surface above sea level. The results of many 
studies indicates that much of the crust that forms Earth's continents 
was accumulated through time by island arcs colliding with continents 
leaving remnants of the arcs attached to the edge of the continents. 
Despite this general interpretation, the actual processes of how this 
happens, including growth of collisional mountain belts and deformation 
of arc and continental crust, is poorly understood and poorly 
documented. Ancient collision zones have been studied, but they have 
typically undergone many stages of deformation and erosion, leaving 
them difficult to interpret. Currently active arc-continent collision 
zones include Taiwan, Papua New Guinea, and Timor. Of these active 
collisions, Taiwan is currently the most active. Taiwan is also the 
most favorable of these to examine the full spectrum of processes as a 
plate boundary changes from oceanic subduction to arc-continent 
collision. This transition is a major target of the TAIGER project 
requiring that L-DEO obtain a series of crustal-scale seismic transects 
from south of Taiwan, where subduction is active, to northern Taiwan, 
where the collision has reached mature steady state.
    One of the by-products of the collision in Taiwan is the generation 
of frequent small earthquakes and less frequent, large, destructive 
earthquakes. By using the relatively small signals from the Langseth 
source array

[[Page 41267]]

(compared to those generated by nature) scientists can topographically 
image the mountains and thereby localize the major breaks or faults 
underneath the mountains and assess their seismic potential. In 
addition to linear arrays of seismographs, the Langseth signals will 
also be recorded, as an integrated TAIGER acquisition program, on over 
200 land seismographs across the island and 20 OBSs, all of which have 
been recording earthquakes. Scientists expect to produce the most 
comprehensive subsurface images of the rapidly rising Taiwan mountains 
with L-DEO's data. These images, along with seismicity recorded by L-
DEO's arrays, will form a greatly enhanced basis for evaluating 
earthquake and tsunami potentials of Taiwan and can thus be used to 
improve the safety and security of the human population at risk to 
these phenomena.
    A previous U.S.-Taiwan project (the 1995 TAICRUST project) 
demonstrated the feasibility of the approach to be used in the TAIGER 
project, but this project did not include significant seismic data 
acquisition in the Taiwan Strait. Subsequent analysis showed that 
seismic profiles across the Taiwan, recorded by seismographs in the 
strait and on land in Taiwan, are necessary to determine the crustal 
structure of the Taiwan collisional mountain belt. Thus, the principal 
scientist's plans in the Taiwan Strait are one of the key elements 
required for the success of the TAIGER project.
    Comment 23: LINC objects to the IHA application and states that 
other local NGOs have not had time to respond due to the lack of 
sufficient notice. LINC is concerned that NMFS is eager to approve the 
L-DEO application and authorize destructive activities in the SE Asia 
region without verifying that L-DEO has complied with relevant local 
conservation laws and regulations. LINC strongly urges the NMFS to 
reject the application of L-DEO until it can be proven that they have 
(1) complied with local laws and regulations, and (2) have completed a 
comprehensive consultation with local governments, scientists, 
researchers, and NGOs based in this region. LINC states that the 
approval of the current L-DEO application, as is, would demonstrate a 
clear lack of concern for the conservation laws, threats, and 
environmental protection efforts in this region.
    Response: NMFS believes local NGOs have had sufficient time to 
respond to the proposed IHA published in the Federal Register. A 30-day 
comment period with a 15-day extension (for a total of 45 days) is more 
than an adequate time period for the public to address concerns and 
submit comments. The NMFS has received numerous comments from persons 
and organizations located nationally and worldwide. Generally, under 
the MMPA, NMFS may authorize the harassment of small numbers of marine 
mammals incidental to an otherwise lawful activity, provided 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 to achieve the least practicable adverse impact. L-DEO 
and NSF have consulted with the various governments in the action area. 
To date, L-DEO and NSF have received foreign clearance notices from the 
governments of the Philippines, Taiwan, and Japan. See International 
Legal Compliance below.
    Comment 24: Given the large volume of evidence for the association 
between anthropogenic noise and disturbance in cetaceans and other 
marine mammal, a precautionary approach is surely required (as 
recommended by Gordon et al., 2004). AAF urges NMFS to consider the 
application from L-DEO with information provided, and the findings and 
recommendations of the independent reviews of the Eastern Taiwan Strait 
Sousa Technical Advisory Working Group (ETSSTAWG) and others, in mind.
    Response: NMFS has developed conservative monitoring, mitigation, 
and reporting requirements in order to reduce the potential effects of 
anthropogenic noise on marine mammals. L-DEO and NSF have considered 
the numerous public comments and revised the seismic survey described 
in its IHA application. L-DEO's Supplemental EA is in response to the 
comments received by NMFS through the public comment period associated 
with the IHA process. L-DEO considered the recommendations from several 
independent reviewers including ETSSTAWG. NSF received no direct public 
comments on the draft EA during (or after) the open comment period 
November 14, 2008 through December 15, 2008. Included in L-DEO's 
Supplemental EA are a number of changes to the survey design that were 
made by L-DEO to address specific comments, some received by a number 
of individuals and agencies, and to enhance measures already included 
in the original documents to mitigate effects of the proposed survey on 
marine mammals. NMFS has made its necessary determinations based on L-
DEO's revised seismic survey and Supplemental EA.
    Comment 25: Several commenters requested that NMFS deny issuing the 
IHA to L-DEO. They questioned: (1) The adequacy of L-DEO's scientific 
research and lack of consultation with local experts; (2) the survey's 
potential to expose ETS humpback dolphins to received levels of 180 dB 
re 1 [mu]Pa (rms) which they believed could cause permanent 
physiological damage, thus constituting at a minimum Level A 
harassment; (3) the number of ETS humpback dolphins that L-DEO proposed 
to harass, stating that the requested take of ETS humpback dolphins to 
be harassed was likely to exceed a sustainable level of take for the 
population; (4) the adequacy of the monitoring and mitigation measures 
for endangered or cryptic species that may be vulnerable to noise 
impacts (e.g., ETS humpback dolphin and finless porpoise); (5) the 
timing of the surveys and their impacts on migration routes; (6) biased 
and non-precautionary assumptions; and (7) the cumulative effects 
analyses in the EA.
    Response: NMFS disagrees with the commenters' argument that NMFS 
should have denied L-DEO's application for an IHA.
    (1) NMFS is charged with issuing IHAs for otherwise lawfully 
activity. L-DEO's research is otherwise lawful. NMFS opened the 
proposed IHA to public comment. L-DEO plans to conduct the seismic 
survey along the Taiwan arc-continental collision in the China and 
Philippine Seas. Taiwan is one of only a few sites of arc-continent 
collision worldwide--one of the primary tectonic environments for 
large-scale mountain building. The primary purpose for the TAIGER 
project is to investigate the processes of mountain building, a 
fundamental set of processes which plays a major role in shaping the 
face of the Earth. The vicinity of Taiwan is particularly well-suited 
for this type of study, because the collision can be observed at 
different stages of its evolution, from incipient, to mature, and 
finally to post-collision. As a result of its location in an ongoing 
tectonic collision zone, Taiwan experiences a great number of 
earthquakes; most are small, but many are large and destructive. This 
project will provide a great deal of information about the nature of 
the earthquakes around Taiwan and will lead to a better assessment of 
earthquake hazards in the area. The information obtained from this 
study will help the people and government of Taiwan to better prepare

[[Page 41268]]

for future seismic events and may thus mitigate some of the loss of 
life and economic disruptions that will inevitably occur.
    (2) NMFS disagrees with the commenter's characterization of the 
potential risk to the ETS sub-population of Indo-Pacific humpback 
dolphins. After the issuance of the proposed IHA, L-DEO negotiated with 
the project's principal scientists to modify the cruise plan and adopt 
more precautionary mitigation measures. L-DEO will limit seismic survey 
lines to take place at least 20 km from the west coast of Taiwan, 
except for in the passage between the Penghu Islands and the 
Waishanding Jhou sandbar, where the survey will pass through the 
approximately 17.1 km mid-line distance between the two possibly 
sensitive areas, subject to the limitations imposed by other foreign 
nations, to minimize the potential for exposing Indo-Pacific humpback 
dolphins, finless porpoises, and other coastal species to SPLs greater 
than or equal to 160 dB re 1 [mu]Pa (rms). Thus, the precautionary 
buffer recommended by ETSSTAWG in their comments to NMFS will be 
maintained, ``at least 13 km and perhaps a more precautionary 15 km of 
the ETS Sousa population--meaning up to around 20 km from shore.'' L-
DEO will also shut-down the airgun array if an ETS Indo-Pacific 
humpback dolphin is visually sighted regardless of the distance of the 
animal(s) to the sound source. The array will not resume firing until 
15 minutes after the last documented whale visual sighting.
    (3) NMFS disagrees with the commenter's assertion that the 
requested take of ETS Indo-Pacific humpback dolphins by harassment is 
likely to exceed a sustainable level of take for the population. L-
DEO's seismic survey was modified after the issuance of the proposed 
IHA to include more precautionary mitigation measures. The 
incorporation of precautionary measures reduced the estimated number of 
ETS Indo-Pacific humpback dolphins expected to be harassed to zero, 
which is clearly a sustainable level of take for the sub-population.
    (4) and (5) NMFS believes that the mitigation and monitoring 
measures in the IHA are adequate to protect species of concern that may 
be vulnerable to noise impacts. After issuance of the proposed IHA, L-
DEO modified the cruise plan and adopted more precautionary mitigation 
measures, especially for species that are of particular concern and 
have cryptic behaviors that may be vulnerable to noise impacts as well 
as to address concerns on the timing of the surveys and their impacts 
on migration routes. See Monitoring, Mitigation, Species of Particular 
Concern, and Temporal and Spatial Avoidance sections below and L-DEO's 
Supplemental EA for more information. NMFS has included requirements to 
these effects in the IHA issued to L-DEO.
    (6) After issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary mitigation measures to address 
concerns of potential impacts of the seismic survey on affected species 
and stocks of marine mammals in the study area. NMFS believes that L-
DEO's IHA application, EA, and Supplemental EA are not biased as they 
adequately consider alternatives, and provides analysis on the affected 
environment and environmental consequences of the study area.
    (7) The EA adequately addresses the cumulative impacts of a 
relatively short-term seismic airgun survey in relation to long-term 
noise and events, such as vessel traffic, habitat loss, oil and gas 
industry, pollution, fishing, hunting, and other human activities. 
These other activities are long-term activities which are unaffected by 
NMFS' action here. Nor does this action, when considered in light of 
the other activities, become significant.
    For more information, see further relevant discussions in this 
notice, L-DEO's IHA application, EA, and Supplemental EA.
    Comment 26: HSI states that while they appreciate L-DEO's efforts 
to comply with the MMPA and the NEPA, HSI is concerned that this 
request for an incidental harassment authorization is premature and 
that in fact a letter of authorization for incidental take may be 
required. HSUS/HSI strongly urges the NMFS to deny this request as 
submitted and at a minimum to require L-DEO to resubmit its request 
with an updated review of the region's marine mammals, a more complete 
review of relevant literature, modified survey track lines and 
schedules, and additional mitigation measures.
    Response: NMFS does not agree that a Letter of Authorization for 
incidental take is necessary in this case. Due to the incorporation of 
monitoring and mitigation measures, including L-DEO's revision of 
tracklines after the issuance of the proposed IHA and in response to 
public comments, NMFS does not anticipated a potential for injury, 
serious injury, or mortality to any marine mammals under the 
jurisdiction of the MMPA. Based on numerous concerns regarding the 
proposed IHA, L-DEO has revised its seismic survey and adopted more 
precautionary mitigation measures. L-DEO has prepared a Supplemental EA 
in response to the comments received. NSF received no direct public 
comments on the draft EA during (or after) the open comment period of 
November 14, 2008 through December 15, 2008. Included are a number of 
changes to the survey design that were made by L-DEO to address 
specific comments, some received by a number of individuals and 
agencies, and to enhance precautionary measures already included in the 
original documents to mitigate potential effects of the survey on 
marine mammals.
    Comment 27: ETTSTAWG states the L-DEO project, as presently 
described in the U.S. Federal Register, poses an unacceptable risk to 
the `critically endangered' population of ETS Indo-Pacific humpback 
dolphins.
    Response: NMFS disagrees with ETSSTAWG's characterization of the 
risk to the sub-population of ETS Indo-Pacific humpback dolphins. After 
issuance of the proposed IHA, L-DEO modified the cruise plan and 
adopted more precautionary mitigation measures, especially considering 
the `critically endangered' ETS sub-population of Indo-Pacific humpback 
dolphins. See ``Species of Particular Concern'' section below and other 
discussions presented in this document.
    Comment 28: Dr. Linda Weilgart urges NMFS to reject this 
application for an IHA and states that L-DEO's powerful array of 
airguns, and argues that the permit application does not seriously 
consider the possibility of irreversible harm to marine mammals and the 
marine environment.
    Response: NMFS disagrees with Dr. Weilgart's comments. After 
issuance of the proposed IHA, L-DEO modified the cruise plan and 
adopted more precautionary mitigation measures. NMFS believes L-DEO's 
planned seismic survey, as revised, will have a negligible impact on 
the affected species and stocks of marine mammals in the study area.
    Comment 29: The strong bias in the Federal Register notice is 
disturbing. The notice should be an objective discussion that leaves 
open whether the agency should issue the authorization or not. As 
published, however, the notice's language leads inevitably to a 
decision to issue the authorization, despite the applicant's failure to 
argue convincingly, as required by law, that the surveys will not 
result in serious injury or death or even, in this case, Level A 
harassment. In fact, there is an insufficient scientific basis for 
concluding that no serious injury, death,

[[Page 41269]]

or Level A harassment of any marine mammal species will occur. 
Accordingly, the NMFS must deny this request as submitted and at a 
minimum request the applicant to submit a revised application with a 
more realistic and conservative analysis of potential impacts. If a 
compelling argument to support the conclusion that only harassment 
(Level B or Level A) will occur is not forthcoming, then the NMFS must 
deny the request outright and require the applicant to seek a letter of 
authorization for incidental take under Section 101(a)(5)(A-C) of the 
MMPA.
    Response: NMFS disagrees with the commenter's characterization of 
the Notice of Proposed Issuance. Furthermore, as NMFS shows in this 
document mortality and serious injury are not expected to occur during 
this seismic survey cruise due to implementation of monitoring and 
mitigation measures (e.g., ramp-up, power-down, shut-down, passive 
acoustic and visual monitoring, and quiet acoustic periods) as well as 
L-DEO's revision of tracklines in the cruise plan. Nor is incidental 
take by injury, serious injury, or mortality authorized. Therefore, 
issuance of an IHA is appropriate. The revised survey and monitoring 
and mitigation measures are discussed further in this document.
    Comment 30: Minor and Wilson, as scientists, are greatly saddened 
to see government funding being used to cause the ``Level B 
harassment'' of 71,669 cetaceans. Minor and Wilson also doubt that the 
data that might be gained from the proposed ``taking'' is worth the 
harm that it will do. Minor and Wilson are concerned about what the 
proposed undertaking will do to the reputation of U.S. science. 
Recently, one species of cetacean was declared extinct in this region, 
and several more endangered species are in the proposed study area. To 
have a U.S. flagged ship, owned by the NSF, cruising around in the 
critical habitat of multiple endangered species conducting seismic 
testing is clearly poor public relations. If another of these species 
goes extinct soon, the NSF will find itself trying to ``sell'' the 
notion that its contribution to the extinction was insignificant. The 
NMFS could make a positive contribution to the long term reputation of 
U.S. science if it could show some backbone and talk the NSF out of 
this idiocy.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's revised survey as well as the 
implementation of the monitoring and mitigation measures described in 
the IHA will have a negligible impact on the affected species or stocks 
of marine mammals in the study area. See relevant discussions in this 
document as well as L-DEO's Supplemental EA.

Thresholds

Thresholds--Acoustic Thresholds for Behavior
    Comment 31: The proposed IHA notice also draws conclusions that are 
heavily biased in favor of a finding of ``no impact.'' For example, the 
notice states that ``many cetaceans * * * are likely to show some 
avoidance of the area with high received levels of airgun sound * * * 
[and] the avoidance responses of the animals themselves will reduce or 
(most likely) avoid any possibility of hearing impairment'' (emphasis 
added, p. 78303). Setting aside the lack of scientific substantiation 
for the degree of certainty displayed by this claim, there is no 
presentation or discussion of the opposing (and equally likely) 
possibility that many cetaceans might not show avoidance of an area 
ensonified by airguns because it is important habitat.
    Response: NMFS refers the commenter to L-DEO's EA (Chapter 4 and 
Appendix B) which summarized avoidance response levels to seismic 
pulses for a number of cetaceans. L-DEO provided ample evidence of 
avoidance behavior in marine mammals in response to seismic surveys 
from several peer-reviewed studies including data on gray, bowhead, and 
humpback whales (Richardson et al., 1995); Gordon et al. (2004); 
humpback whale (McCauley et al., 1998 and 2000a); bowhead whales 
(Miller et al., 1999; Richardson et al., 1999); and eastern Pacific 
gray whales (Malme et al., 1986, 1988).
    Conversely, the EA discussed the possibility that cetaceans might 
not exhibit avoidance behavior or may not be as sensitive to seismic 
sources. L-DEO presents data from peer-reviewed focusing on humpback 
whales (Malme et al., 1985); bowhead whales (Miller et al., 2005; 
Harris et al., 2007); and fin and sei whales (Stone, 2003; Stone and 
Tasker, 2006). For marine mammals that do not avoid the vessel and 
sound source, L-DEO will implement mitigation measures such as power-
downs and shut-downs for animals that enter the respective safety zones 
to prevent Temporary Threshold Shift (TTS)/Permanent Threshold Shift 
(PTS) for those respective species.
    With the respect to the ETS population of humpback dolphins, NMFS 
has instituted precautionary mitigation measures to protect these 
species within their habitat in Taiwanese waters. L-DEO will limit 
seismic survey lines to take place at least 20 km from the west coast 
of Taiwan, except for in the passage between the Penghu Islands and the 
Waishanding Jhou sandbar, where the survey will pass through the 
approximately 17.1 km mid-line distance between the two possibly 
sensitive areas, subject to the limitations imposed by other foreign 
nations, to minimize the potential for exposing Indo-Pacific humpback 
dolphins, finless porpoises, and other coastal species to SPLs greater 
than or equal to 160 dB re [mu]Pa (rms).
    Comment 32: The proposed IHA notice states that ``if a sound source 
displaces marine mammals from an important feeding or breeding area for 
a prolonged period, impacts on animals or on the stock or species could 
potentially be significant'' (p. 78301). It does not, however, consider 
the reverse; that the failure of a sound source to displace animals 
from important feeding or breeding habitat may indicate that the area 
is so important that the animals are willing/forced to tolerate a level 
of noise exposure that is in fact harmful (see, e.g., the discussion of 
this concept in Richardson et al. 1995). The failure to consider the 
possibility of an animal not reacting because leaving a prime feeding 
spot is more costly than moving laterally along a migration pathway is 
an example of the bias permeating the entire analysis and has 
contributed to an unacceptably incomplete level of evaluation and 
discussion regarding impacts and mitigation.
    Response: NMFS refers the commenter to page 78302 of the proposed 
IHA notice, Chapter 4 and Appendix B of the EA for L-DEO's presentation 
of cetaceans not exhibiting avoidance behavior when exposed to seismic 
pulses. L-DEO has acknowledged the public's concern for coastal 
dwelling species in Taiwan, has modified their cruise plan, and has 
adopted more precautionary monitoring and mitigation measures, 
especially for species of particular concern. See responses to comments 
regarding mitigation measures such as the implementation of power-downs 
and shut-downs for animals discussed within this document as well as 
within L-DEO's Supplemental EA.
    Comment 33: The EA noted that ``captive bottlenose dolphins and 
beluga whales exhibited changes in behavior when exposed to strong 
pulsed sounds similar in duration to those typically used in seismic 
surveys (Finneran et al. 2000, 2002). However, the animals

[[Page 41270]]

tolerated high received levels of sound before exhibiting aversive 
behaviors.'' It should be noted, however, that the animals in the 
abovementioned Navy studies were reported by Nowacek et al. (2007) to 
be generally ``tested in a context where they were being rewarded for 
tolerating high levels of noise'' and were ``usually `punished' in some 
way * * * for failing to return to the experimental station for 
additional exposures.'' This was not a problem for their main results 
as the focus of the work was on to TTS, but the setup does invalidate 
any conclusions based on the behavioral responses reported in the same 
studies. For further discussion of the need for precaution in the use 
of captive studies to set exposure criteria for wild animals, see 
Parsons et al. (2008) and Wright et al. (in press).
    Response: NMFS acknowledges the commenter's interpretation of 
captive studies and have taken them into consideration. Thresholds for 
behavioral response are not based upon captive studies. The 160 dB re 1 
[mu]Pa 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 when exposed to seismic 
airguns (impulsive sound source).
    Comment 34: The idea that behavioral tolerance is a proxy for no 
impact has no scientific merit. In fact, some fairly sizable impacts 
have been reported in various species despite a lack of behavioral 
response. A recent panel of experts also noted that an apparently 
unresponsive animal may still be undergoing a chronic and/or severe 
acute stress response, with associated physiological and psychological 
consequences. These can result from exposure directly, or through 
masking and other phenomenon indirectly. Thus, taking is entirely 
possible without observable behavioral disturbance reactions and this 
needs to be accounted for.
    Response: Section 101(a)(5)(D) of the MMPA allows citizens of the 
United States to take by harassment, small numbers of marine mammals 
incidental to a specified activity (other than commercial fishing) 
within a specified geographical region if NMFS is able to make certain 
findings. NMFS must issue an incidental harassment authorization if 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, and if the permissible 
methods of taking and requirements pertaining to the mitigation, 
monitoring, and reporting of such takings are set forth.
    The mitigation measures set forth in the IHA ensure that there will 
be negligible impacts on the marine mammals. Cetaceans are expected, at 
most, to show an avoidance response to the seismic pulses. Mitigation 
measures such as visual marine mammal monitoring, and shut-downs when 
marine mammals are detected within the defined ranges should further 
reduce short-term reactions to disturbance, and minimize any effects on 
hearing sensitivity. Due to these mitigation measures, and other 
reasons discussed in the Conclusions section of this document, NMFS 
believes the impacts will be negligible.
    Comment 35: Mortality (by human causes) of even a single individual 
per year from this population may not be sustainable, and unless 
effective mitigation measures are taken immediately to reduce the 
threats to this population, it is unlikely that the population will 
continue to exist (Wang et al., 2004, 2007b). Any single threat has the 
potential to be the final cause of extinction for this small population 
of dolphins.
    Response: Please note that in response to public comments received 
on the application and EA, L-DEO has modified the survey design (see L-
DEO's Supplemental EA) and adopted more precautionary mitigation 
measures to protect the critically endangered ETS population, as well 
as ease potential pressure on other coastal species.
    Comment 36: One commenter was concerned about the masking of the 
noises made by threats, hindering detection of the threats and 
increasing the impact of the existing threats (e.g., water rushing past 
a gillnet, commercial shipping) and the chances of mortality.
    Response: NMFS expects the masking effects of pulsed sounds on 
natural sounds or other anthropogenic sounds to be limited. Because of 
the intermittent nature and low duty cycle of seismic pulses, animals 
can emit and receive sounds in the relatively quiet intervals between 
pulses. Further, masking effects of seismic pulses are expected to be 
negligible in the case of the smaller odontocetes, given the 
intermittent nature of seismic pulses plus the fact that sounds 
important to these species are predominantly found at much higher 
frequencies than are the dominant components of airgun sounds.
    Marine mammal communications will not be masked appreciably by the 
multibeam echosounder signals given the low duty cycle of the 
echosounder and the brief period when an individual mammal is likely to 
be within its beam. The majority of energy should be concentrated in 
the beam (Kremser et al., 2005). Furthermore, in the case of baleen 
whales, the MBES signals (12 kHz) do not overlap with the predominant 
frequencies in the calls, which would avoid any significant masking. 
Masking effects on marine mammals are discussed further in Appendix 
B(4) of L-DEO's EA.
    Comment 37: Another commenter was concerned about the impacts on 
cetaceans due to displacement into other waters. He noted that for 
populations with low numbers, restricted distributions, displacement 
may increase energy expenditures by the species already compromised 
energetically (such as mothers with calves) and increase exposure to 
other threats (e.g., changes in migration routes may result in animals 
using waters with higher densities of fishing nets or lines and thus 
increase their risk of mortality due to entanglement).
    Response: The incidental harassment authorization includes 
mitigation and monitoring measures to reduce potential effects on 
populations with low numbers and restricted distributions. L-DEO and 
TAIGER's principal investigators have modified the cruise plan and 
survey design to protect displacing populations with low numbers and 
restricted distributions. First, L-DEO will shut down the airgun array 
immediately if there is a sighting at any distance of the Indo-Pacific 
humpbacked dolphin or finless porpoise. Second, L-DEO has re-routed the 
cruise's tracklines offshore Taiwan's west coast by approximately 20 km 
(10.8 nautical mi) to protect the critically endangered Sousa 
population and the finless porpoise (except for in the passage between 
the Penghu Islands and the Waishanding Jhou (Wau-san-ting Chou) 
sandbar, where the survey will pass through the 17.1 km (9.2 nautical 
mi) mid-line distance between the two possibly sensitive areas). 
Finally, L-DEO is restricted to conducting seismic surveys in water 
depths greater than 200 m (656 ft) in the South China Sea, and as far 
east as possible from the mainland China side of the Taiwan Strait, to 
reduce potential for effects on eastern Pacific gray whales, Indo-
Pacific humpback dolphins, and finless porpoises.
    Comment 38: Given the serious conservation status of the ETS sub-
population and the small population size of the JRE provisional 
population, there must be a higher level of precaution to avoid 
negative impacts of additional threats on these dolphins. Because even 
low level noise may increase risks to these dolphins by altering 
dolphin behavior, increasing ambient noise levels that can `mask'

[[Page 41271]]

biologically important sounds as well as `mask' sounds that allow the 
detection of other threats (e.g., the sound of water flowing past 
gillnets, approaching boats, etc.) should be avoided.
    Response: Please see NMFS' responses to comments under the Species 
of Particular Concern section.
Thresholds--Acoustic Thresholds for TTS and PTS
    Comment 39: The notice states that ``There is no specific evidence 
that exposure to pulses of airgun sound can cause PTS in any marine 
mammal, even with large arrays of airguns'' (p. 78304). Such a 
statement is misleading on many levels. For one, marine mammal science 
has yet to develop ways to measure or identify PTS (permanent threshold 
shift or permanent hearing loss) in the field. For another, it is known 
that exposure to loud impulsive sounds such as are produced by airguns 
can deafen terrestrial species, including people. To state that no 
specific evidence exists of PTS in marine mammals exposed to airguns 
when science cannot yet identify such evidence is both specious and 
disingenuous.
    Response: First, mitigation and monitoring requirements under the 
IHA are expected to prevent TTS, thus preventing PTS. NMFS acknowledges 
the limitations of current data on the measurement or identification of 
PTS in marine mammals, let along free-ranging animals.
    Recent scientific research on marine mammals and noise, include: 
estimating hearing capabilities using various behavioral and anatomical 
techniques; measuring sub-injurious impacts on hearing (temporary 
threshold shift, or TTS); and estimating lethal and injurious effects 
of acoustic exposure. Richardson et al. (1995) noted, based on 
terrestrial mammal data, that the magnitude of TTS in marine mammals 
was expected to depend on the level and duration of noise exposure, 
among other considerations. Southall et al., (2005) showed that long-
term (four to seven years) noise exposure on three experimental 
pinniped species (northern elephant seal (Mirounga angustirostris), 
harbor seal (Phoca vitulina), and California sea lion (Zalophus 
californianus) had caused no change on their underwater hearing 
thresholds at frequencies of 0.2 to 6.4 kHz.
    Finally, NMFS believes that the 180-dB re: 1 [mu]Pascal (rms) 
criteria is a reasonable and precautionary interpretation of the 
current data at this time. The precautionary nature of these criteria 
is discussed in Appendix B(6) of L-DEO's application and in previous 
Federal Register notices (e.g., 67 FR 46711, July 16, 2002). The 
current safety zones of 180 dB re: 1 [mu]Pa (rms) for cetaceans is 
conservative and will protect marine mammals from injury (Level A 
harassment).
    Comment 40: Recent research examining the propagation of airgun 
noise has shown that, contrary to predictions, received levels can 
decrease between 5 km and 9 km, but then increase at distances between 
9 km and 13 km (Madsen et al. 2006). The researchers stated that 
received levels ``can be just as high * * * at 12 km as at a range of 2 
km from the array'' (Madsen et al. 2006, p. 2374), ``beyond where 
visual observers on the source vessel can monitor effectively'' (Madsen 
et al. 2006, p. 2376). Arguably, this suggests that if the goal is to 
avoid subjecting animals to Level A harassment or worse, seismic 
surveys should be conducted at a minimum greater than 12 km from the 
offshore boundary of a coastal species' home range.
    Response: With regards to the Langseth's survey offshore of 
Taiwan's west coast, L-DEO has re-routed the survey by approximately 20 
km (10.8 nautical mi) to reduce potential effects for marine mammals. 
For the passage between the Penghu Islands and the Waishanding Jhou 
(Wau-san-ting Chou) sandbar, the survey will pass through the 17.1 km 
(9.2 nautical mi) mid-line distance between the two possibly sensitive 
areas. Please see the Mitigation--Tracklines section for additional 
information.
    Comment 41: HSI notes that the Federal Register notice states (p. 
78306): NMFS believes that to avoid the potential for permanent 
physiological damage (Level A harassment), cetaceans and pinnipeds 
should not be exposed to pulsed underwater noise at received levels 
exceeding, respectively, 180 and 190 dB re 1 [mu]Pa (rms). The 
precautionary nature of these criteria is discussed in Appendix B (6) 
of L-DEO's application, including the fact that the minimum sound level 
necessary to cause permanent hearing impairment is higher, by a 
variable and generally unknown amount, than the level that induces 
barely-detectable TTS and the level associated with the onset of TTS is 
often considered to be a level below which there is no danger of 
permanent damage [emphasis added]. The language (see emphasis) 
functionally defining Level A harassment is not found in the MMPA or in 
its implementing regulations. We advise the NMFS against inserting 
``unofficial'' definitions of harassment into notices, regardless of 
the context (here, it could be argued only hearing impairment was in 
question, but these words could be taken out of context). This wording 
could be seen to encompass a broad range of ``damage''--from a wound 
that heals into a scar (clearly minor) to a crippling injury that leads 
to death (so clearly not Level A harassment but rather serious injury). 
It also could be seen to exclude reversible injuries that should be 
categorized as Level A, not Level B harassment (such as, for example, 
broken bones that, until healed, could result in lost mating 
opportunities). We strongly recommend that this language be expunged 
from any subsequent rule on this application and not used again in any 
future notices.
    Response: NMFS concurs with HSI and offers the following amendment 
to the language contained in the proposed rule: ``NMFS believes that to 
avoid the potential for Level A harassment from exposure to pulsed 
underwater noise, cetaceans and pinnipeds should not be exposed to 
received levels exceeding, respectively, 180 and 190 dB re 1 [mu]Pa 
(rms). The precautionary nature of these criteria is discussed in 
Appendix B(6) of L-DEO's application, including the fact that the 
minimum sound level necessary to cause permanent hearing impairment is 
higher, by a variable and generally unknown amount, than the level that 
induces barely detectable TTS and the level associated with the onset 
of TTS is often considered to be a level below which there is no danger 
of permanent damage [emphasis added].''
    However, while not redefining the statutory definition, it is 
necessary for NMFS to include functional definitions of effects that 
fall into the category of Level A (or B) harassment in order to meet 
our statutory responsibility to quantify take. For example, for 
acoustic effects, because the tissues of the ear appear to be the most 
susceptible to the physiological effects of sound, and because 
threshold shifts tend to occur at lower exposures than other more 
serious auditory effects, NMFS has determined that PTS is the best 
indicator for the smallest degree of injury that can be measured. 
Therefore, the acoustic exposure associated with onset PTS is used to 
define the lower limit of the Level A harassment for acoustic effects.
    Comment 42: L-DEO should use the more precautionary 15 dB 
difference being employed in converting the SEL-based safety zones to 
SPL-based safety zones. (From the EA: ``At the distances where rms 
levels are 160-190 dB re 1 [mu] Pa, the difference between the SEL and 
SPL values for the same pulse measured at the same location usually 
average approximately 10-15 dB, depending on the propagation 
characteristics of the

[[Page 41272]]

location (Greene, 1997; McCauley et al., 1998, 2000a; Appendix B). In 
this EA, we assume that rms pressure levels of received seismic pulses 
will be 10 dB higher than the SEL values predicted by L-DEO's model. 
Thus, we assume that 170 dB SEL ~ 180 dB re 1 [mu]Pa rms.''). Thus 180 
dB rms SPL would be reached with a SEL of 165 dB.
    Response: L-DEO's results indicate (for shallow water, at least) 
the difference between rms and SEL varies between 8 and 13 dB. This 
result is more or less in line with that found by Madsen et al. (2006). 
The difference is higher at offsets, where the more impulsive direct 
arrival dominates the sound field, and lower at larger offsets, where 
the signal is more reverbatory. The range at which the decrease occurs 
depends a lot on water depth, but it's obvious that to use a 15 dB 
correction elsewhere would nearly double the numbers as far as offsets. 
The length of the signal is an important factor as well since there are 
greater differences between SEL and SPL, which means the signal is 
shorter, since it stretches as it travels further.
    Comment 43: The EA notes that Southall et al. (2007) stated that 
TTS is not injury. However I believe that they have overstated their 
conclusions. It is true that Southall et al. (2007) state: ``[impacts 
resulting in] * * * TTS rather than a permanent change in hearing 
sensitivity * * * are within the nominal bounds of physiological 
variability and tolerance and do not represent physical injury (Ward, 
1997).'' However, they also note that ``at present, however, there are 
insufficient data to allow formulation of quantitative criteria for 
non-auditory injuries'' and later acknowledge that, while they believe 
that ``strong behavioral responses to single pulses * * * are expected 
to dissipate rapidly enough as to have limited long-term consequence'' 
there are occasions where such responses may ``secondarily result in 
injury or death (e.g., stampeding)'' (Southall et al., 2007).
    Response: In its 2002 Final Rule for SURTASS LFA sonar, NMFS stated 
that temporary threshold shift (TTS) is not an injury. The required 
power-down and shut-down zones, if properly implemented, will avoid 
exposing marine mammals to levels associated with injury and minimize 
the number of marine mammals exposed to levels associated with TTS (See 
Mitigation section).
    With regards to non-auditory injuries, the conclusion that the 
potential effects on the stocks of marine mammals from non-auditory 
injuries would be minimal is discussed in the L-DEO's EA. NMFS believes 
that L-DEO's seismic survey has met all of these requirements and has 
been operating since 2003 without any known physical injuries to marine 
animals.
    Comment 44: ``Southall et al. (2007) also add the following caveat 
with regards to their report: Finally, we emphasize that exposure 
criteria for single individuals and relatively short-term (not chronic) 
exposure events, as discussed here, are insufficient to describe the 
cumulative and ecosystem-level effects likely to result from repeated 
and/or sustained human input of sound into the marine environment and 
from potential interactions with other stressors. Also, the injury 
criteria proposed here do not predict what may have been indirect 
injury from acoustic exposure in several cases where cetaceans of mass 
stranded following exposure to mid-frequency military sonar. Thus, 
since they did not attempt to consider all possible methods of injury 
in their deliberations and thus their final figures, they should not be 
directly applied to management decisions that must, by law, consider 
the full suite of potential impacts. Direct application of their 
criteria would thus not be precautionary enough to meet the required 
legal standards.''
    Response: NMFS currently uses the existing thresholds for Level A 
harassment (sound pressure level of 180 dB re 1 [mu] Pa [rms]) (dB 
SPL), and Level B harassment (160 dB SPL for impulse noise and 120 dB 
SPL for continuous sound). The science in the field of marine mammals 
and underwater sound is evolving relatively rapidly. NMFS is in the 
process of revisiting our acoustic criteria with the goal of developing 
a framework (Acoustic Guidelines) that allows for the regular and 
scientifically-valid incorporation of new data into our acoustic 
criteria. We acknowledge that this model has limitations; however, the 
limitations are primarily based on the lack of applicable quantitative 
data. We believe that the best available science has been used in the 
development of the criteria used in this IHA. We appreciate the input 
from the public and intend to consider it further as we move forward 
and develop the Acoustic Guidelines.
    Comment 45: It should be noted that repeated TTS can lead 
eventually to PTS, which would not be classed as injury under these 
criteria. Other potentially injurious impacts have also been shown to 
occur below levels that would cause TTS in humans. For example, 
impaired reading comprehension and recognition memory in children is 
linked to aircraft noise at exposure levels considerably less than 75 
dB (Stansfeld et al., 2005), which, according to the U.S. National 
Institute on Deafness and Other Communication Disorders (NIDCD, 2007), 
are unlikely to cause hearing loss (temporary or otherwise) even after 
long exposure (NIDCD, 2007).
    Response: Mitigation and monitoring requirements under the IHA 
should prevent TTS. While there have been debates among scientists 
regarding whether a permanent shift in hearing threshold (PTS) can 
occur with repeated exposures of TTS, at least one study showed that 
long-term (four to seven years) noise exposure on three experimental 
pinniped species had caused no change on their underwater hearing 
thresholds at frequencies of 0.2-6.4 kHz (Southall et al., 2005).
    TTS may be considered to be an adaptive process (analogous to the 
dark adaptation in visual systems) wherein sensory cells change their 
response patterns to sound. Tissues are not irreparably damaged with 
the onset of TTS, the effects are temporary (particularly for onset-
TTS), and NMFS does not believe that this effect qualifies as an 
injury.
    Comment 46: It is strange that an entire special issue devoted to 
noise-related stress responses in marine mammals resulting from a 
multi-disciplinary panel of experts does not get a single mention in 
this section, even though a discussion of likely impacts is offered in 
Wright et al. (2007a, b) and the other papers within (all of which are 
cited therein). The papers are cited in Southall et al. (2007), which 
the authors have obviously read. I will not repeat the conclusions 
here, but suggest they are included within the EA (or more likely an 
EIS) before this survey begins.
    Response: NSF/L-DEO presented the Southall et al. (2007) study as 
one of several pieces of information that relate to this topic. 
However, NMFS does not solely rely upon NSF's EA to arrive at its 
determinations. NMFS is aware of Wright et al. (2007a, b) paper as well 
as others published in the International Journal of Comparative 
Psychology. However, NMFS finds that the information is not such that 
it will affect NMFS' findings.
    Comment 47: There is a high likelihood that many individuals will 
be exposed to sound levels that qualify as Level A harassment. Any 
additional threats (especially those where many uncertainties exist 
about their impacts and that have the potential to cause serious harm 
or even death) to cetaceans on the brink of extinction are not 
``negligible'' for the affected species or stocks.

[[Page 41273]]

    Response: The mitigation and monitoring requirements under the IHA 
are expected to prevent TTS (Level B harassment), thus preventing PTS 
(Level A harassment). NMFS believes that it is very unlikely that Level 
A harassment will result and, therefore, NMFS has not authorized Level 
A harassment in this IHA.
    The IHA includes mitigation and monitoring measures to reduce the 
potential for injury or mortality, as well as instituting immediate 
shutdown protocols for the North Pacific right whale, Western Pacific 
gray whale, Indo-Pacific humpbacked dolphin, or finless porpoise.
    The mitigation measures (e.g., ramp-up, passive acoustic and visual 
monitoring, and quiet acoustic periods) set forth in the IHA ensure 
that there will be negligible impacts on the marine mammals by reducing 
short-term reactions to disturbance and minimizing any effects on 
hearing sensitivity. Due to these measures, and other reasons discussed 
in the Conclusions of this document, NMFS believes the impacts will be 
negligible.
    Comment 48: Until the effects of seismic surveys on these shallow 
water dolphins and the combined and cumulative impacts of all threats 
can be better understood, a ``safe'' exposure level cannot be 
determined.
    Response: The temporary nature of the activity and the 
implementation of the new shut-down criteria and mitigation measures as 
described in the Species of Particular Concern and the Mitigation 
sections, leads NMFS to believe the activity will have a negligible 
impact on shallow water populations of the Indo-Pacific humpback 
dolphin and finless porpoise.
    Comment 49: Variability and uncertainty in TTS threshold values. 
Furthermore the TTS threshold is based on limited information from only 
a few species of cetaceans. Most of the species of concern (e.g., 
baleen whales, beaked whales, humpback dolphin, finless porpoise, etc.) 
have not been examined and there appears to be great variability 
amongst individual cetaceans tested so interspecific extrapolations 
need to be considered cautiously (for a review, see Weilgart, 2007).
    Response: NMFS acknowledges that the test-animals may not fully 
represent the range of hearing responses across multiple taxa. However, 
NMFS has used the best science available to develop these thresholds 
which have been in effect for almost a decade. The current safety zone 
of 180 dB rms for cetaceans is conservative and will protect marine 
mammals from injury (Level A harassment).
    Comment 50: The difficulty in predicting sound levels underwater 
must be taken into account. Madsen et al. (2006) reported that seismic 
sounds did not always attenuate predictably and sound levels can be the 
same at 2 km as well as at 12km. The same unpredictability was found 
for sounds from acoustic harassment and deterrent devices, where 
increasing distance from the sound source did not always result in a 
reduction of exposure levels (Shapiro et al., 2009). Even within a 
fraction of a meter, sound level differences may be several orders of 
magnitude (Wahlberg, 2006 as cited in Shapiro et al., 2009). These 
studies are inconsistent with classic ideas of sound propagation and 
attenuation (see Richardson et al., 1995) and are very concerning 
because the very dynamic nature of the waters of western Taiwan and the 
concrete walls lining the shoreline may result in the sounds the 
airguns to reach unexpectedly dangerous exposure levels within the 
distribution of the ETS population.
    Response: Please see NMFS' response to Comment  in this 
section.
    Comment 51: The survey will bring the Langseth to waters within 1 
km from the shores of Taiwan and right through the middle of almost the 
entire linear coastal distribution of the eastern Taiwan Strait 
population. At this distance from shore, the Langseth will inevitably 
subject the entire population to noise levels greater than 180 dB. Even 
staying at least 2 km from the coastline does absolutely nothing to 
reduce the noise exposure for these critically endangered (IUCN Red 
List) dolphins. And based on the values in Table 1 of the Federal 
Register notice, even at 8-10 km from shore, all dolphins will still be 
exposed to at least 160 dB with an unknown number that may be exposed 
to > 180 dB.
    Response: Please see the Species of Particular Concern section.
    Comment 52: Given the threat of noise on the health of the ETS 
dolphins, the ETSSTAWG recommended a buffer for noise threats out to at 
least 5 km from shore (note: for an area with an expansive littoral 
zone such as western Taiwan, ``shore'' can vary greatly with tides; for 
clarity, ``shore'' is defined here to include the littoral zone at the 
lowest tide of the year). Calculations of how far out the Langseth 
should be to prevent exposure of ETS dolphins to received levels 
greater than 160 dB should be based on at least the recommended 5 km 
buffer boundary (i.e., the waters from shore, as defined above, to 5 km 
offshore should not be exposed to levels >160dB). Based on the values 
presented in Table 1 (of the Federal Register) the source should not be 
closer than 13 km from shore. However, given the population's critical 
status and the underestimated predicted distances for each exposure 
threshold level (especially for shallow water; see above), greater 
precaution is needed (i.e., the airguns should be even further from 
shore).
    Response: Please see the Mitigation section in this notice.
    Comment 53: For whales that are using the shallow waters (e.g., 
Taiwan Strait), the predicted distance for exposure levels to be 
greater than 160 dB was 6,227 to 8,000 m and for 180 dB the distances 
were 2,761 to 3,694 m. At these distances, detection of whales by 
observers can be difficult to impossible depending on sighting 
conditions. Therefore, some whales may be exposed to greater than 180 
dB without being detected by observers.
    Response: A key factor in estimating the number of undetected 
mammals that might occur within the 180 dB radius is the fact that many 
marine mammals move away from an approaching seismic vessel (e.g., 
Richardson et al., 1995; Stone, 2003). The conventional estimates of 
the proportions present but missed by visual observations, as described 
in 73 FR 78294, December 22, 2008, will overestimate (sometimes by very 
large factors) the numbers of mammals that might be exposed to high 
levels of sound near the ship. This is an important consideration in 
assessing possible exposures to high-level sound, especially for the 
more responsive species, notably some if not all baleen whales, beaked 
whales, and harbor porpoises. There is also some degree of avoidance by 
a variety of other odontocetes (Stone, 2003). In order to derive 
unbiased estimates of numbers that might be exposed to greater than 180 
dB, density-based estimates that include allowance for g(0) and f(0) 
would need further adjustment to allow for an ``avoidance probability'' 
factor. Such factors are not generally available. They would depend on 
species and circumstances, and for some species would, if applied, 
result in a large decrease the estimates of the numbers that would be 
exposed to high-level sound.
    Detectability is a measure of the probability of detecting a marine 
mammal that is present on a vessel's trackline (i.e., g(0)). L-DEO uses 
the most applicable detectability values as provided in Koski et al. 
(1998) whenever estimates of marine mammal detectability have not 
already been calculated. They have compiled previously reported 
detectability information for various species and

[[Page 41274]]

used data on surfacing/dive cycles to estimate detectability values for 
species or species groups of marine mammals for which there are no 
published detectability values. Thus the estimates of incidental take 
in L-DEO's IHA application and the associated NSF EA are either the 
same (if detectability had already been taken into account) or higher 
than would be obtained by direct application of previously reported 
density data.
    NMFS acknowledges these limitations. However, acoustic detection 
has been demonstrated to augment visual detection of marine mammal in 
population estimates in a number of studies (e.g., Moore et al., 1999; 
Swartz et al., 2002). The use of PAM will improve the detection of 
marine mammals by indicating to the MMVOs when a vocalizing animal is 
potentially near and prompting a shut-down when necessary.
    Comment 54: Statements such as ``However, there has been no 
specific documentation of TTS let alone permanent hearing damage, i.e., 
PTS, in free-ranging marine mammals exposed to sequences of airgun 
pulses during realistic field conditions'' are stupid.
    Response: NMFS acknowledges the commenter's opinion. However, at 
the time of publication, the statement that ``there has been no 
specific documentation of TTS let alone permanent hearing damage, i.e., 
permanent threshold shift (PTS), in free-ranging marine mammals exposed 
to sequences of airgun pulses during realistic field conditions,'' was 
correct. Lucke et al., (2009) recent auditory study on documenting 
threshold shift in harbor porpoises was published after L-DEO submitted 
their application.

Monitoring

    Comment 55: ETSSTAWG states that a minimum of two MMOs should be 
used at all times, with one of those having considerable prior 
experience as a MMO (preferably within the area of Taiwan).
    Response: Three MMOs are typically on watch at a time, two MMVOs on 
the observation tower conducting visual observations and the third 
monitoring the PAM equipment. On the observation tower, two MMOs are on 
watch during all daylight hours except during meal times. At least one 
MMO and one MMVO will be on watch during meal times. The MMOs onboard 
the Langseth are experienced and qualified, and additional regional 
experts have been brought onboard for this survey.
    Comment 56: The Commission recommends that, before issuing the 
requested authorization, the NMFS provide additional justification for 
its preliminary determination that the planned monitoring program will 
be sufficient to detect, with a high level of confidence, all marine 
mammals within or entering the identified safety zones. At a minimum, 
such justification should (1) identify those species that it believes 
can be detected with a high degree of confidence using visual 
monitoring only, (2) describe detection probability as a function of 
distance from the observer, (3) describe changes in detection 
probability at night, and (4) explain how close to the vessel marine 
mammals must be for observers to achieve the anticipated high nighttime 
detection rate.
    Response: NMFS believes that the planned monitoring program will be 
sufficient to detect (using visual detection and passive acoustic 
monitoring [PAM]), with reasonable certainty, most marine mammals 
within or entering identified safety zones. This monitoring, along with 
the required mitigation measures (see below), will result in the least 
practicable adverse impact on the affected species or stocks and will 
result in a negligible impact on the affected species or stocks.
    The Langseth is utilizing a team of trained marine mammal observers 
(MMOs) to both visually monitor from the high observation tower of the 
Langseth and to conduct PAM. However, there are limitations on marine 
mammal detection, and ramp-ups are required as mitigation measures due 
to these limitations. This monitoring, along with the required 
mitigation measures (see below), will result in the least practicable 
adverse impact on the affected species and/or stocks and will result in 
a negligible impact on the affected species and/or stocks.
    When stationed on the observation platform of the Langseth, the eye 
level will be approximately 17.8 m (58.4 ft) above sea level, so the 
visible distance (in good weather) to the horizon is 16.5 km (10.3 mi; 
the largest safety radii is approximately 3.7 km, 2.3 mi). Big eyes are 
most effective at scanning the horizon (for blows), while 7x50 reticle 
binoculars are more effective closer in (MMOs also use a naked eye 
scan). Night vision devices (NVDs) will be used in low light 
situations. Additionally, MMOs will have a good view in all directions 
around the entire vessel. Also, nearly 93 percent of the survey lines 
are in intermediate or deep water depths, where the safety radii are 
all less than 1.4 km (0.87 mi).
    Theoretical distance of this PAM system is tens of kilometers. The 
PAM is operated both during the day and at night. Though it depends on 
the lights on the ship, the sea state, and thermal factors, MMOs 
estimated that visual detection is effective out to between 150 and 250 
m (492 and 820 ft) using NVDs and about 30 m (98.4 ft) with the naked 
eye. However, the PAM operates equally as effectively at night as 
during the day, especially for sperm whales and dolphins.
    The PAM has reliable detection rates out to 3 km (1.9 mi) and more 
limited ability out to 10s of km. The largest 180-dB safety radii (3.7 
km, 2.3 mi), which is the radii within which the Langseth is required 
to shut down if a marine mammal enters, are found when the 36 airgun 
array is operating in shallow water at a 9 m (29.5 ft) tow depth. Only 
approximately seven percent of the total 15,902 km survey lines of the 
planned seismic survey (excluding contingency) will take place in water 
less than 100 m deep (shallow water). The species most likely to be 
encountered in the waters off of SE Asia are pantropical spotted, 
Fraser's, and spinner dolphins, which have relatively larger group 
sizes (10s to 100s to 1,000s of animals for these various dolphin 
species), are not cryptic at the surface, and have relatively short 
dive times (approximately 6 min for some dolphin species), all which 
generally make them easier to visually detect. Other species that are 
likely to be encountered during the seismic survey include Bryde's 
whales and humpback whales, which have relatively long dive times; 
however they are not cryptic at the surface, have large blows and 
distinct physical features, all which generally make them easier to 
visually detect. Furthermore, the vocalizations of most of these 
species are easily detected by the PAM. During the Ewing cruise in the 
GOM in 2003, MMOs detected marine mammals at a distance of 
approximately 10 km (6.2 mi) from the vessel and identified them to 
species level at approximately 2.7 km (1.7 mi) from the vessel, though 
the bridge of that vessel was only 11 m (36 ft) above the water (vs. 
the Langseth which is more than 17 m (55.8 ft) above sea level). All of 
the 180-dB safety radii for other water depths and tow depths and for 
the single 40 in\3\ airgun to be used during ramp-ups and power-downs 
(see below) are less than 2 km (1.2 mi).
    The likelihood of visual detection at night is significantly lower 
than during the day, though the PAM remains just as effective at night 
as during the day. However, the Langseth will not be starting up the 
airguns unless the safety zone is visible for the entire 30 min prior 
(i.e., not at night), and therefore in all cases at night, the airguns 
will already be operating, which NMFS

[[Page 41275]]

believes will cause many cetaceans to avoid the vessel, which therefore 
will reduce the number likely to come within the safety radii. 
Additionally all of the safety radii in intermediate and deep water 
depths are smaller than 3 km (1.9 mi) and fall easily with the reliable 
detection capabilities of PAM.
    Comment 57: The Commission recommends that, before issuing the 
requested authorization, the NMFS clarify the qualifiers ``when 
practical'' and ``when feasible'' with respect to (1) using two MMOs to 
monitor the exclusion zone for marine mammals during daytime operations 
and nighttime start-ups of the airguns, and (2) using MMOs during 
daytime periods to compare sighting rates and animal behavior when the 
seismic airguns are operating and when they are not.
    Dr. John Wang states that the inadequacy of MMVO coverage in this 
respect would be wholly inadequate even for small-scale marine mammal 
surveys where the consequence of failing to detect animals are much 
less serious.
    Response: The Langseth carries five trained, NMFS-qualified and 
experienced MMOs for every seismic study involving use of an airgun 
system comparable to that planned for the TAIGER project. MMOs are 
appointed by L-DEO with NMFS concurrence. L-DEO plans to employ a 
regional expert as one of the MMOs, and negotiations were currently 
underway with experts from National Taiwan University, Academia Sinica, 
and National Taiwan Ocean University during the preparation of this 
notice. L-DEO will have a sixth MMO and regional expert during the 
second leg of the cruise as well. L-DEO will utilize two (except during 
meal times), NMFS-qualified, vessel-based MMVOs to watch for and 
monitor marine mammals near the seismic source vessel during all 
daytime airgun operations and before and during start-ups of airguns 
day or night. MMVOs will have access to reticle binoculars (7x50 
Fujinon), big-eye binoculars (25x150), and night vision devices to scan 
the area around the vessel. MMOs will alternate between binoculars and 
the naked eye to avoid eye fatigue. During all daytime periods, two 
MMVOs will be on effort from the observation town to monitor greater 
than 90 percent of the time. During mealtimes it is sometimes difficult 
to have two MMOs on effort, but at least one MMVO will be on watch 
during those brief scheduled times. Three MMOs are typically on watch 
at a time, and typically observe for one to three hours. Two MMVOs will 
also be on watch during all nighttime start-ups of the seismic airguns. 
A third MMO will be monitoring the PAM equipment 24 hours a day to 
detect vocalizing marine mammals present in the action area.
    Comment 58: Dr. John Wang states that in shallow waters (Taiwan 
Strait), the predicted distance for exposure levels of 180dB and 190dB 
was estimated by L-DEO to be 2,761 to 3,694m and 1,600 to 2,182 m, 
respectively. At these distances (which are underestimated) and under 
ideal sighting conditions, detection of finless porpoises by observers 
is of limited ineffectiveness at the closest range and very ineffective 
at the greater distances. Sighting effectiveness will drop dramatically 
even for highly experienced observers in slight seas. Under conditions 
where white caps are present, sightings of finless porpoises are rarely 
made and researchers generally stop observations. At several kilometers 
distance in shallow water, PAM would not be able to detect finless 
porpoises adequately because finless porpoises are not always actively 
vocalizing and the very high frequency sounds emitted by porpoises 
(Akamatsu et al., 1998) attenuate quickly so the PAM's detection range 
will be limited. Therefore, finless porpoises can and will likely be 
exposed to >>180dB without being detected especially if sighting 
conditions are not ideal. For finless porpoises, L-DEO's airguns have 
the potential to inflict serious permanent injuries or even cause 
death, directly or indirectly.
    Response: There is a scientific methodology to estimate the 
probability of detection marine mammal on the surface, as explained in 
detail in Buckland et al. (1993). This includes several components, 
including the probability that the mammal will be at the surface and 
potentially sightable while within visible range of the observers, the 
probability that an animal at the surface will in fact be detected, and 
the relationship between sighting probability and lateral distance from 
the trackline.
    A certain portion of the population is presumed to be submerged at 
any given time and is therefore unavailable for detection. However, if 
the ship speed is slow, many of these animals would surface at some 
point while within visual range of MMVO's aboard the approaching 
vessel. The speed of the Langseth, and other seismic vessels while 
operating airguns, will generally be four to five knots of vessels 
conducting marine mammal line transect surveys.
    All L-DEO estimates of potential numbers of animals take account of 
all these factors to the extent that available data allow. 
Detectability is a measure of the probability of detecting a marine 
mammal that is present on a vessel's trackline. L-DEO uses the most 
applicable detectability values as provided in Koski et al. (1998) 
whenever estimates of marine mammal detectability have not already been 
calculated. They compiled previously reported detectability information 
on various species and used data on surfacing/dive cycles to estimate 
detectability values for species or species groups of marine mammals 
for which there is no published detectability values. Thus the 
estimates of incidental take in L-DEO's IHA application and 
Supplemental EA are either the same (if detectability had already been 
taken into account) or higher than would be obtained by direct 
application of previously reported density data.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures. 
NMFS believes that L-DEO's revised survey as well as the implementation 
of the required monitoring and mitigation measures described in the IHA 
will have a negligible impact on the affected species or stocks of 
marine mammals in the study area. See Effects Analysis, Species of 
Particular Concern, and L-DEO's Supplemental EA.
Monitoring--PAM
    Comment 59: ETSSTAWG asks about the frequency range of the PAM 
system, and if it is suitable for detecting signals produced by all the 
marine mammals within the area.
    Response: L-DEO's PAM system is suitable for detecting frequencies 
up to 96 kHz (192 sampling rate). The virtual bandwidth of the new 
digital array and sound analysis workstation is 96 kHz (the real 
bandwidth is around 90 kHz), which is at least double when compared to 
some of the best PAM systems normally available and four times that of 
most of the basic systems. L-DEO has the potential for expanding the 
PAM system to a bandwidth of 160 kHz, but a new hydrophone array will 
need to be designed to add the required special additional sensors. The 
array is capable of detecting porpoises, but not harbor porpoises 
(Phocena phocena), which have clicks at 140 kHz.
    The low frequency sensor end of the PAM system can detect 
mysticetes, however there is a problem with low frequency noise and 
vibration induced in the array by movements in towing the acoustic 
array system, in particular if a short cable and a depressor are used. 
To allow detection of low frequency waves,

[[Page 41276]]

it is necessary to have a long cable towed with a good vibration 
damping system and the array should be deep and far from the ship. In 
the past, Right Wave's PAM system has been able to detect frequencies 
as low as 10 Hz for fin whales (on the NATO Alliance), but due to 
towing conditions on the Langseth the current configuration can detect 
a minimum low frequency of 100 Hz.
    The digital array is suitable for detecting beaked whales, as it 
can monitor and record at 48 kHz to get their clicks. The PAM's sound 
analysis and display system has been proven effective for detecting 
Cuvier's beaked whale clicks (Sirena 2008 cruise in the Alboran Sea). 
It is important to note here that in order to detect very diverse sound 
categories, it is necessary to set up a very powerful computer that is 
able to signal process to produce and display different real-time 
views, each view well-tailored on that particular signals' 
characteristics.
    The PAM system has been improved and now has a shot blanking 
system. A new piece of hardware compresses the shots without blanking 
them. It works on the PAM operator's headphone output and doesn't 
affect the recording system. This allows the PAM operator to hear faint 
signals along with the (volume compressed) ``shots'' so that they are 
always aware of what is occurring underwater.
    Comment 60: ETSSTAWG states the MMO operating the PAM system (which 
should be in addition to the other two at all times) should have 
considerable experience working with the acoustic signals of many of 
the marine mammal taxa that are likely to be encountered in the survey.
    Response: The MMO operating the PAM system will be on watch in 
addition to the two MMVOs watching from the observation tower. Right 
Waves, an Italian bioacoustics company, is providing L-DEO with state-
of-the-art underwater acoustic equipment and skilled operators. Right 
Waves started their studies on underwater acoustics more than 15 years 
ago at the Interdisciplinary Center for Bioacoustics and Environmental 
Research (CIBRA) Institute, which is part of the University of Pavia in 
Italy. They have organized and conducted several research cruises in 
order to develop their software, hardware, and data collection 
protocols. The PAM operators have applied acoustic monitoring and 
mitigation worldwide for both civil and military institutions. Right 
Waves is currently working with organizations such as WHOI and NATO to 
provide their expertise in underwater acoustics. They are also involved 
in writing mitigation policies for the Italian Navy, NATO, and other 
European organizations. Part of their activities is described and can 
be found on the CIBRA Web site at http://www.unipv.it/cibra. The Right 
Waves Web site will be available online soon. NMFS considers the 
operators of L-DEO's PAM system to be qualified and experienced.
    Comment 61: The Commission recommends that, before issuing the 
requested authorization, the NMFS consult with the applicant to clarify 
and describe the potential conditions that would render the use of PAM 
impracticable for complementing the visual monitoring program.
    Response: Before the issuance of the requested authorization, NMFS 
consulted with L-DEO to clarify and describe the potential conditions 
that would render the use of PAM impracticable for complementing the 
visual monitoring program. L-DEO's lead bioacoustician has stated that 
there are difficulties with towing the PAM array because the space off 
the stern of the Langseth is mostly filled by the airgun array and 
streamers. L-DEO tried to tow the PAM from the paravane boom, paravane 
tow cable, and with floats. Using these methods was not acceptable 
because the quality of acoustics was considered poor due to tow depth 
and it also posed a higher risk of totally losing the array. During L-
DEO's recent seismic survey near Tonga, PAM operators have found a more 
successful solution to towing the PAM array by using a depressor 
(intended to sink fishing gear) that can withstand rough weather and 
sea conditions. The depressor sinks the PAM array's lead-in cable so 
that it does not get too close to the airgun array cables. This 
technique, while it works, can still be improved for a series of 
reasons. Potential problems that the current PAM set up could 
experience on the Langseth include operations in very shallow waters 
(20 m or less) and operations in areas with large amounts of fishing 
gear (longlines, driftnets, etc.) that could lead to entanglement. L-
DEO has been provided two new PAM hydrophone arrays that are state-of-
the-art, one is a unique digital PAM array.
    Comment 62: Dr. John Wang states that L-DEO should address the 
effectiveness of PAM for detecting very high frequency vocalizations of 
small cetaceans in shallow waters several kilometers away (due to rapid 
attenuation of high frequency sounds).
    Response: Currently, the detection of high-frequency marine mammals 
signals in shallow water using PAM has limitations in terms of physics, 
and perhaps even more limitations in terms of the deployment of 
hydrophone arrays. The size of the cetacean is not likely to be a 
factor.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures, 
including temporal and spatial avoidance of species of particular 
concern, which includes some small cetacean species (e.g., Indo-Pacific 
humpback dolphins and finless porpoises). See NMFS' responses to 
comments above and L-DEO's Supplemental EA.
    Comment 63: Dr. John Wang states that L-DEO should address the 
ineffectiveness of PAM at determining the location and direction of 
travel of cetaceans.
    Response: One of the major reasons PAM is not a self standing 
mitigation tool is the limitations of determining range and bearing. 
For a seismic vessel on a fixed tract, the signal processing to 
determine a range has not yet arrived. Bearing is useful, but range is 
the critical measure for purposes of implementing mitigation measures 
for the safety radii. In a research vessel situation, free to change 
course, and with highly trained visual and acoustic teams, PAM can be 
quite effective to track and stay with vocal marine mammals. The 
potential to improve PAM technology certainly exists. See NMFS' 
responses to comments above.
    Comment 64: CSI states that in shallow water, PAM is unlikely to be 
effective in detecting finless porpoises. Finless porpoises are not 
always vocalizing and the high frequency sounds produced by finless 
porpoises attenuate quickly.
    Response: L-DEO's PAM system is capable of detecting the high 
frequency vocalizations of finless porpoises. See responses to comments 
regarding finless porpoises in Species of Particular Concern section 
below. See L-DEO's Supplemental EA for information. After issuance of 
the proposed IHA, L-DEO modified the cruise plan and adopted additional 
monitoring and mitigation measures to reduce potential impacts on 
finless porpoises. NMFS has not authorized any takes of finless 
porpoises in the IHA issued to L-DEO.
    Comment 65: Dr. John Wang states that in shallow water, PAM would 
be almost completely ineffective at detecting (never mind locating or 
tracking) cetaceans especially at the predicted rms distances for the 
different exposure levels. Furthermore, PAM is only capable of 
detecting cetaceans when they are vocalizing. Some species have been 
known to reduce

[[Page 41277]]

vocalizations during seismic surveys while other species do not 
vocalize much at or near the surface (e.g., beaked whales).
    Response: MFS believes that visual observers and PAM are effective 
tools for monitoring marine mammals in the affected area during the 
seismic survey. PAM is required for monitoring on the Langseth (when 
practicable), but not for the implementation of mitigation measures. 
PAM is used by MMOs and the lead bioacoustician aboard the Langseth for 
the detection of vocalizing marine mammals. Any confirmed marine mammal 
vocalization detections using PAM are communicated to the MMVOs on 
watch on the observation tower to help alert the MMVOs to the presence 
of vocalizing marine mammals in the survey area (not necessarily the 
safety radii). The use of PAM is therefore used in aid of visual 
observers, who monitor the applicable safety radii for presence of 
marine mammals. The detection of marine mammals in the vicinity of the 
array in turn triggers mitigation requirements specified in the IHA 
issued to L-DEO.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures. 
NMFS believes that the L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area.
Monitoring--Visual
    Comment 66: ETSSTAWG states L-DEO's ability to monitor the 
exclusion zone (``EZ'') proposed by NMFS cannot be properly evaluated 
because the EZ has not yet been established and awaits further data 
from L-DEO's 2007/2008 calibration study. See 73 FR 78297, December 22, 
2008.
    Response: Acoustic data analysis for L-DEO's 2007/2008 calibration 
study is ongoing. Results from the 2007/2008 calibration study in the 
Gulf of Mexico are in review and a scientific paper on the Langseth's 
airgun sound source will be published on a future date (Tolstoy, pers. 
comm.). After the analysis is complete and published, the empirical 
data from the 2007/2008 calibration study will be used to refine the 
EZ's for future proposed cruises as appropriate. NMFS considers the 
results from the 2004 calibration study to be the best scientific data 
available for L-DEO's purposes of monitoring the EZ's described in 
Table 1 (above).
    Comment 67: Dr. John Wang states that although large pink/white 
animals (i.e., Indo-Pacific humpback dolphins) are highly visible 
within 1 km in calm conditions, younger grey and spotted animals can be 
easily missed. However, beyond 1 km, high atmospheric humidity and smog 
that is often present along the west coast of Taiwan can reduce 
visibility of these animals by a considerable but unquantified amount 
(personal observation) even with optical aids. Furthermore, because 
these dolphins are often swimming along the shoreline next to the surf, 
even pink/white dolphins can be easily missed by offshore observers 
looking inshore towards the surf. Jefferson (2000) showed that humpback 
dolphin sightings dropped off considerably beyond a perpendicular 
distance of about 400 to 500 m and none were observed beyond about 
1,500 m. Within the predicted (but underestimated) distances for 
exposure to >180 dB, many dolphins can go undetected by MMVOs.
    Response: NMFS agrees that some species of marine mammals can be 
difficult to visually detect in certain environmental conditions. In 
order to reduce potential impacts on the ETS sub-population of Indo-
Pacific humpback dolphins, L-DEO will limit seismic survey lines to 
take place at least 20 km from the west coast of Taiwan, except for in 
the passage between the Penghu Islands and the Waishanding Jhou (Wau-
san-ting Chou) sandbar, where the survey will pass through the 
approximately 17.1 km mid-line distance between the two possibly 
sensitive areas, subject to the limitations imposed by other foreign 
nations, to minimize the potential for exposing Indo-Pacific humpback 
dolphins to SPLs >=160 dB re 1 [mu]Pa (rms).
    Comment 68: Dr. John Wang states that L-DEO should address the 
ineffectiveness of MMVOs at detecting cetaceans, especially small 
cetaceans, under non-ideal sighting conditions (low light, rough seas, 
rain) and the ineffectiveness of MMVOs at detecting cetaceans, 
especially small cetaceans, at distances beyond about 1 km but well 
within the waters ensonified by levels >180 dB in shallow waters 
(potentially farther than 3.7km).
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. L-DEO will be avoiding areas where some species of small 
cetaceans that are difficult to visually detect (e.g., Indo-Pacific 
humpback dolphins and finless porpoises) are likely to occur. A sixth 
MMO and regional expert will be onboard the Langseth for the duration 
of the survey in order to improve visual detection capabilities. L-DEO 
will also be using a PAM system in order to detect any vocalizing 
marine mammals. See L-DEO's Supplemental EA.
    Comment 69: Dr. John Wang states that L-DEO should address the 
ineffectiveness of MMVOs at detecting finless porpoise at distances 
beyond 1 km under any conditions, but well within the waters ensonified 
by levels >180dB (possibly >190 dB) in shallow waters (potentially 
farther than 3.7km).
    Response: The monitoring methods for detection of marine mammals on 
the Langseth are relatively standard methods used onboard vessels for 
conducting marine mammal abundance surveys and under IHA's. The PAM 
system onboard the vessel is capable of detecting the vocalizations of 
finless porpoises. A description of the monitoring methods can be found 
below (see Monitoring and Mitigation). In response to concerns about 
marine mammal species of particular concern, L-DEO will be avoiding the 
potential habitat of finless porpoises. L-DEO will shut-down the airgun 
array immediately if there is a sighting at any distance of finless 
porpoises in order to prevent exposure of animals to received levels 
greater than or equal to 160 dB and especially 180 dB. No incidental 
take of finless porpoises are anticipated or authorized in the IHA 
issued to L-DEO.
    Comment 70: Dr. John Wang states that L-DEO should address the 
ineffectiveness of MMVOs with little experience with local marine 
mammal species and conditions (species identification can be 
problematic even for experienced researchers in this region due to the 
large number of species). MMVOs that are highly experienced with the 
fauna and conditions of the region need to be involved.
    Response: The Langseth normally carries five qualified and 
experienced MMOs for every seismic study involving use of an airgun 
system comparable to the array used for this project. L-DEO will also 
employ a sixth MMO and regional expert for the duration of the survey. 
MMOs are appointed by L-DEO with NMFS concurrence.
    Comment 71: Dr. John Wang states that L-DEO should address MMVO 
fatigue and lack of vigilance during search (on-duty search times of up 
to four hours is far too long; should be reduced to rotations of 
between 30 and 60 minutes at most).
    Response: MMO's typically observe for one to three hours. Because 
there are usually two MMVO's on visual watch at a time, they alternate 
between visually observing with reticle binoculars (7x50

[[Page 41278]]

Fujinon), Big-eye binoculars (25x150), and the naked eye to avoid eye 
fatigue.
    Comment 72: Dr. John Wang states that L-DEO should address the 
ineffectiveness of night vision equipment for small cetaceans, 
especially at distances beyond about 1 km but well within the waters 
ensonified by levels >180dB in shallow waters (potentially farther than 
3.7km).
    Response: Though it depends on the lights on the ship, the sea 
state, and thermal factors, MMVOs estimated that visual detection is 
effective out to between 150 and 250 m using NVDs and about 30 m with 
the naked eye. However, the PAM operates equally as effectively at 
night as during the day, especially for sperm whales and dolphins 
(dolphins and porpoises are the only species likely to be detected in 
the ``shallow'' depths, where the safety zones are the largest).
    Marine geophysical surveys may continue into night and low-light 
hours is such segment(s) of the survey is initiated when the entire 
relevant safety zones are visible and can be effectively monitored. No 
initiation of airgun array operations is permitted from a shut-down 
position at night or during low-light hours (such as in dense fog or 
heavy rain) when the entire relevant safety zone cannot be effectively 
monitored by the MMVOs on duty. NMFS has included a requirement to this 
effect in the IHA issued to L-DEO.
    Comment 73: Dr. John Wang states that L-DEO should address the 
ineffectiveness of MMVOs at detecting beaked whales, especially when 
they are very quiet near the surface (detection is known to be very low 
even for experienced observers in good conditions).
    Response: NMFS agrees that beaked whales are difficult to detect at 
the surface. Three MMOs are typically on watch at a time, two on the 
observation tower conducting visual observations and the third 
monitoring the PAM equipment. The MMVOs will alternate between 
surveying with reticle binoculars (7x50 Fujinon), Big-eye binoculars 
(25x150), and the naked eye to avoid eye fatigue. The PAM system is 
capable of detecting beaked whale clicks as well.
    Statements have been made in the past that little information is 
available on beaked whales because they avoid survey vessels. One can 
presume therefore, that MMOs onboard a vessel conducting seismic 
operations are unlikely to see beaked whales not only because they are 
cryptic, but also because beaked whales are likely to avoid an 
approaching sound source and leave the area.
    When operating the sound source(s), L-DEO will minimize approaches 
to slopes, submarine canyons, seamounts, and other underwater geologic 
features, if possible, because of sensitivity of beaked whales and 
possible beaked whale habitat. If concentrations or groups of beaked 
whales are observed (by visual or passive acoustic detection) at a site 
such as on the continental slope, submarine canyon, seamount, or other 
underwater geologic feature just prior to or during the airgun 
operations, those operations will be powered/shut-down and/or moved to 
another location along the site, if possible, based on recommendations 
by the on-duty MMO aboard the Langseth. NMFS has included requirements 
to this effect in the IHA issued to L-DEO.
    Comment 74: Dr. John Wang states that L-DEO should address the 
ineffectiveness of MMVOs at detecting, tracking and following animals 
entering and exiting the area being ensonified by sounds greater than 
the thresholds stated (in shallow waters >180dB can be farther than 
3.7km).
    Response: There are significant limitations to PAM as PAM 
technology is presently immature, yet constantly improving. PAM is a 
useful enhancement tool to visual observer efforts and every effort is 
made to use it when practicable. NMFS believes that visual observers 
and PAM are effective tools for monitoring marine mammals in the 
affected area during the seismic survey. PAM is required for monitoring 
on the Langseth (when practicable), but not for the implementation of 
mitigation measures. PAM is used by MMOs and the lead bioacoustician 
aboard the Langseth for the detection of vocalizing marine mammals. Any 
confirmed marine mammal vocalization detections using PAM are 
communicated to the MMVOs on watch on the observation tower to help 
alert the MMVOs to the presence of vocalizing marine mammals in the 
survey area (not necessarily the safety radii). The use of PAM is 
therefore used in aid of visual observers, who monitor the applicable 
safety radii for presence of marine mammals. The detection of marine 
mammals in the vicinity of the array in turn triggers mitigation 
requirements specified in the IHA issued to L-DEO.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures. 
NMFS believes that L-DEO's revised survey as well as the implementation 
of the monitoring and mitigation measures described in the IHA will 
have a negligible impact on the affected species or stocks of marine 
mammals in the study area.
    Comment 75: Dr. John Wang states that it is unclear how it can be 
visually observed that an animal has left the EZ if the EZ is more 
distant than 1 km and during poor sighting conditions. Not detecting an 
animal within the EZ boundary may be determined erroneously as the 
animal having left the area rather than observers failing to see the 
animal. Such situations are likely to occur very frequently when 
sightings conditions are not ideal and the EZ's distance from source 
extends beyond 1km. Obviously, this can have serious consequences.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures. L-DEO will alter speed or course during seismic 
operations if a marine mammal, based on its position and relative 
motion, appears likely to enter the relevant safety zone. If speed or 
course alteration is not safe or practicably, or if after alteration 
the marine mammal still appears likely to enter the safety zone, 
further mitigation measures, such as a power-down or shut-down, will be 
taken. Following a power-down, if the marine mammal approaches the 
smaller designated safety radius, the airguns must then be completely 
shut-down. Airgun activity will not resume until the MMVO has visually 
observed the marine mammal(s) exiting the safety radius and is not 
likely to return, or has not been seen within the radius for 15 min 
(species with shorter dive durations--smaller odontocetes) or 30 min 
(species with longer dive durations--mysticetes and large odontocetes, 
including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales). 
Following a power-down or shut-down and subsequent animal departure, 
airgun operations may resume following ramp-up procedures described in 
the IHA. NMFS has included requirements to these effects in the IHA 
issued to L-DEO. NMFS believes that L-DEO's revised survey as well as 
the implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area.
    Comment 76: Dr. John Wang states that secondary support vessels 
should be used to search for cetaceans with MMVOs to cover a sufficient 
amount of water to reduce the number of marine mammals being exposed to 
>160 dB.
    Response: Prior to issuing this IHA, NMFS thoroughly investigated 
all

[[Page 41279]]

measures that might reduce the incidental taking of marine mammals to 
the lowest level practicable. Monitoring and mitigation measures are 
discussed later in this document. Mitigation measures, such as aerial 
overflights or support vessels to look for marine mammals prior to an 
animal entering a safety zone, may be given consideration if the safety 
zone cannot be adequately monitored from the source vessel. 
Consideration also must be given to aircraft/vessel availability, 
access to nearby airfields, distance from an airfield to the survey 
area, and the aircraft's flight duration. These are serious safety 
issues regarding aircraft flights over water that must be considered 
prior to requiring aerial overflights. Additional consideration must be 
give to the potential for aircraft to also result in Level B harassment 
since a plane or helicopter would need to fly at low altitudes to be 
effective.
    Even if aircraft or a second vessel are not necessary or feasible 
to monitor a safety zone, they might be appropriate to monitor 
shorelines (presumably for strandings related to the activity). For 
this survey, the most appropriate monitoring is for the MMOs onboard 
the Langseth to observe visually and using the PAM system.
    Comment 77: CSI states that based on the table of predicted rms 
distances for different received levels, MMVOs may be completely 
ineffective for detecting small cetaceans in shallow coastal waters 
because the distance from source will be great even for 190 dB received 
level (1,600 to 2,182 m); for 180 dB, the distances can be 2,761 to 
3,694 m from source and for 160 dB, the distances are 6,227 to 8,000 m. 
Again, these distances must be considered underestimates because the 
coastal waters of western Taiwan in which some cetaceans inhabit are 
much shallower than 100 m (e.g., the critically endangered ETS sub-
population of Indo-Pacific humpback dolphin are in waters from 1.5 to 
15 m deep; finless porpoises and Indo-Pacific bottlenose dolphins are 
often commonly observed in waters shallower than about 50 m). Finless 
porpoises are difficult to detect even if they are within several 
hundred meters and sighting is during excellent conditions and by 
experienced observers (note: excellent weather conditions for sighting 
cetaceans in the waters around most of Taiwan, especially western 
Taiwan, are very limited). Nighttime visual detection of these coastal 
species is impossible at the distances shown above even with night-
vision equipment. MMVOs have limited effectiveness in detecting many 
deep-diving species such as beaked whales and Kogia sp. These are all 
difficult species to observe and study by experienced researchers. 
Barlow (1999) reported that very few beaked whales are detected even in 
prime sighting conditions by cetacean researchers, Barlow and Gisiner 
(2006) estimated that less than 2% of the beaked whales are likely to 
be observed by typical mitigation monitoring (this estimation did not 
account for observer experience, which will greatly affect detection). 
With such a low detection rate, other mitigation measures dependent 
upon detection and tracking will be compromised. None of the mitigation 
measures takes into account sighting conditions. This is important as 
several of the mitigation measures are dependent upon observers 
sighting marine mammals.
    Response: NMFS agrees that some deep-diving species (such as beaked 
whales and Kogia sp.), which may be found in the study area, are 
cryptic at the surface and difficult to observe. The Langseth carried 
five qualified and experienced MMOs for every seismic study involving 
use of an airgun system comparable to that used for this project. MMOs 
are appointed by L-DEO with NMFS concurrence. L-DEO is also employing a 
regional expert as a sixth MMO.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures. 
NMFS believes that the L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area. See Species of 
Particular Concern and L-DEO's Supplemental EA.
    Comment 78: CSI states that L-DEO claims that ``marine mammal 
detection by MMVOs is high at short distances from the source.'' With 
the possible exception of 180 dB at 950 m for deep water, the distances 
mentioned above (especially for operations in shallow waters) are not 
short for sighting cetaceans (small or large). Detection of most 
species drops off beyond 1 km from a ship. Even 25x150 (Big-eye) 
binoculars may have limited use in a region with high humidity and smog 
in coastal regions (e.g., western Taiwan), which can reduce the clarity 
of high power optical aids. The detection of finless porpoises at 
distances beyond 1 km is poor. At 3,694 m, detection for small 
cetaceans is limited and maybe questionable (especially for finless 
porpoises) when sighting conditions are sub-optimal. In no way can the 
detection of small cetaceans in shallow water at distances of several 
kilometers be considered high. For beaked whales, only a small 
proportion of the animals are detected by experienced observers in good 
sighting conditions (Barlow, 1999). As such, beaked whale detection 
cannot be considered to be high either. Because detection of both 
shallow water small cetaceans and beaked whales were wrongly concluded 
to be high, take by injury or death cannot be dismissed and the 
potential for temporary or permanent hearing impairment is not low and 
(as discussed above) cannot be avoided by implementing the inadequate 
mitigation measures proposed.
    Response: The Langseth travels at a much slower operation speed 
(four to five kts) than vessels conducting cetacean surveys (typically 
10 kts). Statements have been made in the past that little information 
is available on beaked whales because they avoid survey vessels. One 
can presume therefore, that MMVO's onboard a vessel conducting seismic 
operations are unlikely to see beaked whales not only because they are 
cryptic, but also because the animals would see or hear the slowly 
approaching vessel and leave the area. NMFS presumes that beaked whales 
will similarly avoid sources of anthropogenic noise, provided they are 
afforded sufficient notice of the activity through a gradual increase 
in noise levels rather than receiving a sudden, loud sound that might 
inflict a panic reaction or perhaps serious injury.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures. 
NMFS believes that the L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area. See Species of 
Particular Concern and L-DEO's Supplemental EA.
    Comment 79: Seismic surveys should not be conducted in poor 
cetacean sighting conditions (low light, SS>4, rain, heavy fog or haze) 
until a proven (acceptable to most marine mammal scientists) method for 
detecting cetaceans is developed for such conditions. Low light and 
night time seismic surveys should not be permitted at this time.
    Dr. John Wang states that detection of marine mammals as part of a 
mitigation measure has to be at least as effective, but preferably 
better, at detecting cetaceans as cetacean survey projects because the 
consequences are more serious if cetaceans are not detected.

[[Page 41280]]

    Response: MMO's effectively conduct systematic surveys for 
detecting cetaceans during the seismic cruise onboard the Langseth. In 
addition to visual observations using reticle binoculars, big-eye 
binoculars, night vision devices, and the naked eye, PAM is used day 
and night (as practical), which can detect vocalizing marine mammals 
present in the area. Many dedicated cetacean survey projects use the 
same or similar equipment as the MMO's onboard the Langseth. The 
Langseth's crew will also assist in detecting marine mammal, when 
practicable.
    During ramp-ups of the airgun array, if for any reason the entire 
radius cannot be seen for the entire 30 min (i.e., rough seas, fog, 
darkness), or if marine mammals are near, approaching, or in the safety 
radius, the airguns may not be started up. Marine seismic surveys may 
continue into night and low-light hours if such segment(s) of the 
survey is initiated when the entire relevant safety zones are visible 
and can be effectively monitored. No initiation of airgun array 
operations is permitted from a shut-down position at night or during 
low-light hours (such as dense fog or heavy rain) when the entire 
relevant safety zone cannot be effectively monitored by the MMVOs on 
duty.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures. 
NMFS believes that the L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area.
    Comment 80: The Commission recommends that, before issuing the 
requested authorization, the NMFS extend the monitoring period to at 
least one hour before initiation of seismic activities and at least one 
hour before the resumption of airgun activities after a power-down 
because of a marine mammal sighting within the safety zone.
    Response: As the Commission points out, several species of deep-
diving cetaceans are capable of remaining underwater for more than 30 
minutes, however, for the following reasons NMFS believes that 30 
minutes is an adequate length for the monitoring period prior to the 
start-up of airguns: (1) Because the Langseth is required to ramp-up 
the time of monitoring prior to start-up of any but the smallest array 
is effectively longer than 30 minutes (ramp-up will begin with the 
smallest gun in the array and airguns will be added in sequence such 
that the source level of the array will increase in steps not exceeding 
approximately 6 dB per 5 min period over a total duration of 20-30 
min), (2) in many cases MMOs are making observations during times when 
seismic is not being operated and will actually be observing prior to 
the 30 min observation period anyway, (3) the majority of the species 
that may be exposed do not stay underwater more than 30 minutes, and 
(4) all else being equal and if deep diving individuals happened to be 
in the area in the short time immediately prior to the pre-start-up 
monitoring, if an animal's maximum underwater time is 45 min, there is 
only a one in three chance that the last random surfacing would be 
prior to the beginning of the required 30 min monitoring period.
    Also, seismic vessels are moving continuously (because of the long, 
towed array) and NMFS believes that unless the animal submerges and 
follows at the speed of the vessel (highly unlikely, especially when 
considering that a significant part of their movements is vertical 
[deep-diving]), the vessel will be far beyond the length of the safety 
radii within 30 min, and therefore it will be safe to start the airguns 
again.

Mitigation

    Comment 81: Dr. John Wang states that the effectiveness of the 
mitigation measures proposed by L-DEO for reducing threats range 
between having questionable effectiveness and being entirely 
inadequate.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area.
    Comment 82: NRDC is concerned that L-DEO's EA and NMFS' proposed 
IHA do not meet the rigorous standards of environmental review required 
by the NEPA and the MMPA. For example, L-DEO's EA does not properly 
analyze impacts or adopt adequate mitigation measures. Although the EA 
notes the lack of scientific information regarding species distribution 
and acoustic impacts of seismic activities, it nonetheless and without 
basis concludes that the proposed surveys will have only ``minor'' 
effects on marine mammal species. NMFS' proposed IHA also notes the 
lack of density data yet nevertheless concludes, again without basis, 
that the proposed seismic surveys will have only negligible impacts on 
marine mammals. And, like L-DEO, NMFS does not propose meaningful 
mitigation measures.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area. NMFS and NSF 
have satisfied all requirements of NEPA and the MMPA.
    Comment 83: WaH states that while it may be true that some of the 
planned monitoring and mitigation measures ``would reduce the 
possibility of injurious effects,'' the proposed monitoring and 
mitigation measures are inadequate and cannot be argued to prevent the 
possibility of injurious effects to cetaceans, which are highly likely 
to occur. The claim in the EA that ``no long-term or significant 
effects are expected on individual marine mammals * * * the populations 
to which they belong, or their habitats'' is ill-founded and should be 
reconsidered in light of the above concerns.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA issued to L-DEO will have a negligible impact on 
the affected species or stocks of marine mammals in the study area. See 
L-DEO's Supplemental EA.
    Comment 84: WaH states that there is a lack of understanding of the 
distribution and status of the species and populations mentioned in 
their comments highlights the need for greater precaution and 
investigation prior to carrying out seismic surveys in this region. 
However several proposed monitoring and mitigation measures do not 
reflect the need for precaution, for example: (1) The proposed number 
of MMOs is insufficient (a minimum of only one observer working during 
daytime operations, except for 30 minutes before and after ramp-up when 
this will be increased to two observers); (2) nighttime seismic survey 
could be (but are not) prohibited, meaning impaired effectiveness of 
MMVOs and greater reliance on PAM, which

[[Page 41281]]

provides no certainty of detection of animals that are not vocalizing.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. The Langseth carries five qualified and experience MMOs for 
every seismic study involving the use of an airgun system comparable to 
that planned for this project. L-DEO is employing a regional expert as 
a sixth MMO. Three MMOs are typically on watch at a time, two on the 
observation tower conducting visual watch and the third MMO monitoring 
the PAM equipment. On the tower, two MMVOs are on watch during all 
daylight hours except during meal times. The scientists conducting the 
survey have considered the recommendation for no nighttime seismic 
operations, and have decided that it is not feasible, as limiting the 
surveys to daytime only would either result in the loss of half of the 
data or would necessitate doubling the duration of the project. 
Doubling the duration of the surveys is not possible because the 
Langseth has other research commitments after this cruise, and because 
of weather conditions associated with the typhoon season. However, the 
seismic source will not be started if the observers cannot view the 
entire safety radius for any reason (darkness, for, or rough seas). In 
addition, PAM is being used day and night as practical, which can 
detect vocalizing marine mammals present in the study area. NMFS 
believes that L-DEO's revised survey as well as the implementation of 
the required monitoring and mitigation measures described in the IHA 
will have a negligible impact on the affected species or stocks of 
marine mammals in the study area.
    Comment 85: Minor and Wilson are greatly saddened to see the high 
proportion of cetaceans that are endangered in the proposed study area. 
Some of the species have population levels that are so low that the 
loss of a single individual could significantly increase the chances of 
extinction. Minor and Wilson do not feel that chasing these animals 
around with a boat that produces seismic ``bangs'' that are still 170 
dB at a distance of 7,808 m from the boat will be anything other than 
harmful to these endangered animals.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures. NMFS believes that L-DEO's revised survey as well 
as the implementation of the monitoring and mitigation measures 
described in the IHA will have a negligible impact on affected species 
or stocks of marine mammals in the study area.
    The principal investigator's intended work in the Taiwan Strait is 
designed so that seismic energy from the Langseth can be recorded by 
OBSs in the Taiwan Strait and by land instruments. By using both 
seismic reflections from various rock layers and refracted seismic 
energy they can determine the thickness of the crust and get an idea of 
the type of rocks in the crust. If they record data on a long profile 
they can compare the crustal structure, and, in the case of Taiwan, 
identify what the structure is before and after deformation caused by 
the collision with the Luzon volcanic arc. In Taiwan, the affects of 
collision increase from south to north and also from west to east.
    Comment 86: Dr. Linda Weilgart states that the treatment of 
possible impact is very superficial, and does not take into account 
that ecological and population-level consequences may result. 
Especially where many depleted species in the area are faced with a 
myriad of threats and stressors already, the addition of noise may 
prove to be the final straw. In nature, cumulative stressors often 
interact synergistically, particularly if there are several stressors. 
Noise impacts should not be reduced to merely hearing impairment, 
though that is certainly possible and serious. Even TTS can compromise 
an animal's survival, in that its feeding, predator avoidance, and 
social behavior are impacted. Other behavioral responses such as 
permanent avoidance of an area that is associated with a frightening, 
loud noise are also possible.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures in the study area. NMFS believes that L-DEO's 
revised survey as well as the implementation of the required monitoring 
and mitigation measures described in the IHA will have a negligible 
impact on the affected species or stocks of marine mammals in the study 
area.
    Comment 87: HSI states that the Federal Register notice for the 
proposed IHA and IHA application have failed to consider some key 
papers in the recent acoustics literature, at least one of which is a 
significant and telling omission. Madsen et al. (2006) is not cited by 
L-DEO in its application and although it is cited in the EA, the 
discussion there about its implications for marine mammals with high 
frequency hearing and the propagation of seismic airgun sounds is 
shallow. This is unacceptable. Clearly seismic airguns have the 
capacity to propagate well beyond the exclusion zones proposed by L-DEO 
and to affect marine mammals with higher frequency hearing, yet the 
mitigation measures discussed do not address this at all.
    Response: A number of comments pointed out shortcomings in the EA 
and proposed IHA that do not alter the overall conclusions (e.g., 
particular publications that were not cited); NSF and NMFS are grateful 
for those comments and have taken note of them for future reference.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures. 
NMFS believes L-DEO's revised survey as well as the implementation of 
the required monitoring and mitigation measures described in the IHA 
will have a negligible impact on the affected species or stocks of 
marine mammals in the study area.
    Comment 88: CSI states that the current EA is deficient, but its 
critique will provide stakeholders with resources to define what truly 
adequate mitigations are possible, while meeting the project's goals. 
Not only that, but by example, the world's increasingly active, but 
unregulated seismic industry will benefit from learning what 
mitigations are most effective.
    Response: NMFS disagrees with CSI's comment. NMFS reviewed the EA 
and determined that it contains an adequate description of the proposed 
action and reasonable alternatives, the affected environment, the 
effects of the action, and appropriate monitoring and mitigation 
measures.
    After issuance of the proposed IHA, L-DEO modified the cruise plan 
and adopted more precautionary monitoring and mitigation measures. NMFS 
believes that L-DEO's revised survey as well as the implementation of 
the required monitoring and mitigation measures described in the IHA 
will have a negligible impact on the affected species or stocks of 
marine mammals in the study area.
    Comment 89: CSI states that previous L-DEO authorizations have 
proceeded on the assumption that there was no proof of significant 
impact, without supporting adequate, directed research to validate that 
claim. The attached expert reviews declare several significant research 
questions that need to be answered to judge the potential impacts from 
this proposal. Will L-DEO, the NSF, and other supporters work with the 
experts to enable adequately mitigated seismic research?

[[Page 41282]]

    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area. NMFS prepared a 
Finding of No Significant Impact and determined that the issuance of an 
IHA for the take, by harassment, of small numbers of marine mammals 
incidental to L-DEO's March to July, 2009, seismic survey in SE Asia 
will not significantly impact the quality of the human environment, as 
described in the EA.
    Comment 90: Dr. McIntosh and Dr. Wu state that a mitigation plan 
has been developed that will insure the safety of marine mammals that 
may be present in the survey areas. With this mitigation plan and lack 
of documented historical impacts, they deem that injury to marine 
mammals is exceedingly unlikely and disturbance, if any, would be 
minimal, local, and short-term. In contrast, the impact of this 
research on our understanding of fundamental Earth processes is likely 
to be significant.
    Response: NMFS acknowledges the principal investigators' comments 
and expects L-DEO to comply with all the requirements stipulated in the 
IHA. After issuance of the proposed IHA, L-DEO negotiated with the 
project's principal scientists (Dr. McIntosh and Dr. Wu) and modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures. NMFS believes that L-DEO's revised survey as well 
as the implementation of the required monitoring and mitigation 
measures described in the IHA will have a negligible impact on the 
affected species or stocks of marine mammals in the study area.
    Comment 91: Dr. McIntosh and Dr. Wu state the Langseth is operated 
in strict compliance with requirements mandated by NMFS. The underlying 
guidelines are based on requirements of the ESA and the MMPA. The 
Langseth will have on board five marine mammal observers for visual and 
acoustic monitoring during all seismic operations. These operations 
will be ramped-down or shut down if marine mammals or sea turtles enter 
into the NMFS-approved safety zone. This mitigation plan is similar to 
those used during previous Langseth projects and previous seismic 
projects on the Ewing, the Langseth's predecessor. Based on past post-
cruise reports, this plan has successfully avoided takes of marine 
mammals during numerous seismic projects.
    Response: NMFS acknowledges the principal investigators' comments 
and expects L-DEO to comply with all the requirements stipulated in the 
IHA.
    Comment 92: Dr. McIntosh and Dr. Wu state, as noted above, their 
seismic operations will be in strict compliance with the mitigation 
practices developed by the NMFS, and we will avoid the sensitive near-
coastal habitat. This type of seismic project has been undertaken many 
times in the past, with marine biological observers present, and has 
not resulted in any observed impacts. Unlike many sources of marine 
noise, which emit continuous sound, seismic work involves a short pulse 
of acoustic energy followed by a significant period of quiet.
    Response: NMFS acknowledges the information and comments provided 
by the principal investigators of L-DEO's TAIGER seismic survey. NMFS 
fully expects L-DEO to comply with all the requirements stipulated in 
the IHA.
    Comment 93: Dr. McIntosh and Dr. Wu state that the seismic program 
will pass through any one area at a speed of about 8 km/hr, so any 
impact will be very limited in time, generally much less than one hour. 
Furthermore, the planned transects are very widely spaced, so most 
parts of the Taiwan Strait will be completely unaffected by the 
project.
    Response: NMFS acknowledges the information and comments provided 
by the principal investigators of L-DEO's TAIGER survey. This 
information was used by NMFS in making its necessary negligible impact 
determinations.
    Comment 94: ETSSTAWG states that the proposed mitigation practices 
are inadequate to prevent injury to cetaceans.
    Response: NMFS disagrees with ETSSTAWG's comment. After issuance of 
the proposed IHA, L-DEO modified its cruise plan and adopted more 
precautionary monitoring and mitigation measures. The combination of 
all the mitigation and monitoring measures, along with the avoidance 
responses of many marine mammals, ensure that takings, incidental to 
this activity, will result in no more than a negligible impact on 
affected species and stocks of marine mammals and will result in the 
least practicable impact on these affected species or stocks in the 
study area. See L-DEO's Supplemental EA.
    Comment 95: ETSSTAWG recommends that two cetacean observers, not 
just one, should be on watch at the same time. The duration of watch 
times should be reduced from 4 to 2 hours to prevent compromised 
efficiency as a result of fatigue. Also, observers should be familiar 
with the cetaceans expected in the area, the nature of the local 
environment (i.e., a locally trained person), operation of the PAM 
system, and the observation methods required.
    Response: The Langseth carries five qualified and experienced MMOs 
for every seismic study involving use of an airgun system comparable to 
that planned for this project. MMOs are appointed by L-DEO with NMFS 
concurrence. L-DEO has employed a regional expert as one of the MMOs 
for the duration of the survey. Three MMOs are typically on watch at a 
time, two on the observation tower conducting visual observations and 
the third monitoring the PAM equipment. On the tower, two observers are 
on watch during all daylight hours except during meal times. MMOs 
typically observe for one to three hours. Because there are usually two 
MMOs on the visual watch at a time, they alternate between observing 
with reticle binoculars (7x50 Fujinon), big-eye binoculars (25x150), 
and the naked eye to avoid eye fatigue.
    Comment 96: Dr. Robert Brownell and Dr. Lien-Siang Chou from 
National Taiwan University's Institute of Ecology and Evolutionary 
Biology state that the permit application is only requesting permission 
for the incidental harassment of marine mammals (Level B) while 
conducting the proposed marine geophysical survey in SE Asia. The 
survey area includes the west coast of Taiwan, which is a hot spot for 
small cetacean mass stranding events (MSEs) or near mass stranding 
events (NMSEs). Since 1990, at least 16 MSEs or NMSEs involving six 
species of small cetaceans (pygmy killer whales, rough toothed 
dolphins, striped dolphins, pantropical spotted dolphins, melon-headed 
whales, and ginkgo-toothed beaked whales) have occurred during all 
months of the year except May, August, October, and December. Taiwan 
has the highest number of pygmy killer whales MSE compared to any other 
location in the world (Brownell et al., 2009). It is possible that at 
least some of these MSEs may be related to anthropogenic noise. While 
``NMFS has preliminarily determined that the impact of conducting the 
seismic survey in SE Asia may result, at worst, in temporary 
modification in behavior (Level B harassment) of small numbers of 
marine mammals,'' there is no conclusive evidence that the proposed 
seismic survey will not cause some small cetaceans to strand. 
Therefore, some mitigation and monitoring plans need to be developed in 
case any strandings or

[[Page 41283]]

NMSEs occur. In addition to the above noted MSEs for Taiwan, one 
unusual cetacean mortality event occurred in Taiwan between July 19 and 
August 13, 2005 that involved 23 small cetaceans of seven species. Most 
of the strandings (74 percent) were beaked and dwarf sperm whales (Yang 
et al., 2008).
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures. No injury (Level A harassment), serious injury, or 
mortality is anticipated or authorized. NMFS believes that the 
implementation of the monitoring and mitigation measures described in 
the IHA will have a negligible impact on the affected species and 
stocks of marine mammals in the study area.
    Comment 97: Minor and Wilson state that the EA and IHA documents 
also fail to deal with the reality of the strandings that have been 
associated with previous airgun operations (including one stranding 
associated with a previous survey conducted by the proponent, L-DEO). 
Minor and Wilson think that these strandings clearly constitute 
something greater than ``Level B harassment.''
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that the implementation of the monitoring and 
mitigation measures described in the IHA will have a negligible impact 
on the affected species or stocks of marine mammals in the study area. 
No injury (Level A harassment), serious injury, and mortality is 
anticipated or authorized. See NMFS' responses to relevant discussions 
in this document.
    Comment 98: The Commission recommends that, before issuing the 
requested authorization, the NMFS require that observations be made 
during all ramp-up procedures to gather the data needed to analyze and 
provide a report on their effectiveness as a mitigation measure. CSI 
states that there are uncertainties about the effectiveness of ramp-up 
procedures and no data was presented to show that this was indeed 
useful in reducing impacts.
    Response: The IHA requires that MMOs on the Langseth make 
observations for 30 minutes prior to ramp-up, during all ramp-ups, and 
during all daytime seismic operations and record the following 
information when a marine mammal is sighted:
    (i) Species, group size, age/size/sex categories (if determinable), 
behavior when first sighted and after initial sighting, heading (if 
consistent), bearing and distance from seismic vessel, sighting cue, 
apparent reaction to the airguns or vessel (e.g., none, avoidance, 
approach, paralleling, etc., and including responses to ramp-up), and 
behavioral pace; and
    (ii) Time, location, heading, speed, activity of the vessel 
(including number of airguns operating and whether in state of ramp-up 
or power-down), sea state, visibility, cloud cover, and sun glare.
    NMFS has asked NSF and L-DEO to gather all data that could 
potentially provide information regarding effectiveness of ramp-ups as 
a mitigation measure. However, considering the low numbers of marine 
mammal sightings and low numbers of ramp-ups, it is unlikely that the 
information will result in any statistically robust conclusions for 
this particular seismic survey. Over the long term, these requirements 
may provide information regarding the effectiveness of ramp-up as a 
mitigation measure, provided animals are detected during ramp-up.
    Comment 99: Dr. John Wang states that L-DEO did not provide any 
supporting evidence that ramp-up procedures are effective in reducing 
impacts on cetaceans. Given that it appears to be an important proposed 
mitigation measure, effectiveness of such a procedure should be 
convincing.
    Response: As discussed in detail elsewhere in this document, NMFS 
believes that ramp-up of the seismic airgun array in combination with 
the slow vessel speed, use of trained and qualified MMOs, PAM, shut-
down and power-down procedures, and the behavioral response of marine 
mammals to avoid areas of high anthropogenic noise all provide 
protection to marine mammals from injury (Level A harassment), serious 
injury, or mortality. NMFS believes that L-DEO's revised survey as well 
as the implementation of the required monitoring and mitigation 
measures described in the IHA will have a negligible impact on the 
affected species or stocks in the study area.
    Comment 100: CSI states that a shut-down of 30 minutes was 
proposed. This is clearly not sufficient as several species of concern 
can stay submerged for more than an hour and remain undetected.
    Response: NMFS disagrees with CSI's comment. A shut-down of 30 
minutes is a sufficient amount of time. For species with longer dive 
durations (e.g., mysticetes and large odontocetes, including sperm, 
pygmy sperm, dwarf sperm, killer, and beaked whales), a significant 
portion of their travel is spent diving vertically, while the Langseth 
will be traveling horizontally at an operational speed of 7.4 to 9.3 
km/hour during seismic acquisition. The Langseth is also equipped with 
a PAM system to detect vocalizing marine mammals.
    Comment 101: Dr. John Wang states that the resumption of airgun 
operations after not observing a small odontocete and ``large'' 
(following FR) odontocetes (i.e., sperm, dwarf and pygmy sperm whales 
and beaked whales) for 15 and 30 minutes is baseless. These periods are 
far too short for species that can stay submerged for greater than 60 
minutes. For many species in the region, submergence maximum time is 
not known. To be precautionary, this shut-down and search time needs to 
be at least 60 minutes for small cetaceans with no information on 
submergence time and at least 90 minutes for the ``large'' odontocetes 
(listed above) to ensure animals have at least one chance of surfacing 
before power-up.
    Response: Several species of deep-diving cetaceans are capable of 
remaining underwater for more than 30 minutes. However, NMFS believes 
that 30 minutes is an adequate length for the monitoring period prior 
to the start-up of airguns (1) because of ramp-up operations, (2) MMOs 
are usually visually observing and using the PAM system during non-
seismic operations, (3) the majority of the marine mammal species in 
the study area that may be exposed do not stay underwater for more than 
30 minutes, and (4) if deep diving animals happened to be in the 
operation area in the short time immediately prior to the pre-start-up 
monitoring, if an animal's maximum underwater time is 45 min, there is 
only a one in three chance that the last random surfacing would be 
prior to the beginning of the required 30 min monitoring period.
    Seismic vessels are moving continuously (because of the long towed 
array) and NMFS believes that unless the animals submerge and follow at 
the speed of the vessel (highly unlikely, especially when considering 
that a significant part of their movements is vertical), the vessel 
will be far beyond the length of the safety radii within 30 min, and 
therefore it will be safe to start the airguns again.
    The time periods determined for the resumption of airgun operations 
is based on the dive duration of certain marine mammal species, not 
necessarily the animal's physical size. Small odontocete and pinniped 
species are likely to have shorter dive durations than mysticetes and 
large odontocetes

[[Page 41284]]

(including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales), 
which may have longer dive durations. See NMFS' responses in 
Monitoring.
    Comment 102: Dr. John Wang states that the effectiveness of any 
shut-downs would depend on: the ability to detect cetaceans, 
communication of the detection, amount of time for a decision to shut 
down, and how quickly a shut-down can be executed. No time frame as to 
how long such a procedure would take after a cetacean is detected was 
given. Clearly, timing is important for determining the effectiveness 
of this mitigation measure.
    Response: The timing of the implementation of a shut-down or other 
mitigation measure is dependent on the judgment, recommendation, and 
communication of the on-duty MMOs aboard the Langseth to the airgun 
personnel. If a marine mammal is detected near, approaching, or in the 
safety radius, then the on-duty MMO communicates the appropriate 
mitigation measure via radio and/or phone to the science lab and airgun 
technicians for immediate action. MMVO's alternate between observing 
with reticle binoculars, big-eye binoculars, and the naked eye for 
visual detection and to avoid eye fatigue. PAM is used day and night as 
practical, which can detect vocalizing marine mammals present in the 
study area.
    Comment 103: Dr. John Wang states that seismic surveys should not 
be conducted within at least 10 km from areas where a steep shelf wall 
exists (e.g., east coast of Taiwan) until the effects of reflection and 
constructive interference on sound levels are better understood.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. The seismic survey line paralleling the east coast of Taiwan 
will be moved offshore at least 20 km to decrease potential impacts on 
species that occur in coastal waters and over the continental slope. 
NMFS believes that L-DEO's revised survey as well as the implementation 
of the required monitoring and mitigation measures described in the IHA 
will have a negligible impact on the affected species or stocks of 
marine mammals in the study area. See L-DEO's Supplemental EA.
    Comment 104: HSUS/HSI is concerned about other aspects of the 
proposed mitigation measures, including the use of only one MMVO (two 
will be used only ``when practical''-- p. 78314); visual detection as 
the primary mitigation measure, when several vulnerable species are 
extremely difficult to see even under the best of circumstances (e.g., 
beaked whales); the use of any mitigation measure(s) at night (there 
has yet to be designed any suite of nighttime mitigation measures that 
is even remotely as effective as daytime mitigation measures when it 
comes to detecting and avoiding marine mammals); the heavy reliance on 
ramp-up of the airgun arrays (even though there is little if any 
independent field testing of the assumption that ramp-up causes animals 
to move away from a sound source); and the failure to consider 
alternate schedules to avoid the overlap of the surveys with the 
calving season for several cetacean species in the region.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area. See relevant 
discussions regarding nighttime, ramp-up, temporal and spatial 
avoidance, and species of particular concern in NMFS' responses to 
comments here in this document.
    Comment 105: ETSSTAWG states that the EA states that ``the current 
procedures are based on best practices noted by Pierson et al. (1998) 
and Weir and Dolman (2007)''. However, this is clearly not the case 
since Weir and Dolman (2007) call for, among other things the avoidance 
of sensitive areas--e.g., the western Taiwan coastline; suspension of 
airgun use at night; and additional restrictions in adverse weather 
conditions. For example, the EA states that ``when at all possible, 
seismic surveying will only take place at least 8-10 km from the 
Taiwanese coast, particularly the central western coast (~from Taixi to 
Tongshiao), to minimize the potential of exposing these threatened 
dolphins to SPLs >160 dB''. The use of the term ``when at all 
possible'' is not reassuring.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area. See NMFS' 
responses to relevant discussions regarding temporal and spatial 
avoidance, species of particular concern, nighttime operations, and 
others in this document.
    Comment 106: ETTSTAWG states that the predicted protection ranges 
(i.e., safety zones) should be confirmed in the field at each point in 
the survey that the bottom geography changes substantially. The results 
should be reported to NMFS immediately and safety zone sizes should be 
adjusted accordingly.
    Response: NMFS believes that a sound source verification field test 
is not necessary for this project. L-DEO conducted an acoustic 
calibration study of the Langseth's airgun array in late 2007/early 
2008 in the Gulf of Mexico (LGL Ltd., 2006). Distances where sound 
levels were received in deep, intermediate, and shallow waters will be 
determined for various airgun configurations. Acoustic analysis is 
ongoing and a scientific paper on the Langseth calibration study is 
currently in review for future publication (Tolstoy, pers. comm.). 
After analysis, the empirical data from the 2007/2008 study will be 
used in future NEPA documents and IHA applications. NMFS believes the 
distances predicted in Table 1 (above) are the best science available.
    Comment 107: ETTSTAWG states that the mitigation procedures offered 
(especially the use of visual detection at night) are known to be 
insufficient and ineffective. To make the most of the limited 
effectiveness, and thus offer the greatest protection, I recommend that 
L-DEO's surveys in the Taiwan Strait (and throughout the operation) 
shut down at night.
    Response: A number of public comments concerned the inability to 
detect marine mammals from the Langseth at night and recommended no 
nighttime operations. The scientists conducting the survey have 
considered this recommendation, and have decided that it is not 
feasible, as limiting the surveys to daytime only would either result 
in the loss of half of the data or would necessitate doubling the 
duration of the project. Doubling the duration of the surveys is not 
possible because the Langseth has other research commitments after the 
TAIGER cruise, and because of weather conditions associated with the 
typhoon season. It would also incur other potential environmental 
effects. However, the seismic source will not be started if the MMVOs 
cannot view the entire safety radius for any reason (darkness, fog, or 
rough seas). In addition, PAM will be used day and night as practical, 
which can detect vocalizing marine mammals present in the area.

[[Page 41285]]

    If a seismic survey vessel is limited to daylight seismic 
operations, efficiency would be much reduced. For seismic operators in 
general, a daylight-only requirement would be expected to result in one 
or more of the following outcomes: cancellation of potentially valuable 
seismic surveys, reduction in the total number of seismic cruises 
annually due to longer cruise durations, a need for additional vessels 
to conduct the seismic operations, or work conducted by non-U.S. 
operators or non-U.S. vessels when in waters not subject to U.S. law.
    MMVOs using NVDs will be on watch during periods prior to and 
during a ramp-up at night. At other times during the night MMOs will be 
available, but it is not necessary or very effective for them to be on 
watch constantly. The use of PAM will improve the detection of marine 
mammals by indicating to the MMVOs when an animal is potentially near 
and prompting a power-down or shut-down when necessary. Marine mammals 
are unlikely to be injured, seriously injured or killed by the noise 
from approaching seismic arrays nor is it authorized. Thus, limiting 
seismic shooting to only daylight hours is unnecessary and unlikely to 
result in less Level B harassment to marine mammals than would 
conducting 24 hour survey operations.
    Because of the need to keep a vessel at-speed in order to 
successfully tow the hydrophone streamers, the vessel would need to be 
underway throughout the night whether or not the airguns are fired at 
night. Additional down-time could be anticipated each day as the vessel 
maneuvers all night to come back to the shut-down location 30 minutes 
after daylight. This is unlikely to be successful very often and will 
likely result in additional time needed for surveys to be completed.
    L-DEO completed two tests of the effectiveness of using NVDs 
(Smultea and Holst, 2003; Holst, 2004). Results of those tests 
indicated that the NVDs are effective at least to 150 to 200 m (492 to 
656 ft) away from certain conditions. That type of NVD is not effective 
at the much larger 180 dB radii applicable when a large array of 
airguns is in use. However, it is the smaller zone where the received 
levels are well above 180 dB where detection of any marine mammals that 
are present would be of particular importance. The 205 dB zone, within 
which TTS might occur, is likely to approximately 100 m (328 ft) in 
radius. That is sufficiently within the range of the NVDs to allow some 
chance of detecting marine mammals visually within the area of 
potential TTS during ramp-up. Furthermore, a substantial proportion of 
the marine mammals that might be within that distance is expected to 
move away either during ramp-up or, if the airguns were already 
operating, as the vessel approaches.
    Taking into consideration the additional costs of prohibiting 
nighttime operations and the likely low impact of the activity (given 
the required monitoring and mitigation measures), NMFS has determined 
that the IHA's requirements will ensure that the activity will have the 
least practicable impact on the affected species or stocks for the 
following reasons. Marine mammals will have sufficient notice of a 
vessel approaching with operating seismic airguns, thereby giving them 
an opportunity to avoid the approaching array.
    Comment 108: ETSSTAWG recommends that L-DEO must better incorporate 
changes in bottom topography during the survey into the designation of 
`safety zones', and adapt the cruise accordingly.
    Response: NMFS is unsure of what ETSSTAWG is stating in its 
recommendation. After issuance of the proposed IHA, L-DEO has modified 
its cruise plan and adopted more precautionary monitoring and 
mitigation measures. L-DEO has re-routed survey tracklines and will 
implement temporal and spatial restrictions to avoid certain areas that 
they may be considered significant or core habitat for certain species 
of particular concern (see L-DEO's Supplemental EA). Also, the 
predicted safety radii for the various sound isopleths from the 
Langseth's airgun array are related to water depth (see Table 1 above). 
Water depths have been categorized as deep (greater than 1,000 m), 
intermediate (100 to 1,000 m), and shallow (less than 100 m).
    Comment 109: ETSSTAWG recommends that the survey effort should be 
suspended at night as night-time observations are of insufficient 
acuity to detect cetaceans and that the survey effort should be 
suspended when adverse weather conditions prevail that would preclude 
effective spotting (e.g. in fog, rain, heavy seas > Beaufort 3).
    Response: NMFS and L-DEO have considered these recommendations, and 
have decided it is not feasible to include such restrictions, as 
limiting the surveys to daytime only would either result in the loss of 
half of the data or would necessitate doubling the duration of the 
project. Doubling the duration of the surveys is not possible because 
the Langseth has other research commitments after the TAIGER cruise, 
and because of weather conditions associated with the typhoon season. 
It would also incur other potential environmental effects. However, the 
seismic source will not be started if the MMVOs cannot view the entire 
safety radius for any reason (darkness, fog, or rough seas). In 
addition, PAM will be used day and night as practical, which can detect 
vocalizing marine mammals present in the area (see L-DEO's Supplemental 
EA).
    Comment 110: HSI states that L-DEO has ignored the mitigation 
measure to avoid species temporally and must offer a strong rationale 
for doing so in any application resubmission. The rationale that 
resources have already been committed to conducting these surveys 
during this time period is of course not only unacceptable as a 
justification; it is also illegal under the NEPA.
    Response: NMFS disagrees with HSI's comment. After the issuance of 
the proposed IHA, L-DEO modified the cruise plan and adopted more 
precautionary monitoring and mitigation measures. The time for the 
cruise is the most suitable time logistically for the Langseth and the 
participating scientists. Given the limited weather window for the 
operations and the fact that marine mammals are widespread in the 
survey area throughout the year, altering the timing of the proposed 
project likely would result in no net benefits. Issuing the IHA for 
another period could result in significant delays and disruptions to 
the cruise as well as subsequent geophysical studies that are planned 
by L-DEO for 2009 and beyond. NMFS has fully complied with its 
obligations under NEPA. See Temporal and Spatial Avoidance section 
below in this document. See L-DEO's Supplemental EA for more 
information.
    Comment 111: CSI is concerned with the timing of the proposed 
seismic surveys, especially regarding dates, locations, and species.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures, which addressed concerns regarding certain locations and 
species of marine mammals. The time for the cruise is the most suitable 
time logistically for the Langseth and the participating scientists. 
Given the limited weather window for the operations and the fact that 
marine mammals are widespread in the survey area throughout the year, 
altering the timing of the proposed project likely would result in no 
net benefits. NMFS believes that L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have

[[Page 41286]]

a negligible impact on the affected species or stocks of marine mammals 
in the study area. See Temporal and Spatial Avoidance, Species of 
Particular Concern, and L-DEO's Supplemental EA.
    Comment 112: HSI states that it is unclear why the surveys must 
take place during the proposed time period (March 21 to July 14, 2009). 
The applicant acknowledges that the best available science shows the 
``highest number of marine mammal sightings and species occur during 
April and June'' (p. 78298) in the region--the overlap with the survey 
dates is obvious. This also happens to be the calving season for many 
species in the region. The NMFS should require at a minimum that L-DEO 
provide clear and substantive justification for the proposed survey 
schedule. The most effective mitigation measure known is to avoid 
species spatially and/or temporally.
    Response: The seismic survey will provide data integral to 
advancing scientific understanding of the process of large-scale 
mountain building. The study is designed to characterize the birth and 
evolution of a mountain belt, which in turn can provide information on 
locations and source properties of regional earthquakes. The 
information is vital to understanding plate tectonic processes and 
their effects on earthquake occurrence and distribution. The time for 
the cruise is the most suitable time logistically for the Langseth and 
the participating scientists. Given the limited weather window for the 
operations and the fact that marine mammals are widespread in the 
survey area throughout the year, altering the timing of the proposed 
project likely would result in no net benefits. Issuing the IHA for 
another period could result in significant delays and disruptions to 
the cruise as well as subsequent geophysical studies that are planned 
by L-DEO for 2009 and beyond.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures, 
of which include temporal and spatial avoidance of species of 
particular concern (see Temporal and Spatial Avoidance and Species of 
Particular Concern below). NMFS has included requirements to these 
effects in the IHA issued to L-DEO. See L-DEO's Supplemental EA.
    Comment 113: Dr. John Wang states that the period of the proposed 
survey also overlaps greatly with the presence of the most vulnerable 
members of marine mammal population (females with young calves) some of 
which may be found in aggregations or following certain migration 
routes during this time.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures, which addressed concerns regarding certain locations and 
species of marine mammals. The time for the cruise is the most suitable 
time logistically for the Langseth and the participating scientists. 
Given the limited weather window for the operations and the fact that 
marine mammals are widespread in the survey area throughout the year, 
altering the timing of the proposed project likely would result in no 
net benefits. Issuing the IHA for another period could result in 
significant delays and disruptions to the cruise as well as subsequent 
geophysical studies that are planned by L-DEO for 2009 and beyond. NMFS 
believes that L-DEO's revised survey as well as the implementation of 
the required monitoring and mitigation measures described in the IHA 
will have a negligible impact on the affected species or stocks of 
marine mammals in the study area. See Temporal and Spatial Avoidance, 
Species of Particular Concern, and L-DEO's Supplemental EA.
    Comment 114: NRDC states that NMFS' proposed IHA does not impose 
meaningful mitigation measures. For instance, it imposes only voluntary 
spatial and temporal restrictions, introducing caveats such as avoiding 
humpback winter concentration areas ``if practicable'' and limiting 
seismic operations to 8-10 km from the Taiwanese coast ``when 
possible'' to reduce harm to ETS Indo-Pacific humpback dolphins, 
effectively leaving decisions on habitat avoidance to the project 
proponent. 73 FR 78315; see also NRDC v. Gutierrez, 2008 WL 360852 
(N.D. Cal., Feb. 6, 2008) (noting that it is improper for NMFS, as the 
agency tasked with implementing the MMPA, to shift its burden). Nor, 
given the distribution of species and the propagation of airgun pulses, 
would the proposed 2 km coastal avoidance do much to mitigate the harm 
to the ETS Indo-Pacific humpback dolphin population, whose entire 
distribution falls within the proposed survey areas. See comment letter 
submitted by Dr. John Wang. Such measures neither meet the agency's 
statutory burden nor satisfy the strong interest in marine mammal 
protection that is embodied in the MMPA.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. L-DEO will limit seismic survey lines to take place at least 
20 km from the west coast of Taiwan, except for in the passage between 
the Penghu Islands and the Waishanding Jhou sandbar, where the survey 
will pass through the approximately 17.1 km mid-line distance between 
the two possibly sensitive areas, subject to the limitations imposed by 
other foreign nations, to minimize the potential for exposing Indo-
Pacific humpback dolphins, finless porpoises, and other coastal species 
to SPLs greater than or equal to 160 dB re 1 [mu]Pa (rms). NMFS 
believes that L-DEO's revised survey as well as the implementation of 
the required monitoring and mitigation measures described in the IHA 
will have a negligible impact on the affected species or stocks of 
marine mammals in the study area. See Temporal and Spatial Avoidance, 
Species of Particular Concern, and L-DEO's Supplemental IHA.
    Comment 115: CSI states that calving for most cetacean species in 
this region is likely in the spring to early summer as evidenced by 
sightings of many females with young calves during cetacean surveys 
that have been conducted in Taiwan and the examination of hundreds of 
carcasses. The proposed survey schedule overlaps greatly with the 
calving seasons of many species or will occur as females are 
accompanied by and nursing young calves. This proposed period for the 
seismic surveys is probably the worst choice of seasons if minimizing 
the impacts of this activity on marine mammals in this region is a 
sincere goal.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures. NMFS believes that L-DEO's revised survey as well 
as the implementation of the required monitoring and mitigation 
measures described in the IHA will have a negligible impact on the 
affected species or stocks of marine mammals in the study area.
    In the EA and Supplemental EA, L-DEO and NSF addressed potential 
impacts of the proposed seismic survey on marine mammals, as well as 
other species of concern near the survey area, including sea turtles, 
fish, and invertebrates. The EA evaluates three alternatives: (1) The 
proposed seismic survey and the issuance of an associated IHA; (2) a 
corresponding seismic survey at an alternative time, along with 
issuance of an associated IHA; and (3) a no action alternative, with no 
IHA and

[[Page 41287]]

no seismic survey. The EA assessed impacts to marine mammals, including 
consideration of impacts to prey species and to marine mammal habitats. 
A number of monitoring and mitigation measures were proposed as part of 
the action evaluated in the EA. In consideration of public comments 
received the Supplemental EA particularly considered adjustments to the 
preferred alternative and additional mitigation measures. Taking into 
account the mitigation measures that are planned, the potential effects 
on marine mammals from the preferred alternative are generally expected 
to be limited to avoidance of the area around the seismic operation and 
short-term behavioral changes, falling within the MMPA definition of 
Level B harassment. No injury (Level A harassment), serious injury, or 
mortality is anticipated or authorized. Numbers of individuals of all 
species taken are expected to be small (relative to species abundance).
    Comment 116: NRDC states that the additional review of the region's 
marine mammal population should be undertaken before authorizing 
incidental takes. Furthermore, meaningful spatial and temporal 
restrictions on seismic activities must be adopted, as described in 
further detail at Appendix A.
    Response: After issuance of the proposed IHA, L-DEO reviewed 
information on the region's marine mammal populations, modified the 
cruise plan, and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area. See Temporal and 
Spatial Avoidance below and L-DEO's Supplemental EA.
    Comment 117: The Commission recommends that, before issuing the 
requested authorization, the NMFS require the applicant to take all 
measures necessary to ensure that the proposed activities are not 
conducted near the Ryukyu Islands and Babuyan Islands during peak 
occurrence of the humpback whales in those areas (i.e., February 
through April).
    Response: To mitigate against the potential effects of the seismic 
survey on humpback whales, particularly mother and calves on the 
breeding grounds or during the beginning of migration to summer feeding 
grounds, the surveys that approach the Babuyan Islands have been 
rescheduled as late as possible to Leg 4 (June 18 to July 20, 2009) 
(see L-DEO's Supplemental EA). The humpback whales that winter and 
calve in the Ryuku Islands are near Okinawa (Nishiwaki, 1959; Rice, 
1989; Darling and Mori, 1993), which is approximately 400 km (249 mi) 
north of the most northerly survey lines. The Langseth's closest 
approach to the Ryuku Islands is 51.5 km (32 mi), and 26.6 km (16.5 mi) 
and 8.8 km (5.5 mi) to the Babuyan and Batan Islands, respectively.
    L-DEO will avoid the areas (Ogasawara and Ryuku Islands in southern 
Japan and the Batan and Babuyan Islands in Luzon Strait in the northern 
Philippines) at the time of peak occurrence (February to April), where 
concentrations of humpback whales are known to winter, calve, and 
nurse. Seismic survey lines will be scheduled for as late as possible 
(June to July) to avoid potential effects of the surveys on humpback 
whales, particularly mothers and calves on breeding grounds or during 
the beginning of migration to summer feeding grounds. If concentrations 
or groups of humpback whales are observed (by visual or passive 
acoustic detection) prior to or during the airgun operations, those 
operations will be powered/shut-down and/or moved to another location, 
if possible, based on recommendations by the on-duty MMO aboard the 
Langseth. Also, if humpback whale mother/calf pairs are visually 
sighted, the airgun array will be shut-down regardless of the distance 
of the animal(s) to the sound source. The array will not resume firing 
until 30 min after the last documented whale visual sighting.
    NMFS concurs with the Commissions recommendation and has included a 
requirement to this effect in the IHA.
    Comment 118: WaH states that the potential impacts on western North 
Pacific humpback whales in the waters of the Babuyan Islands (believed 
to be calving and nursing grounds for a small population of humpback 
whales) and Taiwan (e.g., along the east coast and in the Taiwan 
Strait) and the fact that surveys will occur during the northward 
migration of mothers and calves is worrying. Mothers and calves may be 
more sensitive to acoustic disturbance and are probably more 
susceptible to the impacts of stress responses to disturbance of any 
kind.
    CSI states that the timing of the L-DEO surveys overlaps greatly in 
space and time with the whales wintering in the Babuyan Islands and 
coincides spatially and temporally with the northward migration of 
mothers and neonatal and other young calves from the calving/nursing 
grounds in the Babuyan waters.
    NRDC urges NMFS to restrict L-DEO's access to the Ryuku Islands: 
exclusion to 200 m depth from December through May and year-round 
coastal exclusion to 20 km (this is important breeding ground for North 
Pacific humpback whale, particularly December through May).
    Response: Many concerns were raised in public comments about the 
proposed survey lines scheduled for Leg 2 (April 20 to June 7, 2009) 
approaching humpback whale breeding areas in the Babuyan and Ryuku 
Islands. In fact, the humpback whales that winter and calve in the 
Ryuku Islands are near Okinawa (Nishiwaki, 1959; Rice, 1989; Darling 
and Mori, 1993), some 400 km north of the most northerly survey. 
However, a small population of humpbacks does winter and calve in the 
Babuyan Islands in Luzon Strait (Acebes and Lesaca, 2003; Acebes et 
al., 2007). The whales may arrive in the area as early as November and 
leave in May or even June, with peak occurrence during February through 
March or April (Acebes et al., 2007).
    To mitigate against the potential effects of the surveys on 
humpbacks, particularly mothers and calves on the breeding grounds or 
during the beginning of migration to summer feeding grounds, the 
surveys that approach the Babuyan Islands have been rescheduled as late 
as possible, to Leg 4 (June 18 to July 20, 2009). The Langseth's 
closest approach to the Ryuku and Okinawa Islands are approximately 
51.5 and 400 km, respectively.
    L-DEO will avoid the areas (Ogasawara and Ryuku Islands in southern 
Japan and the Batan and Babuyan Islands in Luzon Strait in the northern 
Philippines) at the time of peak occurrence (February to April), where 
concentrations of humpback whales are known to winter, calve, and 
nurse. Seismic survey lines will be scheduled for as late as possible 
(June to July) to avoid potential effects of the surveys on humpback 
whales, particularly mothers and calves on breeding grounds or during 
the beginning of migration to summer feeding grounds. If concentrations 
or groups of humpback whales are observed (by visual or passive 
acoustic detection) prior to or during the airgun operations, those 
operations will be powered-down, shut-down, and/or moved to another 
location, if possible, based on recommendations by the on-duty MMO 
aboard the Langseth. If humpback whale mother/calf pair is visually 
sighted, the airgun array will be

[[Page 41288]]

shut-down regardless of the distance of the animal(s) to the sound 
source. The array will not resume firing until 30 min after the last 
documented whale visual sighting. NMFS has included requirements to 
these effects in the IHA issued to L-DEO.
    Comment 119: CSI has concerns regarding particular mitigation 
measures. The mitigation measures proposed by L-DEO would be 
ineffective or have limited effectiveness at best. The claim is that 
surveys will be delayed as late as possible to avoid humpback whales, 
but the timing of the surveys overlap the presence of humpback whales 
greatly and during a time when newborn calves will be accompanying 
mothers. The surveys will also occur during or near the calving season 
for most species in the region; this is when females and calves are the 
most vulnerable. Given the entire period of the proposed survey 
overlaps with humpback whale concentrations in the Babuyan island sand 
during the migration period, there is no attempt to avoid this area, 
and surveying the lines near the Ryuku and Babuyan islands as late as 
possible within the scheduled period of the surveys does nothing but 
delay the impact on the animals to a slightly later period because the 
whales will still be in the area. As such, this measure does not 
mitigate anything.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures, which addressed concerns regarding certain 
locations and species of marine mammals. The time for the cruise is the 
most suitable time logistically for the Langseth and the participating 
scientists. Given the limited weather window for the operations and the 
fact that marine mammals are widespread in the survey area throughout 
the year, altering the timing of the proposed project likely would 
result in no net benefits. Issuing the IHA for another period could 
result in significant delays and disruptions to the cruise as well as 
subsequent geophysical studies that are planned by L-DEO for 2009 and 
beyond. NMFS believes that L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area. See NMFS 
responses above, Species of Particular Concern, and L-DEO's 
Supplemental EA.
    Comment 120: CSI states that the schedule for surveying the Luzon 
Strait and the Philippine Sea overlaps completely with the period when 
humpback whales are still in the area (and includes the latter portion 
of the peak period (April) for humpback whale concentrations in the 
Babuyan Islands). Therefore it is unclear how the timing of the surveys 
reduces the impacts on humpback whales as claimed by L-DEO. A large 
proportion of this population of humpback whales will also be migrating 
through the Philippine Sea to northern waters at the same time as the 
proposed surveys. Although the exact migratory routes of most humpback 
whales are unknown, it is clear that at least some will follow a path 
that is parallel and fairly close to the shores of eastern Taiwan. One 
of the proposed survey tracklines of the Langseth also follows this 
course. Many females undertaking the migration at this time will also 
be accompanied by neonatal calves and these are the most sensitive 
individuals of the population (McCauley et al., 2000).
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. Additionally, L-DEO will avoid the areas (Ogasawara and Ryuku 
Islands in southern Japan and the Batan and Babuyan Islands in Luzon 
Strait in the northern Philippines) at the time of peak occurrence 
(February to April), where concentrations of humpback whales are known 
to winter, calve, and nurse. Seismic survey lines will be scheduled for 
as late as possible (June to July) to avoid potential effects of the 
surveys on humpback whales, particularly mothers and calves on breeding 
grounds or during the beginning of migration to summer feeding grounds.
    If concentrations or groups of humpback whales are observed (by 
visual or passive acoustic detection) prior to or during the airgun 
operations, those operations will be powered-down, shut-down, and/or 
moved to another location, if possible, based on recommendations by the 
on-duty MMO aboard the Langseth. See Species of Particular Concern and 
L-DEO's Supplemental EA.
    Comment 121: NRDC urges NMFS to restrict L-DEO's access to the 
Ryukyu Islands: exclusion to 200 m depth from December through May and 
year-round coastal exclusion to 20 km (this is important breeding 
ground for North Pacific humpback whale, particularly December through 
May, as well as year-round habitat for Indo-Pacific bottlenose 
dolphin).
    NRDC also states that mitigation measures should restrict access to 
the islands between northern Luzon and Taiwan including Babuyan, 
Batanes, Calayan Islands: exclusion to 200 m depth from December 
through May, as well as year-round coastal exclusion to 20 km (these 
are humpback whale breeding grounds, particularly December through May, 
and reflect high cetacean diversity year-round).
    Response: L-DEO will avoid the areas (Ogasawara and Ryuku Islands 
in southern Japan and the Batan and Babuyan Islands in Luzon Strait in 
the northern Philippines) at the time of peak occurrence (February to 
April), where concentrations of humpback whales are known to winter, 
calve, and nurse. Seismic survey lines will be scheduled for as late as 
possible (June to July) to avoid potential effects of the surveys on 
humpback whales, particularly mothers and calves on breeding grounds or 
during the beginning of migration to summer feeding grounds. If Indo-
Pacific bottlenose dolphins are visually sighted, the airgun array will 
be shut-down regardless of the distance of the animal(s) to the sound 
source. The array will not resume firing until 15 min after the last 
documented dolphin sighting. NMFS has included requirements to this 
effect in the IHA issued to L-DEO. See Species of Particular Concern 
and L-DEO's Supplemental EA.
    Comment 122: CSI states that the routes and months when Western 
Pacific gray whales may undertake their migration from suspected 
wintering grounds in the South China Sea are unknown. However, it is 
likely that the period for the migration is in the spring. Scheduling 
the seismic surveys in the South China Sea to be conducted in March and 
April will likely coincide with at least some migrating gray whales. L-
DEO did not address this possibility and have not proposed any 
mitigation measures to avoid this likely overlap of seismic surveys and 
migrating gray whales.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. L-DEO will avoid shallow water areas near the mainland China 
coast and western part of the Taiwan Strait during the Western Pacific 
gray whale wintering period and migration (December to April). L-DEO 
will avoid shallow, coastal waters of the South China Sea, and limit 
seismic survey lines to water depths greater than 200 m in the South 
China Sea, and as far east as possible from the mainland China side of 
the Taiwan Strait to reduce potential for effects on Western Pacific 
gray whales. If a Western Pacific gray whale is visually sighted, L-DEO

[[Page 41289]]

will also shut-down the airgun array regardless of the distance of the 
animal(s) to the sound source. The array will not resume firing until 
30 min after the last documented whale visual sighting. NMFS believes 
that L-DEO's revised survey as well as the implementation of the 
required monitoring and mitigation measures described in the IHA will 
have a negligible impact on the affected species or stocks of marine 
mammals in the study area. See L-DEO's Supplemental EA.
    Comment 123: NRDC states that mitigation measures should restrict 
access to the Strait of Taiwan from October through May (due to gray 
whale migration, as well as high cetacean density including endangered 
population of Indo-Pacific humpback dolphins).
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. L-DEO will avoid shallow water areas near the mainland China 
coast and western part of the Taiwan Strait during Western Pacific gray 
whale wintering period and migration (December to April). L-DEO will 
limit seismic survey lines to water depths greater than 200 m in the 
South China Sea, and as far east as possible from the mainland China 
side of the Taiwan Strait, to reduce potential for effects on Western 
Pacific gray whales, Indo-Pacific humpback dolphins, and finless 
porpoises. NMFS believes that L-DEO's revised survey as well as the 
implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area. See Species of 
Particular Concern, Temporal and Spatial Avoidance, and L-DEO's 
Supplemental EA.
    Comment 124: NRDC urges NMFS to restrict L-DEO's access to all 
South China Sea from December through May (due to gray whale 
migration).
    Response: L-DEO will avoid shallow water area near the mainland 
China coast and western part of the Taiwan Strait during the Western 
Pacific gray whale wintering period and migration (December to April). 
L-DEO will also avoid shallow, coastal waters of the South China Sea. 
L-DEO will limit seismic survey lines to water depths greater than 200 
m in the South China Sea, and as far east as possible from the mainland 
China side of the Taiwan Strait, to reduce potential for effects on 
Western Pacific gray whales. NMFS has included requirements to this 
effect in the IHA issued to L-DEO.
    Comment 125: CSI states that the critically endangered ETS sub-
population of Indo-Pacific humpback dolphins will be subjected to 
greater than 180 dB received levels even if mitigation measures are 
taken (i.e., to remain offshore of 2 km from shore). Even if the 
mitigation measures proposed by L-DEO are fully implemented, there will 
likely be ``Level A harassment'' to the ETS population that could have 
serious and likely irreversible impacts on this population. Based on 
the tabled predicted RMS distances for different received levels and 
accepting the recommendations of the ETSSTAWG for this population that 
for noise issues an additional (i.e., additional to the 3 km from shore 
distribution that is known presently for the ETS sub-population) 2 km 
buffer should be considered, the Langseth should not be within 13 km of 
western coast of Taiwan to avoid exposing dolphins to >160 dB levels. 
However, the model underestimates the actual levels at different 
distances. Further compounding the underestimation of levels is the 
fact that shallow water category is less than 100 m but the ETS 
population lives in waters less than 25 m. Much better predicted RMS 
distances for different received levels are needed for very shallow 
waters. Being 2 km from shore puts the Langseth in the middle of the 
distribution of the ETS population and does absolutely nothing to 
reduce the exposure level to any dolphin. The only reduction of noise 
is possibly with the statement that surveying will only take place 8 
to10 km from shore but the condition of when possible is not acceptable 
because this can be a subjective determination by someone not concerned 
about the impacts on critically endangered populations of cetaceans. 
Furthermore, as discussed above, 8 to 10 km from shore still may not be 
sufficient to reduce exposure of the animals to greater than 160 dB and 
the distribution for the ETS population is further south than Taixi 
(Wang et al., 2007b). Chou (2006) also believes that some of the waters 
south of Taixi are an important breeding/nursing area for the ETS 
population. These mitigation measures are not effective and still pose 
unacceptable risks to the dolphins of being exposed to greater than 180 
dB. The proposed seismic surveys will exposure almost the entire ETS 
population of humpback dolphins to levels greater than 180 dB. As such, 
all or almost all ETS dolphins will be exposed to greater than 160 dB 
levels even if the Langseth remains 8 to 10 km from shore.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures. L-DEO will limit seismic survey lines to take 
place at least 20 km from the west coast of Taiwan, except for in the 
passage between the Penghu Islands and the Waishanding Jhou sandbar, 
where the survey will pass through the approximately 17.1 km mid-line 
distance between the two possibly sensitive areas, subject to the 
limitations imposed by other foreign nations, to minimize the potential 
for exposing Indo-Pacific humpback dolphins finless porpoises, and 
other coastal species to SPLs greater than or equal to 160 dB re 1 
[mu]Pa (rms). See Species of Particular Concern and L-DEO's 
Supplemental EA.
    Comment 126: The Commission recommends that, before issuing the 
requested authorization, the NMFS describe the reasons why and the 
conditions under which the application would need to conduct surveys 
closer than 8 to 10 km off the coast of Taiwan where threatened Indo-
Pacific humpback dolphins are more likely to be exposed to sound 
pressure levels greater than 160 dB re 1 [mu]Pa (rms). The Commission 
also notes that it makes more sense to use a single distance, rather 
than a range, to prevent the survey from approaching the Taiwan coast 
too closely.
    Response: The critically endangered ETS sub-population of the Indo-
Pacific humpback dolphin is considered a foreign species and is not 
listed under the ESA. Foreign species are those that occur entirely 
outside of U.S. territory. NMFS does not, and is not obligated to, 
designate critical habitat or develop recovery plans for foreign 
species. NSF and L-DEO's action is planned to take place in the 
territorial seas and EEZ's of foreign nations, and will be continuous 
with the activity that takes place on the high seas. NMFS does not 
authorize the incidental take of marine mammals in the territorial seas 
of foreign nations, as the MMPA does not apply in those waters. 
However, NMFS still needs to calculate the level of incidental take in 
territorial seas as part of the proposed issuance of an IHA in regards 
to NMFS' analysis of small numbers and negligible impact determination.
    After the issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary monitoring and mitigation measures, 
especially for the ETS sub-population of Indo-Pacific humpback 
dolphins. Off

[[Page 41290]]

Taiwan's west coast, the cruise tracks have been re-routed offshore by 
approximately 20 km (12.4 mi) to protect the critically endangered ETS 
subpopulation of Indo-Pacific dolphins and finless porpoises, as well 
as ease potential pressure on other coastal species. Thus, L-DEO now 
plans to maintain the precautionary buffer recommended by ETSSTAWG in 
their comments to NMFS, ``at least 13 km (8.1 mi) and perhaps a more 
precautionary 15 km (9.3 mi) of the ETS Sousa population--meaning up to 
20 km from shore.''
    L-DEO will limit seismic survey lines to take place at least 20 km 
from the west coast of Taiwan, except for in the passage between the 
Penghu Islands and the Waishanding Jhou sandbar, where the survey will 
pass through the approximately 17.1 km mid-line distance between the 
two possibly sensitive areas, subject to the limitations imposed by 
other foreign nations, to minimize the potential for exposing Indo-
Pacific humpback dolphins, finless porpoises, and other coastal species 
to SPLs greater than or equal to 160 dB re [mu]Pa (rms). NMFS concurs 
with the recommendations made by interested parties and has included a 
requirement to this effect in the IHA issued to L-DEO.
    Comment 127: CSI states that if the Langseth approaches to within 
10 km from shore, dolphins using waters east of the Chinmen Islands may 
be exposed to levels greater than 160 dB and some may be exposed to 180 
dB or more depending on where the dolphins are found in their 
distribution and how close the Langseth is to the 25-30 m isobath.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. The Chinmen Islands are located in the western portion of the 
Taiwan Strait, approximately 15 km from the coast of mainland China. L-
DEO will avoid shallow water areas near the mainland China coast and 
western part of the Taiwan Strait during December to April. L-DEO will 
also limit seismic survey lines to water depths greater than 200 m in 
the South China Sea, and as far east as possible from the mainland 
China side of the Taiwan Strait, to reduce potential for effects on 
Western Pacific gray whales, Indo-Pacific humpback dolphins, and 
finless porpoises. L-DEO has been denied access to the waters of China 
as well. See L-DEO's Supplemental EA.
    Comment 128: HSI states that although the Federal Register notice 
and the application note that the rms received level distances are 
potentially very large for shallow water, there is no effort to address 
the shortcomings of the proposed mitigation measures under those 
circumstances. As an example, the most vulnerable cetacean population 
to be affected by these surveys (i.e., ETS Sousa) could be routinely 
exposed to sound pressure levels of 180 dB re 1 [mu]Pa (rms) or greater 
(the level beyond which Level A harassment might occur), given the 
track lines proposed. Individual Sousa could be at risk of Level A 
harassment (or worse) at a distance as far from the Langseth as 4 km 
(see Table 1, p. 78297). This is well beyond visual (and probably 
acoustic) detection range, yet there is little effort in the 
application (or the Federal Register notice) to address this 
shortcoming. The proposal to come no nearer to the west coast of Taiwan 
than 2 km (and to remain ``when possible''--p. 78315--at least 8 to 10 
km offshore) is not sufficient.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures. L-DEO will limit seismic survey lines to take 
place at least 20 km from the west coast of Taiwan, except for in the 
passage between the Penghu Islands and the Waishanding Jhou sandbar, 
where the survey will pass through the approximately 17.1 km mid-line 
distance between the two possibly sensitive areas, subject to the 
limitations imposed by other foreign nations, to minimize the potential 
for exposing Indo-Pacific humpback dolphins, finless porpoises, and 
other coastal species to SPLs greater than or equal to 160 dB re 1 
[mu]Pa (rms).
    Comment 129: NRDC states that mitigation measures should include a 
year-round coastal exclusion in the waters surrounding Taiwan to 20 km 
(because of Indo-Pacific humpback dolphin and finless porpoise 
habitat).
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. L-DEO will limit seismic survey lines to take place at least 
20 km from the west coast of Taiwan, except for in the passage between 
the Penghu Islands and the Waishanding Jhou sandbar, where the survey 
will pass through the approximately 17.1 km mid-line distance between 
the two possibly sensitive areas, subject to the limitations imposed by 
other foreign nations, to minimize the potential for exposing Indo-
Pacific humpback dolphins, finless porpoises, and other coastal species 
to SPLs greater than or equal to 160 dB re 1 [mu]Pa (rms). The seismic 
survey line paralleling the east coast of Taiwan will be moved offshore 
at least 20 km to decrease potential impacts on species that occur in 
coastal waters and over the continental slope. If an Indo-Pacific 
humpback dolphin or finless porpoise is visually sighted, the airgun 
array will be shut-down regardless of the distance of the animal(s) to 
the sound source. The array will not resume firing until 15 min after 
the last documented dolphin/porpoise sighting. NMFS has included 
requirements to these effects in the IHA issued to L-DEO. See L-DEO's 
Supplemental EA.
    Comment 130: ETSSTAWG states that the lack of separate 
consideration of the genetically distinct ETS population of Sousa is, 
of course, a concern. One of the most effective ways to protect 
cetaceans and their habitat from the impacts of noise (and the 
cumulative and synergistic impacts in combination with other stressors) 
is through spatio-temporal restrictions, including marine protected 
areas (Weilgart, 2006).
    Response: NMFS, NSF, and L-DEO have considered the genetically 
distinct ETS sub-population on Indo-Pacific humpback dolphins in L-
DEO's Supplemental EA and issuance of the IHA to L-DEO. Several 
temporal and spatial restrictions for several cetacean species have 
been incorporated in the revision of the proposed survey and have been 
incorporated in NMFS' IHA issued to L-DEO. See Temporal and Spatial 
Avoidance section of this document and L-DEO's Supplemental EA.
    Comment 131: WaH states that abundance and other data in SE Asia 
for sperm whales, which are known to `startle' in response to seismic 
surveys and to face numerous threats in the SE Asia region (including 
acoustic), are unknown, justifying precautionary measures.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. L-DEO is expected to implement any and all monitoring and 
mitigation measures described in the IHA that are applicable to sperm 
whale visual and acoustic detections. If concentrations or groups of 
sperm whales are observed (by visual or passive acoustic detection) 
prior to or during the airgun operations, those operations will be 
powered/shut-down and/or moved to another location, if possible, based 
on recommendations by the on-duty MMO aboard the Langseth. NMFS has 
included a requirement to this effect in the IHA issued to L-DEO,

[[Page 41291]]

as well as additional monitoring and mitigation measures for marine 
mammals.
    Comment 132: Dr. John Wang states that recognizing the sensitivity 
of beaked whales, L-DEO proposed that as a `special mitigation 
procedure' for beaked whales, ``approach to slopes and submarine 
canyons, if possible, during the proposed survey.'' It is unclear what 
is meant by `if possible'. With this condition it is not convincing 
that the procedure will actually be implemented.
    Response: When operating the sound source(s), L-DEO will minimize 
approaches to slopes, submarine canyons, seamounts, and other 
underwater geologic features, whenever possible, because of sensitivity 
of beaked whales and to avoid possible beaked whale habitat. If 
concentrations or groups of beaked whales are observed (by visual or 
passive acoustic detection) at a site such as on the continental slope, 
submarine canyon, seamount, or other underwater geologic feature just 
prior to or during the airgun operations will be powered-down, shut-
down, and/or moved to another location, if possible, based on 
recommendations by the on-duty MMO aboard the Langseth. NMFS has 
included requirements to this effect in the IHA issued to L-DEO.
    After issuance of the proposed IHA, L-DEO modified the cruise plan 
and adopted more precautionary monitoring and mitigation measures. NMFS 
believes that the revised survey as well as the implementation of the 
required monitoring and mitigation measures described in the IHA will 
have a negligible impact on the affected species or stocks of marine 
mammals in the study area.
    Comment 133: NRDC states that NMFS' proposed mitigation measures 
focus primarily on visual monitoring. However, research has cast doubt 
on the ability of shipboard observers to detect whales or for vessels 
to avoid collisions through visual monitoring, particularly as the size 
of the vessel increases or visibility decreases (Clyne and Leaper, 
1999). Notably, detection rates for marine mammals generally approach 
only 5 percent. It has been estimated that in anything stronger than a 
light breeze, only one in fifty beaked whales surfacing in the direct 
track line of a ship would be sighted; as the distance approaches 1 km, 
that number drops to zero (Barlow and Gisiner, 2006).
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's visual monitoring efforts is 
successful for detecting marine mammals. In addition to extra MMOs and 
high-powered binoculars, L-DEO will be using a PAM system for 
acoustically detecting marine mammals in the vicinity of the Langseth. 
NMFS expects that the impacts of the seismic survey action on marine 
mammals will be temporary in nature and not result in substantial 
impact to marine mammals or to their role in the ecosystem. The IHA 
anticipates, and would authorize, Level B harassment only, in the form 
of temporary behavioral disturbance, of species of cetaceans. Neither 
Level A harassment (injury), serious injury, nor mortality is 
anticipated or authorized, and the Level B harassment is not expected 
to affect biodiversity or ecosystem function. NMFS believes that L-
DEO's revised survey as well as the implementation of the required 
monitoring and mitigation measures described in the IHA will have a 
negligible impact on the affected species or stocks of marine mammals 
in the study area. See Monitoring, Mitigation, and L-DEO's Supplemental 
EA.
    Comment 134: NRDC urges NMFS to restrict L-DEO's access to 
submarine canyons off of southwest Taiwan (due to probable sperm and 
beaked whale habitat); and marine protected areas.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures in the study area. If concentrations of groups of 
sperm whales and/or beaked whales are observed (by visual or passive 
acoustic detection) at a site such as on the continental slope, 
submarine canyon, seamount, or other underwater geologic feature just 
prior or during the airgun operations, those operations will be 
powered/shut-down and/or moved to another location, if possible based 
on recommendations by the on-duty MMO aboard the Langseth. When 
operating the sound source(s), minimize approaches to slopes, submarine 
canyons, seamounts, and other underwater geologic features, if 
possible, because of sensitivity of beaked whales. NMFS expects NSF and 
L-DEO to adhere to local conservation laws and regulations of nations 
while in foreign waters, and known rules and boundaries of Marine 
Protected Areas. In the absence of local conservation laws and 
regulations or Marine Protected Area rules, L-DEO will continue to use 
the monitoring and mitigation measures identified in the IHA. NMFS has 
included requirements to these effects in the IHA issued to L-DEO. See 
Species of Particular Concern below.
    Comment 135: NRDC urges NMFS to restrict L-DEO's access to the 
coastal waters of the South China Sea out to 200 m depth, >20 km 
including islands from April through June (because of the presence of 
beaked whales and potential gray whale breeding sites).
    Response: L-DEO will limit seismic survey lines to water depths 
greater than 200 m in the South China Sea, and as far east as possible 
from the mainland China side of the Taiwan Strait, to reduce potential 
for effects on Western Pacific gray whales, Indo-Pacific humpback 
dolphins, and finless porpoises. L-DEO will avoid shallow water areas 
near the mainland China coast and western part of the Taiwan Strait 
during the Western Pacific gray wintering period and migration 
(December to April). L-DEO will avoid shallow, coastal waters of the 
South China Sea to avoid populations of finless porpoises. NMFS has 
included requirements to these effects in the IHA issued to L-DEO.
Mitigation--Tracklines
    Comment 136: Several interested parties state that with tracklines 
overlapping known and suspected important habitat for beaked whales, 
which are known to be particularly sensitive to acoustic impacts, 
extremely difficult to detect visually, and already facing numerous 
threats (including acoustic) within their habitat at least in Taiwanese 
waters, and with almost no data on abundance for beaked whales in SE 
Asia (as reflected by the IUCN Red List status of three species in the 
region as ``Data Deficient''), there is a clear potential for 
significant impacts on beaked whales, and hence a need for great 
precaution.
    Waters along the edge of the continental shelf (especially where 
the strong, warm, and oligotrophic Kuroshio Current meets the shelf 
edge and nutrient input from terrestrial sources) are particularly 
productive and appear to attract cetaceans, including beaked whales. 
Tracklines that run near and parallel to the edge of the continental 
shelf around Taiwan will have the greatest impact on cetaceans, being 
possibly most damaging to beaked whales. However, without more cetacean 
survey information it is uncertain if just moving tracklines offshore 
from the shelf edge would be effective in reducing impacts on beaked 
whales or if the relocation of tracklines would harm different species 
or other populations offshore.
    Response: During the public comment period, concerns were expressed 
about the survey line that was parallel to and within a few km of the 
east coast of

[[Page 41292]]

Taiwan because of potential effects on coastal species and those that 
frequent the narrow continental shelf break and steep slopes (e.g., 
beaked whales and sperm whales). After the issuance of the proposed 
IHA, L-DEO has moved the survey line further offshore by more than 20 
km to decrease potential impacts on species that occur in coastal water 
and over the continental slope, such as beaked whales. When operating 
the sound source(s), L-DEO will minimize approaches to slopes, 
submarine canyons, seamounts, and other underwater geologic features, 
if possible, because of sensitivity of beaked whales. Also, if 
concentrations of groups of beaked whales are observed (by visual or 
passive acoustic detection) prior to or during airgun operations, those 
operations will be powered-down or shut-down and/or moved to another 
location along the site, if possible, based on recommendations by the 
on-duty MMO aboard the Langseth. NMFS has included requirements to this 
effect in the IHA issued to L-DEO.
    Comment 137: Dr. John Wang states that many of the proposed 
tracklines appear to maximize risk to cetacean populations in the 
waters of Taiwan, some of which are critically endangered under the 
2008 IUCN Red List.
    Response: NMFS does not authorize the incidental take of marine 
mammals in the territorial sea of foreign nations, as the MMPA does not 
apply in those waters. However, NMFS still calculates the level of 
incidental take in territorial seas as part of the analysis supporting 
issuance of an IHA in order to determine the biological accuracy of the 
small numbers and negligible impact determinations for species which 
cross boundaries. In this case, after the issuance of the proposed IHA, 
L-DEO modified the cruise plan and adopted more precautionary 
mitigation measures, especially for species of particular concern. See 
responses to comments discussed within this document as well as L-DEO's 
Supplemental EA.
    Comment 138: Dr. John Wang states that several tracklines of the 
proposed seismic survey immediately standout as being very likely to 
cause great risk to marine mammals in the region. Some of the 
problematic tracklines include: (1) Coastal waters of western Taiwan; 
(2) approaches to the mainland of China; (3) the shelf edge along 
eastern Taiwan and oceanic islands off eastern and northern Taiwan, 
northern Philippines and the Ryuku archipelago; (4) the shelf edge 
along the eastern side of the Penghu Channel; and (5) all waters of the 
Taiwan Strait.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures to reduce potential effects to marine mammals in 
the region. NMFS has included requirements to these effects in the IHA 
issued to L-DEO. See responses to comments in this document for further 
information, as well as L-DEO's Supplemental EA.
    Comment 139: Dr. John Wang states L-DEO claimed that when 
conducting the Luzon Strait/Philippine sea leg of their survey, they 
will ``attempt to avoid these [for humpback whale] wintering areas at 
the time of peak occurrence by surveying a * * * slate as possible 
during each leg of the cruise''. However, the proposed survey schedule 
overlaps with the peak period of humpback whales in the Babuyan waters 
(the latter portion of the peak period being April) and a considerable 
number of humpback whales will still be in the survey area throughout 
the survey period (many will also be migrating through the waters at 
the same time the seismic surveys are planned).
    Although the exact migratory routes of most humpback whales are 
unknown, it is clear that at least some will follow a path that is 
parallel and fairly close to the shores of eastern Taiwan, which is the 
same path of one of the proposed survey tracklines of the Langseth. 
Some females undertaking the migration at this time will be accompanied 
by neonatal calves, which are the most sensitive individuals of the 
population (McCauley et al., 2000). Such a frivolous and empty 
statement by L-DEO attempting to mitigate its impact is concerning and 
raises questions about the sincerity of its mitigation measure 
proposed.
    Response: Concerns were raised in several comments about survey 
lines scheduled for Leg 2 (April 20 to June 7, 2009) approaching 
humpback whale breeding areas in the Babuyan and Ryukyu Islands. In 
fact, the humpback whales that winter and calve in the Ryukyu Islands 
are near Okinawa (Nishiwaki, 1959; Rice, 1989; Darling and Mori, 1993), 
some 400 km north of the most northerly survey. However, a small 
population of humpbacks does winter and calve in the Babuyan Islands in 
Luzon Strait (Acebes and Lesaca, 2003; Acebes et al., 2007). The whales 
may arrive in the area as early as November and leave in May or even 
June, with peak occurrence during February through March or April 
(Acebes et al., 2007).
    To mitigate against the potential effects of the surveys on 
humpbacks, particularly mothers and calves on the breeding grounds or 
during the beginning of migration to summer feeding grounds, the 
surveys that approach the Babuyan Islands have been rescheduled as late 
as possible, to Leg 4 (June 18 to July 20, 2009). L-DEO will avoid 
areas (Ogasawara and Ryuku Islands in southern Japan and the Batan and 
Babuyan Islands in Luzon Strait in the northern Philippines) at the 
time of peak occurrence (February to April), where concentrations of 
humpback whales are known to winter, calve, and nurse. Seismic survey 
lines will be scheduled for as late as possible (June to July) to avoid 
potential effects of the surveys on humpback whales, particularly 
mothers and calves on breeding grounds or during the beginning of 
migration to summer feeding grounds. Also, if concentrations or groups 
of humpback whales are observed (by visual or passive acoustic 
detection) prior to or during the airgun operations, those operations 
will be powered/shut-down and/or moved to another location, if 
possible, based on recommendations by the on-duty MMO aboard the 
Langseth. If humpback whale mother/calf pairs are visually sighted, the 
airgun array will be shut-down regardless of the distance of the 
animal(s) to the sound source. The array will not resume firing until 
30 min after the last documented whale visual sighting. NMFS has 
included requirements to these effects in the IHA issued to L-DEO.
    Comment 140: Dr. John Wang states that there is a need for cetacean 
surveys before seismic surveys. Clearly, all tracklines over or near 
the shelf edge will likely impact many cetaceans. However, without more 
cetacean survey information, it is uncertain if (a) just moving 
tracklines away from the shelf edge would be effective in reducing 
impacts on beaked whales; or (b) if the relocation of tracklines would 
harm different species in waters further offshore. Recent multiple 
sightings of ginkgo-toothed beaked whales during dedicated cetaceans 
surveys of waters off southeast Taiwan demonstrate the importance of 
such studies. Cetacean surveys in the waters off southwest Taiwan where 
the important deep Penghu Channel exists are limited. This channel has 
a steep eastern wall that borders against the southwest shores of 
Taiwan and helps to funnel a branch of the Kuroshio Current or the 
South China Sea current to the northern tip of the channel ending in an 
important area of complex seasonal mixing with the cold China Coastal 
current (Jan et al., 2002).
    Response: L-DEO has moved the seismic survey line paralleling the 
east

[[Page 41293]]

coat of Taiwan offshore at least 20 km to decrease potential impacts on 
species that occur in coastal waters and over the continental slope. To 
the maximum extent practicable, L-DEO will schedule seismic operations 
in inshore and shallow waters during daylight hours and OBS operations 
to nighttime hours. To the maximum extent practicable, seismic surveys 
(especially inshore) will be conducted from the coast (inshore) and 
proceed towards the sea (offshore) in order to avoid trapping marine 
mammals in shallow water. When operating the sound source(s), L-DEO 
will minimize approaches to slopes, submarine canyons, seamounts, or 
other geologic features, if possible, because of sensitivity of beaked 
whales. If concentrations or groups of beaked whales are observed (by 
visual or passive acoustic detection) at a site such as on the 
continental slope, submarine canyon, seamount, or other underwater 
geologic feature just prior to or during the airgun operations, those 
operations will be powered-down/shut-down and/or moved to another 
location, if possible, based on recommendations by the on-duty MMO 
aboard the Langseth. NMFS has included requirements to this effect in 
the IHA issued to L-DEO.
    Comment 141: ETSSTAWG recommends that the section of Leg  
4 running along the western coast of Taiwan should be removed from the 
L-DEO survey as this represents core habitat for the critically 
endangered population of ETS Sousa.
    Response: L-DEO will limit seismic survey lines to take place at 
least 20 km from the west coast of Taiwan, except for in the passage 
between the Penghu Islands and the Waishanding Jhou (Wau-san-ting Chou) 
sandbar, where the survey will pass through the approximately 17.1 km 
mid-line distance between the two possibly sensitive areas, subject to 
the limitations imposed by other foreign nations, to minimize the 
potential for exposing Indo-Pacific humpback dolphins, finless 
porpoises, and other coastal species to SPLs greater than or equal to 
160 dB re [mu]Pa (rms). NMFS has included a requirement to this effect 
in the IHA issued to L-DEO.
    Comment 142: Based on the map of the proposed survey track lines 
found in the L-DEO application (see Figure 1, p. 3 of the application), 
the survey vessel Langseth will be operating in the known and suspected 
habitat of at least two critically endangered cetacean species, the 
Western Pacific gray whale and the ETS Sousa. L-DEO must provide better 
justification for the track lines--if these are the only tracklines 
that will accomplish the goals of the research, then L-DEO must explain 
why and offer a rationale that justifies exposing critically endangered 
marine mammal populations to Level B harassment and, despite the 
applicant's assurances to the contrary, potentially Level A harassment 
and serious injury.
    Response: During the public comment period, many concerns were 
expressed about the potential effects of the proposed survey on Western 
Pacific gray whales and Indo-Pacific humpback dolphins. After issuance 
of the proposed IHA, L-DEO modified the cruise plan in a number of 
ways: (1) L-DEO re-routed the survey lines in the South China Sea south 
of the Taiwan Strait so that they are now located in water depths >200 
m; (2) L-DEO dropped the seismic lines in western Taiwan Strait, and 
(3) L-DEO adopted more precautionary monitoring and mitigation 
measures. For example, L-DEO will also shut-down the airgun array if a 
Western Pacific gray whale is visually sighted at any distance from the 
vessel. NMFS has included requirements to this effect in the IHA. See 
NMFS' responses to comments for more information regarding the ETS sub-
population of Indo-Pacific humpback dolphins, as well as L-DEO's 
Supplemental EA. NMFS has not authorized the incidental take of Western 
Pacific gray whales or Indo-Pacific humpback dolphins.
    Comment 143: CSI states that with the exception of a very small 
area where the proposed tracklines take the Langseth to the mainland 
Chinese coast and back to western Taiwan, the Langseth will operate in 
waters within 1 km from the shore of Taiwan and right through the 
middle (longitudinally) of almost the entire linear coastal 
distribution of the ETS sub-population, i.e., the proposed trackline 
almost completely overlaps with the entire distribution of the ETS sub-
population. At this distance from shore, the Langseth will subject the 
entire ETS sub-population to noise levels much greater than 180 dB.
    CSI also states that even staying greater than or equal to 2 km 
from the coastline (a proposed mitigation measure to reduce the impact 
on the ETS sub-population) does absolutely nothing to reduce the noise 
exposure to these critically endangered dolphins. Even at 8 to 10 km 
from shore, the survey will still expose all animals to greater than 
160 dB and an unknown number would still be exposed to greater than 180 
dB. The above statements are conservative because they are based on the 
predicted rms distances for different levels of exposure (Table 1 in 
the proposed IHA Federal Register notice), which a) underestimates 
actual exposure levels in shallow waters and b) does not consider 
reverberations that are likely to occur as a result of the solid 
concrete walls that are found along much of the central western coast 
of Taiwan, the very shallow water depths of western Taiwan (also, tidal 
fluctuation is up to about 5 to 6 m and can affect the depth in which 
the dolphins are found during exposure), or many sandbars that may 
force animals to be further offshore from the solid shoreline during 
lower tides. The grouping of exposures into the very broad category of 
`shallow' water (being less than 100 m) is not sufficient to understand 
the exposure level for a species that occupies water depths at the 
lowest end of the `shallow' water category. It is expected that the 
exposure levels will be much higher at the any given distance from 
source than the predicted values in the tables. The distance to reduce 
exposure to noise levels of 160 dB or greater is unknown for dolphins 
in water depths less than 25 m and could be much greater.
    HSI states that the only way to avoid exposing these critically 
endangered dolphins to Level A harassment (or serious injury)--and also 
to avoid Level B harassment, to which this fragile population should 
arguably not be exposed either--is to move the proposed trackline 
considerably farther offshore than 10 km. There is no way to avoid them 
on the proposed trackline seasonally, as they are year-round residents. 
It is unacceptable that L-DEO proposes to run the Langseth directly 
through the only known habitat for this critically endangered 
population, employing mitigation measures that will clearly be 
ineffective at preventing Level A harassment and serious injury, let 
alone Level B harassment.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. L-DEO will limit seismic survey lines to take place at least 
20 km from the west coast of Taiwan, except for in the passage between 
the Penghu Island and the Waishanding Jhou sandbar, where the survey 
will pass through the approximately 17.1 km mid-line distance between 
the two possibly sensitive areas, subject to the limitations imposed by 
other foreign nations, to minimize the potential for exposing Indo-
Pacific humpback dolphins, finless porpoises, and other coastal species 
to SPLs greater than or equal to 160 dB re 1 [mu]Pa (rms). Thus, L-DEO 
is maintaining the precautionary buffer recommended by ETSSTAWG in 
their comments to NMFS, ``at least 13 km and perhaps a more 
precautionary 15 km of

[[Page 41294]]

the ETS Sousa population--meaning up to around 20 km from shore.'' NMFS 
has included requirements to this effect in the IHA issued to L-DEO.
    Comment 144: CSI states that calculations of how far the Langseth 
should be to prevent the ETS population from being exposed to levels 
greater than 160 dB should be based on at least the recommended 5 km 
buffer boundary (i.e., the waters from shore to 5 km offshore should 
not be exposed to levels greater than 160 dB). However, given the 
population's critical status and the fact that Table 1 underestimates 
the actual exposure levels in shallow water, the recommended distance 
should be even more precautionary, i.e., greater than 13 km from shore 
based on the values presented in Table 1 of the Federal Register 
notice.
    Response: After issuance of the proposed IHA, L-DEO negotiated with 
the project's principal scientists to modify the cruise plan and adopt 
more precautionary mitigation measures. Off Taiwan's west coast the 
cruise tracks have been re-routed by approximately 20 km, except for in 
the passage between the Penghu Islands and the Waishanding Jhou 
sandbar, where the survey will pass through the approximately 17.1 km 
mid-line distance between the two possibly sensitive areas, subject to 
the limitations of foreign nations, to protect the critically 
endangered ETS Indo-Pacific humpback dolphin sub-population and the 
finless porpoise as well as ease potential pressure on other coastal 
species. Thus, L-DEO is maintaining the precautionary buffer 
recommended by ETSSTAWG in their public comments to NMFS, ``at least 13 
km and perhaps a more precautionary 15 km of the ETS Sousa population--
meaning up to around 20 km from shore.''
    Comment 145: Dr. John Wang states the predicted rms distances for 
different levels of exposure (Table 1 of the proposed IHA's Federal 
Register notice), underestimates actual exposure levels in shallow 
waters and does not consider the issues with: reflection, 
reverberation, rarefaction, superposition and constructive interference 
(see Shapiro et al., 2009) of sound waves in waters that abut concrete 
sea walls found along much of the central western coast of Taiwan; the 
very shallow water depths of western Taiwan (with a tidal fluctuation 
up to about 5-6 m that can affect the depth in which the dolphins are 
found during exposure); and the many sandbars and some extensive 
mudflats that can force animals to be further `offshore' during lower 
tides.
    Response: NMFS believes that while oceanographic conditions may 
alter sound levels, for purposes of this seismic survey, the model used 
for predicting received levels in L-DEO's IHA application and EA is the 
best science available. After the issuance of the proposed IHA, L-DEO 
has modified the cruise plan and adopted more precautionary monitoring 
and mitigation measures to reduce impacts on species and stocks of 
marine mammals in the study area. See NMFS' responses to comments in 
this document for relevant information.
    Comment 146: Dr. John Wang states the water depths in the very 
broad category of ``shallow'' water (being <100 m in the proposed IHA's 
Federal Register notice) are not sufficient to understand the exposure 
level for a species (e.g., ETS Indo-Pacific humpback dolphins) that 
occupies water depths at the lowest end of the ``shallow'' water 
category. It is expected that the exposure levels will be much higher 
at any given distance from the source than the predicted values 
suggested.
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. The revised survey will maintain the precautionary buffer 
recommended by ETSSTAWG in their comments to NMFS, ``at least 13 km and 
perhaps a more precautionary 15 km of the ETS Sousa population--meaning 
up to around 20 km from shore.'' See L-DEO's Supplemental EA for more 
information.
    Comment 147: Dr. John Wang states the waters of western Taiwan are 
highly dynamic with seasonal, monthly, daily and diel changes in water 
salinity, tidal fluctuations, water temperature and surface conditions 
that can not be explained by the simple model for predicting levels 
that was used in the L-DEO proposal. Given that a critically endangered 
population (the ETS sub-population of Sousa chinensis), two vulnerable 
and very difficult species to detect (i.e., finless porpoises) and the 
Indo-Pacific bottlenose dolphin are found in very shallow waters it is 
crucial that sound levels under differing conditions in shallow waters 
be better understood before impacts to cetaceans are trivialized.
    Response: NMFS believes that while oceanographic conditions may 
alter sound levels, for purposes of this seismic survey, the model used 
for predicting received levels in L-DEO's IHA application and EA is the 
best science available. After the issuance of the proposed IHA, L-DEO 
has modified the cruise plan and adopted more precautionary monitoring 
and mitigation measures to reduce impacts on species and stocks of 
marine mammals in the study area. See NMFS' responses to comments in 
this document for more relevant information.

MMPA Concerns

    Comment 148: Dr. Robert Brownell states that the possible numbers 
of marine mammals exposed to sound levels greater than or equal to 160 
dB, during the proposed L-DEO seismic survey in SE Asia, should be 
considered erroneous based on regional population estimates from two 
main sources. Of the 37 cetacean populations listed in Table 2 of the 
Federal Register notice (78 FR 78294, December 22, 2008), 22 are from 
the ETP and have no relationship at all to the region to be surveyed in 
the western North Pacific. Humpback whales are correct. The minke whale 
and Bryde's whale estimates are generally correct. Omura's whale may be 
common in some parts of the survey area. Sei, fin, and blue whales are 
likely to be rare at best in the survey area. For the small cetacean, 
15 of the 28 population estimates are from the ETP and these should not 
be used for the proposed survey area. Sperm whales may be common as 
opposed to ``uncommon'' in deeper waters off the eastern side of Taiwan 
and in some parts of the Philippines. The estimate for Pacific white-
sided dolphins is for the entire North Pacific and this species as 
noted is rare or does not occur in most of the proposed survey area. 
Most of the estimated 5,220 to 10,220 finless porpoise occur in the 
coastal waters of Japan, not in Taiwan or along the coast of China. In 
the case of Indo-Pacific humpback dolphins, the estimate of 1,680 
animals includes about 100 from Taiwan. The IUCN has listed the 
subpopulation of these dolphins along the limited part of the western 
coast of Taiwan as ``critically endangered'' and the subpopulation is 
estimated at 100 individuals. Based on the problems of the population 
estimates noted above, the estimates of the possible number of 
cetaceans exposed in Table 3 of the Federal Register notice (78 FR 
78294, December 22, 2008) are unrealistic either as the best estimate 
or maximum.
    Response: NMFS acknowledges Dr. Robert Brownell's comment and the 
information provided. The information included in the proposed IHA has 
been updated in this Federal Register notice based on comments from the 
public. As noted previously, when information is unavailable on a local 
population size, NMFS uses either stock or species information on 
abundance. Since NMFS, uses the best information that is

[[Page 41295]]

available, estimating impacts on marine mammals in this manner is 
appropriate. See responses to comments below.
    Comment 149: Dr. Robert Brownell states the NMFS Permit Office 
appears to have preliminarily determined that the proposed seismic 
surveys will not cause any death or serious injury to cetaceans in the 
survey area. This is not a precautionary approach and some 
consideration should be given to the possibility that some beaked 
whales or schools of other small cetaceans may mass strand in response 
to the surveys. Brownell et al. (2008) reviewed the numerous fisheries 
that have used sounds to hunt cetaceans. The success of these fisheries 
shows that numerous species of small cetaceans avoid and move away from 
a wide variety of anthropogenic sounds, some as simple as hitting two 
rocks together underwater. Therefore, some advanced plan must be made 
to respond to any stranding of live animals during the proposed seismic 
surveys.
    Response: The preliminary determination made by NMFS in L-DEO's 
proposed IHA was not a final determination. NMFS requested comments on 
its proposal to authorize L-DEO to incidentally take, by Level B 
harassment only, small numbers of marine mammals during the marine 
seismic survey in SE Asia during March-July 2009. Based on comments 
received from the public, L-DEO revised the proposed seismic survey in 
SE Asia. Conservative monitoring and mitigation measures were enhanced, 
as compared to those described in the proposed IHA notice. The 
mitigation and monitoring measures ensure the least practicable adverse 
impact on marine mammals in the SE Asia study area. L-DEO is not using 
sound for purposes of creating a drive fishery targeted at hunting or 
capturing cetaceans as discussed in Brownell et al. (2008). Any takes 
of marine mammals incidental to L-DEO's seismic activities would be 
Level B harassment due to the implementation of the monitoring and 
mitigation measures described in the IHA and no injury, serious injury, 
or mortality is authorized. L-DEO, to the maximum extent practicable, 
will schedule seismic operations in inshore and shallow waters during 
daylight hours and OBS operations in nighttime hours; as well as 
conduct seismic surveys (especially inshore) from the coast (inshore) 
and proceed towards the sea (offshore) in order to avoid trapping 
marine mammals in shallow water. Requirements to these effects have 
been included in the NMFS-issued IHA. NMFS believes L-DEO's revised 
seismic survey and the implementation of the required monitoring and 
mitigation measures will have a negligible impact on affected species 
and stocks of marine mammals in the study area.
    Comment 150: NRDC states that there are two types of general 
exemptions available through the MMPA for activities that incidentally 
``take'' marine mammals: permits and incidental harassment 
authorizations. Until 1994, the only exemptions available under the 
MMPA were permits, which require the wildlife agencies to promulgate 
regulations specifying permissible methods of taking. In 1994, however, 
the MMPA was amended to provide a streamlined mechanism by which 
proponents can obtain authorization for projects whose takings are by 
incidental harassment only. 16 U.S.C. 1371(a)(5)(D). Regardless of 
which process is used, NMFS must prescribe ``methods'' and ``means of 
effecting the least practicable impact'' on protected species as well 
as ``requirements pertaining to the monitoring and reporting of such 
taking.'' 16 U.S.C. 1371(a)(5)(A)(ii), (D)(vi).
    Response: The mitigation measures described in the proposed IHA 
notice have been enhanced subsequently by increased observer personnel, 
temporal and spatial avoidance of areas, as well as for species of 
particular concern. NMFS believes that the mitigation and monitoring 
measures that were imposed under the IHA are complete to the fullest 
extent practicable, and ensure that the takings will be limited to 
Level B harassment and will result in a negligible impact on the 
affected species or stocks of marine mammals in the study area. The 
mitigation measures described in the proposed IHA notice have been 
enhanced subsequently by increased observer personnel, temporal and 
spatial avoidance of areas, as well as for species of particular 
concern.
    Comment 151: Dr. John Wang and CSI state that it has been suggested 
that recent mass strandings of melon-headed whales were related to the 
use of naval sonar (in Hawaiian waters--Southall et al., 2006) and 
seismic surveys (in Madagascan waters) so there is growing concern 
about the potential impact of such activities on this species. Melon-
headed whales, although not a commonly-observed species have been 
sighted on several occasions in the waters of eastern Taiwan and 
southwest Taiwan, respectively (Wang et al., 2001a). Seismic surveys 
along the shelf edge of eastern Taiwan during the daytime will likely 
have an impact.
    Response: NMFS is also concerned about potential impacts on this 
species due to these recent events. The behavior of melon-headed whales 
near oceanic islands was recently described in Brownell et al. (2009). 
Due to concerns, the survey line paralleling the east coast of Taiwan 
was moved offshore by more than 20 km after issuance of the proposed 
IHA to decrease potential impacts on species that occur in coastal 
waters and over the continental slope. L-DEO will also, to the maximum 
extent practicable, schedule seismic operations in inshore and shallow 
waters during daylight hours and OBS operations during nighttime hours. 
Requirements to these effects have been included in the NMFS-issued 
IHA. L-DEO's revised seismic survey incorporating the implementation of 
the required monitoring and mitigation measures are expected to have a 
negligible impact on the affected marine mammal species and stocks in 
the study area.
    Comment 152: Dr. John Wang states that seismic surveys should not 
be conducted in the spring (when many species give birth). The survey 
period (from 21 March to 14 July) proposed by L-DEO is probably the 
worst choice of seasons if minimizing impacts to marine mammals is 
sought. The above scheduling overlaps almost entirely with the 
confirmed presence of humpback whales, likely presence of gray whales 
and possible presence of right whales in the region. Calving for most 
cetacean species (including those that are critically endangered--see 
above) in this region appear to be in the spring to early summer as 
evidenced by sightings of many females with neonates and other young 
calves during cetacean surveys and the examination of hundreds of 
carcasses (J.Y. Wang, unpublished data). Seismic surveys should not be 
conducted in the autumn and winter until more information about marine 
mammals in these waters during these seasons is available.
    Response: Conducting the seismic survey during a different time of 
year is not feasible, as the Langseth has other research commitments 
after the TAIGER cruise. Also there are concerns with weather 
conditions associated with the typhoon season. Due to concerns 
regarding humpback whales, Western Pacific gray whales, and other 
species, L-DEO has revised their planned survey, after issuance of the 
proposed IHA, to avoid breeding and feeding areas as well as migration 
routes. See L-DEO's Supplemental EA and relevant discussions in this 
document. NMFS has included temporal and spatial avoidance restrictions 
to these effects in the IHA. NMFS believes that the revised survey as 
well as the implementation of the required monitoring and mitigation

[[Page 41296]]

measures will protect species of particular concern in the study area.
    Comment 153: CSI states that there is an inappropriate use of data 
from other areas. The use of data from the Eastern Tropical Pacific for 
estimating the densities and number of individuals impacted by the 
proposed seismic survey is completely inappropriate as there is no 
evidence that the two sites of the Pacific Ocean are comparable. Such 
extrapolation would not be acceptable to most cetacean scientists. This 
should be re-examined carefully.
    Response: NMFS agrees that impacts should be assessed on the 
population or stock unit whenever possible. L-DEO's application 
provides information on stock abundance of some species in SE Asia and 
larger water bodies (such as the North Pacific Ocean). The data source 
for each stock estimate is provided. NMFS believes that these data are 
the best scientific information available for estimating impacts on 
marine mammal species and stocks. However, information on marine mammal 
stock abundance may not always be satisfactory. When information is 
lacking to define a particular population or stock of marine mammals 
then impacts are assessed with respect to the species as a whole (54 FR 
40338, September 29, 1989).
MMPA Concerns--Small Numbers
    Comment 154: Minor and Wilson state the summary in the Federal 
Register listing says the proposal is to take ``small'' numbers of 
marine mammals. However, the actual proposed ``take authorization'' by 
L-DEO is for 71,669 cetaceans. Minor and Wilson propose that a 
reasonable upper bound for a small number is what can be counted on 
their fingers and toes. The Federal Register summary that twice used 
the word ``small'' to describe the number 71,669, while failing to 
mention the actual number, so misinformed the public that the resulting 
public consultation process is clearly invalid.
    Response: NMFS disagrees with Minor and Wilson's comment. The 
number stated by Minor and Wilson is the total number of individuals 
requested in the proposed IHA and must be considered in the appropriate 
context. An activity affects ``small numbers'' of a species or stock 
when it is determined that the total taking will be small relative to 
the estimated population size and relevant to the behavior, physiology, 
and life history of the species or stock. Furthermore, after issuance 
of the proposed IHA, L-DEO has revised its seismic tracklines and 
reduced the estimates of the possible number of marine mammals exposed 
to certain sound levels during the TAIGER seismic survey. NMFS believes 
L-DEO's revised seismic survey and the implementation of the required 
monitoring and mitigation measures will have a negligible impact on 
affected species and stocks of marine mammals in the study area.
    Comment 155: Dr. John Wang disagrees that the proposed survey will 
have a negligible impact on local species of stocks of marine mammals. 
The estimated number of individuals affected (>50,000 and with 68.7% of 
one critically endangered population of dolphins being affected) cannot 
be considered ``small.''
    Response: NMFS believes that the revised seismic survey described 
in L-DEO's Supplemental EA incorporating the implementation of the 
monitoring and mitigation measures required in the IHA will have a 
negligible impact on affected local species and stocks of marine 
mammals in the TAIGER study area. NMFS believes that the monitoring and 
mitigation measures described below, which have been enhanced when 
compared to the proposed IHA notice, ensure the least practicable 
adverse impact on marine mammals in the SE Asia study area. See 
response to comment above.
    Comment 156: Several interested parties are concerned about impacts 
of any level of take on small or vulnerable populations. Several 
cetaceans are in such critically low numbers that even minimal `takes' 
can contribute greatly to the demise of these populations. Most of the 
values in Table 3 do not make any sense to those who have experience 
with local marine mammal populations in the region (e.g., the take of 
64 Cuvier's beaked whales compared with 168 Blainville's beaked whales; 
a take of 189 killer whales compared with only 68 finless porpoises). 
These numbers are little better than random guesses. The statement from 
the Federal Register notice is incorrect. L-DEO estimated that 68.7% of 
the critically endangered ETS population of humpback dolphins will be 
impacted. Although this is a serious underestimate (explained earlier), 
it is already a very high proportion of this distinct population and 
the mitigation measures proposed do not minimize the exposure level to 
these dolphins. The taking is also expected to include Level A 
harassment rather than just Level B as claimed by L-DEO. The taking 
(both Level A and B) of such a large proportion of the ETS dolphins 
could have an irreversible impact on the continued survival of the 
population.
    Response: Since the issuance of the proposed IHA, L-DEO has revised 
their seismic survey and will implement additional mitigation measures 
to address concerns regarding several species of cetaceans in the study 
area. NMFS has included these as requirements in the IHA. There have 
been few, if any, systematic aircraft- or ship-based surveys conducted 
for marine mammals in waters near Taiwan, and the species of marine 
mammals that occur there is not well known. In the absence of any other 
density data, L-DEO used the survey effort and sightings in Yang et al. 
(1999) and Wang et al. (2001a) to estimate densities of marine mammals 
in the TAIGER study area. For other areas with an absence of density 
data, density data from the Eastern Tropical Pacific was used. There is 
some uncertainty about the representativeness of the density data and 
the assumptions used in the calculations. Furthermore, NMFS believes 
that the data provided is the best available information and likely 
overestimates the potential number of animals affected. NMFS believes 
that L-DEO's revised seismic survey incorporating the implementation of 
the monitoring and mitigation measures described in the IHA will have a 
negligible impact on the affected marine mammal species and stocks in 
the study area.
    Comment 157: Several interested parties have stated that the number 
of ETS Indo-Pacific humpback dolphins potentially affected by sound 
levels greater than or equal to 160 dB in L-DEO's proposed IHA is an 
unacceptably high proportion (68.7 percent of the sub-population). This 
is by far the largest proportion of any cetacean in the region to be 
affected. This high proportion in itself is a severe underestimation of 
the population being impacted, as the Langseth will transect the entire 
distribution of the ETS sub-population. The dolphins, which have no 
acoustic shelters in these waters, are not capable of escaping to 
quieter waters and will be completely exposed for the duration of the 
seismic survey. Over two-thirds cannot be reasonably argued to 
constitute a ``small number'' of dolphins in any context, let alone the 
context of there being less than 100 individuals in existence, 
therefore, the requested level of impacts of this survey exceeds the 
coverage provided by IHAs. Also, given the proposed tracklines, a 
likely large but unknown number of ETS Indo-Pacific humpback dolphins 
will be exposed to levels >180 dB, which may result not only in Level A 
harassment,

[[Page 41297]]

but also permanent injuries or even death.
    Response: Since the issuance of the proposed IHA, L-DEO negotiated 
with the project's principal scientists to modify the cruise plan and 
adopt more precautionary monitoring and mitigation measures. Off 
Taiwan's west coast, the cruise tracks have been re-routed offshore by 
approximately 20 km to protect critically endangered ETS Indo-Pacific 
humpback dolphins as well as other coastal species. Thus, it is now 
planned to maintain the precautionary buffer recommended by ETSSTAWG in 
their comments to NMFS, ``at least 13 km and perhaps a more 
precautionary 15 km of the ETS Sousa population--meaning up to around 
20 km from shore'' (see L-DEO's Supplemental EA). L-DEO will also shut-
down immediately if there is a sighting of an Indo-Pacific humpback 
dolphin sighted at any distance from the vessel. Based on the re-routed 
tracklines, has revised estimates of the possible numbers of ETS Indo-
Pacific humpback dolphins exposed to sound levels that would constitute 
Level B harassment to zero (0 percent of the ETS sub-population). NMFS 
considers zero to be a ``small number'' and considered the revision in 
its determinations towards the issuance of the IHA.
    L-DEO's action is planned to take place in the territorial seas and 
EEZ's of foreign nations, and will be continuous with the activity that 
takes place on the high seas. NMFS does not authorize the incidental 
take of marine mammals in the territorial seas of foreign nations, as 
the MMPA does not apply in those waters. However, NMFS still needs to 
calculate the level of incidental take in territorial seas as part of 
the analysis supporting issuance of an IHA in order to determine the 
biological accuracy of the small numbers and negligible impact 
determinations.
NEPA
    Comment 158: WaH states the EA contains several erroneous claims, 
omissions, and unacceptable proposals with regards to the critically 
endangered ETS population of Indo-Pacific humpback dolphins (Sousa 
chinensis).
    Response: NMFS acknowledges WaH's concerns with the EA's analysis 
of the ETS population of Indo-Pacific humpback dolphins. Because WaH 
did not offer specific details, NMFS cannot respond directly to this 
comment. Please note that in response to public comments received on 
the application and EA, L-DEO has modified the survey design (see L-
DEO's Supplemental EA) and adopted more precautionary mitigation 
measures to protect the critically endangered ETS population, as well 
as ease potential pressure on other coastal species.
    Comment 159: Several commenters believed that NSF violated the 
tenets of the NEPA by committing resources for the seismic survey 
before completing the EA, which they described as pre-decisional, 
biased, and falling short of the high standard of environmental 
analysis prescribed by NEPA.
    Response: In accordance with NEPA, an irreversible or irretrievable 
commitment of resources refers to impacts on or losses to resources 
that cannot be recovered or reversed, i.e., losses are permanent or 
effects to uses of resources (e.g., mineral resources, natural 
productivity) that are renewable only over long periods of time. The 
referenced discussion in the EA is specific to the scheduling of the 
Langseth to make the best use of the vessel to support the NSF science 
mission. Advance vessel scheduling does not constitute an irreversible 
or irretrievable commitment of resources as that term is intended under 
NEPA.
    Comment 160: The most comprehensive study undertaken on the impacts 
of seismic surveys on the fishing industry in Norway in 1996 showed 
that fishing catches were impacted to as far as 33 km from seismic 
testing. I can only assume this is also not good for marine mammals who 
have a limited range, such as Sousa. The paper can be found in 
Norwegian at http://www.fiskeribladetfiskaren.no/filarkiv/vedlegg/96.pdf.
    Response: NMFS thanks the commenter for providing the link to the 
article. As the study is in Norwegian, it is not appropriate to compare 
the size of the airgun array, water depth, and zones of influence 
between the two activities, for marine mammals until NMFS is able to 
obtain a translation of the article.
    Engas et al. (1996) studied on the effects of seismic shooting on 
local abundance and catch rates of cod (Gadus morhua) and haddock 
(Melanogrammus aeglefinus) in the Barents Sea (near Norway). Although 
the authors reported that trawl catches of cod and haddock and longline 
catches of haddock declined on average by about 50% (by mass) after 
seismic operations commenced, they observed that abundance and catch 
rates returned to pre-shooting levels five days after the cessation of 
seismic operations.
    Finally, NMFS has reviewed L-DEO's EA and supplemental EA and has 
determined that no more than Level B harassment of marine mammals would 
occur. Any marine mammal that could be exposed to the seismic survey 
would likely experience short-term disturbance as supported by prior 
studies. Marine mammals are expected, at most, to show an avoidance 
response to the seismic pulses. Further, mitigation measures such as 
controlled speed, course alteration, visual and passive acoustic marine 
mammal monitoring, and shut-downs when marine mammals are detected 
within the defined ranges should further reduce short-term reactions to 
disturbance, and minimize any effects on hearing sensitivity.
    Comment 161: NSF's EA and L-DEO's Assessment Report did not fully 
analyze impacts on marine mammals; lacked abundance and distribution 
data for marine mammal species in the proposed waters; failed to assess 
cumulative impacts, reasonable alternatives, or mitigation measures; 
and provided no evidence of consultation with local marine mammal 
experts.
    Response: NMFS disagrees with the commenter's assertions. Please 
see NMFS' response to comments in the Effects Analysis and Species of 
Particular Concern sections.
    Comment 162: NEPA requires decision-makers to consider alternatives 
to their proposed actions. Thus, L-DEO must evaluate reasonable 
alternatives that would avoid or minimize adverse impacts to the 
proposed seismic surveys. See, e.g., CFR 1502.1. Yet L-DEO's 
alternatives analysis analyzes only the specified dates and does not 
even consider conducting the proposed study during an alternate season, 
such as winter and fall, which would avoid breeding, calving and 
migration for many marine mammal species in the proposed survey areas. 
As discussed in Section II and Appendix A, temporal and spatial 
avoidance is necessary in order to minimize impacts on marine mammals 
and therefore must be considered by NMFS and L-DEO.
    Response: NMFS disagrees with the commenter's assertion. NMFS has 
reviewed NSF's EA, and determined that it contains an adequate 
description of NMFS' proposed action and reasonable alternatives, 
including a No Action and Another Time Alternative Action (See pages 16 
to 17 of the EA). The impacts of the seismic survey action on marine 
mammals are specifically related to acoustic activities, and these are 
expected to be temporary in nature and not result in substantial impact 
to marine mammals. The IHA anticipates, and would authorize, Level B 
harassment only, in the form of temporary behavioral disturbance, of 
several species of cetaceans. Neither Level A harassment (injury), 
serious injury, nor mortality is anticipated nor authorized.

[[Page 41298]]

    For the purposes of NMFS' Federal action (i.e., the issuance of an 
MMPA authorization) the alternatives are adequate. Thus, for the 
reasons stated throughout the text of this notice, NMFS believes that 
the agency is in compliance with both the MMPA and NEPA.
    Comment 163: Several commenters disagreed with the EA's conclusion 
that the TAIGER seismic survey would add little to the cumulative 
impacts of anthropogenic noise in the survey area. As such, they 
alleged that L-DEO: (1) Did not assess the cumulative impacts of 
multiple sources of noise; (2) failed to consider the synergistic 
effects of noise with other stressors in producing or magnifying a 
stress-response; and (3) presented an invalid argument that impacts on 
marine mammals were expected to be no more than minor and short-term.
    Response: NMFS has determined that the EA adequately addressed the 
cumulative impacts of a short-term, low-intensity seismic airgun survey 
in relation to long-term noise and taking events, such as vessel 
traffic, habitat loss, oil and gas industry, pollution, fisheries, and 
hunting.
    NMFS endangered species scientists have conducted a thorough review 
of the best available information on the cumulative effects of the 
proposed project. As a result, NMFS issued a BiOp on the proposed 
action on March 31, 2009 (NMFS, 2009), which stated that the survey was 
not likely to jeopardize the continued existence of listed marine 
mammals in the survey area.
    L-DEO discusses cumulative effects of noise in the EA (see pages 
71-79) and drew comparisons between TAIGER and other sources of 
anthropogenic noise (i.e., vessel traffic, habitat loss, oil and gas 
industry, pollution, fisheries, and hunting) in the proposed survey 
areas. These multiple sources of anthropogenic noise are considered to 
be long-term, continuous activities which are unaffected by NMFS' 
issuance of an incidental take authorization for Level B harassment 
only, in the form of temporary behavioral disturbance.
    In regards to stating that the impacts of seismic surveys are small 
compared to other activities, NMFS believes that the signals do not add 
appreciably to the ambient noise levels, and therefore do not 
accumulate, or collect, to greater effects. The conclusion reached in 
the EA that even when considered in combination with other underwater 
sounds, seismic sound does not add appreciably to the underwater sounds 
that fish, sea turtles and marine mammals are exposed to, remains 
valid.

Precautionary Approach

    Comment 164: WaH states the proposed mitigation measures are 
inadequate, do not sufficiently allow for local marine mammal 
observation conditions, and are weaknesses which augment the risk of 
impacts in a region where cetacean status and distribution are 
relatively poorly understood. According to WaH, the lack of reliable 
information from systematic surveys in the relatively poorly-studied SE 
Asian region, as in other regions, necessitates the highest levels of 
precaution in estimating and attempting to mitigate potential impacts. 
WaH states that even best practice marine mammal visual observation, 
shut down, and other measures can provide no guarantee against 
significant impacts on populations in these regions (citing inherently 
low observation sighting rates for species such as beaked whales and 
evidence that some species decrease or cease vocalizing in response to 
seismic surveys). WaH states that L-DEO has not attempted to adopt all 
available precautionary measures that may help to reduce impacts.
    Response: NMFS disagrees with WaH's comments. NMFS believes that 
the monitoring and mitigation measures ensure the least practicable 
impacts and ensure that any incidental takings will be limited to Level 
B harassment and will result in a negligible impact on the affected 
species or stocks of marine mammals in the study area. As discussed 
elsewhere in this document, after issuance of the proposed IHA, L-DEO 
has modified the cruise plan and adopted more precautionary monitoring 
and mitigation measures to reduce potential impacts on marine mammals. 
NMFS believes that the implementation of these monitoring and 
mitigation measures described in the IHA issued to L-DEO will ensure 
that the seismic survey will have a negligible impact on the affected 
species and stocks of marine mammals in the study area. See L-DEO's 
Supplemental EA.
    Comment 165: HSI states the agency and the applicant focus in great 
detail on specific results from the limited number of scientific 
studies on acoustic impacts on marine mammals (when, for example, 
results show some marine mammal species do not avoid vessels conducting 
seismic surveys) in order to support their conclusion that impacts from 
the proposed surveys will be negligible. When specific study results do 
not support their conclusion of negligible impacts (when, for example, 
results show that some marine mammal species cease vocalizing when 
exposed to seismic airguns), they pass over them quickly with little 
discussion. Similarly, the Federal Register notice frequently 
emphasizes the lack of evidence for impacts, in what seems to be an 
effort to make the classic (and inappropriate) argument that absence of 
evidence is evidence of absence of impacts. At no time does the Federal 
Register notice take the position that a lack of information should be 
treated as grounds for a precautionary approach.
    Response: NMFS disagrees with this characterization of the Federal 
Register notice. NMFS relies on the best scientific information 
available. NMFS believes that the mitigation and monitoring measures 
that have been imposed under the IHA issued to L-DEO are conservative 
and ensure the least practicable adverse impacts. Mitigation measures 
such as power-downs, shut-downs, speed and course alterations, and the 
use of MMVO's and PAM for visual and acoustic detection will ensure 
that marine mammals that do not avoid the Langseth while operating 
seismic sound sources will not be potentially impacted during the 
survey. The monitoring and mitigation measures also ensure that the 
takings will be limited to Level B harassment and will result in a 
negligible impact on the affected species or stocks of marine mammals 
in the study area. After issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures. L-DEO has also subsequently increased observer 
personnel and re-routed survey tracklines. See L-DEO's Supplemental EA.
    Comment 166: ETTSTAWG states that the project description must 
adopt a `precautionary approach' when extrapolating from the literature 
to the particular acoustic environment of the study area, and when 
considering `unknowns' (`absence of evidence is not evidence of 
absence').
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. NMFS believes that L-DEO's revised survey as well as the 
implementation of the monitoring and mitigation measures described in 
the IHA will have a negligible impact on the affected species or stocks 
of marine mammals in the study area. See NMFS' responses to comments in 
Precautionary Approach above and other relevant discussions throughout 
this document.
    Comment 167: ETTSTAWG states that since empirical data is not 
available for L-DEO operations (and what is

[[Page 41299]]

available at deep and shallow was from shorter arrays) in intermediate 
distances, the extrapolation in the EA (``On the expectation that 
results would be intermediate between those from shallow and deep 
water, a correction factor of 1.1 to 1.5x was applied to the estimates 
provided by the model for deep-water situations to obtain estimates for 
intermediate-depth sites.'') should be much more precautionary. Perhaps 
L-DEO should use a mean between the shallow and deep water ranges, 
rather than one adjusted by the apparently arbitrary correction factor. 
See Table 1.
    Response: L-DEO acknowledges in their application the shortcomings 
of the models for predicted sound levels in shallow water. Regarding 
the model, L-DEO conducted an acoustic calibration study of the Ewing's 
20 airgun, 8600 in3 array in the Gulf of Mexico in 2003 (Tolstoy et al. 
2004a,b). During the study, researchers conducted calibration 
measurements for a 6, 10, 12, and 20 airgun array configurations at a 
depth of approximately 30 m (98 ft) to gather empirical data on the 
measured values (i.e., received sound level) for the 160 to 190 dB re 1 
[mu]Pa (rms) radii. In the 2003 study, Tolstoy et al. (2004b) reported 
that for the 20 airgun array, the 160-dB radius in shallow water was 
33% higher than predicted (Predicted = 9 km [5.5 mi]; Measured = 12 km 
[7.4 mi]). According to Tolstoy et al. (2004b), the results indicated 
that reverberations played a significant role in received levels of 
sound in shallow water and that previously estimated radii for 160 and 
180 dB had not accounted for bottom reverberations. Thus, the predicted 
radii were underestimates of the actual distances where the 160 and 180 
dB levels occurred in shallow water. The authors recommended that L-DEO 
extend the radii by an appropriate factor to account for this 
underestimation. As a result, L-DEO developed correction factors for 
water depths 100 to 1,000 m (328-3,281 ft) and less than 100 m (328 
ft).
    For the TAIGER cruise, L-DEO has applied conservative correction 
factors to develop appropriate shallow water exclusion zones (see Table 
1 in 72 FR 78294, December 22, 2008) to mitigate for potential effects 
on marine mammals. At this time, NMFS believes that this is the best 
available scientific data for estimating seismic sound propagation and 
establishing isopleths for the Langseth's airgun configuration. L-DEO 
has measured the Langseth's seismic source array, and initial results, 
which do not significantly vary from those stated here, will be 
published in the future.
    Comment 168: Dr. John Wang states the applicant has not attempted 
to minimize the impacts of its survey; has not taken a precautionary 
approach in addressing potential impacts, and has not adopted 
mitigation measures that are effective. Wherever uncertainties in 
impacts and knowledge exist, the applicant consistently interpreted the 
uncertainties as supporting its position of little or no impact. Not 
only are such interpretations biased, misleading and contradictory, but 
they are scientifically incorrect. Absence of evidence is not evidence 
of absence of impacts.
    Response: After issuance of the proposed IHA, L-DEO revised its 
seismic survey and adopted more precautionary mitigation measures. NMFS 
believes that the monitoring and mitigation measures that have been 
imposed under the IHA issued to L-DEO ensure that the takings will be 
limited to Level B harassment and will result in a negligible impact on 
the affected species or stocks of marine mammals in the study area. See 
L-DEO's Supplemental EA.
Effects Analysis
    Comment 169: The concern over anthropogenic noise and its potential 
effect on cetaceans has led to repeated resolutions by multinational 
groups and organizations including the Agreement on the Conservation of 
Small Cetaceans of the Baltic and North Seas (ASCOBANS, 2006), the 
Agreement on the Conservation of Cetaceans of the Black and 
Mediterranean Seas (ACCOBAMS, 2004), and the European Commission 
(2004), for member countries to take precautionary mitigating measures, 
although to date there has been a continuing failure of most countries 
to do so (Parsons et al., 2008).
    Response: The MMPA requires NMFS to prescribe mitigation measures 
to achieve the least practicable adverse impact whenever NMFS 
authorizes take of marine mammals. In this IHA, NMFS prescribed 
mitigation measures that achieve the least practicable adverse impact, 
such as: re-routing the cruises tracklines further offshore by 
approximately 20 km to protect the critically endangered ETS Indo-
Pacific humpback dolphins and the finless porpoise; visual marine 
mammal monitoring, and shut-downs when marine mammals are detected 
within the defined ranges should further reduce short-term reactions to 
disturbance, and minimize any effects on hearing sensitivity. The best 
available scientific information demonstrates that shut-down at 180 dB 
is conservative. (Southall et al., 2007).
    Comment 170: WAHLDA states that even the high number of dolphins 
estimated in the EA to be potentially harassed does not accurately 
reflect the potential impact, as the entire ETS humpback dolphin 
habitat could be ensonified at received levels of >160 dB re 1 
[micro]Pa (rms), with some dolphins being exposed to received levels of 
>180dB (rms), with some dolphins being exposed to received levels of 
>180 dB (rms), given that the survey tracklines pass within 1 km of 
shore (or 2 km if proposed mitigation measures are applied) [as 
described in 73 FR 78294, December 22, 2008]; and therefore directly 
through the shallow, narrow, linear coastal ETS humpback dolphin 
habitat which extends to 5 km from shore.
    Response: The exposure estimates produced by the EA model: (1) Do 
not take into consideration the implementation of mitigation measures 
to avoid incidentally harassing marine mammals; (2) assume that the 
animals do not move away from the Langseth before ensonification at 
received levels greater than or equal to 160 dB; and (3) are based on 
overestimated densities of several species of marine mammals. As a 
result, NMFS believes that the exposure estimates are conservative and 
that the seismic survey may actually affect far fewer marine animals 
that predicted.
    In response to comments received from the public, L-DEO has 
completed a Supplemental EA for the TAIGER survey. As a result of 
changes made to the location and timing of survey lines made after the 
publication of the proposed IHA and Federal Register notice, L-DEO has 
revised take estimates of the possible numbers of marine mammals 
exposed to different sound levels during L-DEO's proposed TAIGER 
seismic survey.
    L-DEO and TAIGER's principal investigators have modified the cruise 
plan and survey design, adopted more precautionary mitigation measures 
to protect the critically endangered ETS population, as well as ease 
potential pressure on other coastal species. They have re-routed the 
cruise's tracklines offshore Taiwan's west coast by approximately 20 km 
(10.8 nautical mi) to protect the critically endangered Sousa 
population and the finless porpoise (except for in the passage between 
the Penghu Islands and the Waishanding Jhou (Wau-san-ting Chou) 
sandbar, where the survey will pass through the 17.1 km (9.2 nautical 
mi) mid-line distance between the two possibly sensitive areas); and 
are restricted to conducting seismic surveys in water depths greater 
than 200 m (656

[[Page 41300]]

ft) in the South China Sea, and as far east as possible from the 
mainland China side of the Taiwan Strait, to reduce potential for 
effects on western Pacific gray whales, Indo-Pacific humpback dolphins, 
and finless porpoises. In response to concerns about marine mammal 
species of special concern because of their low population sizes, L-DEO 
will shut down the airgun array immediately if there is a sighting at 
any distance of the Indo-Pacific humpbacked dolphin or finless 
porpoise. Correspondingly, take estimates of most of the other species 
will be lower because of the reduction in the ensonified area.
    Comment 171: Many of the commenters expressed concern on the 
possible effects of the seismic surveys on the small population of 
Indo-Pacific humpback dolphins. They believed that the proposed survey: 
would cause minor impacts to individuals which may lead to threats to 
the existence of the ETS population; would expose individuals to noise 
levels greater than 180 dB leading to serious injury or death; and 
expose individual to noise levels that may increase the likelihood of 
negative interactions with boats and gillnets.
    Response: NMFS appreciates the outpouring of concern for the well-
being of the marine mammals in and around the Taiwan Strait and South 
China Sea. For reasons discussed in the Federal Register notice of 
receipt of the application (73 FR 78294, December 22, 2009), L-DEO only 
requested Level B harassment (behavioral harassment) of small numbers 
of marine mammals, not Level A (injury).
    NMFS does not believe that there is any potential for marine mammal 
mortality to occur incidental to conducting the TAIGER seismic surveys 
in 2009. NMFS does not expect, nor did it authorize take by mortality 
or for this proposed activity. Incidental taking will be limited to a 
temporary and localized disturbance of animals from elevated sound 
levels from seismic airguns only. The incidental harassment 
authorization includes mitigation and monitoring measures to reduce the 
potential for injury or mortality, as well as instituting immediate 
shutdown protocols for the North Pacific right whale, Western Pacific 
gray whale, Indo-Pacific humpbacked dolphin, or finless porpoise.
    The 160 dB isopleth is currently used for estimating the onset of 
Level B behavioral harassment for impulse noise sounds. However, as 
NMFS shows in this document, mortality and serious injury are not 
expected to occur during this seismic survey cruise due to 
implementation of mitigation measures (e.g., ramp-up, passive acoustic 
and visual monitoring, and quiet acoustic periods). NMFS believes that 
it is highly unlikely that a marine mammal will be exposed to levels of 
sound likely to result in Level A harassment or mortality given the 
mitigation measures. Cetaceans are expected, at most, to show an 
avoidance response to the seismic pulses. Mitigation measures such as 
visual marine mammal monitoring, and shut-downs when marine mammals are 
detected within the defined ranges should further reduce short-term 
reactions to disturbance, and minimize any effects on hearing 
sensitivity.
    Finally, detecting and scientifically validating a change in a 
marine mammal population (e.g., trend, demographics) is extremely 
difficult. It is also unrealistic to expect a single factor to explain 
population changes. To date, there is no evidence that seismic sound 
has an effect on individual survival or reproductive success, or 
population trends or demographics. However, because research on the 
appropriate temporal and spatial scales has not been conducted, 
questions concerning the level of impact at such scales remain. NMFS 
relies on the best available scientific information in determining 
whether to issue incidental take authorizations and in developing 
appropriate mitigation and monitoring measures.
    Comment 172: Seismic airgun noise has been shown to impact a 
variety of species from cetaceans, to fish species, to squid, to even 
invertebrates. The fact that this noise covers a large area at high 
levels makes this survey potentially dangerous to marine life. There 
are indications that similar surveys have caused fatal giant squid and 
beaked whale strandings. While I understand that the Langseth probably 
has a better airgun configuration (safer for marine life) than its 
predecessor, the Ewing, it appears very little was learned from past 
experience.
    Response: The IHA issued to L-DEO, under section 101(a)(5)(D) of 
the MMPA, provides mitigation and monitoring requirements that will 
protect marine mammals from any injury or mortality. L-DEO is required 
to comply with the IHA's requirements. Detailed analyses of underwater 
noise, especially those from airguns, and impacts to cetaceans, fish, 
and invertebrates are provided in various documents related to the 
proposed project. These include: (1) The Federal Register notice for 
the receipt of L-DEO's application (73 FR 78294, December 22, 2008); 
(2) the EA and SEA for the TAIGER seismic; (3) and the BiOp and ITS. 
These analyses are supported by extensive scientific research and data. 
These reviews have led NMFS to conclude that the proposed seismic 
surveys would have a negligible impact on the affected species or 
stocks of marine mammals and are not likely to jeopardize the continued 
existence of any ESA listed species.
    The evidence linking giant squid (Architeuthis dux) strandings and 
seismic surveys remains inconclusive at best. Most of the information 
on acoustic effects on squid is derived from non-peer reviewed sources 
such as industry reports, government reports, conference proceedings, 
and news articles. NMFS is aware of two sources that attempted to link 
giant squid strandings and seismic surveys. The first is a presentation 
given at the International Council for Exploration of the Sea (ICES) 
Annual Science Conference in 2004 (Geurra et al., 2004). The authors 
reported that a total of nine squid stranded or surfaced in the Bay of 
Biscay in 2001 and 2003 and conducted necropsies on seven of the 
specimens which were previously frozen and then thawed for examination. 
In that presentation, Guerra et al. (2004) speculated that the 
mortalities were the result of geologists conducting marine geophysical 
surveys in the vicinity. However, the authors failed to describe the 
seismic sources, locations, and durations of the surveys which resulted 
in a lack of knowledge regarding the spatial and temporal correlation 
between the squid and the sound source. In addition, there were no 
controls and the examined animals had been dead long enough for 
commencement of tissue degradation. The second source, an article in 
New Scientist magazine (MacKenzie, 2004), only summarizes and repeats 
Guerra et al. (2004) claims without additional empirical evidence. 
Thus, it cannot be used as the best available information for assessing 
impacts of airgun sounds on marine invertebrates.
    As in the case of the giant squid, the scientific evidence linking 
beaked strandings and seismic surveys still remains inconclusive. 
However, the association of mass strandings of beaked whales with naval 
exercises (Malakoff, 2002), has raised the possibility that beaked 
whales exposed to strong ``pulsed'' sounds may be susceptible to injury 
and/or behavioral reactions that can lead to stranding (e.g., 
Hildebrand, 2005; Southall et al., 2007). Suggestions that there was a 
link between seismic surveys and strandings of humpback whales in 
Brazil (Engel et al., 2004) were not well founded (IAGC, 2004; IWC, 
2007). In September, 2002, two

[[Page 41301]]

Cuvier's beaked whales stranded in the Gulf of California, Mexico. The 
Ewing had been operating a 20 airgun, 8,490-in \3\ airgun array 22 km 
offshore the general area at the time that strandings occurred. The 
link between the stranding and the seismic surveys was inconclusive and 
not based on any physical evidence (Hogarth, 2002; Yoder, 2002) as some 
vacationing marine mammal researchers who happened upon the stranding 
were ill-equipped to perform an adequate necropsy. Furthermore, the 
small numbers of animals involved and the lack of knowledge regarding 
the spatial and temporal correlation between the beaked whales and the 
sound source underlies the uncertainty regarding the linkage between 
seismic sound sources and beaked whale strandings (Cox et al., 2006).
    No injuries of beaked whales are anticipated during the proposed 
study because of: (1) The high likelihood that any beaked whales nearby 
would avoid the approaching vessel before being exposed to high sound 
levels; (2) the proposed monitoring and mitigation measures; and (3) 
differences between the sound sources operated by the Langseth and the 
Ewing, as the Langseth's source arrays have a smaller airgun volume 
than the Ewing's.
    Comment 173: The possibility of trophic cascades was also 
unaddressed. Most marine animals are acoustically sensitive. Since 
components in the marine ecosystem are particularly interlinked, such 
effects cannot be discounted. It is time serious consideration be given 
to (possibly) subtle, long-term impacts at the level of the population 
and ecosystem. These are the effects we should be most concerned about, 
yet they barely receive any attention in this application.
    Response: NMFS acknowledges the public's concern about the effects 
of seismic sound on prey items of marine mammals. However, NMFS would 
refer the commenter to Chapter 4 section 5 of the final EA titled 
``Direct Effects on Fish and Their Significance''; section 6 titled 
``Direct Effects on Invertebrates and Their Significance''; Appendix D: 
Review Of Potential Impacts Of Airgun Sounds On Fish; and Appendix E: 
Review Of Potential Impacts Of Airgun Sounds on Marine Invertebrates to 
see the applicant's analysis and consideration of potentially affected 
trophic species. NMFS believes that L-DEO sufficiently analyzed the 
current research on the effects of seismic sound sources on fish and 
invertebrates.
    Comment 174: Minor and Wilson have read the IHA request and are 
disappointed about the lack of balance in its presentation. The 
numerous graphs and tables that describe the activity and levels of 
take are not well supported with data. ``Little is known about'' is a 
common refrain concerning biological effects, and the document notes 
that models used underestimate the actual sound levels by as much as 
15x (which is a 1,500 percent modeling error).
    Response: The L-DEO application, the NSF's EA and SEA, and the BiOp 
and ITS provided the necessary information and analyses needed for NMFS 
to determine whether the proposed incidental harassment takings would 
be of small numbers of marine mammals and would have no more than a 
negligible impact on marine mammals pursuant to the MMPA. Because Minor 
and Wilson did not offer specific details on the specific graphs and 
tables in question, NMFS cannot respond directly to their concerns on 
the lack of supported data.
    NMFS disagrees with the commenters' assertions about the lack of 
balance in the application. NMFS published the proposed regulations on 
December 22, 2008 (72 FR 78294) and on January 16, 2009 (74 FR 2995), 
providing required notice and opportunity for the public to address 
concerns and submit comments on the application and EA. By its very 
nature, the process of public review ensures that NMFS' analyses will 
be balanced and would incorporate the best available scientific 
information. In response to the public comments received during the 
public comment period, L-DEO has modified the survey design (see L-
DEO's Supplemental EA) and enhanced mitigation measures included in the 
proposed IHA. Finally, NMFS has incorporated additional mitigation 
measures to the IHA.
    As Minor and Wilson point out in their letter, L-DEO acknowledges 
in their application the shortcomings of the models for predicted sound 
levels in shallow water. Regarding the model, L-DEO conducted an 
acoustic calibration study of the Ewing's 20 airgun 8,600-in-
3 array in the Gulf of Mexico in 2003 (Tolstoy et al., 
2004a,b). During the study, researchers conducted calibration 
measurements for a 6-, 10-, and 12-, and 20-airgun array configurations 
at a depth of approximately 30 m (98 ft) to gather empirical data on 
the measured values (i.e., received sound level) for the 160-190-dB re 
1 [micro]Pa (rms) radii. In the 2003 study, Tolstoy et al. (2004b) 
reported that for the 20 airgun array, the 160 dB radius in shallow 
water was 33 percent higher than predicted (predicted = 9 km (5.5 mi); 
measured = 12 km (7.4 mi)). According to Tolstoy et al. (2004b), the 
results indicated that reverberations played a significant role in 
received levels of sound in shallow water and that previously estimated 
radii for 160 and 180 dB had not accounted for bottom reverberations. 
Thus, the predicted radii were underestimates of the actual distances 
where the 160 and 180 dB levels occurred in shallow water. The authors 
recommended that L-DEO extend the radii by an appropriate factor to 
account for this underestimation. As a result, L-DEO developed 
correction factors for water depths 100 to1,000 m (328 to 3,281 ft) and 
less than 100 m (328 ft).
    For the TAIGER cruise, L-DEO has applied conservative correction 
factors to develop appropriate shallow-water exclusion zones (see Table 
1 in 72 FR 78294, December 22, 2008) to mitigate effects on marine 
mammals. At this time, this is the best available scientific data for 
estimating seismic sound propagation for the Langseth's airgun 
configuration. L-DEO has measured the Langseth's seismic source array, 
and has stated that initial results, which do not significantly vary 
from those stated here, will be published in the future.
    Comment 175: The problem that permeates the EA and IHA documents 
(and the Federal Register listing) is the silly assumption that since 
nobody has done this (impossible) task that there is no reason to 
suspect that sending 170 dB pulses out for 7,808 m either side of a 
boat traveling for 1,113 km through the shallow water critical habitat 
of several endangered species is wrong.
    Response: To clarify, NMFS has determined that safety zones should 
be established at 180 dB (rms) for cetaceans not, 170 dB (rms). The 
commenter is referring to L-DEO's predicted root mean square (rms) 
distance for the safety radius/exclusion zone at 170 dB shown in Table 
1 of the application (see also Table 1 in 72 FR 78294, December 22, 
2008). The predicted rms distance of 7,808 m (4.8 mi) is the most 
precautionary distance which the 170 dB sound level is expected to be 
received from the 36-airgun array in shallow water.
    L-DEO establishes and closely monitors safety zones to ensure, to 
the greatest extent practicable, that no marine mammals would be 
injured by the proposed activity. NMFS recognizes that absence of 
evidence is not the same as having no effect or impact on the marine 
mammal species. However, NMFS is not relying solely on absence of 
evidence. All parties involved have used the best information currently 
available to analyze the impacts to marine mammals as shown in: (1) The 
Federal Register notice for the receipt of

[[Page 41302]]

L-DEO's application (73 FR 78294, December 22, 2008); (2) the EA and 
SEA for the TAIGER seismic; (3) the BiOp and ITS; and (4) numerous and 
salient public comments received by NMFS during the public comment 
period. Some of the new information used by NMFS to make its 
determinations under the MMPA are discussed and summarized in this 
Federal Register notice. Based on the evidence cited, NMFS concludes 
that the proposed seismic surveys would have a negligible impact on the 
affected species or stocks of marine mammals and are not likely to 
jeopardize the continued existence of any ESA-listed species.
    Comment 176: The notice in the Federal Register states in several 
places that scientific information on marine mammal species in the SE 
Asia survey area is minimal or even non-existent. It also notes that 
data on the impacts of seismic airgun sounds on marine mammals are 
minimal or lacking. Nevertheless, the NMFS and L-DEO inexplicably and 
without basis or precaution conclude that the surveys will have 
negligible impacts on marine mammals. This is unacceptable.
    Response: The NMFS recognizes that absence of evidence is not the 
same as having no effect or impact on the marine mammal species. 
However, NMFS is not relying solely on absence of evidence to support 
its determinations. All parties involved have used the best information 
currently available to analyze the impacts to marine mammals as shown 
in: (1) The Federal Register notice for the receipt of L-DEO's 
application (73 FR 78294, December 22, 2008); (2) the EA and SEA for 
the TAIGER seismic; (3) the BiOp and ITS; and (4) numerous and salient 
public comments received by NMFS during the public comment period. NMFS 
has incorporated new information to make its determinations under the 
MMPA are discussed and summarized in this Federal Register notice. 
Based on the evidence cited, NMFS concludes that the proposed seismic 
surveys would have a negligible impact on the affected species or 
stocks of marine mammals and are not likely to jeopardize the continued 
existence of any ESA-listed species.
    Comment 177: The discussion of the critically endangered Western 
Pacific gray whale (Eschrichtius robustus) is similarly problematic and 
does not adequately consider that the surveys will occur in waters 
presumed to include the population's breeding grounds and migration 
pathways (which are currently unknown but are placed by expert opinion 
in the South China Sea). Any resubmission of this application must do a 
far better job of evaluating the region's marine mammal populations, 
especially those that are critically endangered.
    Response: Please see NMFS' responses to comments under the Species 
of Particular Concern section. Because of concerns about effects of the 
proposed survey lines on Western Pacific gray whales, L-DEO has re-
routed the survey lines in the South China Sea, south of the Taiwan 
Strait. The survey lines are now located in water depths greater than 
200 m.
    Comment 178: The NMFS and L-DEO also ignore the growing body of 
literature addressing the possible infliction of stress on animals, 
including marine mammals, due to exposure to noise and how this stress 
can have significant impacts on individuals and populations (e.g., 
Wright and Kuczaj, 2007). The discussion in the notice and application 
(and no doubt the EA) still relies overmuch on observable behavioral 
reactions, when in fact research (also not cited in the L-DEO 
documentation) is available that suggests already stressed animals or 
animals in poor condition may not observably react in the face of human 
disturbance when more robust animals will (e.g., Beale and Monaghan, 
2004). Any resubmission of this request for authorization must expand 
and improve its discussion of the relevant scientific literature.
    Response: The Beale and Monaghan study investigated the effects of 
disturbance on cliff-dwelling birds. NMFS is aware of only two studies 
that directly address the physiological stress responses of marine 
mammals when exposed to sound. Thomas et al. (1990) examined behavioral 
responses of four captive belugas (Delphinapterus leucas) to playbacks 
of noise from SEDCO 708, a semi-submersible drilling platform. Results 
indicated no elevation in blood epinephrine and norepinephrine levels 
immediately after the playback. The authors observed no differences in 
swim patterns, social groupings, and respiration/dive rates before and 
during playbacks. In the second study, Romano et al. (2004) 
investigated nervous system activation and immune function in two 
species of captive marine mammals after exposure to a seismic water gun 
and/or single pure tones and observed that norepinephrine, epinephrine, 
and dopamine levels increased with increasing sound levels. However, 
Wright et al. (2007) noted that extrapolating these results to wild 
species should proceed with caution due to the study's small sample 
sizes, use of captive animals, and other technical limitations with the 
baseline measurements.
    L-DEO's EA (see Chapter 3) provided information on non-auditory 
physiological effects (including stress) in relation to seismic survey 
sounds in the EA. However, few studies exist on the quantification of a 
specific exposure level above which non-auditory effects can be 
expected. At present, NMFS is unaware of quantitative predictions of 
the numbers of marine mammals that might exhibit stress when exposed to 
seismic sounds. NMFS believes that these data presented in the EA were 
the best scientific information available for estimating impacts on 
marine mammal species and stocks. [Romano, T. A., Keogh, M. J., Kelly, 
C., Feng, P., Berk, L., Schlundt, C. E., Carder, D. A. & Finneran, J. 
J. (2004). Anthropogenic sound and marine mammal health: Measures of 
the nervous and immune systems before and after intense sound exposure. 
Canadian Journal of Fisheries and Aquatic Sciences, 61, 1,124 to 
1,134].
    Comment 179: The assumption (repeated several times in the Federal 
Register notice) that animals will move away from the approaching 
Langseth is simply wishful thinking--there is no evidence that this 
will occur for most species and in some cases (again, e.g., ETS Sousa), 
this is not even an option, as there is essentially nowhere for the 
animals to move to that will allow them to escape exposure to high 
levels of seismic sound. These issues are all discussed at greater 
length by other parties submitting comments and we urge the NMFS to 
require L-DEO to address these concerns in any resubmission of the 
application.
    Response: Several studies have reported observations of marine 
mammals exhibiting localized avoidance from areas with operating 
seismic airgun arrays. L-DEO provides this information in the Chapter 4 
and Appendix B of the EA. In the case of critically endangered ETS 
population and other coastal species, L-DEO and TAIGER's principal 
investigators have modified the cruise plan and survey design by re-
routing the cruise's tracklines offshore Taiwan's west coast by 
approximately 20 km to protect the ETS and the finless porpoise 
populations (except for in the passage between the Penghu Islands and 
the Waishanding Jhou (Wau-san-ting Chou) sandbar, where the survey will 
pass through the approximately 17.1 km (9.2 nautical mi) mid-line 
distance between the two possibly sensitive areas); re-routing the 
proposed survey lines in the South China Sea south of the Taiwan Strait 
to water depths greater than 200 m; and eliminating survey tracklines 
in the western Taiwan Strait.

[[Page 41303]]

    Comment 180: The applicant and the agency must improve their 
consultation with regional experts on the protected species in the 
region(s) of interest. Many of the omissions and inaccuracies of the 
application (and, quite frankly, much of the local resistance to this 
proposed research) could have been avoided if the applicants had sought 
out and consulted with regional scientific experts and regional non-
governmental organizations (NGO) with relevant expertise.
    Response: The conditions of the IHA encourage NSF and L-DEO to 
coordinate with the Taiwanese government regarding the proposed seismic 
activity. In December 2008, NMFS published notice of the proposed IHA 
in the Federal Register. During the public comment period, regional 
scientific experts and regional NGOs with relevant expertise were free 
to provide comments on the survey. NMFS considered these requests 
during the 30 day public comment period and published a notice in the 
Federal Register (74 FR 2995, January 16, 2009) extending the public 
comment period for the proposed IHA to facilitate additional review by 
regional scientific experts. If a regional expert or regional NGO 
representative requests to consult on the effects of the seismic survey 
on protected species in the region, NMFS encourages them to discuss 
this directly with a representative from L-DEO or NSF.
    Finally, based on comments received from the public, including 
regional experts, L-DEO completed a Supplemental EA for the TAIGER 
survey. NMFS believes that the monitoring and mitigation measures, 
which have been enhanced when compared to the proposed IHA notice, 
ensure the least practicable adverse impact on marine mammals in the SE 
Asia study area.
    Comment 181: According to the tables within the EA, more Sousa will 
be impacted than there actually are Sousa in the area. I am unclear on 
how this meets the ``small number'' criteria. This number would, of 
course, go up further if the distances reported by Madsen et al. 
(2006--noted above) were taken into account. Of course, these distances 
would increase the take numbers for all animals in the area.
    Response: Since the issuance of the proposed IHA notice, L-DEO 
negotiated with the project's principal scientists to modify the cruise 
plan and adopt more precautionary monitoring and mitigation measures. 
Based on the re-routed tracklines, L-DEO has revised estimates of the 
possible numbers of ETS Indo-Pacific humpback dolphins exposed to sound 
levels that would constitute Level B harassment to zero (zero percent 
of the ETS sub-population). NMFS took the revised tracklines into 
account when making the necessary MMPA determinations, including small 
numbers, towards the issuance of the IHA.
    Comment 182: The Langseth will deploy an 8 km long streamer for 
most transects requiring a streamer; however, a shorter streamer (500 m 
to 2 km) will be used during surveys in Taiwan (Formosa) Strait (EA2). 
Do the effective source levels offered in the EA pertain to the longer 
or shorted streamers?
    Response: The effective source level output from the Langseth's 
airgun array pertains to both the longer and shorter streamers. 
Streamer lengths generally relate to hydrophones, not airguns, and 
changes are often due to convenience, particularly to improve 
maneuverability.
    Comment 183: According to the EA, the Multibeam Echosounder and 
Sub-bottom Profiler have outputs up to 204 dB re 1 [mu]Pa m, at the 
dominant frequency of 3.5 kHz. This is perilously close to the US 
Navy's AN/SQS-53C tactical mid-frequency sonar system implicated in 
many of the mass strandings of beaked whales and other cetaceans, which 
produces `pings' primarily in the 2.6 to 3.3 kHz range. Another LDEO 
survey has been associated with a stranding (as acknowledged in the EA: 
``* * * association of mass strandings of beaked whales with naval 
exercises and, in one case, an L-DEO seismic survey (Malakoff, 
2002)''). There may thus also be concern for beaked whales and other 
animals, because, while ``[t]here is no conclusive evidence of cetacean 
strandings or deaths at sea as a result of exposure to seismic 
surveys'' (EA), there is also no conclusive evidence that seismic 
surveys do not lead to strandings or death either.
    Response: The evidence linking beaked whale strandings and seismic 
surveys remains inconclusive at best. In September, 2002, two Cuvier's 
beaked whales stranded in the Gulf of California, Mexico. The Ewing had 
been operating a 20-airgun, 8,490-in\3\ airgun array 22 km offshore the 
general area at the time that strandings occurred. However, the link 
between the stranding and the seismic surveys was inconclusive and not 
based on any physical evidence (Hogarth, 2002; Yoder, 2002) as some 
vacationing marine mammal researchers who happened upon the stranding 
were ill-equipped to perform an adequate necropsy. In addition, Cox et 
al. (2006) noted the ``lack of knowledge regarding the temporal and 
spatial correlation between the [stranding] and the sound source.'' 
Finally, Hildebrand (2005) illustrated the approximate temporal-spatial 
relationships between the stranding and the Ewing's tracks, but noted 
that the time of the stranding was not known with sufficient precision 
for accurate determination of the closest point of approach (CPA) 
distance of the whales to the Ewing.
    The MBES and SBP have anticipated radii of influence significantly 
less than that for the airgun array. For reasons noted in the EA, the 
160 dB and 180 dB isopleths of the MBES and SBP are either too small or 
the acoustic beams are very narrow, making the duration of the exposure 
and the potential for taking marine mammals by harassment small to non-
existent. NMFS believes that it is unlikely that marine mammals would 
be affected by sub-bottom profiler signals whether operating alone or 
in conjunction with other acoustic devices since the animals would need 
to be swimming immediately adjacent to the vessel or directly under the 
vessel. Additionally, NMFS believes that the MBES and SBP are not 
likely to be capable of causing marine mammal strandings because of 
their short duration and brief pings
    Comment 184: Several commenters expressed that the impacts of 
masking (including the physiological and psychological consequences 
potentially resulting from masking) were likely to be greatest for 
baleen whales throughout the survey area and requested that the 
Langseth should avoid calving grounds at breeding season, and feeding 
and migratory habitat for several species of threatened and endangered 
marine mammals. Several expressed concern for the range of the 
critically endangered Eastern Taiwan Strait (ETS) population of Indo-
Pacific humpbacked dolphin; the partial range of Jiulong River Estuary 
(JRE) population of Indo-Pacific humpbacked dolphin; calving and 
migratory habitat for western Pacific humpback whales; a migratory 
pathway for the critically endangered western Pacific gray whale; and 
beaked and sperm whale habitat in southeastern and southwestern Taiwan.
    Response: Please see NMFS' responses to comments under the Species 
of Particular Concern section and the response to Comment EA2 under 
this section. The IHA contains measures to mitigate against the 
potential effects of the surveys on mother/calf pairs, ETS and JRE 
humpbacked dolphins, and western Pacific gray whales.
    Comment 185: NMFS has determined that the proposed activity ``may 
result,

[[Page 41304]]

at worst, in a temporary modification in behavior (Level B harassment) 
of small numbers of marine mammals'' and proposes to issue an IHA, 
which demonstrates that either the reviewers of the proposal lacked 
knowledge of SE Asian marine mammals or chose to ignore the potential 
damage such seismic surveys can have on small and critically endangered 
populations of marine mammals in the region. With a lack of knowledge 
about even the most basic biology of marine mammals in the region, any 
determination of the level of impact of the seismic surveys would be 
little more than a random guess.
    Response: Please see NMFS response to Comment EA2 (above) in this 
section.
    Comment 186: The principal investigators responded that the bulk of 
the energy produced by the Langseth sound source is below a frequency 
of 200 Hz. They also noted that odontocetes communicate in a much 
higher band of frequencies, typically in the range of 10,000 Hz to 
several 100,000 Hz. Thus there is very little, if any, overlap in the 
frequency bands of acoustic energy used by these marine mammals and 
that of the seismic system. In summary, the investigators agreed with 
the EA that the surveys were not likely to result in any significant 
impact on marine life in the area.
    Response: NMFS acknowledges the comments from the principal 
investigators.
    Comment 187: NMFS is charged with implementing the MMPA and, to 
that end, must prescribe methods and means of effecting the least 
practicable adverse impact on marine mammals. NMFS' proposed IHA falls 
short of the mark.
    Response: Please see NMFS' response to comments (above) under this 
section. In this IHA, NMFS prescribed mitigation measures that achieve 
the least practicable adverse impact, such as: re-routing the cruises 
tracklines further offshore by approximately 20 km (10.8 nautical mi) 
to protect the critically endangered Sousa population and the finless 
porpoise (except for in the passage between the Penghu Islands and the 
Waishanding Jhou (Wau-san-ting Chou) sandbar, where the survey will 
pass through the 17.1 km (9.2 nautical mi) mid-line distance between 
the two possibly sensitive areas); visual marine mammal monitoring, and 
shut-downs when marine mammals are detected within the defined ranges 
should further reduce short-term reactions to disturbance, and minimize 
any effects on hearing sensitivity. The IHA includes mitigation and 
monitoring measures to reduce the potential for injury or mortality, as 
well as instituting immediate shutdown protocols for the North Pacific 
right whale, western gray whale, Indo-Pacific humpbacked dolphin, or 
finless porpoise. No injury, serious injury, or mortality of any marine 
mammal is anticipated nor is authorized.
    Comment 188: Several other baleen whales have been recorded from 
Taiwanese waters. However, due to almost no survey effort in the waters 
beyond about 20 km from shore and surveys being most in summer months, 
little is known about these species, which include: fin, sei, minke, 
Bryde's and Omura's whales. There are reports of several distinct 
stocks of some of these species. As a minimum, the impact on each stock 
of each species should be assessed rather than just at the species 
level and more work is needed on understanding stock structure before 
impacts can be understood.
    Response: Please see NMFS' response to comments above. Detailed 
analyses of underwater noise, especially those from airguns, and 
impacts to cetaceans, fish, and invertebrates are provided in various 
documents related to the proposed project. NMFS' review of these 
documents have led to the determination that the proposed seismic 
surveys would have a negligible impact on the affected species or 
stocks of marine mammals and are not likely to jeopardize the continued 
existence of any ESA listed species.
    Comment 189: Consideration of cumulative noise impacts. The 
exposure of these dolphins to total cumulative noise has not been 
considered. The ETS dolphins live in an environment which is already 
very noisy (e.g., pile driving and other noise-generating activities 
during coastal construction, shipping, other seismic surveys (oil and 
gas, local researchers, etc.). The cumulative impact of all noise 
sources needs to be examined in context of the contributions by the 
intense sounds source of the airguns.
    Response: Please NMFS' response to NEPA comments. NMFS has 
determined that the EA adequately addressed the cumulative impacts of a 
short-term, low-intensity seismic airgun survey in relation to long-
term noise and taking events, such as vessel traffic, habitat loss, oil 
and gas industry, pollution, fisheries, and hunting. NMFS' endangered 
species scientists have conducted a thorough review of the best 
available information on the cumulative effects of the proposed 
project. As a result, NMFS issued a BiOp on the proposed action on 
March 31, 2009 (NMFS, 2009), which stated that the survey was not 
likely to jeopardize the continued existence of ESA-listed marine 
mammals in the survey area.
    Comment 190: The blue whale is given the highest level of 
legislative protection by the Wildlife Conservation Act of Taiwan. If 
small numbers of western North Pacific blue whales still exist, seismic 
surveys can have a large impact on the few remaining individuals.
    Response: Please see NMFS' response to comments under the Species 
of Particular Concern section. L-DEO's revised seismic survey is 
expected to have a negligible impact on populations of blue whales in 
the study area. Blue whales can be easily detected visually so that L-
DEO may implement appropriate mitigation measures.
    Comment 191: The project description does not adequately consider 
the relevant scientific literature on risks of seismic activities to 
cetaceans. Also, L-DEO completely overlooked physiological impacts on 
cetaceans (see Wright et al., 2007a,b).
    Response: L-DEO's EA (see Chapter 3) provided information on non-
auditory physiological effects (including stress) in relation to 
seismic survey sounds in the EA. However, few studies exist on the 
quantification of a specific exposure level above which non-auditory 
effects can be expected. At present, NMFS is unaware of quantitative 
predictions of the numbers of marine mammals that might exhibit stress 
when exposed to seismic sounds. NMFS believes that these data presented 
in the EA were the best scientific information available for estimating 
impacts on marine mammal species and stocks.
    All parties involved have used the best information currently 
available to analyze physiological impacts to marine mammals as shown 
in: (1) The Federal Register notice for the receipt of L-DEO's 
application (73 FR 78294, December 22, 2008); (2) the EA and SEA for 
the TAIGER seismic; (3) the BiOp and ITS; and (4) numerous and salient 
public comments received by NMFS during the public comment period.
International Legal Compliance
    Comment 192: L-DEO has stated that it will ``coordinate with 
Taiwan, China, Japan, and the Philippines, as well as applicable U.S. 
agencies (e.g., NMFS) and will comply with their requirements'' (p. 
78316). This is a promise of action but there is no indication in the 
Federal Register notice how fulfillment of this promise will be 
verified. HSI and other interested parties state that before NMFS 
issues an authorization, NMFS must verify that L-DEO has complied with 
all relevant laws and regulations of the countries

[[Page 41305]]

within whose EEZs it will be conducting surveys. NMFS must request and 
receive the relevant paperwork from the applicant, that L-DEO has a 
minimum initiated and preferably completed. It cannot take at face 
value the assurances of L-DEO that such compliance will occur. It is a 
long-standing concern of HSUS/HSI (and other NGOs, both domestic and 
international) that U.S. agencies issue environmental permits and 
authorizations for activities that will in part be conducted within 
foreign jurisdictions without first verifying that the applicant has 
complied or even initiated compliance with local laws and regulations 
of these four nations.
    Response: NMFS has communicated with NSF and L-DEO regarding the 
seismic survey in SE Asia. NMFS has received copies of L-DEO's foreign 
clearances from Taiwan, Japan, and the Philippines. L-DEO has been 
denied access to the waters of China. NMFS expects NSF and L-DEO to 
coordinate with the governments of Taiwan, Japan, and the Philippines, 
as well as adhere to local conservation laws and regulations of nations 
while in foreign waters, and known rules and boundaries of Marine 
Protected Areas (MPA), regarding the marine geophysical activity in SE 
Asia. In the absence of local conservation laws and regulations or MPA 
rules, L-DEO will continue to use the monitoring and mitigation 
measures identified in the IHA. NMFS has included conditions to these 
effects in the IHA. L-DEO is required to submit a draft report on all 
activities and monitoring results to the Office of Protected Resources, 
NMFS, within 90 days of the completion of the Langseth's SE Asia cruise 
(see ``Reporting'' section below).
    Comment 193: HSI states that far too often, applicants for MMPA 
Incidental Harassment Authorizations, who are working on geophysical 
and other projects that do not directly concern marine mammals, but 
result in their incidental harassment and that will occur at least 
partially within foreign jurisdictions, fail to consult much or at all 
with regional entities who can be considered stakeholders in the 
decisions to authorize such projects. The authorizing agency compounds 
this failing by accepting the applicant's assurances at face value that 
sufficient consultation has occurred or will occur. HSI strongly 
advises the NMFS (and applicants such as L-DEO) to rectify this problem 
in the future.
    Response: NMFS acknowledges HSI's recommendation and expects 
applicants to comply with all foreign and domestic laws. NMFS 
encourages applicants to consult with all stakeholders regarding 
projects in a specified region.

Recommendations for Consultation and Research

    Comment 194: Dr. McIntosh and Dr. Wu state they have already 
contacted marine biologists highly knowledgeable and very concerned 
about the ecology of all marine mammals in the National Taiwan 
University, Academica Sinica and the National Taiwan Ocean University. 
They will continue to provide guidance to the planning of the TAIGER 
program.
    Response: NMFS acknowledges the principal investigators comment.
    Comment 195: CSI states that in December, 2008, for the ETSSTAWG 
(an international working group established in early 2008 to provide 
scientific guidance and advice to all interest groups) recommended that 
a buffer for noise threats be out to at least 5 km from shore for the 
ETS population after reviewing a proposal for designation of Majore 
Wildlife Habitat for the ETS population (review letter to Wild At Heart 
Legal Defense Association--dated 29 December, 2008).
    Response: After issuance of the proposed IHA, L-DEO negotiated with 
the project's principal scientists to modify the cruise plan and adopt 
more precautionary mitigation measures. Off Taiwan's west coast, the 
cruise tracks have been re-routed offshore by approximately 20 km to 
protect the `critically endangered' ETS Indo-Pacific humpback dolphin 
population and the finless porpoise, as well as ease potential pressure 
on other coastal species. Thus, the precautionary buffer recommended by 
ETSSTAWG in their comments to NMFS, ``at least 13 km and perhaps a more 
precautionary 15 km of the ETS Indo-Pacific humpback dolphin 
subpopulation--meaning up to around 20 km from shore'' will be adopted. 
L-DEO will limit seismic survey lines to take place at least 20 km from 
the west coast of Taiwan, expect for in the passage between the Penghu 
Islands and the Waishanding Jhou (Wau-san-ting Chou) sandbar, where the 
survey will pass through the approximately 17.1 km mid line distance 
between the two possibly sensitive areas, subject to the limitations 
imposed by other foreign nations, to minimize the potential for 
exposing the ETS sub-population and other coastal species to SPLs 
greater than or equal to 160 dB re 1 [mu]Pa (rms). NMFS has included 
conditions to this effect in the IHA as well.
    Comment 196: CSI recommends that activities that would increase the 
risk of extinction of Sousa chinensis populations, including 
physiological and behavioral impacts, not be permitted.
    Response: NMFS disagrees with CSI's recommendations. NMFS believes 
that L-DEO's revised seismic survey as well as the implementation of 
the required monitoring and mitigation measures will have a negligible 
impact on the affected species or stocks of marine mammals in the 
planned study area. L-DEO will limit seismic survey lines to water 
depths greater than 200 m in the South China Sea, and as far east as 
possible from the mainland China side of the Taiwan Strait, to reduce 
potential for effects on Western Pacific gray whales, Indo-Pacific 
humpback dolphins, and finless porpoises. L-DEO will limit seismic 
survey lines to take place at least 20 km from the west coast of 
Taiwan, except for in the passage between the Penghu Islands and the 
Waishanding Jhou sandbar, where the survey will pass through the 
approximately 17.1 km mid-line distance between the two possibly 
sensitive areas, subject to the limitations imposed by other foreign 
nations, to minimize the potential for exposing Indo-Pacific humpback 
dolphins, finless porpoises, and other coastal species to SPLs greater 
than or equal to 160 dB re 1 [mu]Pa (rms).
    Comment 197: Several interested parties recommend dedicated marine 
mammal systematic surveys in waters off eastern Taiwan (particularly in 
waters beyond 20 km from shore where almost no cetacean survey effort 
exists) and of the Penghu Channel to better understand the region's 
waters, determine concentrations of beaked whales, and reduce impacts 
on other cetaceans. Systematic cetacean surveys of the waters of these 
waters are needed before seismic surveys are conducted so that better 
planning with adequate information can reduce impacts on marine 
mammals. Better coverage of the region's waters by cetaceans surveys 
can also allow fine turning of spatial and temporal avoidance of 
humpback whales by seismic surveys. Simple strategic scheduling of 
seismic surveys can eliminate or at least greatly reduce the impacts on 
this population.
    Response: In this case, NMFS does not agree that marine mammal 
assessment surveys are needed prior to issuing an IHA. When information 
is unavailable on a local marine mammal population size, NMFS uses 
either stock or species information on abundance. Also, while 
information may be lacking for many species of cetaceans, information 
on some of the locally-found species is found in the L-DEO's IHA 
application, EA, and Supplemental EA. See L-DEO's IHA application, EA,

[[Page 41306]]

and Supplemental EA for more information.
    In order to reduce impacts on marine mammals, NMFS has included 
temporal and spatial avoidance requirements in the IHA. See the 
information in the Monitoring and Mitigation sections below. Also, 
after the issuance of the proposed IHA, L-DEO has revised the planned 
seismic survey to reduce potential impacts on marine mammal populations 
in the study area.
    Comment 198: Several interested parties recommend greater local 
consultation. Extensive consultation with experts on these regions and 
more studies to better understand the biology of cetaceans in this 
region can provide expert guidance to greatly reduce the impacts on the 
seismic surveys. More information exists in publications in local 
languages that have not been considered by this proposal. Conduct a 
consultation workshop with scientists who have expertise in local 
marine mammals, reptiles, fish, and invertebrates to understand better 
the local sensitive species and waters. Consultation with ETSSTAWG is 
needed.
    Response: L-DEO and NSF have formally consulted with NMFS' Permits, 
Conservation, and Education Division regarding the IHA and NMFS' 
Endangered Species Division regarding a Biological Opinion under 
Section 7 of the ESA for the marine geophysical survey in SE Asia. L-
DEO and NSF have also consulted with numerous persons and organizations 
in the SE Asia region. Below is a timeline of L-DEO's consultation 
process and issues discussed:
     December 18, 2007--Initial consultation began with LGL 
Ltd. when Dr. John Richardson contacts Dr. John Wang for a reprint. Dr. 
John Wang expresses concerns about seismics and mentions that the Indo-
Pacific humpback dolphin is being reviewed for critically endangered 
status.
     August 9, 2008--Meike Holst of LGL Limited contacts Dr. 
John Wang for reprints. The L-DEO program is discussed via e-mail.
     August 14, 2008--Dr. John Wang copies Robin Winkler of WaH 
and asks for details on the cruise.
     August 19, 2008--Meike Holst shared details with Dr. John 
Wang and consults with him further.
     August 20, 2008--Meike Holst assures Robin Winkler of the 
planned mitigation measures in place and asks about relevant local 
laws.
     August 30, 2008--Chao-Shing Lee referred Meagan Cummings 
of L-DEO to Dr. Lien-Siang Chou. Meagan Cummings e-mailed Dr. Lien-
Siang Chou and informed her that she planned to send copies of the EA 
when it became available.
     September 19, 2008--Robin Winkler responds to Meike Holst 
and copies Dr. Peter Ross. Meike Holst never hears back from Dr. Peter 
Ross.
     October 2, 2008--Hong Young, Prof. K. T. Shao from the 
Center for Biodiversity Research (Academica Sinica), and Prof. F. C. 
Chiu, Director of the Taiwan Ocean Research Institute are contacted by 
Claudio Fossati, one of L-DEO's lead bioacousticians and MMOs.
     January 13, 2009--Dr. Randall Reeves reviews the EA and 
recommends contacting Dr. Lien-Siang Chou or Benjamin Kahn based in 
Cairns, Australia.
     January 19, 2009--Dr. Francis Wu recommends Dr. Lien-Siang 
Chou. http://ecology.lifescience.ntu.edu.tw/english/faculty_chou_ls.htm.
     February 27, 2009--Meagan Cummings contacts Dr. Peter 
Ross. Dr. Peter Ross recommended an independent review of the program. 
Meagan Cummings assured him that NMFS was the reviewing agency and they 
wrote back and forth a few times and was informed that there was a 
regional expert.
     February 27, 2009 to present--L-DEO has been consulting 
mainly with Dr. Lien-Siang Chou and her department's graduate students. 
Meagan Cummings met with Dr. Lien-Siang Chou on March 21, 2009 in 
Taiwan. L-DEO scheduled a workshop for March 27, 2009 to discuss 
mitigation measures and visual sighting techniques for finless 
porpoises.
     March 27, 2009--L-DEO met with Dr. Lien-Siang Chou and her 
graduate students at National Taiwan University. The discussion points 
during the meeting included: MMO operations (Big-eye and 7x50 
binoculars, visible distances from the observation tower, safety radii, 
ramp-up, power-down, and shut-down explanations), the Supplemental EA 
(revised tracklines, proximity to Taiwan, the ETS Indo-Pacific humpback 
dolphins, finless porpoises), possible carcass and stranding procedures 
(stranding density and locations during the past 10 years, current 
protocols for live and dead animals, reporting protocols and 
notification of the Taiwan Cetacean Society, funding to conduct 
necropsies, investigate resources to process more animals if there are 
a significant number of strandings, possible MRI of smaller cetaceans 
to look at possible effects of sound or pressure, fewer recent 
strandings than average, public concern has dropped, Taiwan's marine 
mammal stranding response team, stranding teams divided up between the 
north and south of Taiwan, discovery and reporting of possible 
carcasses at sea, and taking carcass samples for DNA analysis), NMFS 
notification requirements, finless porpoise sighting techniques, 
current MMO protocols, sampling considerations, regions of concern, 
beaked whales in Taiwan, population and density of Taiwanese cetaceans, 
and addressing the media.
    Comment 199: Recent estimates of habitat boundaries and noise 
buffer zones specifically for the ETS Indo-Pacific humpback dolphins 
are not referred to yet could have easily been acquired through 
consultation with the ETSSTAWG. The existence of this expert advisory 
team dedicated to ETS humpback dolphin matters was brought to the 
attention of one of the principal preparers of the EA by the directors 
of Wild at Heart Legal Defense Association in an e-mail dated September 
19, 2008.
    Response: After the issuance of the proposed IHA, L-DEO modified 
the cruise plan and adopted more precautionary monitoring and 
mitigation measures. L-DEO will maintain the precautionary buffer 
recommended by ETSSTAWG in their comments to NMFS, ``at least 13 km and 
perhaps a more precautionary 15 km of the ETS Sousa population--meaning 
up to around 20 km from shore.'' L-DEO will limit seismic survey lines 
to take place at least 20 km from the west coast of Taiwan, except for 
in the passage between the Penghu Islands and the Waishanding Jhou 
(Wau-san-ting Chou) sandbar, where the survey will pass through the 
approximately 17.1 km mid-line distance between the two possibly 
sensitive areas, subject to the limitations imposed by other foreign 
nations, to minimize the potential for exposing Indo-Pacific humpback 
dolphins, finless porpoises, and other coastal species to SPLs greater 
than or equal to 160 dB re 1 [mu]Pa (rms). See relevant responses to 
comment above for information on consultation.
    Comment 200: WaH states that in the event that no attempt was made 
by LGL to consult with the ETSSTAWG prior to completion of the EA, WaH 
would recommend that this is done immediately with a view to clarifying 
some of the concerns relating to harassment of Indo-Pacific humpback 
dolphins, and that similar consultations be held with other experienced 
researchers through the region in question.
    Response: During the preparation of the IHA application and EA, LGL 
Ltd. contacted and consulted with regional experts. After the issuance 
of the proposed IHA, L-DEO modified the

[[Page 41307]]

cruise plan and adopted more precautionary monitoring and mitigation 
measures to address concerns for species of particular concern (e.g., 
ETS sub-population of Indo-Pacific humpback dolphins). L-DEO also 
prepared a Supplemental EA. The Supplemental EA is in response to the 
comments received by NMFS through the public comment period associated 
with the IHA process. See relevant discussions in this document as well 
as L-DEO's Supplemental EA.

Species of Particular Concern

    Comment 201: NRDC states many genetically distinct populations of 
cetaceans are found within the enclosed seas of the western Pacific, 
including the ETS population of Indo-Pacific humpbacked dolphin, South 
China Sea population of finless porpoise, fin whales, gray whales, and 
humpback whales. Take estimates should use abundance and density 
estimates for these distinct populations (rather than estimates for the 
entire North Pacific) where appropriate.
    Response: NMFS agrees that impacts should be assessed on the 
population or stock unit whenever possible. Due to the lack of 
systematic aircraft- or ship-based surveys conducted for marine mammals 
in waters near Taiwan, the species of marine mammals that occur there 
are not well known. A few surveys have been conducted from small 
vessels with low observation platforms. In the absence of any other 
density data, L-DEO used the survey effort and sightings in Yang et al. 
(1999) and Wang et al. (2001a) to estimate densities of marine mammals 
in the TAIGER study area. L-DEO's application provides information on 
stock abundance and local and regional populations. The data source for 
each stock estimate is provided in Table 2 of L-DEO's IHA application. 
There is some uncertainty about the representatives of the density data 
and the assumptions used in the calculations. Perhaps the greatest 
uncertainty results from using survey results from the northeast 
Pacific Ocean.
    NMFS believes that this approach and these data are the best 
scientific information available for estimating impacts on marine 
mammal species and stocks. However, information on marine mammal stock 
abundance may not always be complete. When information is lacking to 
define a particular population or stock of marine mammals then impacts 
are assessed with respect to the species as a whole (54 FR 40338, 
September 29, 1989).
    Comment 202: Dr. John Wang states that for gray, right, and 
humpback whales, some common issues arise from the seismic surveys. The 
timing of the L-DEO surveys overlaps, spatially and temporally, with 
whales wintering (calving and nursing) in the region's waters (see 
above) and during the northward migrations of mothers with neonatal or 
other young calves from these calving/nursing grounds.
    Response: After issuance of the proposed IHA, L-DEO revised their 
seismic survey to include temporal and spatial concerns regarding 
marine mammals in the study area. Because of concerns about effects of 
the proposed survey lines on gray whales, the proposed survey lines in 
the South China Sea south of the Taiwan Strait were re-routed so that 
they are now located in water depths >200 m. To mitigate against the 
potential effects of the surveys on humpback whales, particularly 
mothers and calves on the breeding grounds or during the beginning of 
migration to summer feeding grounds, the surveys that approach the 
Babuyan Islands have been rescheduled as late as possible, to Leg 4. 
Also, L-DEO will shut-down the airgun array immediately if a Western 
Pacific gray, North Pacific right, and/or humpback whale mother/calf 
pair are visually sighted at any distance. Requirements to these 
effects have been included in the NMFS-issued IHA. See responses to 
comments pertaining to Western Pacific gray and humpback whales below.
    Comment 203: CSI states that if small numbers of Western North 
Pacific blue whales still exist in the region's waters, seismic surveys 
can have a large impact on the few remaining individuals (even if only 
a very few whales are disturbed).
    Response: After issuance of the proposed IHA, L-DEO modified the 
cruise plan and adopted more precautionary monitoring and mitigation 
measures. L-DEO's revised seismic survey is expected to have a 
negligible impact on populations of blue whales in the study area. Blue 
whales can be easily detected visually so that the proper mitigation 
measures may be implemented.
Species of Particular Concern--Pearl River Estuary (PRE), Jiulong River 
Estuary (JRE), and Eastern Taiwan Strait (ETS) Indo-Pacific Humpback 
Dolphins
    Comment 204: Several interested parties are concerned about the 
acoustic disturbance that can seriously affect several coastal 
populations of Indo-Pacific humpback dolphins, notably the ones at the 
PRE in Guangdong Province, the JRE in Fujian Province (near Xiamen), 
and along the coastal waters of the ETS. The JRE sub-population of 
Indo-Pacific humpback dolphins is estimated to be less than 90 
individuals (Chen et al., 2008) and faces similar threats. The JRE sub-
population is distinct from the ETS sub-population (Wang et al., 
2008a), but the level of exchange (if any) with other provisional 
populations along the mainland Chinese coast is unknown. Other Chinese 
sub-populations have been studied and have a distribution in adjacent 
waters of the Chinmen islands and further east are completely unknown 
and were not surveyed by Chen et al. (2008) due to political border 
issues. Not enough is known about this population to estimate what 
proportion of dolphins in this small sub-population will be impacted, 
but it is clear that some will be impacted and with such a small 
population size, even minimal disturbance can have a large impact on 
the sub-population. Far less is known about Sousa chinensis in other 
regions so the impact on these dolphins cannot be estimated. However, 
given the proposed trackline which meets the mainland Chinese coast 
perpendicularly and closes near the area of Xiamen/Chinmen Islands and 
near Pingtan (where records of Sousa chinensis also exist--see Wang, 
1999; Zhou, 2004), dolphins of these coastal waters would be expected 
to be impacted.
    The proposed tracklines of these seismic surveys will traverse 
through areas that will overlap or are in close proximity to these 
resident humpback dolphin populations, posing serious risks and threats 
to the livelihood of their daily lives. One of the Langseth's proposed 
tracklines approaches to the mainland Chinese coast is directly in line 
with the heart of the JRE population. At a distance of 10 km from 
shore, dolphins using waters east of the Chinmen islands may be exposed 
to levels greater than 160 dB and some may be exposed to greater than 
180 dB depending on where the dolphins are found in their distribution 
and how close the Langseth is to the 25-30 m isobath (which appears to 
be the depth limit for the species--see Jefferson and Karczmarski, 
2001). Not enough is known about this population to estimate the 
numbers of dolphins that will be impacted. Given such a small 
population size, even minimal disturbance can have a large impact on 
the lives of the populations. The animals may be exposed to received 
levels >180 dB, which would exceed the type of take which L-DEO has 
applied for.
    Response: Because of these concerns about effects of the proposed 
surveys on Western Pacific gray whales, populations of Indo-Pacific 
humpback dolphins, and finless porpoises, the

[[Page 41308]]

proposed survey lines in the South China Sea south of the Taiwan Strait 
were re-routed after the issuance of the proposed IHA so that they are 
now located in water depths >200 m, as recommended by NRDC. The seismic 
lines in the western Taiwan Strait were dropped. Requirements to these 
effects have been included in the IHA and no takes of any of the three 
sub-populations of Indo-Pacific humpback dolphins found in the SE Asia 
study area is authorized for this seismic survey.
    Comment 205: Several interested parties have expressed concern with 
the safety of the ETS Indo-Pacific humpback dolphin. This `critically 
endangered' sub-population is very small at <100 individuals. The 
distinct population is a year-round resident of a very restricted 
stretch of shallow coastal waters along western Taiwan (i.e., the ETS). 
Any single threat (e.g., loss of habitat, pollution, bycatch, and 
noise) has the potential to be the final cause of extinction. Unless 
effective mitigation measures are taken to reduce these threats, it is 
unlikely that the population will continue to exist. Mortality (by 
human causes) of even a single individual per year from this population 
is not sustainable.
    Seismic surveys in June and July (as well as any other time of the 
year) will have a serious impact on this critically endangered 
population. Given their year round residency, there is no season that 
will reduce the serious impacts of seismic surveys in inshore waters on 
this population. In June and July, large numbers of cetaceans are found 
along and near the shelf edge of eastern Taiwan. Conducting seismic 
surveys close to the shores of Taiwan risks greatly impacting on these 
cetaceans.
    Response: After the issuance of the proposed IHA, L-DEO negotiated 
with the project's principal scientists to modify the cruise plan and 
adopt more precautionary mitigation measures. Off Taiwan's west coast, 
the cruise tracks have been re-routed offshore by approximately 20 km 
to protect the critically endangered ETS Indo-Pacific humpback dolphins 
and the finless porpoise, as well as ease potential pressure on other 
coastal species. Thus, the revised survey will maintain the 
precautionary buffer recommended by ETSSTAWG in their comments to NMFS, 
``at least 13 km and perhaps a more precautionary 15 km of the ETS 
Sousa population--meaning up to around 20 km from shore.'' See L-DEO's 
Supplemental EA.
    Concerns were expressed about the survey line that was parallel to 
and within a few km of the east coast of Taiwan because of potential 
effects on coastal species and those that frequent the shelf break and 
steep slopes, where the continental shelf is narrow. Due to these 
concerns, the survey line has been moved offshore by more than 20 km to 
decrease potential impacts on species that occur there.
    Requirements to these effects have been included in the IHA. No 
injury, serious injury, or mortality has been authorized.
    Comment 206: HSI states the application and the Federal Register 
notice never indicate that the Eastern Taiwan Strait (ETS) population 
of the Indo-Pacific humpback dolphin, Sousa chinensis, is listed as 
``critically endangered'' on the International Union for Conservation 
of Nature (IUCN) Red List. Instead these two documents lump the entire 
region's Sousa populations together. While the IUCN did list the larger 
regional Sousa population as ``near threatened,'' it specifically 
identified the ETS population as separate and ``critically 
endangered.'' This designation was made well before the December 
publication of the Federal Register notice. The failure to note this, 
to address the fact that two-thirds of this population (the maximum 
proportion the notice indicates could be taken--see p. 78311) cannot be 
considered a ``small number,'' or to address the fact that the survey 
track lines cover the entire length of this imperiled population's home 
range is unacceptable and must be rectified by a resubmission of the 
application.
    Response: NMFS acknowledges HSI's comment. L-DEO's Supplemental EA 
states the ETS sub-population of Indo-Pacific humpback dolphins is 
considered `critically endangered' on the IUCN Red List of Threatened 
Species (IUCN, 2008). See L-DEO's Supplemental EA for a detailed 
description of the revised survey as well as monitoring and mitigation 
measures. No takes of the ETS Indo-Pacific humpback dolphin sub-
population are authorized under the NMFS-issued IHA. See response to 
comment below.
    Comment 207: Dr. John Wang and CSI states that Sousa chinensis is 
considered a slow swimming species with average speeds between 3.6 and 
7.2 km/hr (Saayman and Tayler, 1979; Jefferson, 2000) but much slower 
during resting periods (Saayman and Tayler, 1979)--observations of the 
ETS population (unpublished data) are consistent. As such, the ETS 
Indo-Pacific humpback dolphins will not be able to outrun the Langseth 
(even while towing airguns, the operating speed is reported to be 
between 7.4-9.3 km/hr) for extended periods. Even if they were able to 
outrun the Langseth, there would be no escape within their distribution 
because: (a) The tracklines cover nearly the entire longitudinal length 
of the ETS sub-population's total distribution and beyond, and (b) no 
safe acoustic shelters exist. Therefore, nearly the entire population 
(especially the most vulnerable members: mothers with young calves and 
other compromised individuals) will be affected by the seismic surveys 
along western Taiwan regardless of where the dolphins are in their 
distribution and an unknown but substantial number will be exposed to 
levels >180dB. Clearly, the proportion of the ETS sub-population to be 
impacted by the seismic survey (and at dangerous exposure levels) is 
far too high for any cetaceans let alone one that is critically 
endangered.
    Response: After issuance of the proposed IHA, L-DEO has negotiated 
with the project's principal scientists to modify the cruise plan and 
adopt more precautionary mitigation measures. L-DEO will limit seismic 
survey lines to take place at least 20 km from the west coast of 
Taiwan, except for in the passage between the Penghu Islands and the 
Waishanding Jhou sandbar, where the survey will pass through the 
approximately 17.1 km mid-line distance between the two possibly 
sensitive areas, subject to the limitations imposed by other foreign 
nations, to minimize the potential for exposing Indo-Pacific humpback 
dolphins, finless porpoises, and other coastal species to SPLs greater 
than or equal to 160 dB re 1 [mu]Pa (rms). The buffer zone will reduce 
the potential impacts to animals, especially to protect the `critically 
endangered' ETS Indo-Pacific humpback dolphin sub-population. 
Requirements to this effect have been included in the NMFS-issued IHA.
    Comment 208: Dr. McIntosh and Dr. Wu state that a specific concern 
expressed by Dr. John Wang is with the safety of the ETS Indo-Pacific 
humpback dolphin; this species is considered critically endangered. The 
principal scientists share Dr. Wang's desire to protect this species 
and plan to avoid seismic work in or near its habitat. This species is 
known to live in very shallow water environments, primarily in water 
depths less than 25 meters and typically close to the coast. Dr. 
McIntosh and Dr. Wu expect seismic operations to occur generally in 
water depths of 50 m or greater, especially along Taiwan's west coast. 
With the generally shallow slope of the seafloor in this area this 
means that our work will typically be farther than 10 km from the 
coast. Furthermore, we are willing to adjust line positions to provide 
an adequate buffer zone for the

[[Page 41309]]

coastal habitat of these humpback dolphins.
    Response: NMFS acknowledges the principal investigators comments. A 
description of the revised seismic survey can be found in L-DEO's 
Supplemental EA.
Species of Particular Concern--Deep Diving Species
    Comment 209: ETTSTAWG states beaked whales can be expected to be at 
heightened risk from the L-DEO project, in part because their extended 
dives make it exceedingly difficult for even trained personnel to spot 
them.
    Response: NMFS agrees that beaked whales are difficult to detect 
visually, even by trained and experienced MMVOs. In order to minimize 
potential effects of the seismic surveys, L-DEO will (when operating 
the sound source), minimize approaches to slopes, submarine canyons, 
seamounts, an other underwater geologic features, if possible, because 
of sensitivity to beaked whales. If concentrations of beaked whales are 
observed (by visual or passive acoustic detection) at a site such as on 
the continental slope, submarine canyon, seamount, or other underwater 
geologic feature just prior to or during the airgun operations, those 
operations will be moved to another location along the site based on 
recommendations by the on-duty MMVO aboard the Langseth. After the 
issuance of the proposed IHA, L-DEO also re-routed the seismic survey 
line paralleling the east coast of Taiwan further offshore to decrease 
potential impacts on species (including beaked whales) over the 
continental slope, and seismic surveys (to the maximum extent 
practicable) will be conducted from the coast (inshore) and proceed 
towards the sea (offshore) in order to avoid trapping marine mammals in 
shallow water. NMFS believes these mitigation measures should lessen 
the potential risks to beaked whales.
Species of Particular Concern--Finless Porpoises
    Comment 210: Several interested parties have stated that finless 
porpoises are arguably one of the most difficult species to detect at 
sea by observers, even in calm conditions, because of its small size, 
lack of dorsal fin, brief surface time, and usually occurring 
individually or in small groups, so many will be missed by MMVOs during 
seismic operations. Depending on the behavior of the animals, they can 
be near impossible to detect. Jefferson et al. (2002) reported that 
during calm sighting conditions, finless porpoises were observed 
primarily within 300 m from the trackline (perpendicular distance) and 
none were observed beyond about 700 m. In low light conditions or even 
slight seas, detecting finless porpoises is challenging even for 
researchers experienced with the species. MMVOs will be ineffective at 
detecting animals within the predicted distance, therefore, an unknown 
(potentially large) number of finless porpoises will be exposed to much 
greater noise levels than suggested by L-DEO (especially since 
detection is effectively zero beyond 1 km, yet the predicted distance 
for received levels >190 dB is more than 2 km from the source).
    Response: NMFS agrees that finless porpoises are arguably one of 
the most difficult species to detect at sea by observers. NMFS has not 
authorized any takes of finless porpoises in the IHA issued to L-DEO 
for this survey. Take estimates for finless porpoises have been reduced 
to zero because of the elimination of seismic tracklines in shallow 
water areas where they are likely to occur. In addition to having 
additional MMVOs and the use of PAM onboard the Langseth to detect 
animals, L-DEO will also shut-down immediately if there is a sighting 
at any distance of finless porpoises. See responses to previous 
comments and L-DEO's Supplemental EA.
    Comment 211: Dr. John Wang states finless porpoises are arguably 
the most difficult cetacean to detect at sea by observers, so many will 
be missed by MMVOs during seismic operations. Therefore, an unknown 
(potentially large) number of finless porpoises will be exposed to much 
greater noise levels than suggested by L-DEO (especially since 
detection is effectively zero beyond 1 km, yet the predicted distance 
for received levels >190 dB is more than 2 km from the source.
    Response: NMFS agrees that finless porpoises are arguably the most 
difficult cetacean to detect by MMVOs due to their small body size, 
lack of a dorsal fin, and shy behavior. However, the PAM system onboard 
the Langseth is capable of detecting the clicks of finless porpoises. 
Finless porpoises are unlikely to be encountered during the survey as 
L-DEO will avoid shallow water areas near the China coast, western 
Taiwan Strait, and South China Sea in order to avoid this species. L-
DEO will also limit seismic survey lines to water depths greater than 
200 m (656 ft) in the South China Sea and as far east as possible from 
the mainland side of the Taiwan Strait, to reduce potential for effects 
on finless porpoises. L-DEO is not authorized incidental take of 
finless porpoise and will shut-down the airgun array if any finless 
porpoises are visually sighted.
    Comment 212: Dr. John Wang states finless porpoises appear to go 
undergo inshore-offshore migrations seasonally (see Jefferson and Hung, 
2004) but this is not well understood. During the timing of the 
proposed seismic surveys, many finless porpoises will be in the Taiwan 
Strait (as evidenced by bycatch records and some sighting data--J.Y. 
Wang, unpublished data) and an unknown (but potentially large) number 
will be exposed to the airgun sounds. Furthermore, the timing also 
coincides with the presence of many female with newborn calves in these 
waters. These will be the most vulnerable individuals as they will be 
less able to escape the wide range of the airguns in shallow waters. 
The potential impact on finless porpoises is far from negligible and 
none of the mitigation measures proposed would be effective in reducing 
the harm.
    Response: After issuance of the proposed IHA, L-DEO has negotiated 
with the project's principal scientists to modify the cruise plan and 
adopt more precautionary monitoring and mitigation measures. Off 
Taiwan's west coast, the cruise tracks have been re-routed offshore by 
approximately 20 km to protect finless porpoise. Because of concerns 
about effects of the proposed surveys on finless porpoises, the 
proposed survey lines in the South China Sea south of the Taiwan Strait 
were also re-routed so that they are now located in water depths >200 
m, as recommended by NRDC. The seismic lines in the western Taiwan 
Strait have been dropped. The proposed survey line paralleling the east 
coast of Taiwan has also been moved offshore by more than 20 km to 
decrease potential impacts on species that occur in coastal waters and 
over the continental slope. The airgun array will be shut-down 
immediately if there is a sighting at any distance of finless 
porpoises. Requirements to this effect have been included in the IHA.
    Comment 213: CSI and WaH states the anticipated presence of female 
finless porpoises and their (neonatal) calves in the survey region 
during the proposed seismic surveys is of great concern, particularly 
given the fact that these animals will likely be difficult if not 
completely impossible to detect visually at distances at which they may 
still be exposed to noise levels >180 dB (rms), and do not vocalize at 
all times. These will be the most vulnerable individuals as they will 
be less able to maintain swimming speeds that will allow them to escape 
the range of the airguns.
    Finless porpoises are generally slow-swimmers, but are capable of 
high speed

[[Page 41310]]

bursts. However it is unlikely that such speeds can be maintained for 
more than a few minutes.
    Response: See responses to previous comments pertaining to finless 
porpoises.
Species of Particular Concern--Western Pacific Gray Whales
    Comment 214: CSI states the route(s) and months when Western 
Pacific gray whales may undertake their migration from a suspected 
wintering ground(s) in the South China Sea are unknown. However, it is 
likely that the period for the migration is in the spring. The proposed 
L-DEO surveys overlap with the period during which these gray whales 
are expected to be either in their wintering grounds or are undergoing 
their northward migration through the Taiwan Strait. Scheduling the 
seismic surveys in the South China Sea to be conducted in March and 
April will likely coincide with at least some migrating gray whales, 
and are an additional threat to these highly threatened gray whales. L-
DEO did not address this possibility and have not proposed any 
mitigation measures to avoid this likely overlap of seismic surveys and 
migrating gray whales. Even the take of a few individuals is projected 
to cause a continuing decline in the population towards extinction 
(Cooke et al., 2006).
    Response: Winter breeding grounds of the Western Pacific gray whale 
are not known, but are thought to be located in the South China Sea, 
along the coast of Guangdong province and Hainan (Wang, 1984; and Zhu, 
1998 in Weller et al., 2002a; Rice, 1998). Also, the migration route of 
the gray whale is ill defined, but very likely extends through 
Taiwanese waters, probably through the Taiwan Strait. Their occurrence 
there is possible from December to April. If migration timing is 
similar to that of the better-known Eastern Pacific gray whale through 
similar latitudes, southbound migration probably occurs mainly in 
December to January, and northbound migration mainly in February to 
April, with northbound migration of newborn calves and their mothers 
probably concentrated toward the end of that period. Even during 
migration, gray whales are found primarily in shallow coastal waters. 
Because of these concerns about the effects of the proposed surveys on 
gray whales, the proposed survey lines in the South China Sea south of 
the Taiwan Strait were re-routed after the issuance of the proposed IHA 
so that they are now located in water depths >200 m, as recommended by 
NRDC. The seismic lines in the western Taiwan Strait have been dropped. 
L-DEO will also immediately shut-down the airgun array if there is a 
sighting of a Western Pacific gray whale at any distance (see L-DEO's 
Supplemental EA).
    Comment 215: In its discussion of disturbance reactions, HSI also 
notes the proposed IHA's Federal Register notice (73 FR 78294, December 
22, 2008) use of the Eastern Pacific gray whale's status as an example 
of a species experiencing ``no impact'' despite living in a noisy 
environment. The notice states that the whales ``continued to migrate 
annually * * * with substantial increases in the population over recent 
years, despite intermittent seismic exploration and much ship traffic'' 
(73 FR 78302, December 22, 2008). However, the notice ignores the 
drastic drop in Eastern Pacific gray whale numbers between 1998 and 
2000, by perhaps as many as 9,000 animals (Angliss and Outlaw, 2007). 
While it is certainly debatable to what (if any) degree exposure to 
various noise sources contributed to this population's decline, to 
ignore the decline when using the population as an example of a 
population's increase in the face of exposure to various noise sources 
is simply bad science.
    Response: As a coastal population, the Eastern North Pacific stock 
of gray whales, are subject to a wide variety of direct and indirect 
anthropogenic effects off of Mexico, California, Oregon, Washington, 
Canada, and Alaska. Some of the effects include pollution from chemical 
contaminants, subsistence harvesting, fishery interactions, ship 
strikes, and potentially impacts from noise. The population size of the 
Eastern North Pacific gray whale stock has been increasing over the 
past several decades. Due to the steady increases in population 
abundance, this stock of gray whales was removed from the List of 
Endangered and Threatened Wildlife in 1994, as it was no longer 
considered Endangered or Threatened under the ESA.
    The decline in Eastern Pacific gray whale numbers between 1998 and 
2000 may be an indication that the abundance was responding to 
environmental limitations as the population approaches the carrying 
capacity of its environment. Visibly emaciated whales (LeBoeuf et al., 
2000; Moore et al., 2001) suggest a decline in food resources 
associated with unusually high sea temperatures in 1997 (Minobe, 2002), 
which may factor in to the high mortality rates observed in 1999 and 
2000 (Gulland et al., 2005). Several factors since this mortality event 
suggest that the high mortality rate was a short-term acute event and 
not a chronic situation or trend: (1) Counts of stranded dead gray 
whales dropped to levels below those seen prior to this event, (2) in 
2001 living whales no longer appeared to be emaciated, and (3) calf 
counts in 2001-2002, a year after the event ended, were similar to 
averages for previous years (NMFS, 2007; Rugh et al., 2005). It is 
expected that a population close to or at the carrying capacity of the 
environment will be more susceptible to fluctuations in the environment 
(Moore et al., 2001), and assessments indicated that the population is 
likely close to or above its unexploited equilibrium level (IWC, 2002). 
It can be predicted that the population will undergo fluctuations in 
the future that may be similar to the 2-year event that occurred in 
1999-2000 (Norman et al., 2000; Perez-Cortes et al., 2000; Brownell et 
al., 2001; Gulland et al., 2005).
Species of Particular Concern--Humpback Whales
    Comment 216: CSI states the schedule for surveying the Luzon Strait 
and the Philippine Sea overlaps completely with the period when 
humpback whales are still in the area (and includes the latter portion 
of the peak period (April) for humpback whale concentrations in the 
Babuyan Islands). Therefore it is unclear how the timing of the surveys 
reduces the impacts on humpback whales as claimed by L-DEO. A large 
portion of this population of humpback whales will also be migrating 
through the Philippine Sea to northern waters at the same time as the 
proposed surveys. Although the exact migratory routes of most humpback 
whales are unknown, it is clear that at least some will follow a path 
that is parallel and fairly close to the shores of eastern Taiwan. One 
of the proposed survey tracklines of the Langseth also follows this 
course. Many females undertaking the migration at this time will also 
be accompanied by neonatal calves and these are the most sensitive 
individuals of the population (McCauley et al., 2000).
    Response: Several commenters raised concerns about survey lines 
scheduled for Leg 2 (April 20 to June 7, 2009) approaching humpback 
whale breeding areas in the Babuyan and Ryuku Islands. In fact, the 
humpback whales that winter and calve in the Ryuku Islands are near 
Okinawa (Nishiwaki, 1959; Rice, 1989; Darling and Mori, 1993), some 400 
km north of the most northerly survey. However, a small population of 
humpback whales does winter and calve in the Babuyan Islands in Luzon 
Strait (Acebes and Lesaca, 2003; Acebes et al., 2007). The whales may 
arrive in the area as early as

[[Page 41311]]

November and leave in May or even June, with peak occurrence during 
February through March or April (Acebes et al., 2007).
    To mitigate against the potential effects of the surveys on 
humpback whales, particularly mothers and calves on the breeding 
grounds or during the beginning of migration to summer feeding grounds, 
the surveys that approach the Babuyan Islands have been rescheduled as 
late as possible, to Leg 4 (June 18 to July 20, 2009). L-DEO will also 
be required to shut-down immediately if there is a visual sighting at 
any distance for mother/calf pairs of humpback whales.

Description of Marine Mammals in the Proposed Activity Area

    A total of 34 cetacean species, including 25 odontocete (dolphins 
and small- and large-toothed whales) species and 9 mysticetes (baleen 
whales) are known to occur in the proposed TAIGER study area (see Table 
2 of L-DEO's application). Cetaceans and pinnipeds are managed by NMFS 
and are the subject of this IHA application. Information on the 
occurrence, distribution, population size, and conservation status for 
each of the 34 marine mammal species that may occur in the proposed 
project area is presented in the Table 2 of L-DEO's application as well 
as here in the table below (Table 2). The status of these species is 
based on the U.S. Endangered Species Act (ESA), the International Union 
for Conservation of Nature (IUCN) Red List of Threatened Species, and 
Convention on International Trade in Endangered Species (CITES). 
Several species are listed as Endangered under the ESA, including the 
Western North Pacific gray, North Pacific right, sperm, humpback, fin, 
sei, and blue whales, and the dugong (Dugong dugon). In addition, the 
Indo-Pacific humpback dolphin is listed as Near Threatened and the 
finless porpoise is listed as Vulnerable under the 2008 IUCN Red List 
of Threatened Species (IUCN, 2008).
    Although the dugong may have inhabited waters off Taiwan, it is no 
longer thought to occur there (March et al., n.d.; Chou, 2004; Perrin 
et al., 2005). Similarly, although the dugong was once widespread 
through the Philippines, current data suggest that it does not inhabit 
the Batan or Babuyan Islands or northwestern Luzon (Marsh et al., n.d.; 
Perrin et al., 2005), where seismic operations will occur. However, the 
dugong does occur off northeastern Luzon (Marsh et al., n.d.; Perrin et 
al., 2005) outside the study area. In China, it is only known to 
inhabit the waters off Guangxi and Guangdong and the west coast of 
Hanain Island (Marsh et al., n.d.; Perrin et al., 2005), which do not 
occur near the study area. It is rare in the Ryuku Islands, but can be 
sighted in Okinawa, particularly off the east coast of the island 
(Yoshida and Trono, 2004; Shirakihara et al., 2007); some individuals 
may have previously occurred in the southernmost of the Ryuku Islands, 
Yaeyama (Marsh et al., n.d.), but these animals have not been 
documented there recently (Shirakihara et al., 2007). The dugong is 
managed under the jurisdiction of the U.S. Fish and Wildlife Service 
(USFWS). The USFWS concurred with L-DEO's determination that the survey 
is likely to have no effects on the species and no consultation under 
Section 7 of the ESA is required, therefore, it is not considered 
further in this analysis.
    Wang et al. (2001a) noted that during the spring/summer off 
southern Taiwan, the highest number of marine mammal sightings and 
species occur during April and June. The number of sightings per survey 
effort and the number of species were highest directly west of the 
southern tip of Taiwan and northeast off the southern tip.
    Table 2 (below) outlines the cetacean species, their habitat and 
abundance in the proposed project area, and the requested take levels. 
Additional information regarding the distribution of these species 
expected to be found in the project area and how the estimated 
densities were calculated was included in the notice of the proposed 
IHA (73 FR 78294, December 22, 2008) and may be found in L-DEO's 
application.
    The occurrence, habitat, regional abundance, conservation status, 
best and maximum density estimates, number of marine mammals that could 
be exposed to sound level at or above 160dB re 1[micro]Pa, best 
estimate of number of individuals exposed, and best estimate of number 
of exposures per marine mammal in or near the proposed seismic survey 
area in SE Asia. See Tables 2-4 in L-DEO's application for further 
detail.

                                                                         Table 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Percent of
                                                                                                        Density/     Density/    Number of    estimated
              Species                Occurrence in study         Habitat        Regional  population   1000km \b\   1000km \c\     indiv.     population
                                       area in SE Asia                                  size             (best)       (max)      exposed to   exposed to
                                                                                                                                 >= 160 dB    >= 160 dB
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes
    Western Pacific gray whale      Rare................  Coastal.............  131 \d\.............            0            0            0            0
     (Eschrichtius robustus).
    North Pacific right whale       Rare................  Pelagic and coastal.  Less than 100 \e\...            0            0            0            0
     (Eubalaena japonica).
    Humpback whale (Megaptera       Uncommon............  Mainly near shore     938-1107 \f\........         0.89         1.33            6         0.60
     novaeangliae).                                        waters and banks.
    Minke whale (Balaenoptera       Uncommon............  Pelagic and coastal.  25,000 \g\..........         0.03         0.04            0            0
     acutorostrata).
    Bryde's whale Balaenoptera      Common..............  Pelagic and coastal.  20,000-30,000 \e\            0.27         0.41           43         0.17
     brydei).                                                                    \h\.
    Omura's whale (Balaenoptera     Common?.............  Pelagic and coastal.  N.A.................         0.03         0.04            4         N.A.
     omurai).
    Sei whale (Balaenoptera         Rare................  Primarily offshore,   7,260-12,620 \i\....         0.03         0.04            4         0.04
     borealis).                                            pelagic.
    Fin whale (Balaenoptera         Rare................  Continental slope,    13,620-18,680 \j\...         0.03         0.04            4         0.03
     physalus).                                            mostly pelagic.

[[Page 41312]]

 
    Blue whale (Balaenoptera        Rare................  Pelagic and coastal.  N.A.................         0.03         0.04            4         N.A.
     musculus).
Odontocetes:
    Sperm whale (Physeter           Common?.............  Usually pelagic and   26,674 \k\..........         0.03         0.04            4         0.01
     macrocephalus).                                       deep seas.
    Pygmy sperm whale (Kogia        Uncommon............  Deep waters.........  N.A.................            0            0  ...........         N.A.
     breviceps).
    Dwarf sperm whale (Kogia sima)  Common?.............  Deep waters off       11,200 \e\..........         4.25         6.68          703         6.28
                                                           shelf.
    Kogia sp. (unidentified)......  Common?.............  Deep waters.........  N.A.................         0.26         0.40           38         N.A.
    Cuvier's beaked whale (Ziphius  Likely Common.......  Pelagic.............  20,000 \e\..........         0.34         0.75           58         0.29
     cavirostris).
    Longman's beaked whale          Rare................  Deep water..........  N.A.................         N.A.         N.A.  ...........         N.A.
     (Indopacetus pacificus).
    Blainville's beaked whale       Uncommon?...........  Pelagic.............  25,300 \l\..........         0.89         1.60          153         0.61
     (Mesoplodon densirostris).
    Ginkgo-toothed beaked whale     Rare................  Pelagic.............  N.A.................         N.A.         N.A.  ...........         N.A.
     (Mesoplodon ginkgodens).
    Mesoplodon sp. (unidentified).  Uncommon?...........  Pelagic.............  N.A.................         1.55         1.60          268         N.A.
    Unidentified beaked whale.....  Rare................  Pelagic.............  N.A.................         0.72         0.94          118         N.A.
    Rough-toothed dolphin (Steno    Common..............  Deep water..........  146,000 ETP \e\.....         1.33         5.44          212         0.14
     bredanensis).
    Indo-Pacific humpback dolphin   Uncommon............  Coastal.............  1,680 China + Taiwan        24.30        35.36            0            0
     (Sousa chinensis).                                                          \e\.
    Common bottlenose dolphin       Common..............  Coastal and oceanic,  243,500 ETP \e\.....        24.30        35.36        4,021         1.65
     (Tursiops truncatus).                                 shelf break.
    Indo-Pacific bottlenose         Common?.............  Coastal and shelf     N.A.................        43.60        65.40            0         N.A.
     dolphin (Tursiops aduncus).                           waters.
    Pacific white-sided dolphin     Rare, Likely Absent.  Coastal and pelagic.  930,000-990,000 \e\.         N.A.         N.A.            0            0
     (Lagenorhynchus obliquidens).
    Pantropical spotted dolphin     Common..............  Coastal and pelagic.  800,000 ETP \e\.....       120.80       140.97       20,169         2.52
     (Stenella attenuata).
    Spinner dolphin (Stenella       Common..............  Coastal and pelagic.  800,000 ETP \e\.....        54.84        88.89        9,485         1.19
     longirostris).
    Striped dolphin (Stenella       Common..............  Coastal and pelagic.  1,000,000 ETP \e\...         0.20         0.32           38         0.01
     coeruleoalba).
    Fraser's dolphin                Common..............  Waters greater than   289,000 ETP \e\.....        96.84       124.14       16,749         5.80
     (Lagenodelphis hosei).                                1,000 m.
    Short-beaked common dolphin     Rare................  Shelf and pelagic,    3,000,000 ETP \e\...         N.A.         N.A.            0            0
     (Delphinus delphis).                                  seamounts.
    Long-beaked common dolphin      Uncommon............  Coastal.............  N.A.................         0.05         0.12           10         N.A.
     (Delphinus capensis).
    Risso's dolphin (Grampus        Common..............  Pelagic.............  175,000 ETP \e\.....        41.88        67.18        7,209         4.12
     griseus).
    Melon-headed whale              Common?.............  Oceanic.............  45,000 ETP \e\......        13.37        20.86        2,173         4.83
     (Peponocephala electra).
    Pygmy killer whale (Feresa      Uncommon............  Deep, pantropical     39,000 ETP \e\......         2.01         3.16          327         0.84
     attenuata).                                           waters.
    False killer whale (Pseudorca   Common?.............  Pelagic.............  40,000 \n\..........         4.56         4.77          789         1.97
     crassidens).
    Killer whale (Orcinus orca)...  Uncommon?...........  Widely distributed..  8,500 ETP \e\.......         1.00         1.73          166         1.95
    Short-finned pilot whale        Common?.............  Mostly pelagic,       500,000 ETP \e\.....         3.83         6.43          630         0.13
     (Globicephala macrorhynchus).                         relief topography.
    Finless porpoise (Neophocaena   Common?.............  Coastal.............  5,220-10,220 Japan +         4.36         6.54            0            0
     phocaenoides).                                                              HK \e\.
Sirenians:

[[Page 41313]]

 
    Dugong (Dugong dugon).........  Uncommon?...........  Coastal.............  N.A.................         N.A.         N.A.         N.A.         N.A.
--------------------------------------------------------------------------------------------------------------------------------------------------------
N.A.--Data not available or species status was not assessed, ETP--Eastern Tropical Pacific, HK = Hong Kong.
\a\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, NL = Not listed.
\b\ Best estimate as listed in Table 3 of the application.
\c\ Maximum estimate as listed in Table 3 of the application.
\d\ Vladimirov et al. (2008).
\e\ North Pacific unless otherwise indicated (Jefferson et al., 2008).
\f\ Western North Pacific (Calambokidis et al., 2008).
\g\ Northwest Pacific and Okhotsk Sea (IWC, 2007a).
\h\ Kitakado et al. (2008).
\i\ Tillman (1977).
\j\ Ohsumi and Wada (1974).
\k\ Western North Pacific (Whitehead, 2002b).
\l\ ETP; all Mesoplodon spp. (Wade and Gerrodette, 1993).
\m\ IUCN states that this species should be re-assessed following taxonomic classification of the two forms. The chinensis-type would be considered
  vulnerable (IUCN, 2008).
\n\ ETP (Wade and Gerrodette, 1993).

Potential Effects on Marine Mammals

Potential Effects of Airguns

    The sounds from airguns might result in one or more of the 
following: tolerance, masking of natural sounds, behavioral 
disturbances, temporary or permanent hearing impairment, and non-
auditory physical or physiological effects (Richardson et al., 1995; 
Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). 
Permanent hearing impairment, in the unlikely event that it occurred, 
would constitute injury, but temporary threshold shift (TTS) is not an 
injury (Southall et al., 2007). With the possible exception of some 
cases of temporary threshold shift in harbor seals, it is unlikely that 
the project would result in any cases of temporary or especially 
permanent hearing impairment, or any significant non-auditory physical 
or physiological effects. Some behavioral disturbance is expected, but 
this would be localized and short-term.
    The notice of the proposed IHA (73 FR 78294, December 22, 2008) 
included a discussion of the effects of sounds from airguns on 
mysticetes, odontocetes, and pinnipeds, including tolerance, masking, 
behavioral disturbance, hearing impairment, and other non-auditory 
physical effects. Additional information on the behavioral reactions 
(or lack thereof) by all types of marine mammals to seismic vessels can 
be found in L-DEO's application and associated EA.
    The notice of the proposed IHA also included a discussion of the 
potential effects of the multibeam echosounder (MBES) and the sub-
bottom profiler (SBP). Because of the shape of the beams of these 
sources and their power, NMFS believes it unlikely that marine mammals 
will be exposed to either the MBES or the SBP at levels at or above 
those likely to cause harassment. Further, NMFS believes that the brief 
exposure of cetaceans to a few signals from the multi-beam bathymetric 
sonar system is not likely to result in the harassment of marine 
mammals.

Estimated Take by Incidental Harassment

    The notice of the proposed IHA (73 FR 78294, December 22, 2008) 
included an in-depth discussion of the methods used to calculate the 
densities of the marine mammals in the area of the seismic survey and 
the take estimates. Additional information was included in L-DEO's 
application. A summary is included here.
    All anticipated ``takes by harassment'' authorized by this IHA are 
Level B harassment only, involving temporary changes in behavior. The 
mitigation measures are expected to minimize the possibility of 
injurious takes. Take calculations were based on maximum exposure 
estimates (based on maximum density estimates) vs. best estimates and 
are based on the 160 dB isopleths of a larger array of airguns. Given 
these considerations, the predicted number of marine mammals that might 
be exposed to sounds 160 dB or greater may be somewhat overestimated.
    No systematic aircraft- or ship-based surveys have been conducted 
for marine mammals in waters near Taiwan, and the species of marine 
mammals that occur there are not well known. A few surveys have been 
conducted from small vessels (approximately 10-12 m or 33-40 ft long) 
with low observation platforms (approximately 3 m or 10 ft above sea 
level) as follows:
     Off the east central coast of Taiwan to a maximum of 
approximately 20 km (12.4 mi) from shore in water depths up to 
approximately 1,200 m deep between June 1996 and July 1997 (all 
cetacean; Yang et al., 1999);
     Off the south coast of Taiwan to a distance of 
approximately 50 km (mi) and depths greater than 1,000 m (3,280 ft) 
during April 13-September 9, 2000 (all cetaceans; Wang et al., 2001a);
     Off the west coast of Taiwan close to shore during early 
April-early August, 2002-2006 (Indo-Pacific humpback dolphins; Wang et 
al., 2007); and
     Around and between the Babuyan Islands off northern 
Philippines in waters less than 1,000 m deep during late February-May 
2000-2003 (humpback whales; Acebes et al., 2007).
    The only density calculated by the authors was for the Indo-Pacific 
humpback dolphin (Wang et al., 2007). In addition, a density estimate 
was also available for the Indo-Pacific bottlenose dolphin (Yang et 
al., 2000 in Perrin et al., 2005).
    In the absence of any other density data, L-DEO used the survey 
effort and sightings in Yang et al. (1999) and Wang et al. (2001a) to 
estimate densities of marine mammals in the TAIGER study area. To 
correct for detection bias (bias associated with diminishing 
sightability with increasing lateral distance from the trackline), L-
DEO used mean group sizes given by or calculated from Wang et al. 
(2001a, 2007) and Yang et al., (1999), and a value for [fnof](0) of 
5.32 calculated from the data and density equation in Wang et al. 
(2007); Yang et al. (1999), and Wang et al. (2001a) did

[[Page 41314]]

not give a value for [fnof](0), but they used a vessel and methods 
similar to those of Wang et al. (2007). To correct for availability and 
perception bias, which are attributable to the less than 100 percent 
probability of sighting an animals present along the survey trackline, 
L-DEO used g(0) values calculated using surfacing and dive data from 
Erickson (1976), Barlow and Sexton (1996), Forney and Barlow (1998), 
and Barlow (1999): 0.154 for Mesoplodon sp., 0.102 for Cuvier's beaked 
whale, 0.193 for the dwarf sperm whale and Kogia sp., 0.238 for the 
killer whale, and 1.0 for delphinids.
    The surveys of Yang et al. (1999) and Wang et al. (2001a) were 
carried out in areas of steep slopes and complex bathymetric features, 
where many cetacean species are known to concentrate. It did not seem 
reasonable to extrapolate those densities to the overall survey area, 
which is predominantly in areas of deep water without complex 
bathymetry. For latter areas, L-DEO used density data from two 5[deg] x 
5[deg] blocks in the eastern tropical Pacific Ocean (ETP) surveyed by 
Ferguson and Barlow (2001): Blocks 87 and 88\2\, bounded by 20[deg] N 
to 25[deg] N (the same latitudes as the proposed survey area and 
115[deg] W to 125[deg] W, in deep water and just offshore from Mexico. 
L-DEO then calculated an overall estimate weighted by the estimated 
lengths of seismic lines over complex bathymetry or slope 
(approximately 1,200 km or 746 mi) and over deep, flat, or gently 
sloping bottom (approximately 12,934 km or 8,037 mi).
    The density estimate for the Indo-Pacific hump-backed dolphin is 
from Wang et al. (2007) and applies only to the population's limited 
range on the west coat of Taiwan. No density data were available for 
the Pacific white-sided or short-beaked common dolphin for the study 
area. As these species are rare in the area, densities are expected to 
be near zero. In addition, density data were unavailable for striped 
and long-beaked common dolphins. As these two species were not seen 
during the above-mentioned surveys and are considered uncommon in the 
TAIGER study area, L-DEO assigned these two species 10 percent of the 
density estimate of the delphinid occurring in similar habitat in the 
area with the lowest density (i.e., pygmy killer whale). Also no 
density estimate was available for finless porpoise. As this species 
was not sighted during surveys of southern Taiwan in 2000 (Wang et al., 
2001a), L-DEO assigned it 10 percent of the lowest density (i.e., Indo-
Pacific bottlenose dolphin). Density data were unavailable for 
Longman's beaked and ginkgo-toothed beaked whales; however, these two 
species are represented by densities for unidentified beaked whales.
    Large whales were not sighted during the surveys by Yang et al. 
(1999) or Wang et al. (2001a). The only available abundance estimate 
for large whales in the area (except that for humpbacks, see below) is 
that of Shimada et al. (2008), who estimated abundances of Bryde's 
whales in several blocks in the northwestern Pacific based on surveys 
in 1998-2002, the closest of which to the proceed survey area is the 
block bounded by 10[deg] N-25[deg] N and 130[deg] E-137.5[deg] E. The 
resulting abundance and area were used to calculate density. Sperm, 
sei, Omura's, fin, minke, and blue whales are less common than Bryde's 
whales in these waters, so L-DEO assigned a density of 10 percent of 
that calculated for Bryde's whale. North Pacific right, and Western 
Pacific gray whales are unlikely to occur in the TAIGER study area, 
thus, densities were estimated to be zero.
    For humpback whales in the Babuyan Islands, L-DEO used the 
population estimate of Acebes et al. (2007) and applied it to an area 
of approximately 78,000 km\2\, extending from the north coast of Luzon 
to just south of Orchid Island to derive a density estimate. That area 
is a historically well-documented breeding ground that whaling records 
indicate was used until at least the 1960s (Acebes et al., 2007), and 
an area where humpbacks have been sighted more recently.
    There is some uncertainty about the representatives of the density 
data and the assumptions used in the calculations. For example, the 
timing of the surveys of Indo-Pacific humpback dolphins (early April-
early August) and humpback whales (late February-May) overlaps the 
timing of the proposed surveys, but the Bryde's whale surveys (August 
and September), and those of Yang et al. (1999) (year-round) include 
different seasons, and would not be as representative if there are 
seasonal density differences. Perhaps the greatest uncertainty results 
from using survey results from the northeast Pacific Ocean. However, 
the approach used here is believed to be the best available approach. 
Also, to provide some allowance for these uncertainties, ``maximum 
estimates'' as well as ``best estimates'' of the densities present and 
numbers of marine mammals potentially affected have been derived. Best 
estimates for most species are based on average densities from the 
surveys of Yang et al. (1999), Wang et al. (2001a), and Ferguson and 
Barlow (2001), weighted by effort, whereas maximum estimates are based 
on the higher of the two densities from the Taiwan surveys and the 
eastern Pacific survey blocks. For the sperm whales, mysticetes, two 
delphinids (Indo-Pacific humpback and Indo-Pacific bottlenose 
dolphins), as well as for the finless porpoise, the maximum estimates 
are the best estimates multiplied by 1.5. Densities calculated or 
estimated as described above are given in Table 3 of L-DEO's 
application.
    The estimated numbers of individuals potentially exposed on each 
leg of the survey are based on the 160 dB re 1 [micro]Pa (rms) Level B 
harassment exposure threshold for cetaceans and pinnipeds. It is 
assumed that marine mammals exposed to airgun sounds at these levels 
might experience disruption of behavioral patterns.
    It should be noted that the following estimates of takes by 
harassment assume that the surveys will be fully completed. As is 
typical during offshore ship surveys, inclement weather and equipment 
malfunctions are likely to cause delays and may limit the number of 
useful line-km to seismic operations that can be undertaken. 
Furthermore, any marine mammal sightings within or near the designated 
EZ will result in the power-down or shut-down of seismic operations as 
a mitigation measure. Thus, the following estimates of the numbers of 
marine mammals exposed to 160 dB sounds probably overestimate the 
actual numbers of marine mammals that might be involved. These 
estimates assume that there will be no weather, equipment, or 
mitigation delays, which is highly unlikely.
    The number of different individuals that may be exposed to airgun 
sounds with received levels =160 dB re 1 [mu]Pa (rms) on one 
or more occasions was estimated by considering the total marine area 
that would be within the 160 dB radius around the operating airgun 
array on at least one occasion. The number of possible exposures 
(including repeated exposures of the same individuals) can be estimated 
by considering the total marine area that would be within the 160 dB 
radius around the operating airguns, including areas of overlap. The 
seismic lines are widely spaced in the survey area, and are further 
spaced in time because the survey is planned in discrete legs separated 
by several days. Thus, an individual mammal would not be exposed 
numerous times during the survey; the areas including overlap are 1.1 
to 1.3 times the areas excluding overlap, depending on the leg, so the 
numbers of exposures are not discussed further. Moreover, it is 
unlikely that a particular animal would stay in the area during the 
entire survey.

[[Page 41315]]

    The number of different individuals potentially exposed to received 
levels >=160 dB re 1 [micro]Pa (rms) was calculated by multiplying:
     The expected species density, either ``mean'' (i.e., best 
estimate) or ``maximum,'' times
     The anticipated minimum area to be ensonified to that 
level during airgun operations excluding overlap.
    The area expected to be ensonified was determined by entering the 
planned survey lines into a MapInfo Geographic Information System 
(GIS), using the GIS to identify the relevant areas by ``drawing'' the 
applicable 160 dB buffer around each seismic line (depending on water 
and tow depth) and then calculating the total area within the buffers. 
Areas where overlap occurred were limited and included only once to 
determine the area expected to be ensonified when estimating the number 
of individuals exposed.
    Applying the approach described above and in L-DEO's Supplemental 
EA, approximately 160,132 km\2\ (61,827 mi\2\), which is approximately 
5 percent less than the original 168,315 km\2\, would be within the 160 
dB isopleth on one or more occasions during the survey. Because this 
approach does not allow for turnover in the mammal populations in the 
study area during the course of the survey, the actual number of 
individuals exposed could be underestimated. However, the approach 
assumes that no cetaceans will move away from or toward the trackline 
as the Langseth approaches in response to increasing sound levels prior 
to the time the levels reach 160 dB, which will result in overestimates 
for those species known to avoid seismic vessels.
    Table 3 (see below) outlines the species, estimated stock 
population (minimum and best), and estimated percentage of the stock 
exposed to seismic pulses in the project area. Additional information 
regarding the status, abundance, and distribution of the marine mammals 
in the area and how densities were calculated was included in Table 2 
(see above), the notice of the proposed IHA (73 FR 78294, December 22, 
2008) and may be found in L-DEO's application.
    The estimates of the possible numbers of marine mammals exposed to 
sound levels greater than or equal to 160 dB during L-DEO's proposed 
seismic survey in SE Asia in March-July 2009. The proposed sound source 
consists of a 36-airgun, 6,600 in\3\ array. Received levels are 
expressed in dB re 1 [mu]Pa (rms) (averaged over pulse duration), 
consistent with NMFS' practice. Not all marine mammals will change 
their behavior when exposed to these sound levels, but some may alter 
their behavior when levels are lower (see text). See Tables 2-4 in L-
DEO's application for further detail.

                                                     Table 3
----------------------------------------------------------------------------------------------------------------
                                                                                                      Approx.
                                                                     Number of       Number of        percent
                             Species                                individuals     individuals      regional
                                                                      exposed         exposed       population
                                                                     (best)\1\       (max)\1\       (best) \2\
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    Western Pacific gray whale..................................               0               0               0
    (Eschrichtius robustus).....................................
    North Pacific right whale...................................               0               0               0
    (Eubalaena japonica)........................................
    Humpback whale..............................................               6               9            0.60
    (Megaptera novaeangliae)....................................
    Minke whale.................................................               0               0               0
    (Balaenoptera acutorostrata)................................
    Bryde's whale...............................................              43              65            0.17
    (Balaenoptera brydei).......................................
    Omura's whale...............................................               4               6            N.A.
    (Balaenoptera omurai).......................................
    Sei whale...................................................               4               6            0.04
    (Balaenoptera borealis).....................................
    Fin whale...................................................               4               6            0.03
    (Balaenoptera physalus).....................................
    Blue whale..................................................               4               6            N.A.
    (Balaenoptera musculus).....................................
Odontocetes:
    Sperm whale.................................................               4               6            0.01
    (Physeter macrocephalus)....................................
    Pygmy sperm whale...........................................  ..............  ..............            N.A.
    (Kogia breviceps)...........................................
    Dwarf sperm whale...........................................             703           1,124            6.28
    (Kogia sima)................................................
    Kogia sp....................................................              38              58            N.A.
    (unidentified)..............................................
    Cuvier's beaked whale.......................................              58             131            0.29
    (Ziphius cavirostris).......................................
    Longman's beaked whale......................................  ..............  ..............            N.A.
    (Indopacetus pacificus).....................................
    Blainville's beaked whale...................................             153             276            0.61
    (Mesoplodon densirostris)...................................
    Ginkgo-toothed beaked whale.................................  ..............  ..............            N.A.
    (Mesoplodon ginkgodens).....................................
    Mesoplodon sp...............................................             268             276            1.06
    (unidentified) \3\..........................................
    Unidentified beaked whale \4\...............................             118             155            N.A.
    Rough-toothed dolphin.......................................             212             865            0.14
    (Steno bredanensis).........................................

[[Page 41316]]

 
    Indo-Pacific humpback dolphin...............................               0               0               0
    (Sousa chinensis)...........................................
    Common bottlenose dolphin...................................           4,021           5,886            1.65
    (Tursiops truncatus)........................................
    Indo-Pacific bottlenose dolphin.............................               0               0            N.A.
    (Tursiops aduncus)..........................................
    Pacific white-sided dolphin.................................               0               0               0
    (Lagenorhynchus obliquidens)................................
    Pantropical spotted dolphin.................................          20,169          23,646            2.52
    (Stenella attenuata)........................................
    Spinner dolphin.............................................           9,485          15,373            1.19
    (Stenella longirostris).....................................
    Striped dolphin.............................................              38              60            0.01
    (Stenella coeruleoalba).....................................
    Fraser's dolphin............................................          16,749          21,470            5.80
    (Lagenodelphis hosei).......................................
    Short-beaked common dolphin.................................               0               0               0
    (Delphinus delphis).........................................
    Long-beaked common dolphin..................................              10              23            0.01
    (Delphinus capensis)........................................
    Risso's dolphin.............................................           7,209          11,478            4.12
    (Grampus griseus)...........................................
    Melon-headed whale..........................................           2,173           3,424            4.83
    (Peponocephala electra).....................................
    Pygmy killer whale..........................................             327             520             789
    (Feresa attenuata)..........................................
    False killer whale..........................................             789             825            1.97
    (Pseudorca crassidens)......................................
    Killer whale................................................             171             297            2.01
    (Orcinus orca)..............................................
    Short-finned pilot whale....................................             630           1,069            0.13
    (Globicephala macrorhynchus)................................
    Finless porpoise............................................               0               0               0
    (Neophocaena phocaenoides)..................................
Sirenians
    Dugong......................................................  ..............  ..............            N.A.
    (Dugong dugon)..............................................
----------------------------------------------------------------------------------------------------------------
N.A.--Data not available or species status was not assessed.
\1\ Best estimate and maximum estimate density are from Table 3 of L-DEO's application. There will be no seismic
  acquisition data during Leg 3 of the survey; this, it is not included here in this table.
\2\ Regional population size estimates are from Table 2.
\3\ Requested takes include Blainville's, and ginkgo-toothed beaked whales.
\4\ Requested takes include Cuvier's, Blainville's, ginkgo-toothed, and Longman's beaked whales.

    Table 1 of L-DEO's Supplemental EA shows the best and maximum 
estimates of the number of exposures and the number of individual 
marine mammals that potentially could be exposed to greater than or 
equal to 160 dB re 1 [mu]Pa (rms) during the different legs of the 
seismic survey if no animals moved away from the survey vessel.
    The ``best estimate'' of the number of individual marine mammals 
that could be exposed to seismic sounds with received levels greater 
than or equal to 160 dB re 1 [micro]Pa (rms) (but below Level A 
harassment thresholds) during the survey is shown in Table 1 of L-DEO's 
Supplemental EA and Table 3 (shown above). The ``best estimate'' total 
includes 65 baleen whale individuals, 25 of which are listed as 
Endangered under the ESA: 6 humpback whales (0.60 percent of the 
regional population), 4 sei whales (0.04 percent), 4 fin whales (0.03 
percent), and 4 blue whales (regional population unknown). These 
estimates were derived from the best density estimates calculated for 
these species in the area (see Table 1 of L-DEO's Supplemental EA). In 
addition, 4 sperm whales (0.01 percent of the regional population), as 
well as 0 Indo-Pacific humpback dolphins (0 percent population, and 0 
percent of the eastern Taiwan Strait (ETC) population), 0 finless 
porpoise (0 percent), and 597 beaked whales (including Longman's and 
ginkgo-toothed beaked whales) are included in the ``best estimate'' 
total. Most (97.8 percent) of the cetaceans potentially exposed are 
delphinids; pantropical spotted, Fraser's, and spinner dolphins are 
estimated to be the most common species in the area, with best 
estimates of 20,169 (2.52 percent of the regional population), 16,749 
(5.80 percent), and 9,485 (1.19 percent) individuals exposed to greater 
or equal to 160 dB re [mu]Pa (rms) respectively.

Potential Effects on Habitat

    A detailed discussion of the potential effects of this action on 
marine mammal habitat, including physiological and behavioral effects 
on marine fish and invertebrates was included in the proposed IHA (73 
FR 78294, December 22, 2008). Based on the discussion in the proposed 
IHA notice and the nature of the activities (limited duration), the 
authorized operations are not expected to have any habitat-related 
effects that could cause significant or long-term consequences for 
individual marine

[[Page 41317]]

mammals or their populations or stocks. Similarly, any effects to food 
sources are expected to be negligible.
    The L-DEO seismic survey will not result in any permanent impact on 
habitats used by marine mammals, or to the food sources they use. The 
main impact issue associated with the proposed activity will be 
temporarily elevated noise levels and the associated direct effects on 
marine mammals, as described above. The following sections briefly 
review effects of airguns on fish and invertebrates, and more details 
are included in L-DEO's application and EA, respectively.

Subsistence Activities

    There is no legal subsistence hunting for marine mammals in the 
waters of Taiwan, China, or the Philippines, so the proposed activities 
will not have any impact on the availability of the species or stocks 
for subsistence users. Today, Japan still hunts whales and dolphins for 
``scientific'' purposes. Up until 1990, a drive fishery of false killer 
whales occurred in the Penghu Islands, Taiwan, where dozens of whales 
were taken. Although killing and capturing of cetaceans has been 
prohibited in Taiwan since August 1990 under the Wildlife Conservation 
Law (Zhou et al., 1995; Chou, 2004), illegal harpooning still occurs 
(Perrin et al., 2005). Until the 1990's, there was a significant hunt 
of around 200 to 300 dolphins annually in the Philippines. Catches 
included dwarf sperm, melon-headed, and short-finned pilot whales, as 
well as bottlenose, spinner, Fraser's, and Risso's dolphins (Rudolph 
and Smeenk, 2002). Reports also indicate that perhaps 5 Bryde's whales 
were caught annually (Rudolph and Smeenk, 2002), although the last 
Bryde's whales were caught in 1996 (Reeves, 2002). Successive bans on 
the harvesting of whales and dolphins were issued by the Philippine 
Government during the 1990's.

Mitigation and Monitoring

    Mitigation and monitoring measures for the seismic survey have been 
developed and refined during previous L-DEO seismic studies and 
associated environmental assessments (EAs), IHA applications, and IHAs. 
The mitigation and monitoring measures described herein represent a 
combination of procedures required by past IHAs for other similar 
projects and on recommended best practices in Richardson et al. (1995), 
Pierson et al. (1998), and Weir and Dolman (2007). The measures are 
described in detail below.
    Mitigation measures that will be adopted during the TAIGER survey 
include:
    (1) Speed or course alteration, provided that doing so will not 
compromise operational safety requirements;
    (2) Power-down procedures;
    (3) Shut-down procedures;
    (4) Ramp-up procedures;
    (5) Temporal and spatial avoidance of sensitive species and areas, 
provided that doing so will not compromise operational safety 
requirements (see ``temporal and spatial avoidance,'' below);
    (6) Special procedures for situations or species of particular 
concern, e.g., emergency shutdown procedures if a North Pacific right 
whale, Western Pacific gray whale, humpback whale mother/calf pairs, 
Indo-Pacific humpback and bottlenose dolphins, and finless porpoise are 
sighted from any distance (see ``shut-down procedures'' and ``special 
procedures for species of particular concern'' below); and minimization 
of approaches to slopes and submarine canyons, if possible, because of 
sensitivity for beaked whales; and
    (7) Additional mitigation measures (see ``additional mitigation 
measures'' below). The thresholds for estimating take are also used in 
connection with mitigation.

Vessel-Based Visual Monitoring

    Vessel-based Marine Mammal Visual Observers (MMVOs) will be based 
aboard the seismic source vessel and will watch for marine mammals near 
the vessel during daytime airgun operations and during start-ups of 
airguns at night. MMVOs will also watch for marine mammals near the 
seismic vessel for at least 30 minutes prior to the start of airgun 
operations and after an extended shutdown of the airguns (i.e., 8 
minutes). When feasible, MMVOs will also make observations during 
daytime periods when the seismic system is not operating for comparison 
of sighting rates and animal behavior with vs. without airgun 
operations. Based on MMVO observations, the airguns will be powered-
down, or if necessary, shut-down completely (see below), when marine 
mammals are detected within or about to enter a designated EZ. The 
MMVOs will continue to maintain watch to determine when the animal(s) 
are outside the safety radius, and airgun operations will not resume 
until the animal has left that zone. The predicted distances for the 
safety radius are listed according to the sound source, water depth, 
and received isopleths in Table 1.
    During seismic operations in SE Asia, at least four MMOs and one 
bioacoustician will be based aboard the Langseth (five total MMOs). 
MMVOs will be appointed by L-DEO with NMFS concurrence. At least two 
MMVOs (except during meal times) will monitor the EZ from the 
observation tower for marine mammals during ongoing daytime operations 
and nighttime startups of the airguns. Three MMOs are typically on 
watch at a time, two on the observation tower conducting and the third 
monitoring the PAM equipment. Use of two simultaneous MMVOs and one 
bioacoustician will increase the effectiveness of detecting animals 
near the sound source. MMVOs typically visually observe for one to 
three hours, and MMVOs will be on duty in shifts of duration no longer 
than three hours. MMOs and/or the lead bioacoustician will monitor the 
PAM equipment at all times in shifts of one to six hours. L-DEO has 
employed a regional expert as at least one of the MMOs, and has 
negotiated with experts from National Taiwan University, Academia 
Sinica, and the National Taiwan Ocean University. L-DEO is carrying an 
additional MMO (six total MMOs), who is a Taiwan regional expert from 
Dr. Lien-Siang Chou's team, during Leg 2 of the seismic survey (and 
during Leg 4 as well). The vessel crew will also be instructed to 
assist in detecting marine mammals and implementing mitigation measures 
(if practical). Before the start of the seismic survey the crew was 
given additional instruction regarding how to do so.
    The Langseth is a suitable platform for marine mammal observations. 
When stationed on the observation platform, the eye level will be 
approximately 18 m (58 ft) above sea level, and the observer will have 
a good view around the entire vessel. During the daytime, the MMVO(s) 
will scan the area around the vessel systematically with reticle 
binoculars (e.g., 7x50 Fujinon), Big-eye binoculars (25x150), and with 
the naked eye to avoid eye fatigue. During darkness, night vision 
devices will be available (ITT F500 Series Generation 3 binocular-image 
intensifier or equivalent), when required. Laser rangefinding 
binoculars (Leica LRF 1200 laser rangefinder or equivalent) will be 
available to assist with distance estimation. Those are useful in 
training MMVOs to estimate distances visually, but are generally not 
useful in measuring distances to animals directly; that is done 
primarily with the reticles on the binocular's lenses.
    Speed or Course Alteration--If a marine mammal is detected outside 
the safety radius and based on its position

[[Page 41318]]

and the relative motion, is likely to enter the EZ, the vessel's speed 
and/or direct course may be changed. This would be done if practicable 
while minimizing the effect on the planned science objectives. The 
activities and movements of the marine mammal(s) (relative to the 
seismic vessel) will then be closely monitored to determine whether the 
animal(s) is approaching the applicable EZ. If the animal appears 
likely to enter the EZ, further mitigative actions will be taken, i.e., 
either further course alterations or a power-down or shut-down of the 
airguns. Typically, during seismic operations, major course and speed 
adjustments are often impractical when towing long seismic streamers 
and large source arrays, thus alternative mitigation measures (see 
below) will need to be implemented.
    Power-down Procedures--A power-down involves reducing the number of 
airguns in use such that the radius of the 180 dB or 190 dB zone is 
decreased to the extent that marine mammals are no longer in or about 
to enter the EZ. A power-down of the airgun array can also occur when 
the vessel is moving from one seismic line to another. During a power-
down for mitigation, one airgun will be operated. The continued 
operation of one airgun is intended to alert marine mammals to the 
presence of the seismic vessel in the area. In contrast, a shut-down 
occurs when all airgun activity is suspended.
    If a marine mammal is detected outside the EZ but is likely to 
enter it, and if the vessel's speed and/or course cannot be changed to 
avoid the animal(s) entering the EZ, the airguns will be powered down 
to a single airgun before the animal is within the EZ. Likewise, if a 
mammal is already within the EZ when first detected, the airguns will 
be powered down immediately. During a power-down of the airgun array, 
the 40 in\3\ airgun will be operated. If a marine mammal is detected 
within or near the smaller EZ around that single airgun (see Table 1 of 
L-DEO's application and Table 1 above), all airguns will be shut down 
(see next subsection).
    Following a power-down, airgun activity will not resume until the 
marine mammal is outside the EZ for the full array. The animal will be 
considered to have cleared the EZ if it:
    (1) Is visually observed to have left the EZ, or
    (2) Has not been seen within the EZ for 15 minutes in the case of 
species with shorter dive durations--small odontocetes and pinnipeds; 
or
    (3) Has not been seen within the EZ for 30 minutes in the case of 
species with longer dive durations--mysticetes and large odontocetes, 
including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales.
    During airgun operations following a power-down (or shut-down) 
whose duration has exceeded the limits specified above and subsequent 
animal departures, the airgun array will be ramped-up gradually. Ramp-
up procedures are described below.
    Shut-down Procedures--The operating airgun(s) will be shut down if 
a marine mammal is detected within or approaching the EZ for a single 
airgun source. Shut-downs will be implemented (1) if an animal enters 
the EZ of the single airgun after a power-down has been initiated, or 
(2) if an animal is initially seen within the EZ of a single airgun 
when more than one airgun (typically the full array) is operating. 
Airgun activity will not resume until the marine mammal has cleared the 
EZ, or until the MMVO is confident that the animal has left the 
vicinity of the vessel. Criteria for judging that the animal has 
cleared the EZ will be as described in the preceding subsection.
    Considering the conservation status for North Pacific right whales 
and Western Pacific gray whales, and Indo-Pacific humpback dolphins, 
the airgun(s) will be shut-down immediately if either of these species 
are observed, regardless of the distance from the Langseth. Due to 
additional concerns, shut-downs will also occur for visual sightings of 
humpback whale mother/calf pair, Indo-Pacific bottlenose dolphins and/
or finless porpoises. Ramp-up will only begin 30 min after the last 
documented whale visual sighting, and 15 min after the last documented 
dolphin/porpoise sighting.
    Ramp-up Procedures--A ramp-up procedure will be followed when the 
airgun array begins operating after a specified period without airgun 
operations or when a power-down has exceeded that period. It is 
proposed that, for the present cruise, this period would be 
approximately 8 minutes. This period is based on the largest modeled 
180 dB radius for the 36-airgun array (see Table 1 of L-DEO's 
application and Table 1 here) in relation to the planned speed of the 
Langseth while shooting. Similar periods (approximately 7-10 minutes) 
were used during previous L-DEO surveys.
    Ramp-up will begin with the smallest airgun in the array (40 
in\3\). Airguns will be added in a sequence such that the source level 
of the array will increase in steps not exceeding 6 dB per 5 min period 
over a total duration of approximately 35 minutes. During ramp-up, the 
MMVOs will monitor the EZ, and if marine mammals are sighted, a course/
speed change, power-down, or shut-down will be implemented as though 
the full array were operational.
    If the complete EZ has not been visible for at least 30 min prior 
to the start of operations in either daylight or nighttime, ramp-up 
will not commence unless at least one airgun (40 in\3\ or similar) has 
been operating during the interruption of seismic survey operations. 
Given these provisions, it is likely that the airgun array will not be 
ramped up from a complete shut-down at night or in thick fog, because 
the other part of the EZ for that array will not be visible during 
those conditions. If one airgun has operated during a power down 
period, ramp-up to full power will be permissible at night or in poor 
visibility, on the assumption that marine mammals will be alerted to 
the approaching seismic vessel by the sounds from the single airgun and 
could move away if they choose. Ramp-up of the airguns will not be 
initiated if a marine mammal is sighted within or near the applicable 
EZ during the day or close to the vessel at night.
    Temporal and Spatial Avoidance--The Langseth will not acquire 
seismic data in the humpback winter concentration areas during the 
early part of the seismic program. North Pacific humpback whales are 
known to winter and calve around Ogasawara (400 km north of the most 
northerly survey) and Ryuku Islands in southern Japan and in the 
Babuyan Islands in Luzon Strait in the northern Philippines (Perry et 
al., 1999a; Acebes et al., 2007; Calambokidis et al., 2008). In the 
Luzon Strait, a small population of humpback whales may arrive in the 
area as early as November and leave in May or even June, with a peak 
occurrence during February through March or April (Acebes et al., 
2007). To mitigate against the potential effects of the surveys on 
humpback whales, particularly mothers and calves on the breeding 
grounds or during the beginning of migration to summer feeding grounds, 
the Langseth will avoid these wintering areas at the time of peak 
occurrence, by surveying the lines that approach the Babuyan Islands as 
late as possible to Leg 4 (June 18 to July 20).
    Due to the conservation status of Indo-Pacific humpback dolphins in 
the Taiwan Strait, particularly the central western coast off Taiwan's 
west coast (including the Waishanding Jhou sandbar), the cruise tracks 
will be approximately 20 km (12.4 mi) offshore to protect this sub-
population and finless porpoises, as well as to ease potential pressure 
on other coastal species. This is consistent with the

[[Page 41319]]

conservative buffer recommended by ETSSTAWG in their comments to NMFS, 
``at least 13 km (8.1 mi) and perhaps a more precautionary 15 km (9.3 
mi) to the ETS Sousa population (Indo-Pacific humpback dolphin)--
meaning up to 20 km from shore'' to minimize the potential of exposing 
these threatened dolphins to SPLs greater than 160 dB re 1 [mu]Pa 
(rms), subject to the limitations imposed by other foreign nations. 
Regarding the buffer for the area between the Penghu Islands and the 
Waishanding Jhou sandbar, the widest point between the closest Penghu 
island and the sandbar is 34.2 km (21.3); therefore the mid-line for 
the planned survey is 17.1 km (10.6 mi). The total distance between 
Taiwan and the Penghu Islands is approximately 45 km and the planned 
seismic survey line off the west coast of Taiwan is within the 
territorial sea of Taiwan.
    Because of the concerns about potential effects of the seismic 
surveys on Western Pacific gray whales (wintering areas and migration), 
Indo-Pacific humpback dolphins, and finless porpoises, the seismic 
survey lines in the South China Sea south of the Taiwan Strait have 
been re-routed so that they are now located in water depths greater 
than 200 m (656 ft), as recommended by NRDC. Those in the Taiwan Strait 
will be as far east as possible from the mainland China side. The 
seismic lines that were proposed in the IHA application in the western 
Taiwan Strait have been dropped.
    Because of concerns about potential effects of the seismic surveys 
on coastal species and those that frequent the continental shelf break 
and steep slopes (e.g., beaked and sperm whales), the proposed survey 
line paralleling the east coast of Taiwan (the continental shelf is 
narrow there) has also been moved offshore by more than 20 km to 
decrease potential impacts on these species (see Figure 1 of L-DEO's 
Supplemental EA).
    Procedures for Species of Particular Concern--Several species of 
particular concern could occur in the study area. Special mitigation 
procedures will be used for these species as follows:
    (1) The airguns will be shut-down if a North Pacific right whale, 
Western Pacific gray whale, humpback whale mother/calf pair, Indo-
Pacific humpback and bottlenose dolphin, and/or finless porpoise is 
sighted at any distance from the vessel;
    (2) Because of the sensitivity of beaked whales, approach to 
slopes, submarine canyons, and other underwater geologic features will 
be minimized, if possible, during the survey (Figure 1 of L-DEO's 
application); and
    (3) If visually sighted, avoidance of concentrations of humpback, 
sperm, and beaked whales, and dugongs.

Additional Mitigation Measures

    (1) To the maximum extent practicable, L-DEO will schedule seismic 
operations in inshore or shallow waters during daylight hours and OBS 
operations to nighttime hours.
    (2) To the maximum extent practicable, inshore seismic surveys will 
be conducted from the coast (inshore) and proceed towards the sea 
(offshore) in order to avoid trapping marine mammals in shallow water.
    (3) NSF and L-DEO have coordinated with the governments of Taiwan, 
Japan, and the Philippines regarding the marine geophysical activity.
    (4) NMFS expects NSF and L-DEO to adhere to conservation laws and 
regulations of nations while in foreign waters, and known rules and 
boundaries of Marine Protected Areas (MPA). In the absence of local 
conservation laws and regulations or MPA rules, L-DEO will continue to 
use the monitoring and mitigation measures identified in the IHA.

Passive Acoustic Monitoring

    Passive Acoustic Monitoring (PAM) will take place to complement the 
visual monitoring program, if practicable. Visual monitoring typically 
is not effective during periods of poor visibility (e.g., bad weather) 
or at night, and even with good visibility, is unable to detect marine 
mammals when they are below the surface or beyond visual range. 
Acoustical monitoring can be used in addition to visual observations to 
improve detection, identification, localization, and tracking of 
cetaceans. The acoustic monitoring will serve to alert visual observers 
(if on duty) when vocalizing cetaceans are detected. It is only useful 
when marine mammals call, but it can be effective either by day or by 
night and does not depend on good visibility. It will be monitored in 
real time so visual observers can be advised when cetaceans are 
detected. When bearings (primary and mirror-image) to calling 
cetacean(s) are determined, the bearings will be relayed to the visual 
observer to help him/her sight the calling animal(s).
    The PAM system consists of hardware (i.e., hydrophones) and 
software. The ``wet end'' of the system consists of a low-noise, towed 
hydrophone array that is connected to the vessel by a ``hairy'' faired 
cable. The array will be deployed from a winch located on the back 
deck. A deck cable will connect from the winch to the main computer lab 
where the acoustic station and signal condition and processing system 
will be located. The lead-in from the hydrophone array is approximately 
400 m (1,312 ft) long, and the active part of the hydrophone is 
approximately 56 m (184 ft) long. The hydrophone array is typically 
towed at depths less than 20 m (65.6 ft).
    The towed hydrophone array will be monitored 24 hours per day while 
at the survey area during airgun operations, and also during most 
periods when the Langseth is underway while the airguns are not 
operating. One MMO will monitor the acoustic detection system at any 
one time, by listening to the signals from two channels via headphones 
and/or speakers and watching the real time spectrographic display for 
frequency ranges produced by cetaceans. MMOs monitoring the acoustical 
data will be on shift for 1-6 hours. Besides the ``visual'' MMOs, an 
additional MMO with primary responsibility for PAM will also be aboard. 
However, all MMOs are expected to rotate through the PAM position, 
although the most experienced with acoustics will be on PAM duty more 
frequently.
    When a vocalization is detected, the acoustic MMO will, if visual 
observations are in progress, contact the MMVO immediately to alert 
him/her to the presence of the cetacean(s) (if they have not already 
been seen), and to allow a power down or shutdown to be initiated, if 
required. The information regarding the call will be entered into a 
database. The data to be entered include an acoustic encounter 
identification number, whether it was linked with a visual sighting, 
date, time when first and last heard and whenever any additional 
information was recorded, position and water depth when first detected, 
bearing if determinable, species or species group (e.g., unidentified 
dolphin, sperm whale), types and nature of sounds heard (e.g., clicks, 
continuous, sporadic, whistles, creaks, burst pulses, strength of 
signal, etc.), and any other notable information. The acoustic 
detection can also be recorded for further analysis.
    L-DEO will coordinate the planned marine mammal monitoring program 
associated with the TAIGER seismic survey in SE Asia with other parties 
that may have interest in the area and/or be conducting marine mammal 
studies in the same region during the proposed seismic survey. L-DEO 
and NSF will coordinate with Taiwan, Japan, and the Philippines, as 
well as applicable U.S. agencies (e.g., NMFS), and will comply with 
their requirements.

[[Page 41320]]

Reporting

MMVO Data and Documentation

    MMVOs will record data to estimate the numbers of marine mammals 
exposed to various received sound levels and to document apparent 
disturbance reactions or lack thereof. Data will be used to estimate 
numbers of animals potentially `taken' by harassment (as defined in the 
MMPA). They will also provide information needed to order a shut-down 
of the seismic source when a marine mammal or sea turtle is within or 
near the EZ.
    When a sighting is made, the following information about the 
sighting will be recorded:
    (1) Species, group size, and age/size/sex categories (if 
determinable); behavior when first sighted and after initial sighting; 
heading (if consistent), bearing, and distance from seismic vessel; 
sighting cue; apparent reaction to the seismic source or vessel (e.g., 
none, avoidance, approach, paralleling, etc.); and behavioral pace.
    (2) Time, location, heading, speed, activity of the vessel, sea 
state, visibility, cloud cover, and sun glare.
    The data listed (time, location, etc.) will also be recorded at the 
start and end of each observation watch, and during a watch whenever 
there is a change in one or more of the variables.
    All observations, as well as information regarding seismic source 
shutdown, will be recorded in a standardized format. Data accuracy will 
be verified by the MMVOs at sea, and preliminary reports will be 
prepared during the field program and summaries forwarded to the 
operating institution's shore facility and to NSF weekly or more 
frequently. MMVO observations will provide the following information:
    (1) The basis for decisions about powering down or shutting down 
airgun arrays.
    (2) Information needed to estimate the number of marine mammals 
potentially `taken by harassment.' These data will be reported to NMFS 
per terms of MMPA authorizations or regulations.
    (3) Data on the occurrence, distribution, and activities of marine 
mammals in the area where the seismic study is conducted.
    (4) Data on the behavior and movement patterns of marine mammals 
seen at times with and without seismic activity.
    A report will be submitted to NMFS within 90 days after the end of 
the cruise. The report will describe the operations that were conducted 
and sightings of marine mammals near the operations. The report will be 
submitted to NMFS, providing full documentation of methods, results, 
and interpretation pertaining to all monitoring. The 90-day report will 
summarize the dates and locations of seismic operations, and all marine 
mammal sightings (dates, times, locations, activities, associated 
seismic survey activities). The report will also include estimates of 
the amount and nature of potential ``take'' of marine mammals by 
harassment or in other ways.
    All injured or dead marine mammals (regardless of cause) will be 
reported to NMFS as soon as practicable. Report should include species 
or description of animal, condition of animal, location, time first 
found, observed behaviors (if alive) and photo or video, if available.

Monitoring to Date

    During Leg 1 of the TAIGER survey, L-DEO's MMOs onboard the 
Langseth have reported four visual sightings and four acoustic 
detections during operations in the study area. MMOs have visually 
sighted a group of sperm whales (approximately 3 individuals), a group 
of short-finned pilot whales (approximately 36 individuals), an 
unidentified toothed whale, and a single unidentified sea turtle during 
the four visual sightings. For the four acoustic detections made, 
spectrograms resembling known sounds made by sperm whales and melon-
headed whales were recorded during visual observations of the sperm 
whale and unidentified toothed whale, respectively. Spectrograms 
resembling a call of a melon-headed whale and an unidentified whistle 
were recorded on different nights. Two of the visual sightings of 
cetaceans occurred while one airgun was in operations and did not 
require additional mitigation action. The visual sighting of a group of 
pilot whales occurred during a period of no seismic activity. A power-
down was initiated for the sighting of the single unidentified sea 
turtle.
    During Leg 2 of the TAIGER survey, L-DEO's MMOs onboard the 
Langseth have reported 11 visual sightings and 8 acoustic detections 
during operations in the study area. No visual or acoustic detections 
were made during week one of Leg 2. During week two of the Leg 2, MMOs 
on the Langseth recorded six visual sightings of marine mammals (all 
during seismic operations), two of which sightings required a power-
down. MMOs have visually sighted two groups of unidentified dolphins, 
two groups of unidentified toothed whales (both probable false killer 
whales), a group of pantropical (approximately 100 individuals), and a 
group of Fraser's dolphins (approximately 50 individuals). A total of 
five acoustic detections were of unidentified toothed whales and three 
of unidentified dolphins. Only one of those acoustic detections was 
concurrent with a visual sighting (unidentified toothed whale).
    During week three of Leg 2, MMOs on the Langseth recorded four 
visual sightings of marine mammals (all during seismic operations), one 
of which required a power-down. MMOs have visually sighted four groups 
of unidentified dolphins (one probably bottlenose dolphin group). The 
groups ranged from approximately 12 to 75 individuals. No acoustic 
detections were made during week three.
    During week four of Leg 2, MMOs on the Langseth recorded one visual 
sighting of spinner dolphins (approximately 75 individuals), and 
implemented a power-down during the sighting. No other sightings were 
made during week four. Three acoustic detections of delphinids were 
made during week three, all on the same day.
    No monitoring for marine mammals was conducted during Leg 3 of the 
TAIGER survey, as it only consisted of OBS operations. During week one 
of Leg 4, three marine mammal sightings were made. No sightings 
occurred during seismic periods; thus, not shut-downs or power-downs of 
the airgun array were required. The sightings included an unidentified 
sea turtle, sperm whales (approximately two individuals), melon-headed 
whales (approximately 20 individuals), and unidentified dolphins 
(approximately 12 individuals). On June 23, 2009, two acoustic 
detections of delphinids were made, and another delphinid acoustic 
detection was made on June 28, 2009. All acoustic detections occurred 
during seismic activity, but none required mitigation measures.
    During week one of Leg 4, MMOs on the Langseth recorded three 
marine mammal sightings and an unidentified sea turtle. No sightings 
occurred during seismic periods; thus, no shut-downs or power-downs of 
the airgun array were required. The marine mammal sightings included 
one of sperm whales (approximately 2 individuals), a group of melon-
headed whales (approximately 20 individuals), and a group of 
unidentified dolphins (approximately 12 individuals). On June 23, 2009, 
two acoustic detections of delphinids were made. On June 28, 2009, an 
additional delphinid acoustic detection was made. All acoustic 
detections occurred during seismic activity, but none required 
mitigation measures.
    During week two of Leg 4, MMOs on the Langseth recorded two marine 
mammal sightings. Both sightings of unidentified dolphins 
(approximately 2

[[Page 41321]]

and 100 individuals) occurred during seismic activity, but only one 
sighting required a power-down of the airgun array. There were no shut-
downs due to marine mammal sightings during this period. There were 
four acoustic detections, all of which occurred during seismic 
activity.
    During week three of Leg 4, MMOs on the Langseth recorded one 
marine mammal sighting. The group of five individual sperm whales 
consisted of four adults and one calf. This sighting occurred during 
seismic activity, but did not require the implementation of any 
mitigation measures. No acoustic detections were made during this 
period.
    During week four of Leg 4, MMOs on the Langseth recorded one marine 
mammal sighting. One sighting of 36 pantropical spotted dolphins (24 
adults and 12 calves) was made during this period. This sighting 
occurred during seismic activity, but did not require the 
implementation of any mitigation measures. There were two acoustic 
detections made during this period, both of which occurred during 
seismic activity.

IHA Modifications

    On March 31, 2009, NMFS issued an IHA to L-DEO to take small 
numbers of marine mammals incidental to conducting a marine geophysical 
survey in SE Asia, under a cooperative agreement with NSF, as part of 
the TAIGER program from March-July, 2009. On April 21, 2009, NMFS 
received a request from L-DEO, asking that IHA conditions (10(u) and 
10(w)) be modified for clarification because as currently written, the 
conditions would effectively preclude the complete execution of Leg 2--
the seismic survey line along the west coast of Taiwan. Specifically, 
condition 10(u) only allowed the survey to occur if the Taiwan Strait 
were more than 170 km wide throughout its entire length or only in the 
southern portion of the area. The area between Taixi and Tongshiao, 
which demarcates the primary distribution of the `critically 
endangered' (IUCN, 2008) Indo-Pacific humpback dolphin Eastern Taiwan 
Strait sub-population, is typically narrower than 170 km. L-DEO stated 
that the 150 km distance probably originated as an error with an early 
draft of the Supplemental EA.
    Condition 10(w) did not specifically address the maintenance of a 
conservative buffer from the Penghu Islands and the Waishanding Jhou 
sandbar. Under the modification to condition 10(w) the planned seismic 
survey line will only change in the area between the Penghu Islands and 
the Waishanding Jhou sandbar. The widest point between the closest 
Penghu island and the sandbar is 34.2 km (21.3 mi); therefore the mid-
line for the planned survey is 17.1 km (10.6 mi). The total distance 
between Taiwan and the Penghu Islands is approximately 45 km and the 
planned seismic survey line off the west coast of Taiwan is within the 
territorial sea of Taiwan. Additionally, as requested by L-DEO, 
distances stated in the IHA now include nautical miles for navigational 
purposes.
    In addition, NMFS clarified condition 10(s). Condition 10(s) needed 
to be modified to more specifically describe the geographical area of 
the Taiwan Strait where the first and second legs of the TAIGER survey 
are being conducted. Prior to the issuance of the original IHA, L-DEO 
voluntarily dropped the seismic survey tracklines in the western Taiwan 
Strait for a number of reasons, including concerns about the effects of 
the surveys on Western Pacific gray whales, Indo-Pacific humpback 
dolphins, and finless porpoises, and because China denied L-DEO access 
to their waters. Condition 10(s), as modified, better reflects these 
circumstances.
    A copy of the modified IHA can be found online at: http://www.nmfs.noaa.gov/pr/pdfs/permits/taiger_iha_modified.pdf.
    On July 13, 2009, NMFS received a request from L-DEO for an 
additional 16 authorized takes of sperm whales for the remainder of the 
seismic survey. It is unlikely that his many animals will be exposed to 
these sound levels, but with the group dynamic for this particular 
species, additional numbers have been requested to allow for a chance 
encounter of a large sperm whale group. During vessel operations in the 
TAIGER study area, there have been 13 individual sperm whales sighted 
in three groups. On July 8, 2009, five individuals were identified by 
MMOs to have been exposed to sound levels greater than or equal to 160 
dB re 1 [mu]Pa (rms) in the study area. These five animals were 
observed in a single group about 2 km (1.24 mi) from the MMO 
observation tower (approximately 2.2 km [1.37 mi] from the closest 
airgun) onboard the Langseth. These animals showed similar movement and 
behavioral responses as those observed outside the 160 dB isopleths. L-
DEO has provided additional sighting data as well. Authorized takes of 
20 sperm whales (0.08 percent of the regional population) are included 
in the IHA modified on July 15, 2009.

Endangered Species Act (ESA)

    Pursuant to Section 7 of the ESA, NSF has consulted with the NMFS, 
Office of Protected Resources, Endangered Species Division on this 
seismic survey. NMFS has also consulted internally pursuant to Section 
7 of the ESA on the issuance of an IHA under section 101(a)(5)(D) of 
the MMPA for this activity. On March 31, 2009, NMFS concluded 
consultation with NMFS and NSF and issued a Biological Opinion (BiOp), 
which concluded that the proposed action and issuance of an IHA are not 
likely to jeopardize the continued existence of North Pacific right, 
Western Pacific gray, blue, fin, sei, humpback, and sperm whales, and 
leatherback (Dermochelys coriacea), green (Chelonia mydas), loggerhead 
(Caretta caretta), hawksbill (Eretmochelys imbricata), and olive ridley 
(Lepidochelys olivacea) sea turtles. The BiOp also concluded that 
designated critical habitat for these species does not occur in the 
action area and would not be affected by the survey. Relevant Terms and 
Conditions of the Incidental Take Statement in the BiOp have been 
incorporated into the IHA.
    Since NMFS modified the IHA issued to L-DEO, a review under Section 
7 was conducted. On May 1, 2009, NMFS concluded that the proposed 
revisions to the IHA would not cause adverse effects on species or 
designated critical habitat. Given this, the consultation requirements 
have been met and no additional consultation is required for the 
issuance of the revised IHA.

National Environmental Policy Act (NEPA)

    NSF prepared an EA titled ``Marine Seismic Survey in Southeast 
Asia, March-July 2009'' that references L-DEO's EA and Supplemental EA 
of a Marine Geophysical Survey by the R/V Marcus G. Langseth in 
Southeast Asia, March-July 2009. LGL Limited, Environmental Research 
Associates, prepared the EA and Supplemental EA on behalf of L-DEO and 
NSF. NMFS has adopted NSF's EA and issued a Finding of No Significant 
Impact (FONSI) for the issuance of the IHA. The modification of the IHA 
was within the scope of the impacts considered in the EA and used to 
support the FONSI.

Determinations

    NMFS has determined that the impact of conducting the seismic 
survey in SE Asia may result, at worst, in a temporary modification in 
behavior (Level B harassment) of small numbers of marine mammals. 
Further, this activity is expected to result in a negligible impact

[[Page 41322]]

on the affected species or stocks. The provision requiring that the 
activity not have an unmitigable impact on the availability of the 
affected species or stock for subsistence uses is not implicated for 
this action.
    For reasons stated previously in this document, this negligible 
impact determination is supported by:
    (1) The likelihood that, given sufficient notice through relatively 
slow ship speed, marine mammals are expected to move away from a noise 
source that is annoying prior to its becoming potentially injurious;
    (2) The fact that marine mammals would have to be closer than 40 m 
(131 ft) in deep water, 60 m (197 ft) at intermediate depths, or 296 m 
(971 ft) in shallow water when a single airgun is in use from the 
vessel to be exposed to levels of sound (180 dB) believed to have even 
a minimal chance of causing TTS;
    (3) The fact that cetaceans would have to be closer than 950 m (0.6 
mi) in deep water, 1,425 m (0.9 mi) at intermediate depths, and 3,694 m 
(2.3 mi) in shallow water when the full array is in use at a 9 m (29.5 
ft) tow depth from the vessel to be exposed to levels of sound (180 dB) 
believed to have even a minimal chance of causing TTS;
    (4) The fact that marine mammals would have to be closer than 6,000 
m (3.7 mi) in deep water, 6,667 m (4.1 mi) at intermediate depths, and 
8,000 m (4.9 mi) in shallow water when the full array is in use at a 9 
m (29.5 ft) tow depth from the vessel to be exposed to levels of sound 
(160 dB) believed to have even a minimal chance at causing TTS;
    (5) The likelihood that marine mammal detection ability by trained 
observers is high at that short distance from the vessel;
    (6) The use of PAM, which is effective out to tens of km, will 
assist in the detection of vocalizing marine mammals at greater 
distances from the vessel;
    (7) The incorporation of other required mitigation measures (i.e., 
ramp-up, power-down, shut-down, temporal and spatial avoidance, special 
measures for species of particular concern, and additional mitigation 
measures); and
    (8) The relatively limited duration and geographically widespread 
distances of the seismic survey in the SE Asia study area 
(approximately 103 days). As a result, no take by injury or death is 
anticipated, and the potential for temporary or permanent hearing 
impairment is very low and will be avoided through the incorporation of 
the required monitoring and mitigation measures.
    While the number of marine mammals potentially incidentally 
harassed will depend on the distribution and abundance of marine 
mammals in the vicinity of the survey activity, the number of potential 
harassment takings is estimated to be small, relative to the affected 
species and stock sizes (less than a few percent of any of the 
estimated population sizes), and has been mitigated to the lowest level 
practicable through incorporation of the measures mentioned previously 
in this document.

Authorization

    As a result of these determinations, NMFS issued and modified an 
IHA to L-DEO for conducting a marine geophysical survey in SE Asia from 
March-July, 2009, including the previously mentioned mitigation, 
monitoring, and reporting requirements.

James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E9-19459 Filed 8-13-09; 8:45 am]
BILLING CODE 3510-22-P