[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Notices]
[Pages 75525-75536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31056]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA808


Takes of Marine Mammals Incidental to Specified Activities; 
Marine Geophysical Survey in the Central Pacific Ocean, November, 2011 
Through January, 2012

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

ACTION: Notice; issuance of an incidental take authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulation, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to Lamont-Doherty Earth 
Observatory (L-DEO), a part of Columbia University, for an Incidental 
Harassment Authorization (IHA) to take marine mammals, by harassment, 
incidental to conducting a marine geophysical survey in the central 
Pacific Ocean, November, 2011 through January, 2012.

DATES: Effective November 26, 2011 through January 19, 2012.

ADDRESSES: A copy of the IHA and application are available by writing 
to P. Michael Payne, Chief, Permits and Conservation Division, Office 
of Protected Resources, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910-3225.
    An electronic copy of the application containing a list of the 
references used in this document may be obtained by writing to the 
above address, telephoning the contact listed here (see FOR FURTHER 
INFORMATION CONTACT) or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    The following associated documents are also available at the same 
Internet address: the National Science Foundation's (NSF) final 
Environmental Analysis (Analysis) pursuant to Executive Order 12114, 
which incorporates an ``Environmental Assessment of a Marine 
Geophysical Survey by the R/V Marcus G. Langseth in the Central Pacific 
Ocean, November-December 2011,'' prepared by LGL Limited, on behalf of 
NSF and L-DEO; and a finding of no significant impact (FONSI) prepared 
by the NSF. NMFS prepared its own EA and FONSI, which is available at 
the same Internet address. Documents cited in this notice may be 
viewed, by appointment, during regular business hours, at the 
aforementioned address.
    The NMFS Biological Opinion will be available online at: http://www.nmfs.noaa.gov/pr/consultation/opinions.htm.

FOR FURTHER INFORMATION CONTACT: Jeannine Cody, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(D) of the Marine Mammal Protect Act of 1972, as 
amended (MMPA; 16 U.S.C. 1361 et seq.) directs the Secretary of 
Commerce to authorize, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals of a species or 
population stock, by United States citizens who engage in a specified 
activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and, if the taking is 
limited to harassment, a notice of a proposed authorization is provided 
to the public for review.
    Authorization for the incidental taking of small numbers of marine 
mammals shall be granted if NMFS finds that the taking will have a 
negligible impact on the species or stock(s), and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses (where relevant). The authorization must 
set forth the permissible methods of taking, other means of effecting 
the least practicable adverse impact on the species or stock and its 
habitat, and requirements

[[Page 75526]]

pertaining to the mitigation, monitoring and reporting of such takings. 
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``* * * an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) of the MMPA 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 public comment period, NMFS must either issue or deny the 
authorization. NMFS must publish a notice in the Federal Register 
within 30 days of its determination to issue or deny the authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as:

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

Summary of Request

    NMFS received an application on June 17, 2011, from L-DEO for the 
taking by harassment, of marine mammals, incidental to conducting a 
marine geophysical survey in the central tropical Pacific Ocean in 
international waters. L-DEO, with research funding from the U.S. 
National Science Foundation (NSF), plans to conduct the survey from 
November 26, 2011, through December 29, 2011. Upon receipt of 
additional information, NMFS determined the application complete and 
adequate on August 26, 2011. NMFS made the complete application 
available for public comment (see ADDRESSES) for this IHA.
    L-DEO plans to use one source vessel, the R/V Marcus G. Langseth 
(Langseth) and a seismic airgun array to image the structure of the 
oceanic lithosphere (i.e., the Earth's crust and the uppermost mantle) 
in the Central Pacific using three-dimensional (3-D) seismic reflection 
techniques. The Langseth would deploy a single hydrophone streamer and 
approximately 34 short-period Ocean Bottom Seismometers (OBS) to 
collect geophysical data. After completion of the seismic survey, the 
Langseth will recover the 34 seismometers and deploy 27 broad-band OBSs 
and five magneto-telluric instruments on the seafloor. These 
instruments will remain on the seafloor for 12 months and the 
scientists will recover these instruments in 2012.
    In addition to the operations of the seismic airgun array, L-DEO 
intends to operate a multibeam echosounder (MBES) and a sub-bottom 
profiler (SBP) continuously throughout the survey.
    Acoustic stimuli (i.e., increased underwater sound) generated 
during the operation of the seismic airgun array, may have the 
potential to cause a short-term behavioral disturbance for marine 
mammals in the survey area. This is the principal means of marine 
mammal taking associated with these activities and L-DEO has requested 
an authorization to take 20 species of marine mammals by Level B 
harassment. Take is not expected to result from the use of the MBES, 
the SBP, the OBSs, or the magneto-telluric instruments for reasons 
discussed in this notice. Also, NMFS does not expect take to result 
from collision with the Langseth because it is a single vessel moving 
at relatively slow speeds during seismic acquisition within the survey, 
for a relatively short period of time. It is likely that any marine 
mammal would be able to avoid the vessel.

Description of the Specified Activity

    L-DEO's seismic survey is scheduled to commence on November 26, 
2011, and continue for approximately 35 days ending on December 29, 
2011. Some minor deviation from these dates is possible, depending on 
logistics, weather conditions, and the need to repeat some lines if 
data quality is substandard. Therefore, NMFS proposes to issue an 
authorization that extends to January 19, 2012.
    Within this time period, the Langseth will conduct seismic 
operations deploying a 36-airgun array, a 6-kilometer (km) hydrophone 
streamer, and 34 OBSs. The Langseth will depart from Honolulu, Hawai'i 
on November 26, 2011 and transit to the survey area in the central 
Pacific Ocean, approximately 1,300 km (808 mi) south of Hawai'i.
    Geophysical survey activities will involve 3-D seismic 
methodologies to define the detailed structure of the oceanic 
lithosphere and to develop a comprehensive theory on its formation and 
evolution. To obtain 3-D images of the lithosphere in the survey area, 
the Langseth will deploy a 36-airgun array as an energy source. The 
receiving system consists of one 6-km-long hydrophone streamer and 
approximately 34 OBSs. As the airgun array is towed along the survey 
lines, the hydrophone streamers will receive the returning acoustic 
signals and transfer the data to the on-board processing system. The 
OBSs will receive the returning acoustic signals and record them 
internally for later analysis after retrieval from the seafloor.
    The study (e.g., equipment testing, startup, line changes, repeat 
coverage of any areas, and equipment recovery) will take place in water 
depths of approximately 5,000 meters (m) (3.1 mi). The survey will 
require approximately 11 days (d) to complete approximately 2,120 km 
(1,317.3 mi) of transect lines. The Langseth will shoot a 600-km-long 
transect line twice; once using the hydrophone streamer as the receiver 
and once again using the OBSs. Subsequent seismic operations will occur 
along two semi-circular arcs (180 degrees) centered at the mid-point of 
the 600-km-long transect line with radii of 50 and 150 km, 
respectively. The Langseth will conduct additional seismic operations 
in the survey area associated with turns, airgun testing, and repeat 
coverage of any areas where the initial data quality is sub-standard. 
Data acquisition will include approximately 264 hours (hr) of airgun 
operation (11 d x 24 hr).
    The scientific team for this survey consists of Drs. J.B. Gaherty 
(L-DEO); D. Lizarralde, J.A. Collins, and R. Evans (Woods Hole 
Oceanographic Institution); and G. Hirth (Brown University).
    NMFS expects that acoustic stimuli resulting from the operation of 
the single airgun or the 36-airgun array has the potential to harass 
marine mammals, incidental to the conduct of the seismic survey. NMFS 
expects these disturbances to be temporary and result in a temporary 
modification in behavior and/or low-level physiological effects (Level 
B harassment only) of small numbers of certain species of marine 
mammals. NMFS does not expect that the movement of the Langseth, during 
the conduct of the seismic survey, has the potential to harass marine 
mammals because of the relatively slow operation speed of the vessel 
(4.6 kts; 8.5 km/hr; 5.3 mph) during seismic acquisition.
    NMFS outlined the purpose of the program in a previous notice for 
the proposed IHA (76 FR 57959, September 19, 2011). The activities to 
be conducted have not changed between the proposed IHA notice and this 
final notice

[[Page 75527]]

announcing the issuance of the IHA. For a more detailed description of 
the authorized action, including vessel and acoustic source 
specifications, the reader should refer to the proposed IHA notice (76 
FR 57959, September 19, 2011), the application and associated documents 
referenced above this section.

Description of the Specified Geographic Region

    The survey will encompass the area bounded by 7-12[deg] N and 148-
142[deg] W in international waters in the central Pacific Ocean (see 
Figure 1 in L-DEO's application). Water depth in the survey area is 
approximately 5,000 m (3.1 mi).

Comments and Responses

    A notice of receipt of the L-DEO application and proposed IHA was 
published in the Federal Register on September 19, 2011 (76 FR 57959). 
During the 30-day public comment period, NMFS received comments from 
the Marine Mammal Commission (Commission) only. The Commission's 
comments are online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Following are their comments and NMFS' responses.
    Comment 1: The Commission recommends that the NMFS require L-DEO to 
re-estimate the proposed exclusion (EZs) and buffer zones and 
associated takes of marine mammals using site-specific information.
    Response: The Langseth will conduct the survey in water depths 
where site-specific source signature requirements are neither warranted 
nor practical. Site signature measurements are normally conducted 
commercially by shooting a test pattern over an ocean bottom instrument 
in shallow water. This method is neither practical nor valid in water 
depths as great as 3,000 m (9,842.5 ft). The alternative method of 
conducting site-specific attenuation measurements would require a 
second vessel, which is impractical both logistically and financially. 
Sound propagation varies noticeably less between deep water sites than 
between shallow water sites (because of the reduced significance of 
bottom interaction), thus decreasing the importance of site-specific 
estimates.
    Based on these reasons, and the information provided by USGS in 
their application and environmental analysis, NMFS is satisfied that 
the data supplied are sufficient for NMFS to conduct its analysis and 
make any determinations and therefore no further effort is needed by 
the applicant. While exposures of marine mammals to acoustic stimuli 
are difficult to estimate, NMFS is confident that the levels of take 
provided by L-DEO in their IHA application and EA, and authorized 
herein are estimated based upon the best available scientific 
information and estimation methodology. The 160 dB zone used to 
estimate exposure is appropriate and sufficient for purposes of 
supporting NMFS's analysis and determinations required under section 
101(a)(5)(D) of the MMPA and its implementing regulations. See NMFS's 
response to Comment 2 (below) for additional details.
    Comment 2: The Commission recommends that NMFS require L-DEO, if 
the exclusion zones (EZ) and buffer zones and takes are not re-
estimated, to provide a detailed justification: (1) For basing the EZs 
and buffer zones for the proposed survey in the central Pacific Ocean 
on empirical data collected in the Gulf of Mexico (GOM) or on modeling 
that relies on measurements from the GOM; and (2) that explains why 
simple ratios were used to adjust for tow depth and median values were 
applied to intermediate water depths rather than using empirical 
measurements.
    Response: Appendix A in the environmental analysis includes 
information from the calibration study conducted on the Langseth in 
2007 and 2008. This information is now available in the final 
environmental assessment on NSF's Web site at http://www.nsf.gov/geo/oce/envcomp/index.jsp. The revised Appendix A describes the modeling 
process and compares the model results with empirical results of the 
2007 to 2008 Langseth calibration experiment in shallow, intermediate, 
and deep water. The conclusions identified in Appendix A show that the 
model represents the actual produced levels, particularly within the 
first few kilometers, where the predicted exclusion zones (EZs, i.e., 
safety radii) lie. At greater distances, local oceanographic variations 
begin to take effect, and the model tends to over predict. Further, 
since the modeling matches the observed measurement data, the authors 
have concluded that the models can continue to be used for defining 
EZs, including for predicting mitigation radii for various tow depths. 
The data results from the studies were peer reviewed and the 
calibration results, viewed as conservative, were used to determine the 
cruise-specific EZs.
    At present, the L-DEO model does not account for site-specific 
environmental conditions. The calibration study of the L-DEO model 
predicted that using site-specific information may actually provide 
less conservative EZ radii at greater distances. The Draft Programmatic 
Environmental Impact Statement for Marine Seismic Research Funded by 
the National Science Foundation or Conducted by the U.S. Geological 
Survey (DPEIS) prepared pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) did incorporate various site-
specific environmental conditions in the modeling of the Detailed 
Analysis Areas.
    The IHA issued to L-DEO, under section 101(a)(5)(D) of the MMPA 
provides monitoring and mitigation requirements that will protect 
marine mammals from injury, serious injury, or mortality. USGS is 
required to comply with the IHA's requirements. These analyses are 
supported by extensive scientific research and data. NMFS is confident 
in the peer-reviewed results of the L-DEO seismic calibration studies 
which, although viewed as conservative, are used to determine cruise-
specific EZs and which factor into exposure estimates. NMFS has 
determined that these reviews are the best scientific data available 
for review of the IHA application and to support the necessary analyses 
and determinations under the MMPA, Endangered Species Act (ESA; 16 
U.S.C. 1531 et seq.) and NEPA.
    Based on NMFS's analysis of the likely effects of the specified 
activity on marine mammals and their habitat, NMFS has determined that 
the EZs identified in the IHA are appropriate for the survey and that 
additional field measurement is not necessary at this time. While 
exposures of marine mammals to acoustic stimuli are difficult to 
estimate, NMFS is confident that the levels of take authorized have 
been estimated based upon the best available scientific information and 
estimation methodology. The 160-dB zone used to estimate exposure is 
appropriate and sufficient for purposes of supporting NMFS's analysis 
and determinations required under section 101(a)(5)(D) of the MMPA and 
its implementing regulations.
    Comment 3: The Commission recommends that NMFS require that L-DEO 
use species-specific maximum densities rather than best densities to 
re-estimate the anticipated number of takes.
    Response: For purposes of this IHA, NMFS is using the best (i.e., 
average or mean) densities to estimate the number of authorized takes 
for L-DEO's seismic survey in the central Pacific Ocean as NMFS is 
confident in the assumptions and calculations used to estimate density 
for this survey area. NMFS makes decisions on whether to use maximum or 
best densities on a case-by-case basis, depending on the nature and

[[Page 75528]]

robustness of existing data. Contrary to the Commission's comment in 
their October 19, 2011 letter to NMFS on the proposed IHA, NMFS has 
used best densities to estimate the number of incidental takes in IHAs 
for several seismic surveys in the past. The results of the associated 
monitoring reports show that the use of the best estimates is 
appropriate for and does not refute NMFS's determinations.
    Comment 4: The Commission recommends that if NMFS is planning to 
allow the applicant to resume full power after eight minutes (min) 
under certain circumstances, specify in the authorization in all 
conditions under which an eight min period could be followed by a full-
power resumption of the airguns.
    Response: The IHA specifies the conditions under which the Langseth 
will resume full-power operations of the airguns. During periods of 
active seismic operations, there are occasions when the airguns need to 
be temporarily shut-down (for example due to equipment failure, 
maintenance, or shut-down) or a power-down is necessary (for example 
when a marine mammal is seen to either enter or about to enter the EZ). 
In these instances, should the airguns be inactive or powered-down for 
more than eight min, then L-DEO would follow the ramp-up procedures 
identified in the Mitigation section (see below) where airguns will be 
re-started beginning with the smallest airgun in the array and increase 
in steps not to exceed 6 dB per 5 min over a total duration of 
approximately 30 min. NMFS and NSF believe that the eight min period in 
question is an appropriate minimum amount of time to pass after which a 
ramp-up process should be followed. In these instances, should it be 
possible for the airguns to be re-activated without exceeding the eight 
min period (for example equipment is fixed or a marine mammal is 
visually observed to have left the EZ for the full source level), then 
the airguns would be reactivated to the full operating source level 
identified for the survey (in this case, 6,600 in \3\) without need for 
initiating ramp-up procedures. In the event a marine mammal enters the 
EZ and a power-down is initiated, and the marine mammal is not visually 
observed to have left the EZ, then L-DEO must wait 15 min (for species 
with shorter dive durations--small odontocetes and pinnipeds) or 30 min 
(for species with longer dive durations--mysticetes and large 
odontocetes) after the last sighting before initiating a 30-min ramp-
up. However, ramp-up will not occur as long as a marine mammal is 
detected within the EZ, which provides more time for animals to leave 
the EZ, and accounts for the position, swim speed, and heading of 
marine mammals within the EZ.
    Comment 5: The Commission recommends that NMFS extend the 30 min 
period following a marine mammal sighting in the EZ to cover the full 
dive times of all species likely to be encountered.
    Response: NMFS recognizes that several species of deep-diving 
cetaceans are capable of remaining underwater for more than 30 min 
(e.g., sperm whales and several types of beaked whales); however, for 
the following reasons NMFS believes that 30 min is an adequate length 
of the monitoring period prior to the ramp-up of airguns:
    (1) Because the Langseth is required to monitor before ramp-up of 
the airgun array, the time of monitoring prior to the start-up of any 
but the smallest array is effectively longer than 30 min (ramp-up will 
begin with the smallest airgun 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 to 30 min;
    (2) In many cases PSVOs are observing during times when L-DEO is 
not operating the seismic airguns and would observe the area prior to 
the 30 min observation period;
    (3) The majority of the species that may be exposed do not stay 
underwater more than 30 min; 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-ramp up 
monitoring, if an animal's maximum underwater dive time is 45 min, then 
there is only a one in three chance that the last random surfacing 
would occur prior to the beginning of the required 30 min monitoring 
period and that the animal would not be seen during that 30 min period.
    Finally, seismic vessels are moving continuously (because of the 
long, towed array and streamer) 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 
movement is vertical [deep-diving]), the vessel will be far beyond the 
length of the EZ within 30 min, and therefore it will be safe to start 
the airguns again.
    Under the MMPA, incidental take authorizations must include means 
of effecting the least practicable adverse impact on marine mammal 
species and their habitat. Monitoring and mitigation measures are 
designed to comply with this requirement. NMFS believes that the 
framework for visual monitoring will: (1) Be effective at spotting 
almost all species for which take is requested; and (2) that imposing 
additional requirements, such as those suggested by the Commission, 
would not meaningfully increase the effectiveness of observing marine 
mammals approaching or entering the EZs and thus further minimize the 
potential for take.
    Comment 6: The Commission recommends that NMFS, prior to granting 
the requested authorization, provide additional justification for its 
preliminary determination that the proposed monitoring program will be 
sufficient to detect, with a high level of confidence, all marine 
mammals within or entering the identified EZs and buffer zones, 
including:
    (1) Identifying those species that it believes can be detected with 
a high degree of confidence using visual monitoring only;
    (2) Describing detection probability as a function of distance from 
the vessel;
    (3) Describing changes in detection probability under various sea 
state and weather conditions and light levels; and
    (4) Explaining how close to the vessel marine mammals must be for 
Protected Species Observers (PSOs) to achieve high nighttime detection 
rates.
    Response: NMFS believes that the planned monitoring program will be 
sufficient to detect (using visual monitoring and passive acoustic 
monitoring (PAM)), with reasonable certainty, marine mammals within or 
entering identified EZs. This monitoring, along with the required 
mitigation measures, 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 of marine mammals. 
Also, NMFS expects some animals to avoid areas around the airgun array 
ensonified at the level of the EZ.
    NMFS acknowledges that the detection probability for certain 
species of marine mammals varies depending on animal's size and 
behavior as well as sea state and weather conditions and light levels. 
The detectability of marine mammals likely decreases in low light 
(i.e., darkness), higher Beaufort sea states and wind conditions, and 
poor weather (e.g., fog and/or rain). However, at present, NMFS views 
the combination of visual monitoring and PAM as the most effective 
monitoring and mitigation techniques available for detecting marine 
mammals within or entering the EZ. The final monitoring and mitigation 
measures are the most effective feasible measures and NMFS is

[[Page 75529]]

not aware of any additional measures which could meaningfully increase 
the likelihood of detecting marine mammals in and around the EZ. 
Further, public comment has not revealed any additional monitoring or 
mitigation measures that could be feasibly implemented to increase the 
effectiveness of detection.
    NSF and L-DEO are receptive to incorporating proven technologies 
and techniques to enhance the current monitoring and mitigation 
program. Until proven technological advances are made, nighttime 
mitigation measures during operations include combinations of the use 
of PSVOs for ramp-ups, PAM, night vision devices (NVDs), and continuous 
shooting of a mitigation airgun. Should the airgun array be powered-
down, the operation of a single airgun would continue to serve as a 
sound source deterrent to marine mammals. In the event of a complete 
shut-down of the airgun array at night for mitigation or repairs, L-DEO 
suspends the data collection until one-half hour after nautical 
twilight-dawn (when PSVO's are able to clear the EZ). L-DEO will not 
activate the airguns until the entire EZ is visible for at least 30 
min.
    In cooperation with NMFS, L-DEO will be conducting efficacy 
experiments of NVDs during a future Langseth cruise. In addition, in 
response to a recommendation from NMFS, L-DEO is evaluating the use of 
handheld forward-looking thermal imaging cameras to supplement 
nighttime monitoring and mitigation practices. During other low power 
seismic and seafloor mapping surveys, L-DEO successfully used these 
devices while conducting nighttime seismic operations.
    Comment 7: The Commission recommends that NMFS consult with the 
funding agency (i.e., NSF) and individual applicants (e.g., L-DEO and 
U.S. Geological Survey (USGS)) to develop, validate, and implement a 
monitoring program that provides a scientifically sound, reasonably 
accurate assessment of the types of marine mammal taking and number of 
marine mammals taken.
    Response: Numerous studies have reported on the abundance and 
distribution of marine mammals inhabiting the central and eastern 
tropical Pacific Ocean, which overlaps with the seismic survey area, 
and L-DEO has incorporated this data into their analyses used to 
predict marine mammal take in their application. NMFS believes that L-
DEO's current approach for estimating abundance in the survey area 
(prior to the survey) is the best available approach.
    There will be significant amounts of transit time during the 
cruise, and PSVOs will be on watch prior to and after the seismic 
portions of the survey, in addition to during the survey. The 
collection of this visual observational data by PSVOs may contribute to 
baseline data on marine mammals (presence/absence) and provide some 
generalized support for estimated take numbers, but it is unlikely that 
the information gathered from this single cruise alone would result in 
any statistically robust conclusions for any particular species because 
of the small number of animals typically observed.
    NMFS acknowledges the Commission's recommendations and is open to 
further coordination with the Commission, NSF (the vessel owner), and 
L-DEO (the ship operator on behalf of NSF), to develop, validate, and 
implement a monitoring program that will provide or contribute towards 
a more scientifically sound and reasonably accurate assessment of the 
types of marine mammal taking and the number of marine mammals taken. 
However, the cruise's primary focus is marine geophysical research and 
the survey may be operationally limited due to considerations such as 
location, time, fuel, services, and other resources.
    Comment 8: The Commission recommends that NMFS require the 
applicant to:
    (1) Report on the number of marine mammals that were detected 
acoustically and for which a power-down or shut-down of the airguns was 
initiated;
    (2) Specify if such animals also were detected visually; and
    (3) Compare the results from the two monitoring methods (visual 
versus acoustic) to help identify their respective strengths and 
weaknesses.
    Response: The IHA requires that PSAOs on the Langseth do and record 
the following when a marine mammal is detected by the PAM:
    (i) Notify the on-duty PSVO(s) immediately of a vocalizing marine 
mammal so a power-down or shut-down can be initiated, if required;
    (ii) Enter the information regarding the vocalization 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.
    L-DEO reports on the number of acoustic detections made by the PAM 
system within the post-cruise monitoring reports as required by the 
IHA. The report also includes a description of any acoustic detections 
that were concurrent with visual sightings, which allows for a 
comparison of acoustic and visual detection methods for each cruise. 
The post-cruise monitoring reports also include the following 
information: the total operational effort in daylight (hrs), the total 
operational effort at night (hrs), the total number of hours of visual 
observations conducted, the total number of sightings, and the total 
number of hours of acoustic detections conducted.
    LGL Ltd., Environmental Research Associates (LGL), a contractor for 
L-DEO, has processed sighting and density data, and their publications 
can be viewed online at: http://www.lgl.com/index.php?option=com_content&view=article&id=69&Itemid=162⟨=en. Post-cruise monitoring 
reports are currently available on the NMFS's MMPA Incidental Take 
Program Web site on the NSF Web site (http://www.nsf.gov/geo/oce/envcomp/index.jsp) should there be interest in further analysis of this 
data by the public.
    Comment 9: The Commission recommends that NMFS condition the 
authorization to require the L-DEO to monitor, document, and report 
observations during all ramp-up procedures.
    Response: The IHA requires that PSVOs on the Langseth make 
observations for 30 min 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 of 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), Beaufort wind force and sea state, visibility, and sun 
glare.
    Comment 10: The Commission recommends that NMFS work with NSF to 
analyze these monitoring data to help determine the effectiveness of 
ramp-up

[[Page 75530]]

procedures as a mitigation measure for geophysical surveys after the 
data are compiled and quality control measures have been completed.
    Response: One of the primary purposes of monitoring is to result in 
``increased knowledge of the species'' and the effectiveness of 
monitoring and mitigation measures; the effectiveness of ramp-up as a 
mitigation measure and marine mammal reaction to ramp-up would be 
useful information in this regard. NMFS has asked NSF and L-DEO to 
gather all data that could potentially provide information regarding 
the 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.

Description of the Marine Mammals in the Area of the Specified Activity

    Twenty-six marine mammal species may occur in the survey area, 
including 19 odontocetes (toothed cetaceans), 6 mysticetes (baleen 
whales) and one species of pinniped during November through January. 
Six of these species are listed as endangered under the ESA, including 
the humpback (Megaptera novaeangliae), sei (Balaenoptera borealis), fin 
(Balaenoptera physalus), blue (Balaenoptera musculus), and sperm 
(Physeter macrocephalus) whale and the Hawaiian monk seal (Monachus 
schauinslandi).
    Based on available data, it is unlikely that six out of the 26 
marine mammal species would occur in the survey area, including the: 
Humpback, minke (Balaenoptera acutorostrata), fin, pygmy killer (Feresa 
attenuata), pygmy sperm (Kogia breviceps), or sei whale and the 
Hawaiian monk seal. Hawaiian monk seals have the potential to transit 
in the vicinity of the seismic survey, although any occurrence would be 
rare as they are vagrants to the area. Based on available data, L-DEO 
does not expect to encounter Hawaiian monk seals within the survey area 
and does not present analysis for these species. Accordingly, NMFS did 
not consider this pinniped species in greater detail. The species of 
marine mammals expected to be most common in the survey area (all 
delphinids) include the pantropical spotted dolphin (Stenella 
attenuata) and spinner dolphin (Stenella longirostris).
    NMFS has presented a more detailed discussion of the status of 
these stocks and their occurrence in the central Pacific Ocean in the 
notice of the proposed IHA (76 FR 57959, September 19, 2011).

Potential Effects on Marine Mammals

    Acoustic stimuli generated by the operation of the airguns, which 
introduce sound into the marine environment, may have the potential to 
cause Level B harassment of marine mammals in the survey area. The 
effects of sounds from airgun operations might include one or more of 
the following: Tolerance, masking of natural sounds, behavioral 
disturbance, temporary or permanent impairment, or 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). Although the possibility 
cannot be entirely excluded, it is unlikely that the project would 
result in any cases of temporary or permanent hearing impairment, or 
any significant non-auditory physical or physiological effects. Based 
on the available data and studies described here, some behavioral 
disturbance is expected, but NMFS expects the disturbance to be 
localized and short-term.
    The notice of the proposed IHA (76 FR 57959, September 19, 2011) 
included a discussion of the effects of sounds from airguns on 
mysticetes and odontocetes including tolerance, masking, behavioral 
disturbance, hearing impairment, and other non-auditory physical 
effects. NMFS refers the reader to L-DEO's application, environmental 
analysis and NMFS' EA for additional information on the behavioral 
reactions (or lack thereof) by all types of marine mammals to seismic 
vessels.

Anticipated Effects on Marine Mammal Habitat

    NMFS included a detailed discussion of the potential effects of 
this action on marine mammal habitat, including physiological and 
behavioral effects on marine fish and invertebrates in the notice of 
the proposed IHA (76 FR 57959, September 19, 2011). While NMFS 
anticipates that the specified activity may result in marine mammals 
avoiding certain areas due to temporary ensonification, this impact to 
habitat is temporary and reversible which NMFS considered in further 
detail in the notice of the proposed IHA (76 FR 57959, September 19, 
2011) as behavioral modification. The main impact associated with the 
activity would be temporarily elevated noise levels and the associated 
direct effects on marine mammals.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and the availability of 
such species or stock for taking for certain subsistence uses.
    L-DEO has based the mitigation measures described herein, to be 
implemented for the seismic survey, on the following:
    (1) Protocols used during previous L-DEO seismic research cruises 
as approved by NMFS;
    (2) Previous IHA applications and IHAs approved and authorized by 
NMFS; and
    (3) Recommended best practices in Richardson et al. (1995), Pierson 
et al. (1998), and Weir and Dolman, (2007).
    To reduce the potential for disturbance from acoustic stimuli 
associated with the activities, L-DEO and/or its designees would 
implement the following mitigation measures for marine mammals:
    (1) Proposed exclusion zones (EZ);
    (2) Power-down procedures;
    (3) Shutdown procedures; and
    (4) Ramp-up procedures.
    Exclusion Zones--L-DEO uses safety radii to designate EZs and to 
estimate take for marine mammals. Table 1 shows the distances at which 
two sound levels (160- and 180-dB) are expected to be received from the 
36-airgun array and a single airgun. The 180-dB level shut-down 
criterion is applicable to cetaceans, as specified by NMFS (2000); and 
L-DEO used these levels to establish the EZs. If the protected species 
visual observer (PSVO) detects marine mammal(s) within or about to 
enter the appropriate EZ, the Langseth crew will immediately power down 
the airgun array, or perform a shut down if necessary (see Shut-down 
Procedures).
    Table 1 summarizes the predicted distances at which sound levels 
(160- and 180-dB) are expected to be received from the 36-airgun array 
and a single airgun operating in deep water.

[[Page 75531]]



 Table 1--Measured (Array) or Predicted (Single Airgun) Distances to Which Sound Levels Greater Than or Equal to
160 and 180 dB re: 1 [mu]Parms That Could Be Received in Deep Water Using a 36-Airgun Array, as Well as a Single
 Airgun Towed at a Depth of 9 m (29.5 ft) During the Survey in the Central Pacific Ocean, During November, 2011-
                                                  January, 2012
                            [Distances are based on model results provided by L-DEO]
----------------------------------------------------------------------------------------------------------------
                                                                                    Predicted RMS distances (m)
               Source and volume                           Water depth           -------------------------------
                                                                                      160 dB          180 dB
----------------------------------------------------------------------------------------------------------------
Single Bolt airgun (40 in\3\).................  Deep (> 1,000 m)................             385              40
36-Airgun Array...............................  ................................           3,850             940
----------------------------------------------------------------------------------------------------------------

    Power-down Procedures--A power-down involves decreasing the number 
of airguns in use such that the radius of the 180-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, L-DEO will operate one airgun. 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 the 
Langseth suspends all airgun activity.
    If the PSVO detects a marine mammal outside the EZ, which is likely 
to enter the EZ, L-DEO will power down the airguns before the animal 
enters the EZ. Likewise, if a mammal is already within the EZ, when 
first detected L-DEO will power down the airguns immediately. During a 
power down of the airgun array, L-DEO will operate the 40-cubic inch 
(in\3\) airgun. If a marine mammal is detected within or near the 
smaller EZ around that single airgun (Table 1), L-DEO will shut down 
the airgun (see next section).
    Following a power-down, L-DEO will not resume airgun activity until 
the marine mammal has cleared the safety zone. L-DEO will consider the 
animal to have cleared the EZ if--
     A PSVO has visually observed the animal leave the EZ; or
     A PSVO has not sighted the animal within the EZ for 15 min 
for small odontocetes, or 30 min for mysticetes and large odontocetes, 
including sperm, pygmy sperm, dwarf sperm, and beaked whales; or
     The vessel has moved outside the EZ (e.g., if a marine 
mammal is sighted close to the vessel and the ship speed is 8.5 km/h 
(5.3 mph), it would take the vessel approximately eight minutes to 
leave the vicinity of the marine mammal).
    During airgun operations following a power-down (or shut-down) 
whose duration has exceeded the time limits specified previously, L-DEO 
will ramp-up the airgun array gradually (see Shut-down Procedures).
    Shut-down Procedures--L-DEO will shut down the operating airgun(s) 
if a marine mammal is seen within or approaching the EZ for the single 
airgun. L-DEO will implement a shut-down:
    (1) If an animal enters the EZ of the single airgun after L-DEO has 
initiated a power down; or
    (2) If an animal is initially seen within the EZ of the single 
airgun when more than one airgun (typically the full airgun array) is 
operating.
    L-DEO will not resume airgun activity until the marine mammal has 
cleared the EZ, or until the PSVO 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 section.
    Ramp-up Procedures--L-DEO will follow a ramp-up procedure when the 
airgun subarrays begin operating after a specified period without 
airgun operations or when a power down has exceeded that period. For 
the present cruise, this period will be approximately eight minutes. 
This period is based on the 180-dB radius for the 36-airgun array towed 
at a depth of nine m (29.5 ft) in relation to the minimum planned speed 
of the Langseth while shooting (8.5 km/h; 5.3 mph; 4.6 kts). L-DEO has 
used similar periods (8-10 min) during previous L-DEO surveys. L-DEO 
will not resume operations if a marine mammal has not cleared the EZ as 
described earlier.
    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 six dB per five-
minute period over a total duration of approximately 30 min. During 
ramp-up, the PSVOs will monitor the EZ, and if he/she sights a marine 
mammal, L-DEO will implement a power down or shut down as though the 
full airgun array were operational.
    If the complete EZ is not visible to the PSVO for at least 30 min 
prior to the start of operations in either daylight or nighttime, L-DEO 
will not commence the ramp-up 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 L-DEO will not 
ramp up the airgun array from a complete shut-down at night or in thick 
fog, because the outer 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. L-DEO will not initiate a ramp-up of the 
airguns if a marine mammal is sighted within or near the applicable EZs 
during the day or close to the vessel at night.
    NMFS carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribed the means of effecting the least 
practicable adverse impact on the affected marine mammal species and 
stocks and their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another: (1) 
The manner in which, and the degree to which, the successful 
implementation of the measure is expected to minimize adverse impacts 
to marine mammals; (2) the proven or likely efficacy of the specific 
measure to minimize adverse impacts as planned; and (3) the 
practicability of the measure for applicant implementation.
    Based on our evaluation of the applicant's proposed measures, NMFS 
determined that the mitigation measures provide the means of effecting 
the least practicable adverse impacts on marine mammals species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

[[Page 75532]]

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the action area.

Monitoring

    L-DEO will sponsor marine mammal monitoring during the present 
project, in order to implement the mitigation measures that require 
real-time monitoring, and to satisfy the monitoring requirements of the 
IHA. L-DEO's Monitoring Plan is described below this section. L-DEO 
understands that this monitoring plan will be subject to review by 
NMFS, and that refinements may be required. The monitoring work 
described here has been planned as a self-contained project independent 
of any other related monitoring projects that may be occurring 
simultaneously in the same regions. L-DEO is prepared to discuss 
coordination of its monitoring program with any related work that might 
be done by other groups insofar as this is practical and desirable.

Vessel-Based Visual Monitoring

    L-DEO will position PSVOs aboard the seismic source vessel to watch 
for marine mammals near the vessel during daytime airgun operations and 
during any start-ups at night. PSVOs will also watch for marine mammals 
near the seismic vessel for at least 30 min prior to the start of 
airgun operations after an extended shut down. PSVOs will conduct 
observations during daytime periods when the seismic system is not 
operating for comparison of sighting rates and behavior with and 
without airgun operations and between acquisition periods.
    Based on PSVO observations, the Langseth will power down or shut 
down the airguns when marine mammals are observed within or about to 
enter a designated EZ. The EZ is a region in which a possibility exists 
of adverse effects on animal hearing or other physical effects.
    During seismic operations, at least four PSVOs will be based aboard 
the Langseth. L-DEO will appoint the PSVOs with NMFS' concurrence. 
During all daytime periods, two PSVOs will be on duty from the 
observation tower to monitor and PSVOs will be on duty in shifts of 
duration no longer than four hours. During mealtimes it is sometimes 
difficult to have two PSVOs on effort, but at least one PSVO will be on 
watch during bathroom breaks and mealtimes. Use of two simultaneous 
observers increases the effectiveness of detecting animals near the 
source vessel.
    L-DEO will also instruct other crew to assist in detecting marine 
mammals and implementing mitigation requirements (if practical). Before 
the start of the seismic survey, L-DEO will give the crew additional 
instruction regarding how to accomplish this task.
    The Langseth is a suitable platform for marine mammal observations. 
When stationed on the observation platform, the eye level will be 
approximately 21.5 m (70.5 ft) above sea level, and the observer will 
have a good view around the entire vessel. During daytime, the PSVOs 
will scan the area around the vessel systematically with reticle 
binoculars (e.g., 7 x 50 Fujinon), Big-eye binoculars (25 x 150), and 
with the naked eye. During darkness, night vision devices (NVDs) will 
be available (ITT F500 Series Generation 3 binocular-image intensifier 
or equivalent), when required. Laser range-finding binoculars (Leica 
LRF 1200 laser rangefinder or equivalent) will be available to assist 
with distance estimation. Those are useful in training observers to 
estimate distances visually, but are generally not useful in measuring 
distances to animals directly; that is done primarily with the reticles 
in the binoculars.

Passive Acoustic Monitoring

    Passive Acoustic Monitoring (PAM) will complement the visual 
monitoring program, when practicable. Visual monitoring typically is 
not effective during periods of poor visibility or at night, and even 
with good visibility, is unable to detect marine mammals when they are 
below the surface or beyond visual range.
    Besides the four PSVOs, an additional Protected Species Acoustic 
Observer (PSAO) with primary responsibility for PAM will also be aboard 
the vessel. L-DEO can use acoustical monitoring in addition to visual 
observations to improve detection, identification, and localization 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 that the 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 towed hydrophone 
array that is connected to the vessel by a cable. The tow cable is 250 
m (820.2 ft) long, and the hydrophones are fitted in the last 10 m 
(32.8 ft) of cable. A depth gauge is attached to the free end of the 
cable, and the cable is typically towed at depths less than 20 m (65.6 
ft). The array will be deployed from a winch located on the back deck. 
A deck cable will connect the tow cable to the electronics unit in the 
main computer lab where the acoustic station, signal conditioning, and 
processing system will be located. The acoustic signals received by the 
hydrophones are amplified, digitized, and then processed by the 
Pamguard software. The system can detect marine mammal vocalizations at 
frequencies up to 250 kHz.
    The PSAO will monitor the towed hydrophones 24 h per day during 
airgun operations and during most periods when the Langseth is underway 
while the airguns are not operating. However, PAM may not be possible 
if damage occurs to both the primary and back-up hydrophone arrays 
during operations. The primary PAM streamer on the Langseth is a 
digital hydrophone streamer. Should the digital streamer fail, back-up 
systems should include an analog spare streamer and a hull-mounted 
hydrophone. Every effort would be made to have a working PAM system 
during the cruise. In the unlikely event that all three of these 
systems were to fail, L-DEO would continue science acquisition with the 
visual-based observer program. The PAM system is a supplementary 
enhancement to the visual monitoring program. If weather conditions 
were to prevent the use of PAM, then conditions would also likely 
prevent the use of the airgun array.
    The PSAO 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. PSAOs monitoring the acoustical 
data will be on shift for one to six hours at a time. Besides the PSAO, 
all PSVOs are expected to rotate through the PAM

[[Page 75533]]

position, although the most experienced with acoustics will be on PAM 
duty more frequently.
    When a vocalization is detected while visual observations are in 
progress, the PSAO on duty will contact the visual PSVO immediately, to 
alert him/her to the presence of cetaceans (if they have not already 
been seen), and to allow a power down or shut down to be initiated, if 
required. The information regarding the call will be entered into a 
database. Data entry will 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.

PSVO Data and Documentation

    PSVOs 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 power down 
or shut down of the airguns when a marine mammal is within or near the 
EZ.
    When a sighting is made, the following information about the 
sighting will be recorded:
    1. Species, group size, age/size/sex categories (if determinable), 
behavior when first sighted and after initial sighting, heading (if 
consistent), bearing and distance from seismic vessel, sighting cue, 
apparent reaction to the airguns or vessel (e.g., none, avoidance, 
approach, paralleling, etc.), and behavioral pace.
    2. Time, location, heading, speed, activity of the vessel, sea 
state, visibility, and sun glare.
    The data listed under (2) 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 and power downs or shut downs will be recorded in 
a standardized format. Data will be entered into an electronic 
database. The accuracy of the data entry will be verified by 
computerized data validity checks as the data are entered and by 
subsequent manual checking of the database. These procedures will allow 
initial summaries of data to be prepared during and shortly after the 
field program, and will facilitate transfer of the data to statistical, 
graphical, and other programs for further processing and archiving.
    Results from the vessel-based observations will provide:
    1. The basis for real-time mitigation (airgun power down or shut 
down).
    2. Information needed to estimate the number of marine mammals 
potentially taken by harassment, which must be reported to NMFS.
    3. Data on the occurrence, distribution, and activities of marine 
mammals and turtles in the area where the seismic study is conducted.
    4. Information to compare the distance and distribution of marine 
mammals and turtles relative to the source vessel at times with and 
without seismic activity.
    5. Data on the behavior and movement patterns of marine mammals 
seen at times with and without seismic activity.

Reporting

    L-DEO will submit a report to NMFS and NSF within 90 days after the 
end of the cruise. The report will describe the operations that were 
conducted and sightings of marine mammals and turtles near the 
operations. The report will provide 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 number and nature of exposures that could result in 
``takes'' of marine mammals by harassment or in other ways.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury (Level A harassment), serious injury or 
mortality (e.g., ship-strike, gear interaction, and/or entanglement), 
L-DEO shall immediately cease the specified activities and immediately 
report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, at (301) 427-8401 and/or 
by email to [email protected] and [email protected] and the 
Pacific Islands Regional Stranding Coordinator at (808) 944-2269 
([email protected]). The report must include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities will not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with L-DEO to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. L-DEO may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    In the event that L-DEO discovers an injured or dead marine mammal, 
and the lead PSVO determines that the cause of the injury or death is 
unknown and the death is relatively recent (i.e., in less than a 
moderate state of decomposition as described in the next paragraph), L-
DEO will immediately report the incident to the Chief of the Permits 
and Conservation Division, Office of Protected Resources, NMFS, at 
(301) 427-8401 and/or by email to [email protected] and 
[email protected] and the Pacific Islands Regional Stranding 
Coordinator at (808) 944-2269 ([email protected]). The report 
must include the same information identified in the paragraph above. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with L-DEO to determine whether modifications 
in the activities are appropriate.
    In the event that L-DEO discovers an injured or dead marine mammal, 
and the lead PSVO determines that the injury or death is not associated 
with or related to the activities authorized in the IHA (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), L-DEO will report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, at (301) 427-8401 and/or by email to 
[email protected] and [email protected] and the Pacific Islands 
Regional Stranding Coordinator at (808) 944-2269

[[Page 75534]]

([email protected]), within 24 hours of the discovery. L-DEO 
will provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as:

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

    Only take by Level B harassment is authorized as a result of the 
marine geophysical survey in the central Pacific Ocean. Acoustic 
stimuli (i.e., increased underwater sound) generated during the 
operation of the seismic airgun array may have the potential to cause 
marine mammals in the survey area to be exposed to sounds at or greater 
than 160 dB or cause temporary, short-term changes in behavior. There 
is no evidence that the planned activities could result in injury, 
serious injury or mortality within the specified geographic area for 
which L-DEO seeks the IHA. Take by injury, serious injury, or mortality 
is thus neither anticipated nor authorized. NMFS has determined that 
the required mitigation and monitoring measures will minimize any 
potential risk for injury or mortality.
    NMFS included an in-depth discussion of the methods used to 
calculate the densities of the marine mammals in the area of the 
seismic survey in a previous notice for the proposed IHA (76 FR 57959, 
September 19, 2011). A summary is included here.
    L-DEO's estimates are based on a consideration of the number of 
marine mammals that could be disturbed appreciably by operations with 
the 36-airgun array to be used during approximately 2,120 km (1,317.3 
mi) of survey lines in the central Pacific Ocean. Density data on the 
marine mammal species in the survey area were available from two 
sources: (1) The NMFS Southwest Fishery Science Center (SWFSC) habitat 
model (Barlow et al., 2009b); and (2) densities from the offshore 
stratum of the surveys of Hawaiian waters conducted in August-November 
2002 (Barlow, 2006). L-DEO incorporated the models into a web-based 
Geographic Information System (GIS) developed by Duke University's 
Department of Defense Strategic Environmental Research and Development 
Program (SERDP) team in close collaboration with the SWFSC SERDP team 
(Read et al., 2009). For the cetacean species in the model, L-DEO used 
the GIS to obtain mean densities in the survey area, (i.e., in a 
rectangle bounded by 150 and 156 [deg]W and 5 and 10 [deg]N).
    L-DEO's estimates of exposures to various sound levels assume that 
the survey would be 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-kilometers of 
seismic operations that can be undertaken. L-DEO has included an 
additional 25 percent of line transects to account for mission 
uncertainty; accommodate turns and lines that may need to be repeated; 
and to follow a precautionary approach. Furthermore, any marine mammal 
sightings within or near the designated exclusion zones 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 
potentially exposed to sound levels of 160 dB re: 1 [mu]Pa are 
precautionary and probably overestimate the actual numbers of marine 
mammals that might be involved. These estimates also assume that there 
will be no weather, equipment, or mitigation delays, which is highly 
unlikely.
    L-DEO estimated the number of different individuals that may be 
exposed to airgun sounds with received levels greater than or equal to 
160 dB re: 1 [mu]Pa on one or more occasions by considering the total 
marine area that would be within the 160-dB radius around the operating 
airgun array on at least one occasion and the expected density of 
marine mammals. 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. In the survey, the 
seismic lines are parallel and in close proximity; thus individuals 
could be exposed on two or more occasions. The area including overlap 
is 1.5 times the area excluding overlap. Thus a marine mammal that 
stayed in the survey area during the entire survey could be exposed two 
times, on average. Given the pattern of the seismic lines, it is 
unlikely that a particular animal would stay in the area during the 
entire survey.
    The number of different individuals potentially exposed to received 
levels greater than or equal to 160 re: 1 [mu]Pa was calculated by 
multiplying:
    (1) The expected species density (in this case, the mean estimate), 
times;
    (2) The anticipated area to be ensonified to that level during 
airgun operations excluding overlap, which is approximately 10,971 
square kilometers (km\2\) (4,235.9 square miles (mi\2\)).
    The area expected to be ensonified was determined by entering the 
planned survey lines into a MapInfo GIS, using the GIS to identify the 
relevant areas by ``drawing'' the applicable 160-dB buffer (see Table 
1) around each seismic line, and then calculating the total area within 
the buffers. Areas of overlap were included only once when estimating 
the number of individuals exposed. Applying this approach, 
approximately 13,714 km\2\ (5,295 mi\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.
    The total estimate of the number of individual cetaceans that could 
be exposed to seismic sounds with received levels greater than or equal 
to 160 dB re: 1 [mu]Pa during the survey is 5,124 (see Table 2). That 
total includes: eight Bryde's whales or 0.6 percent of the regional 
population; two blue whales (endangered under the ESA) or less than 
0.01 percent of the regional population); and 41 sperm whales (also 
listed as endangered) or 2.97 percent of the regional population could 
be exposed during the survey. In addition, 110 beaked whales (91 
Cuvier's, six Longman's, 14 Longman's beaked whales, and five 
Mesoplodon spp.) could be exposed during the survey. Most (94.8 
percent) of the cetaceans that could be potentially exposed are 
delphinids (e.g., spinner, pantropical spotted, and striped dolphins 
are estimated to be the most common species in the area) with maximum 
estimates ranging from five to 2,516 species exposed to levels greater 
than or equal to 160 dB re:1 [mu]Pa.

[[Page 75535]]



  Table 2--Estimates of the Possible Numbers of Marine Mammals Exposed to Different Sound Levels During L-DEO's
             Seismic Survey in the Central Pacific Ocean During November, 2011 Through January, 2012
----------------------------------------------------------------------------------------------------------------
                                                       Estimated number
                                                        of individuals        Approximate
                       Species                         exposed to  sound      percent of        Authorized take
                                                       levels  >=160 dB        regional          authorization
                                                       re:  1 [mu]Pa \1\    population \2\
----------------------------------------------------------------------------------------------------------------
Bryde's whale.......................................                   8                0.06                   8
Blue whale..........................................                   0               <0.01               \4\ 2
Sperm whale.........................................                  41                0.17                  41
Dwarf sperm whale...................................                 105                0.94                 105
Cuvier's beaked whale...............................                  91                0.46                  91
Longman's beaked whale..............................                   6                2.07              \4\ 14
Mesoplodon spp. \3\.................................                   5                0.02                   5
Rough-toothed dolphin...............................                  17                0.02                  17
Bottlenose dolphin..................................                  68                0.02                  68
Pantropical spotted dolphin.........................               1,651                0.13               1,651
Spinner dolphin.....................................               2,516                0.14               2,516
Striped dolphin.....................................                 226                0.02                 226
Fraser's dolphin....................................                  61                0.02             \4\ 182
Risso's dolphin.....................................                  11                0.01              \4\ 14
Melon-headed whale..................................                  18                0.04             \4\ 101
False killer whale..................................                   1              < 0.01               \4\ 9
Killer whale........................................                   2                0.02               \4\ 5
Short-finned pilot whale............................                  69                0.01                  69
----------------------------------------------------------------------------------------------------------------
\1\ Estimates are based on densities from Table 3 and an ensonified area (including 25 percent contingency) of
  13,714 km\2\.
\2\ Regional population size estimates are from Table 3 in L-DEO's application.
\3\ Includes unidentified, ginkgo-toothed or Blainville's beaked whales.
\4\ Requested take authorization increased to mean group size.

Encouraging and Coordinating Research

    L-DEO and NSF will coordinate the planned marine mammal monitoring 
program associated with the seismic survey in the central Pacific Ocean 
with other parties that may have interest in the area and/or be 
conducting marine mammal studies in the same region during the seismic 
survey.

Negligible Impact and Small Numbers Analysis and Determination

    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.'' In making a negligible impact determination, 
NMFS considers:
    (1) The number of anticipated mortalities;
    (2) The number and nature of anticipated injuries;
    (3) The number, nature, and intensity, and duration of Level B 
harassment; and
    (4) The context in which the takes occur.
    As mentioned previously, NMFS estimates that 20 species of marine 
mammals could be potentially affected by Level B harassment over the 
course of the IHA. NMFS anticipates impacts to marine mammals to be in 
the form of Level B behavioral harassment only, due to the brief 
duration and sporadic nature of the survey. Certain species may have a 
behavioral reaction (e.g., increased swim speed, avoidance of the area, 
etc.) to the sound emitted during the marine seismic survey. Behavioral 
modifications, including temporarily vacating the area during the 
operation of the airgun(s), may be made by these species to avoid the 
resultant acoustic disturbance. However, alternate areas are available 
to these species.
    The survey would not occur in any areas designated as critical 
habitat for ESA-listed species; will not adversely impact marine mammal 
habitat; and would not occur in known feeding grounds, breeding 
grounds, or nursing areas for these species.
    For reasons stated previously in this document and in the proposed 
notice of an IHA (76 FR 57959, September 19, 2011), the specified 
activities associated with the survey are not likely to cause temporary 
threshold shift, permanent threshold shift, or other non-auditory 
injury, serious injury, or death to affected marine mammals because:
    (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 potential for temporary or permanent hearing impairment is 
very low and would likely be avoided through the implementation of the 
monitoring and mitigation measures;
    (3) The fact that cetaceans would have to be closer than 940 m 
(3,084 ft) in deep water when the 36-airgun array is in use at a 9 m 
(29.5 ft) tow depth from the vessel to be exposed to levels of sound 
believed to have even a minimal chance of causing permanent threshold 
shift;
    (4) The fact that marine mammals would have to be closer than 3,850 
m (2.4 mi) in deep 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 hearing impairment; 
and
    (5) The likelihood that marine mammal detection ability by trained 
observers is high at that short distance from the vessel.
    Table 2 in this document outlines the number of Level B harassment 
takes that are anticipated as a result of the activities. Of the marine 
mammal species likely to occur in the survey area, six are listed as 
endangered under the ESA: the humpback, sei, fin, blue, and sperm whale 
and the Hawaiian monk seal. These species are also considered depleted 
under the MMPA. However, no take of endangered humpback, sei, or fin 
whales was

[[Page 75536]]

requested because of the low likelihood of encountering these species 
during the cruise. As mentioned previously, the survey would not occur 
in any areas designated as critical habitat for ESA-listed species and 
would not adversely impact marine mammal habitat.
    For the 20 species for which take was requested, the requested take 
numbers are small (each, less than two and one-half percent) relative 
to the population size. The population estimates for the species that 
may potentially be taken as a result of L-DEO's seismic survey were 
presented earlier in this document. For reasons described earlier in 
this document, the maximum calculated number of individual marine 
mammals for each species that could potentially be taken by harassment 
is small relative to the overall population sizes (0.06 percent for 
Bryde's whales, less than 0.01 percent for the endangered blue whale, 
0.17 percent for the endangered sperm whale, and less than 2.5 percent 
of the other 15 mammal populations or stocks).
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS finds that L-DEO's planned research activities (and the 
resultant total taking from the marine geophysical survey): (1) Will 
result in the incidental take of small numbers of marine mammals, by 
Level B harassment only; (2) will have a negligible impact on the 
affected species or stocks; and (3) will have mitigated impacts to 
affected species or stocks of marine mammals to the lowest level 
practicable.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act

    Of the species of marine mammals that may occur in the survey area, 
six are listed as endangered under the ESA, including the humpback, 
sei, fin, blue, and sperm whales and the Hawaiian monk seal. However, 
L-DEO only requested Level B incidental harassment of two listed 
species: the humpback and sperm whales. L-DEO did not request take of 
endangered humpback, sei, or fin, whales because of the low likelihood 
of encountering these species during the cruise. Under section 7 of the 
ESA, NSF had initiated formal consultation with the NMFS, Office of 
Protected Resources, Endangered Species Act Interagency Cooperation 
Division, on this seismic survey. Because the actions of conducting the 
seismic survey and issuing the IHA are interrelated, NMFS' Office of 
Protected Resources, Permits and Conservation Division, had initiated 
formal consultation under section 7 of the ESA with NMFS' Office of 
Protected Resources, Endangered Species Act Interagency Cooperation 
Division, to obtain a BiOp evaluating the effects of issuing the IHA on 
threatened and endangered marine mammals and, if appropriate, 
authorizing incidental take.
    November, 2011 NMFS issued a BiOp and concluded that the action and 
issuance of the IHA are not likely to jeopardize the continued 
existence of the humpback and sperm whales. The BiOp also concluded 
that designated critical habitat for these species does not occur in 
the survey area and would not be affected by the survey. L-DEO must 
also comply with the Relevant Terms and Conditions of the Incidental 
Take Statement (ITS) corresponding to NMFS' Biological Opinion issued 
to both NSF and NMFS' Office of Protected Resources. L-DEO must also 
comply with the mitigation and monitoring requirements included in the 
IHA in order to be exempt under the ITS in the BiOp from the 
prohibition on take of listed endangered marine mammal species 
otherwise prohibited by Section 9 of the ESA.

National Environmental Policy Act (NEPA)

    To meet NMFS' NEPA requirements for the issuance of an IHA to L-
DEO, NMFS has prepared an Environmental Assessment (EA) titled 
``Issuance of an Incidental Harassment Authorization to the Lamont-
Doherty Earth Observatory to Take Marine Mammals by Harassment 
Incidental to a Marine Geophysical Survey in the Central Pacific Ocean, 
November, 2011 through January, 2012.'' This EA incorporates the NSF's 
Environmental Analysis Pursuant to Executive Order 12114 (NSF, 2010) 
and an associated report (Report) prepared by LGL Limited Environmental 
Research Associates (LGL) for NSF, titled, ``Environmental Assessment 
of a Marine Geophysical Survey by the R/V Marcus G. Langseth in the 
Central Pacific Ocean, November-December 2011,'' by reference pursuant 
to 40 CFR 1502.21 and NOAA Administrative Order (NAO) 216-6 Sec.  
5.09(d). NMFS provided relevant environmental information to the public 
through the notice for the proposed IHA (76 FR 57959, September 19, 
2011) and has considered public comments received in response prior to 
finalizing its EA and deciding whether or not to issue a Finding of No 
Significant Impact (FONSI).
    NMFS has concluded that issuance of an IHA would not significantly 
affect the quality of the human environment and has issued a FONSI. 
Because the NMFS has made a FONSI, it is not necessary to prepare an 
environmental impact statement for the issuance of an IHA to L-DEO for 
this activity. The EA and FONSI for this activity are available upon 
request (see ADDRESSES).

Authorization

    As a result of these determinations, NMFS has issued an IHA to L-
DEO for the take of small numbers of marine mammals, by Level B 
harassment, incidental to conducting a marine geophysical survey in the 
central Pacific Ocean, November 2011 through January 2012, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: November 28, 2011.
Angela Somma,
Acting Office Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2011-31056 Filed 12-1-11; 8:45 am]
BILLING CODE 3510-22-P