[Federal Register Volume 77, Number 25 (Tuesday, February 7, 2012)]
[Notices]
[Pages 6065-6080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2749]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XT57


Takes of Marine Mammals Incidental to Specified Activities; 
Marine Geophysical Survey in the Commonwealth of the Northern Mariana 
Islands, February to March, 2012

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

ACTION: Notice; issuance of an incidental take authorization (ITA).

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the Lamont-Doherty Earth 
Observatory of Columbia University (L-DEO) to take marine mammals, by 
Level B harassment, incidental to conducting a marine geophysical 
(seismic) survey in the Commonwealth of the Northern Mariana Islands 
(CNMI), a

[[Page 6066]]

commonwealth in a political union with the U.S., February to March, 
2012.

DATES: Effective February 2 to May 2, 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 or by telephoning the contacts 
listed here.
    A 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 National Science Foundation (NSF), which is providing funding 
to L-DEO to conduct the survey, has prepared an ``Environmental 
Assessment and Finding of No Significant Impact Determination Pursuant 
to the National Environmental Policy Act, 42 U.S.C. 4321 et seq. and 
Executive Order 12114 Marine Seismic Survey in the Commonwealth of the 
Northern Mariana Islands, February-March 2012'' (EA). NSF's EA 
incorporates an ``Environmental Assessment of a Marine Geophysical 
Survey by the R/V Marcus G. Langseth in the Commonwealth of the 
Northern Mariana Islands, February-March 2012,'' prepared by LGL Ltd., 
Environmental Research Associates (LGL), on behalf of NSF and L-DEO, 
which is also available at the same internet address. The associated 
documents cited in this notice are also available at the same internet 
address. The NMFS Biological Opinion will be available online at: 
http://www.nmfs.noaa.gov/pr/consultation/opinions.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 Jolie Harrison, 
Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs 
the Secretary of Commerce (Secretary) 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 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's 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.
    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).

Summary of Request

    On December 16, 2009, NMFS received an application from the L-DEO 
requesting NMFS to issue an IHA for the take, by Level B harassment 
only, of small numbers of marine mammals incidental to conducting a 
marine seismic survey in the CNMI during June to July, 2010. NMFS 
published a notice in the Federal Register (75 FR 8652) with 
preliminary determinations and a proposed IHA. Ship maintenance issues 
resulted in schedule challenges that forced the survey into an 
inclement weather period and after further consideration by the 
principal investigator and ship operator, the seismic survey was 
postponed until a more suitable operational period could be achieved.
    NMFS received a revised application on September 29, 2011, from L-
DEO for the taking by harassment, of marine mammals, incidental to 
conducting a marine seismic survey in the CNMI within the U.S. 
Exclusive Economic Zone (EEZ) in depths from approximately 2,000 meters 
(m) (6,561.7 feet [ft]) to greater than 8,000 m (26,246.7 ft). L-DEO 
will conduct the survey from approximately February 2 to March 21, 
2012. On December 14, 2011, NMFS published a notice in the Federal 
Register (76 FR 77782) disclosing the effects on marine mammals, making 
preliminary determinations and including a proposed IHA. The notice 
initiated a 30 day public comment period.
    L-DEO plans to use one source vessel, the R/V Marcus G. Langseth 
(Langseth) and a seismic airgun array to collect seismic data over the 
Mariana outer forearc, the trench and the outer rise of the subducting 
and bending Pacific plate. In addition to the operation 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 22 species of marine mammals by Level B 
harassment. Take is not expected to result from the use of the MBES or 
SBP, for reasons discussed in this notice; nor is take expected to 
result from collision with the vessel because it is a single vessel 
moving at a relatively slow speed during seismic acquisition within the 
survey, for a relatively short period of time (approximately 46 days). 
It is likely that any marine mammal would be able to avoid the vessel.

Description of the Specified Activity

    L-DEO's planned seismic survey in the CNMI will take place during 
February to March, 2012, in the area 16.5[deg] to 19[deg] North, 
146.5[deg] to 150.5[deg] East

[[Page 6067]]

(see Figure 1 of the IHA application). The seismic survey will take 
place in water depths ranging from 2,000 m to greater than 8,000 m and 
consists of approximately 2,800 kilometers (km) 1,511.9 nautical miles 
[nmi]) of transect lines (including turns) in the study area. The 
seismic survey will be conducted in the U.S. Exclusive Economic Zone 
(EEZ) and in International Waters. The closest that the vessel will 
approach to any island is approximately 50 km (27 nmi) from Alamagan. 
The project is scheduled to occur from approximately February 2 to 
March 21, 2012. Some minor deviation from these dates is possible, 
depending on logistics and weather.
    The seismic survey will be conducted over the Mariana outer 
forearc, the trench, and the outer rise of the subducting and bending 
Pacific plate. The objective is to understand the water cycle within 
subduction-zone systems. Subduction systems are where the basic 
building blocks of continental crust are made and where Earth's great 
earthquakes occur. Little is known about either of these processes, but 
water cycling through the system is thought to be the primary 
controlling factor in both arc-crust generation and megathrust 
seismicity.
    The survey will involve one source vessel, the Langseth. The 
Langseth will deploy an array of 36 airguns as an energy source at a 
tow depth of 9 m (29.5 ft). The acoustic receiving system will consist 
of a single 6 km (3.2 nmi) long hydrophone streamer and 85 ocean bottom 
seismometers (OBSs). As the airgun 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 2012 program will be deployed and most 
(approximately 60) will be retrieved during the cruise, whereas 25 will 
be left in place for one year.
    The planned seismic survey (e.g., equipment testing, startup, line 
changes, repeat coverage of any areas, and equipment recovery) will 
consist of approximately 2,800 km of transect lines (including turns) 
in the CNMI survey area (see Figure 1 of the IHA application). This 
includes one line and parts of three lines shown in Figure 1 of the IHA 
application that are shot twice at different shot intervals: The 
westernmost north-south line and the western portions of the east-west 
lines. In addition to the operations of the airgun array, a Kongsberg 
EM 122 MBES and Knudsen Chirp 3260 SBP will also be operated from the 
Langseth continuously throughout the cruise. There will be additional 
seismic operations associated with equipment testing, ramp-up, and 
possible line changes or repeat coverage of any areas where initial 
data quality is sub-standard. In L-DEO's calculations, 25% has been 
added for those additional operations.
    All planned seismic data acquisition activities will be conducted 
by L-DEO, the Langseth's operator, with on-board assistance by the 
scientists who have planned the study. The Principal Investigators are 
Drs. Doug Wiens (Washington University) and Daniel Lizarralde (Woods 
Hole Oceanographic Institution [WHOI]). The vessel will be self-
contained, and the crew will live aboard the vessel for the entire 
cruise.

Description of the Dates, Duration, and Specified Geographic Region

    The survey will occur in the CNMI in the area 16.5[deg] to 19[deg] 
North, 146.5 to 150.5[deg] East. The seismic survey will take place in 
water depths of 2,000 m to greater than 8,000 m. The Langseth will 
depart from Guam on February 2, 2012, and return to Guam on March 21, 
2012. The Langseth will return to port from March 2 to 5, 2012. Seismic 
operations will be carried out for 16 days, with the balance of the 
cruise occupied in transit (approximately 2 days) and in deployment and 
retrieval of OBSs and maintenance (25 days). Some minor deviation from 
this schedule is possible, depending on logistics and weather (i.e., 
the cruise may depart earlier or be extended due to poor weather; there 
could be additional days (up to three) of seismic operations if 
collected data are deemed to be of substandard quality).
    NMFS outlined the purpose of the program in a previous notice for 
the proposed IHA (76 FR 77782, December 14, 2011). The activities to be 
conducted have not changed between the proposed IHA notice and this 
final notice 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 77782, December 14, 2011), the IHA application, EA, and 
associated documents referenced above this section.

Comments and Responses

    A notice of preliminary determinations and proposed IHA for L-DEO's 
proposed seismic survey was published in the Federal Register on 
December 14, 2011 (76 FR 77782). 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's responses:
    Comment 1: The Commission recommends that, before issuing the 
requested IHA, NMFS require L-DEO to re-estimate the proposed exclusion 
zones (EZ) and buffer zones and associated takes of marine mammals 
using site-specific information--if the EZs and buffer zones and 
numbers of takes are not re-estimated, require L-DEO to provide a 
detailed justification (1) for basing the EZs and buffer zones for the 
proposed survey in the CNMI 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.
    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 at 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 signature of bottom 
interaction), thus decreasing the importance of site-specific 
estimates.
    Based on these reasons, and the information provided by L-DEO in 
their application and environmental analysis, NMFS is satisfied that 
the data supplied are sufficient for NMFS to conduct its analysis and 
support its 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.
    Appendix A in the environmental analysis includes information from 
the calibration study conducted on the

[[Page 6068]]

Langseth in 2007 and 2008. This information is available in the EA on 
NSF's Web site at http://www.nsf.gov/geo/oce/envcomp/index.jsp. The 
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 calibration results, although 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 Final Programmatic 
Environmental Impact Statement for Marine Seismic Research Funded by 
the National Science Foundation or Conducted by the U.S. Geological 
Survey (FPEIS) 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. L-DEO 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 scientific calibration 
studies which, although viewed as conservative, are used to determine 
cruise-specific EZs and which factor into exposure estimates. NMFS 
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 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 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 2: The Commission recommends that, before issuing the 
requested IHA, NMFS use species-specific maximum densities estimated by 
multiplying the existing density estimates by a precautionary 
correction factor (i.e., 1.5), and then 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 CNMI as NMFS is confident in the 
assumptions and calculations used to estimate density for this survey 
area. NMFS makes a decision on whether to use maximum or best densities 
on a case-by-case basis, depending on the nature and robustness of 
existing data. 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 3: The Commission recommends that, before issuing the 
requested IHA, NMFS condition the authorization to prohibit the use of 
a shortened pause before ramping-up after a power-down or shut-down of 
the airguns based on the presence of a marine mammal in the EZ and the 
Langseth's movement (speed and direction).
    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 8 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 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 4: The Commission recommends that, before issuing the 
requested IHA, NMFS extend the 30 min period following a marine mammal 
sighting in the EZ to cover the maximum 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 species of beaked whales); however, for 
the following reasons NMFS believes that 30 min is an adequate length 
for 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 about 30 min;

[[Page 6069]]

    (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 impact on marine mammal species and 
their habitat. Monitoring and mitigation measures are designed to 
comply with this requirement. The effectiveness of monitoring is 
science-based, and monitoring and mitigation measures must be 
``practicable.'' 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 5: The Commission recommends that, before issuing the 
requested IHA, NMFS 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 mammal varies depending on the 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 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 and 
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 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 30 min 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 
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 6: The Commission recommends that, before issuing the 
requested IHA, NMFS consult with the funding agency (i.e., NSF) and 
individual applicants (e.g., L-DEO and 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 
the number of marine mammals taken.
    Response: Several studies have reported on the abundance and 
distribution of marine mammals inhabiting the tropical Pacific Ocean, 
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

[[Page 6070]]

survey may be operationally limited due to considerations such as 
location, time, fuel, services, and other resources.
    Comment 7: The Commission recommends that, before issuing the 
requested IHA, NMFS require the applicant to:
    (1) Report 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;
    (3) Compare the results from the two monitoring methods (visual 
versus acoustic) to help identify their respective strengths and 
weaknesses; and
    (4) Use that information to improve mitigation and monitoring 
methods.
    Response: The IHA requires that PSAOs on the Langseth do and record 
the following when a marine mammal is detected by PAM:
    (i) Notify the on-duty PSO(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 least 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 operation effort in daylight (hours), the total 
operation effort at night (hours), 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 NMFS's MMPA Incidental Take Program 
Web site and 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 8: The Commission recommends that, before issuing the 
requested IHA, NMFS work with NSF to analyze those data to help 
determine the effectiveness of ramp-up procedures as a mitigation 
measure for seismic surveys after the data are compiled and quality 
control measures have been completed.
    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 sea state and wind force, visibility, and sun 
glare.
    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-seven marine mammal species (20 odontocetes [dolphins and 
toothed whales] and 7 mysticetes [baleen whales]) are known to or could 
occur in the CNMI study area. Several of these species are listed as 
endangered under the U.S. Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.), including the North Pacific right (Eubalaena 
japonica), humpback (Megaptera novaeangliae), sei (Balaenoptera 
borealis), fin (Balaenoptera physalus), blue (Balaenoptera musculus), 
and sperm (Physeter macrocephalus) whales.
    Cetaceans are the subject of the IHA application to NMFS. There are 
no reported sightings of pinnipeds in the CNMI (e.g., Department of the 
Navy, 2005). The dugong (Dugong dugon) is distributed throughout most 
of the Indo-Pacific region between approximately 27[deg] North and 
South of the equator (Marsh, 2002), but it seems unlikely that dugongs 
have ever inhabited the Mariana Islands (Nishiwaki et al., 1979). The 
dugong is also listed as endangered under the ESA. There have been some 
extralimital sightings in Guam, including a single dugong in Cocos 
Lagoon in 1974 (Randall et al., 1975) and several sightings of an 
individual in 1985 along the southeastern coast (Eldredge, 2003). The 
dugong is the one marine mammal species mentioned in this document that 
is managed by the U.S. Fish and Wildlife Service (USFWS) and is not 
considered further in this analysis; all others are managed by NMFS. 
Table 1 (below) presents information on the abundance, distribution, 
population, conservation status, and density of the marine mammals that 
may occur in the survey area during February to March, 2012.

[[Page 6071]]



  Table 1--The Habitat, Regional Abundance, and Conservation Status of Marine Mammals That May Occur in or Near
                                      the Seismic Survey Area in the CNMI.
                    [See text and Tables 2 and 3 in L-DEO's application for further details]
----------------------------------------------------------------------------------------------------------------
                                                                                                       Density
                                                     Regional                                        (/
           Species                  Habitat       abundance \4\       ESA \1\          MMPA \2\     1,000 km\2\)
                                                                                                         \3\
----------------------------------------------------------------------------------------------------------------
                                                   Mysticetes
----------------------------------------------------------------------------------------------------------------
North Pacific right whale      Pelagic and       Few 100s.......  EN.............  D..............          0
 (Eubalaena japonica).          coastal.
Humpback whale (Megaptera      Mainly            938 to 1,107     EN.............  D..............          0
 novaeangliae).                 nearshore,        \5\.
                                banks.
Minke whale (Balaenoptera      Pelagic and       25,000 \6\.....  NL.............  NC.............          0
 acutorostrata).                coastal.
Bryde's whale (Balaenoptera    Pelagic and       20,000 to        NL.............  NC.............          0.41
 edeni).                        coastal.          30,000.
Sei whale (Balaenoptera        Primarily         7,260 to 12,620  EN.............  D..............          0.29
 borealis).                     offshore,         \7\.
                                pelagic.
Fin whale (Balaenoptera        Continental       13,620 to        EN.............  D..............          0
 physalus).                     slope, pelagic.   18,680 \8\.
Blue whale (Balaneoptera       Pelagic, shelf,   NA.............  EN.............  D..............          0
 musculus).                     coastal.
----------------------------------------------------------------------------------------------------------------
                                                  Odontocetes
----------------------------------------------------------------------------------------------------------------
 
Sperm whale (Physeter          Pelagic, deep     29,674 \9\.....  EN.............  D..............          1.23
 macrocephalus).                sea.
Pygmy sperm whale (Kogia       Deep waters off   NA.............  NL.............  NC.............          3.19
 breviceps).                    the shelf.
Dwarf sperm whale (Kogia       Deep waters off   11,200 \10\....  NL.............  NC.............          7.65
 sima).                         the shelf.
Cuvier's beaked whale          Pelagic.........  20,000 \10\....  NL.............  NC.............          6.66
 (Ziphius cavirostris).
Longman's beaked whale         Deep water......  NA.............  NL.............  NC.............          0.44
 (Indopacetus pacificus).
Blainville's beaked whale      Pelagic.........  25,300 \11\....  NL.............  NC.............          1.28
 (Mesoplodon densirostris).
Ginkgo-toothed beaked whale    Pelagic.........  NA.............  NL.............  NC.............          0
 (Mesoplodon ginkgodens).
Rough-toothed dolphin (Steno   Deep water......  146,000 \10\...  NL.............  NC.............          0.29
 bredanensis).
Bottlenose dolphin (Tursiops   Coastal,          243,500 \10\...  NL.............  NC D--Western            0.21
 truncatus).                    oceanic, shelf                                      North Atlantic
                                break.                                              coastal.
Pantropical spotted dolphin    Coastal and       800,000 \10\...  NL.............  NC D--                  22.60
 (Stenella attenuata).          pelagic.                                            Northeastern
                                                                                    offshore.
Spinner dolphin (Stenella      Coastal and       800,000 \10\...  NL.............  NC D--Eastern..          3.14
 longirostris).                 pelagic.
Striped dolphin (Stenella      Off continental   1,000,000 \10\.  NL.............  NC.............          6.16
 coeruleoalba).                 shelf.
Fraser's dolphin               Deep water......  289,000 \10\...  NL.............  NC.............          4.47
 (Lagenodelphis hosei).
Short-beaked common dolphin    Shelf, pelagic,   3,000,000 \10\.  NL.............  NC.............          9.63
 (Delphinus delphis).           seamounts.
Risso's dolphin (Grampus       Deep water,       175,000 \10\...  NL.............  NC.............          0.81
 griseus).                      seamounts.
Melon-headed whale             Oceanic.........  45,000 \10\....  NL.............  NC.............          4.28
 (Peponocephala electra).
Pygmy killer whale (Feresa     Deep,             39,000 \10\....  NL.............  NC.............          0.14
 attenuata).                    pantropical
                                waters.
False killer whale (Pseudorca  Pelagic.........  40,000 \10\....  NL Proposed EN-- NC.............          1.11
 crassidens).                                                      insular
                                                                   Hawaiian.
Killer whale (Orcinus orca)..  Pelagic, shelf,   8,500 \10\.....  NL EN--Southern  NC D--Southern           0.15
                                coastal.                           resident.        resident, AT1
                                                                                    transient.
Short-finned pilot whale       Pelagic, shelf,   500,000 \10\...  NL.............  NC.............          1.59 
 (Globicephala macrorhynchus).  coastal.
----------------------------------------------------------------------------------------------------------------
NA = Not available or not assessed.
\1\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, NL = Not listed.
\2\ U.S. Marine Mammal Protection Act: D = Depleted, NC = Not Classified.
\3\ Density estimate as listed in Table 3 of the application.
\4\ North Pacific (Jefferson et al., 2008) unless otherwise indicated.
\5\ Western North Pacific (Calambokidis et al., 2008).
\6\ Northwest Pacific and Okhotsk Sea (IWC, 2010).
\7\ North Pacific (Tillman, 1977).
\8\ North Pacific (Ohsumi and Wada, 1974).
\9\ Western North Pacific (Whitehead, 2002b).
\10\ Eastern Tropical Pacific (Wade and Gerrodette, 1993).
\11\ Eastern Tropical Pacific all Mesoplodon spp. (Wade and Gerrodette, 1993).


[[Page 6072]]

    Refer to sections III and IV of L-DEO's application for detailed 
information regarding the abundance and distribution, population 
status, and life history and behavior of these species and their 
occurrence in the project area. The application also presents how L-DEO 
calculated the estimated densities for the marine mammals in the survey 
area. NMFS has reviewed these data and determined them to be the best 
available scientific information for the purposes of the IHA.

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 hearing 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 77782, December 14, 2011) 
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. NMFS refers the reader to L-DEO's application, and 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, Fish, Fisheries, and 
Invertebrates

    NMFS included a detailed discussion of the potential effects of 
this action on marine mammal habitat, including physiological and 
behavioral effects on marine fish, fisheries, and invertebrates in the 
notice of the proposed IHA (76 FR 77782, December 14, 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 77782, December 14, 
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.
    Recent work by Andre et al. (2011) purports to present the first 
morphological and ultrastructural evidence of massive acoustic trauma 
(i.e., permanent and substantial alterations of statocyst sensory hair 
cells) in four cephalopod species subjected to low-frequency sound. The 
cephalopods, primarily cuttlefish, were exposed to continuous 40 to 400 
Hz sinusoidal wave sweeps (100% duty cycle and 1 s sweep period) for 
two hours while captive in relatively small tanks (one 2,000 liter [L 2 
m\3\] and one 200 L [0.2 m\3\] tank). The received SPL was reported as 
175  5 dB re 1 [micro]Pa, with peak levels at 175 dB re 1 
[micro]Pa. As in the McCauley et al. (2003) paper on sensory hair cell 
damage in pink snapper as a result of exposure to seismic sound 
(described in the notice of the proposed IHA), the cephalopods were 
subjected to higher sound levels that they would be under natural 
conditions, and they were unable to swim away from the sound source.

Mitigation

    In order to issue an 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 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 will 
implement the following mitigation measures for marine mammals:
    (1) EZs;
    (2) Power-down procedures;
    (3) Shut-down procedures; and
    (4) Ramp-up procedures.
    Planning Phase--This seismic survey was originally proposed for 
2010. A National Environmental Policy Act (NEPA) document was prepared 
for the survey and was posted for public comment on NSF's Web site. No 
public comments were received by NSF in response to the public comment 
period during that process. Because of ship maintenance issues, 
weather, and timing constraints of the IHA process, the survey was 
unable to be supported on the Langseth in 2010, and as a result the 
survey was deferred to a future time when the ship would be able to 
support the effort. An IHA application was submitted to NMFS for the 
2010 survey, however it was withdrawn when it became apparent the ship 
would not be able to support the survey. An ESA section 7 consultation 
request that was also initiated with NMFS was withdrawn.
    Subsequently, the PIs worked with L-DEO and NSF to identify 
potential time periods to carry out the survey taking into 
consideration key factors such as environmental conditions (i.e., the 
seasonal presence of marine mammals, sea turtles, and sea birds), 
weather conditions, equipment, and optimal timing for other proposed 
seismic surveys using the Langseth. Most marine mammal species are 
expected to occur in the area year-round, so altering the timing of the 
project likely would result in no net benefits for those species. After 
considering what energy source level was necessary to achieve the 
research goals, the PIs determined the use of the 36-airgun array with 
a total volume of 6,600 in\3\ would be required. Given the research 
goals, location of the survey, and associated deep water, this energy 
source level was viewed appropriate. The draft NEPA documentation 
prepared for the 2010 survey forms the basis for this assessment; 
however, it has been updated to reflect current scientific information 
and any revisions to the survey and timing. NEPA documentation for the 
2012 survey will also be open for a public comment period, and an ESA 
section 7 consultation has been requested and reinitiated.
    EZs--Received sound levels have been predicted by L-DEO, in 
relation to distance and direction from the airguns, for the 36 airgun 
array and for the single 1900LL 40 in\3\ airgun, which will be used 
during power-downs. Results were

[[Page 6073]]

recently reported for propagation measurements of pulses from the 36 
airgun array in two water depths (approximately 1,600 m and 50 m [5,249 
and 164 ft]) in the GOM in 2007 to 2008 (Tolstoy et al., 2009). It 
would be prudent to use the corrected empirical values that resulted to 
determine EZs for the airgun array. Results of the propagation 
measurements (Tolstoy et al., 2009) showed that radii around the 
airguns for various received levels varied with water depth. In 
addition, propagation varies with array tow depth. The empirical values 
that resulted from Tolstoy et al. (2009) are used here to determine EZs 
for the 36 airgun array. However, the depth of the array was different 
in the GOM calibration study (6 m [19.7 ft]) than in the survey (9 m); 
thus, correction factors have been applied to the distances reported by 
Tolstoy et al. (2009). The correction factors used were the ratios of 
the 160, 180, and 190 dB distances from the modeled results for the 
6,600 in\3\ airgun array towed at 6 m versus 9 m, from LGL (2008): 
1.285, 1.338, and 1.364, respectively.
    Measurements were not reported for a single airgun, so model 
results will be used. The L-DEO model does not allow for bottom 
interactions, and thus is most directly applicable to deep water and to 
relatively short ranges. A detailed description of the modeling effort 
is predicted in Appendix A of the EA.
    Based on the corrected propagation measurements (airgun array) and 
modeling (single airgun), the distances from the source where sound 
levels are predicted to be 190, 180, and 160 dB re 1 [micro]Pa (rms) 
were determined (see Table 2 below). The 180 and 190 dB radii are shut-
down criteria applicable to cetaceans and pinnipeds, respectively, as 
specified by NMFS (2000); these levels were used to establish the EZs. 
If the Protected Species Visual Observer (PSVO) detects marine 
mammal(s) within or about to enter the appropriate EZ, the airguns will 
be powered-down (or shut-down, if necessary) immediately.
    Table 2 summarizes the predicted distances at which sound levels 
(160, 180, and 190 dB [rms]) are expected to be received from the 36 
airgun array and a single airgun operating in deep water depths.

Table 2--Measured (Array) or Predicted (Single Airgun) Distances to Which Sound levels >=190, 180, and 160 dB re
1 [micro]Pa (rms) Could be Received in Various Water Depth Categories During the Survey in the CNMI, February to
                                                   March, 2012
----------------------------------------------------------------------------------------------------------------
                                                                               Predicted RMS radii distances
          Source and volume            Tow depth      Water depth  (m)    --------------------------------------
                                          (m)                                 190 dB       180 dB       160 dB
----------------------------------------------------------------------------------------------------------------
Single Bolt airgun (40 in\3\).......            9  Deep (>1,000).........           12           40          385
4 Strings...........................            9  Deep (>1,000).........          400          940        3,850
36 airguns..........................
(6,600 in\3\).......................
----------------------------------------------------------------------------------------------------------------

    Power-Down Procedures--A power-down involves decreasing the number 
of airguns in use to one airgun, 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, 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 all airgun activity is suspended.
    If the PSVO detects a marine mammal outside the EZ, but it is 
likely to enter the EZ, L-DEO will power-down the airguns before the 
animal is within 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 single 
40 in\3\ airgun. If a marine mammal is detected within or near the 
smaller EZ around that single airgun (Table 2), 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 EZ. 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 species with shorter dive durations (i.e., small odontocetes or 
pinnipeds), or 30 min for species with longer dive durations (i.e., 
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 time limits specified previously, L-DEO will 
ramp-up the airgun array gradually (see Shut-down and Ramp-up 
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.
    Considering the conservation status for the North Pacific right 
whale, the airguns will be shut-down immediately in the unlikely event 
that this species is observed, regardless of the distance from the 
Langseth. Ramp-up will only begin if the right whale has not been seen 
for 30 min.
    Ramp-Up Procedures--L-DEO will follow a ramp-up procedure when the 
airgun array begins operating after a specified period without airgun 
operations or when a power-down or shut-down has exceeded that period. 
L-DEO proposes that, for the present cruise, this period would be 
approximately 8 min. This period is based on the 180 dB radius (940 m) 
for the 36 airgun array towed at a depth of 9 m in relation to the 
minimum planned speed of the Langseth while shooting (7.4 km/hr). L-DEO 
has used similar periods (approximately 8 to 10 min) 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 six dB per five min

[[Page 6074]]

period over a total duration of approximately 35 min. During ramp-up, 
the Protected Species Observers will monitor the EZ, and if marine 
mammals are sighted, L-DEO will implement a power-down or shut-down as 
though the full airgun 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, 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 the airgun array 
will not be ramped-up 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 has carefully evaluated the applicant's mitigation measures 
and has considered a range of other measures in the context of ensuring 
that NMFS prescribes the means of effecting the least practicable 
impact on the affected marine mammal species and stocks and their 
habitat. NMFS's 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 NMFS's evaluation of the applicant's measures, as well as 
other measures considered by NMFS or recommended by the public, NMFS 
has determined that the mitigation measures provide the means of 
effecting the least practicable impacts on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 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. 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's PSVOs will be based aboard the seismic source vessel and 
will watch for marine mammals near the vessel during daytime airgun 
operations and during any ramp-ups of the airguns 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 
(i.e., greater than approximately 8 min for this cruise). When 
feasible, 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 airguns will be powered-down 
or shut-down 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 in the CNMI, at least four PSOs (PSVO 
and/or Protected Species Acoustic Observer [PSAO]) will be based aboard 
the Langseth. L-DEO will appoint the PSOs with NMFS's concurrence. 
Observations will take place during ongoing daytime operations and 
nighttime ramp-ups of the airguns. During the majority of seismic 
operations, two PSVOs will be on duty from the observation tower to 
monitor marine mammals near the seismic vessel. Use of two simultaneous 
PSVOs will increase the effectiveness of detecting animals near the 
source vessel. However, during meal times and bathroom breaks, it is 
sometimes difficult to have two PSVOs on effort, but at least one PSVO 
will be on duty. PSVO(s) will be on duty in shifts of duration no 
longer than 4 hrs.
    Two PSVOs will also be on visual watch during all nighttime ramp-
ups of the seismic airguns. A third PSAO will monitor the PAM equipment 
24 hours a day to detect vocalizing marine mammals present in the 
action area. In summary, a typical daytime cruise would have scheduled 
two PSVOs on duty from the observation tower, and a third PSAO on PAM. 
Other crew will also be instructed to assist in detecting marine 
mammals and implementing mitigation requirements (if practical). Before 
the start of the seismic survey, the crew will be given additional 
instruction on 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 21.5 m (70.5 ft) above sea level, and the PSVO 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.
    When marine mammals are detected within or about to enter the 
designated EZ, the airguns will immediately be powered-down or shut-
down if necessary. The PSVO(s) will continue to maintain watch to 
determine when the animal(s) are outside the EZ by visual confirmation. 
Airgun operations will not resume until the animal is confirmed to have 
left the EZ, or if not observed after 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, including 
sperm, pygmy sperm, dwarf sperm, killer, and beaked whales).

[[Page 6075]]

Passive Acoustic Monitoring (PAM)

    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. Acoustical monitoring can be used 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 PSVOs can be advised when 
cetaceans are detected.
    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 tow 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 from the winch to the main computer 
laboratory 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.
    One PSAO, an expert bioacoustician in addition to the four PSVOs, 
with primary responsibility for PAM, will be onboard the Langseth. The 
towed hydrophones will ideally be monitored by the PSAO 24 hours per 
day while at the seismic survey area 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 the 
array or back-up systems during operations. The primary PAM streamer on 
the Langseth is a digitial hydrophone streamer. Should the digital 
streamer fail, back-up systems should include an analog spare streamer 
and a hull-mounted hydrophone. One PSAO will monitor the acoustic 
detection system 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. The PSAO monitoring 
the acoustical data will be on shift for one to six hours at a time. 
All PSOs are expected to rotate through the PAM position, although the 
expert PSAO will be on PAM duty more frequently.
    When a vocalization is detected while visual observations are in 
progress, the PSAO will contact the 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. When 
bearings (primary and mirror-image) to calling cetacean(s) are 
determined, the bearings will be related to the PSVO(s) to help him/her 
sight the calling animal. 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. Observations will also be made during daytime periods when the 
Langseth is underway without seismic operations. In addition to 
transits to, from, and through the study area, there will also be 
opportunities to collect baseline biological data during the deployment 
and recovery of OBSs.
    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 in the area where the seismic study is conducted.
    4. Information to compare the distance and distribution of marine 
mammals 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.
    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 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 this IHA, 
such as an injury (Level A harassment), serious injury, or mortality 
(e.g., ship-strike,

[[Page 6076]]

gear interaction, and/or entanglement), L-DEO will immediately cease 
the specified activities and immediately report the incident to the 
Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS at (301) 427-8401 and/or by email to 
[email protected] and [email protected], and the NMFS 
Pacific Islands Regional Office 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 shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall 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 or email, or telephone.
    In the event that L-DEO discovers an injured or dead marine mammal, 
and the lead PSO determines that the cause of the injury or death is 
unknown and the death is relatively recent (i.e., in less than a 
moderate state of decomposition as described in the next paragraph), 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 NMFS Pacific Islands Regional Office 
(808) 944-2269 and/or by email to the Pacific Islands Regional 
Stranding Coordinator ([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 PSO 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 NMFS 
Pacific Islands Regional Office (808) 944-2269, and/or by email to the 
Pacific Islands Regional Stranding Coordinator 
([email protected]), within 24 hours of discovery. L-DEO will 
provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS and the Marine 
Mammal Stranding Network.

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 anticipated and authorized as a 
result of the marine seismic survey in the CNMI. 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. The required mitigation and monitoring measures will minimize 
any potential risk for injury, serious injury, or mortality.
    The following sections describe L-DEO's methods to estimate take by 
incidental harassment and present the applicant's estimates of the 
numbers of marine mammals that could be affected during the seismic 
program. The 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 2,800 km of survey 
lines in the CNMI.
    L-DEO assumes that, during simultaneous operations of the airgun 
array and the other sources, any marine mammals close enough to be 
affected by the MBES and SBP would already be affected by the airguns. 
However, whether or not the airguns are operating simultaneously with 
the other sources, marine mammals are expected to exhibit no more than 
short-term and inconsequential responses to the MBES and SBP given 
their characteristics (e.g., narrow, downward-directed beam) and other 
considerations described previously. Such reactions are not considered 
to constitute ``taking'' (NMFS, 2001). Therefore, L-DEO provides no 
additional allowance for animals that could be affected by sound 
sources other than airguns.
    The only systematic marine mammal survey conducted in the CNMI was 
a ship-based survey conducted for the U.S. Navy during January to 
April, 2007, in four legs: January 16 to February 2, February 6 to 25, 
March 1 to 20, and March 24 to April 12 (SRS-Parsons et al., 2007; 
Fulling et al., 2011). The cruise area was defined by the boundaries 10 
to 18[deg] North and 142 to 148[deg] East, encompassing an area 
approximately 585,000 km\2\ (170,558.7 nmi\2\) including the islands of 
Guam and the southern CNMI almost as far north as Pagan. The systematic 
line-transect survey effort was conducted from the flying bridge (10.5 
m [34.5 ft] above sea level) of the 56 m (183.7 ft) long M/V Kahana 
using standard line-transect protocols developed by NMFS Southwest 
Fisheries Science Center (SWFSC). Observers visually surveyed 11,033 km 
(5,957.3 nmi) of trackline, mostly in high Beaufort sea states (88% of 
the time in the Beaufort sea states 4 to 6).
    L-DEO used the densities calculated in Fulling et al. (2011) for 
the 12 species sighted in that survey. For eight species not sighted in 
that survey but expected to occur in the CNMI, relevant densities are 
available for the ``outer EEZ stratum'' of Hawaiian waters, based on a 
13,500 km (7,289.4 nmi) survey conducted by NMFS SWFSC in August to 
November, 2002 (Barlow, 2006). Another potential source of relevant 
densities are the SWFSC surveys conducted in the ETP during summer/fall 
1986 to 1996 (Ferguson and Barlow, 2001, 2003). However, for five of 
the remaining seven species that could occur in the survey area, there 
were no sightings in more than 50 offshore tropical (<20[deg] latitude) 
5[deg] x 5[deg] strata.

[[Page 6077]]

The short-beaked common dolphin was sighted in a number of offshore 
tropical strata, so its density was calculated as the effort-weighted 
mean of densities in the 17 offshore 5[deg] x 5[deg] strata between 
10[deg] North and 20[deg] North (Ferguson and Barlow, 2003).
    Table 3 (Table 3 of the IHA application) gives the estimated 
densities of each marine mammal species expected to occur in the waters 
of the survey area. L-DEO used the densities reported by Fulling et al. 
(2011), Barlow (2006), and Ferguson and Barlow (2001, 2003), and those 
have been corrected, by the original authors, for detectability bias, 
and in two of the three areas, for availability bias. Detectability 
bias is associated with diminishing sightability with increasing 
lateral distance from the trackline ([fnof][0]). Availability bias 
refers to the fact that there is less-than-100% probability of sighting 
an animal that is present along the survey trackline [fnof](0), and it 
is measured by g(0). Fulling et al. (2011) did not correct the Marianas 
densities for g(0), which, for all but large (>20) groups of dolphins 
(where g[0] = 1), resulted in underestimates of density.
    There is some uncertainty about the representativeness of the 
density data and the assumptions used in the calculations. For example, 
the seasonal timing of the surveys either overlapped (Marianas) or 
followed (Hawaii and ETP) the survey. Also, most of the Marianas survey 
was in high sea states that would have presented detection of many 
marine mammals, especially cryptic species such as beaked whales and 
Kogia spp. However, the approach used here is believed to be the best 
available approach.
    L-DEO's estimates of exposures to various sound levels assume that 
the survey will be fully completed; in fact, the ensonified areas 
calculated using the planned number of line-km have been increased by 
25% to accommodate lines that may need to be repeated, equipment 
testing, etc. 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. Furthermore, any marine mammal sightings within or 
near the designated EZs 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 (rms) 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 (rms) 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 widely spaced in the survey area, so few 
individual marine mammals would be exposed more than once during the 
survey. The area including overlap is only 1.4 times the area excluding 
overlap, so a marine mammal that stayed in the survey area during the 
entire survey could be exposed approximately two times, on average. 
Thus, few individual marine mammals could be exposed more than once 
during the survey. However, 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 (rms) was calculated by 
multiplying:
    (1) The expected species density, times
    (2) The anticipated 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 GIS, using the GIS to identify the 
relevant areas by ``drawing'' the applicable 160 dB buffer (see Table 1 
of the IHA application) around each seismic line, and then calculating 
the total area within the buffers. Areas of overlap (because of lines 
being closer together than the 160 dB radius) were included only once 
when estimating the number of individuals exposed.
    Applying the approach described above, approximately 15,685 km\2\ 
(4,573 nmi\2\) (approximately 19,607 km\2\ [5,716.5 nmi\2\] including 
the 25% contingency) 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 marine mammal populations in the study area during the 
course of the survey, the actual number of individuals exposed could be 
underestimated. In addition, 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 (Table 4 of the IHA application) shows the estimates of the 
number of different individual marine mammals that potentially could be 
exposed to greater than or equal to 160 dB re 1 [mu]Pa (rms) during the 
seismic survey if no animals moved away from the survey vessel. The 
requested take authorization, given in Table 3 (the far right column of 
Table 4 of the IHA application), has been increased to the mean group 
size for the particular species in cases where the calculated number of 
individuals exposed was between one and the mean group size. Mean group 
sizes are from the same source as densities (see Table 3 of L-DEO's 
application). For the minke whale, which was not sighted during the 
January to April, 2007 survey in the waters of Guam and the southern 
CNMI, but was the baleen whale species most frequently detected 
acoustically, the requested take authorization (given in the far right 
column of Table 5 of L-DEO's application) has also been increased to 
the mean group size.
    The 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 (rms) during the survey is 1,487 (see Table 4 of the 
IHA application). That total includes 14 baleen whales, of which 6 are 
sei whales (0.06% of the regional population). An additional 30 takes 
of humpback whales (3.2% of the regional population) have been included 
in the IHA. While humpback whales were not visually sighted during the 
2007 survey, they were heard regularly during passive acoustic 
monitoring, indicating that they are likely present in the survey area. 
In addition, 24 sperm whales or 0.08% of the regional population, could 
be exposed during the survey, and 165 beaked whales, including 
Cuvier's, Longman's, and Blainville's beaked whales. Most (72.1%) of 
the cetaceans potentially exposed are delphinids; pantropical spotted, 
short-beaked common, striped, and Fraser's dolphins, and melon-headed 
whales are estimated to be the most common species in the area, with 
estimates of 443, 189, 121, 88, and 84, which would represent 0.06%, 
0.01%, 0.01%, 0.03%, and 0.19% of the regional populations, 
respectively.
    In monitoring reports for seismic surveys, NMFS sometimes receives 
reports of unidentified species of marine

[[Page 6078]]

mammals documented within areas around active airgun arrays and the 
animals may have been potentially exposed to received levels of greater 
than or equal to 160 dB (rms) (i.e., the threshold for Level B 
harassment). These animals may be reported as an unidentified species 
of marine mammal by PSOs due to poor environmental conditions (e.g., 
high Beaufort sea state/wind force, sun glare, clouds, rain, fog, 
darkness, etc.), the distance of the animal(s) relative to the vessel, 
brevity of animal(s) presence at the surface, animal(s) avoidance 
behavior, and/or lack of expertise of PSOs in identifying the species 
of marine mammals that may occur in the study area. NMFS appreciates 
the difficulty of identifying marine mammals to the species level at 
sea. Due to these circumstances, NMFS will include the take of 
unidentified large whales (i.e., Bryde's/sei whales) for L-DEO's 
planned seismic survey in the CNMI. In order to estimate the potential 
number of takes for unidentified Bryde's/sei-type whales, NMFS relied 
on the sighting data from the 2007 survey. The total estimated number 
of unidentified Bryde's/sei-type whales are 2, which would represent 
less than 0.05% and 0.11% of the regional population for each species 
of marine mammals expected to occur in the study area when considered 
in addition to the calculated number of takes for each identified 
species in the density estimates.

Table 3--Estimates of the Possible Numbers of Marine Mammals Exposed to Different Sound Levels >=160 dB During L-
                         DEO's Seismic Survey in the CNMI During February to March, 2012
----------------------------------------------------------------------------------------------------------------
                                                                              Approximate
                                          Estimated No. of      Requested or   percent of
               Species                 individuals exposed to  adjusted take    regional
                                       sound levels >= 160 dB  authorization   population
                                            re 1 [mu] Pa                          \1\
-----------------------------------------------------------------------------------------
                                        Mysticetes
----------------------------------------------------------------------------------------------------------------
North Pacific right whale...........                        0             0             0
Humpback whale......................                        0            30           3.2
Minke whale.........................                        0          \2\3        < 0.01
Bryde's whale.......................                        8             8          0.03
Sei whale...........................                        6             6          0.06
Fin whale...........................                        0             0             0
Blue whale..........................                        0             0             0
Unidentified Bryde's/sei-type whale.                        0             2          0.01
                                                                                     0.03
----------------------------------------------------------------------------------------------------------------
                                       Odontocetes
----------------------------------------------------------------------------------------------------------------
Sperm whale.........................                       24            24          0.08
Pygmy sperm whale...................                       62            62            NA
Dwarf sperm whale...................                      150           150          1.34
Cuvier's beaked whale...............                      131           131          0.65
Longman's beaked whale..............                        9         \3\18            NA
Blainville's beaked whale...........                       25            25          0.10
Ginkgo-toothed beaked whale.........                        0             0             0
Rough-toothed dolphin...............                        6          \3\9        < 0.01
Bottlenose dolphin..................                        4         \3\20        < 0.01
Pantropical spotted dolphin.........                      443           443          0.06
Spinner dolphin.....................                       62         \3\98          0.01
Striped dolphin.....................                      121           121          0.01
Fraser's dolphin....................                       88        \3\286          0.03
Short-beaked common dolphin.........                      189           189          0.01
Risso's dolphin.....................                       16            16          0.01
Melon-headed whale..................                       84         \3\95          0.19
Pygmy killer whale..................                        3         \2\12          0.03
False killer whale..................                       22            22          0.05
Killer whale........................                        3          \2\5          0.03
Short-finned pilot whale............                       31            31          0.01
----------------------------------------------------------------------------------------------------------------
NA = Not available or not assessed.
\1\ Regional population sizes are from Table 3 in L-DEO's application.
\2\ Requested take authorization increased to mean group size from Jefferson et al. (2008).
\3\ Requested take authorization increased to mean group size from density sources in Table 4 of L-DEO's
  application.

Encouraging and Coordinating Research

    L-DEO and NSF will coordinate the planned marine mammal monitoring 
program associated with the seismic survey in the CNMI with other 
parties that may have an interest in the area and/or be conducting 
marine mammal studies in the same region during the seismic survey. L-
DEO and NSF have coordinated, and will continue to coordinate with 
other applicable agencies, and will comply with their requirements. 
Actions of this type that are underway include (but are not limited to) 
the following:
     Contact the U.S. Army Corps of Engineers (ACOE), to 
confirm that no permits will be required by the ACOE for the survey.
     Contact CNMI historic preservation office regarding the 
National Historic Preservation Act.
     Contact the CNMI Coastal Resources Management office and 
submit a Scientific Research Permit application.
     Contact U.S. Navy Pacific Fleet Environmental and Geo-
Marine, Inc. for recent information on cetacean surveys in the area.

[[Page 6079]]

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' 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 evaluated 
factors such as:
    (1) The number of anticipated injuries, serious injuries, or 
mortalities;
    (2) The number, nature, and intensity, and duration of Level B 
harassment (all relatively limited); and
    (3) The context in which the takes occur (i.e., impacts to areas of 
significance, impacts to local populations, and cumulative impacts when 
taking into account successive/contemporaneous actions when added to 
baseline data);
    (4) The status of stock or species of marine mammals (i.e., 
depleted, not depleted, decreasing, increasing, stable, impact relative 
to the size of the population);
    (5) Impacts on habitat affecting rates of recruitment/survival; and
    (6) The effectiveness of monitoring and mitigation measures.
    For reasons stated previously in this document, the specified 
activities associated with the marine seismic survey are not likely to 
cause PTS, or other non-auditory injury, serious injury, or death 
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 
relatively low and would likely be avoided through the incorporation of 
the required monitoring and mitigation measures (described above);
    (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 9 m tow 
depth, and 40 m (131.2 ft) in deep water when the single airgun is in 
use at 9 m from the vessel to be exposed to levels of sound believed to 
have even a minimal chance of causing PTS; and
    (4) The likelihood that marine mammal detection ability by trained 
PSOs is high at close proximity to the vessel.
    No injuries, serious injuries, or mortalities are anticipated to 
occur as a result of the L-DEO's planned marine seismic survey, and 
none are authorized by NMFS. Only short-term behavioral disturbance is 
anticipated to occur due to the brief and sporadic duration of the 
survey activities. Table 3 of this document outlines the number of 
requested Level B harassment takes that are anticipated as a result of 
these activities. Due to the nature, degree, and context of Level B 
(behavioral) harassment anticipated and described (see ``Potential 
Effects on Marine Mammals'' section above) in this notice, the activity 
is not expected to impact rates of recruitment or survival for any 
affected species or stock. Additionally, the seismic survey will not 
adversely impact marine mammal habitat.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (i.e., 24 hr cycle). 
Behavioral reactions to noise exposure (such as disruption of critical 
life functions, displacement, or avoidance of important habitat) are 
more likely to be significant if they last more than one diel cycle or 
recur on subsequent days (Southall et al., 2007). While seismic 
operations are anticipated to occur on consecutive days, the entire 
duration of the survey is not expected to last more than approximately 
46 days (i.e., 16 days of seismic operations, 2 days of transit, and 25 
days of deployment and retrieval of OBSs and maintenance) and the 
Langseth will be continuously moving along planned tracklines that are 
geographically spread-out. Therefore, the seismic survey will be 
increasing sound levels in the marine environment in a relatively small 
area surrounding the vessel, which is constantly travelling over far 
distances, for a relatively short time period (i.e., several weeks) in 
the study area.
    Of the 27 marine mammal species under NMFS jurisdiction that are 
known to or likely to occur in the study area, six are listed as 
threatened or endangered under the ESA: North Pacific right, humpback, 
sei, fin, blue, and sperm whales. These species are also considered 
depleted under the MMPA. Of these ESA-listed species, incidental take 
has been requested to be authorized for sei and sperm whales. 
Additional incidental take of humpback whales has also been authorized. 
There is generally insufficient data to determine population trends for 
the other depleted species in the study area. To protect these animals 
(and other marine mammals in the study area), L-DEO must cease or 
reduce airgun operations if animals enter designated zones. No injury, 
serious injury, or mortality is expected to occur and due to the 
nature, degree, and context of the Level B harassment anticipated, the 
activity is not expected to impact rates of recruitment or survival.
    As mentioned previously, NMFS estimates that 23 species of marine 
mammals under its jurisdiction could be potentially affected by Level B 
harassment over the course of the IHA. For each species, these numbers 
are small (each, less than one percent, except for dwarf sperm whales 
[1.3%] and humpback whales [3.2%]) relative to the regional population 
size. The population estimates for the marine mammal species that may 
be taken by Level B harassment were provided in Table 2 of this 
document.
    NMFS's practice has been to apply the 160 dB re 1 [mu] Pa (rms) 
received level threshold for underwater impulse sound levels to 
determine whether take by Level B harassment occurs. Southall et al. 
(2007) provide a severity scale for ranking observed behavioral 
responses of both free-ranging marine mammals and laboratory subjects 
to various types of anthropogenic sound (see Table 4 in Southall et al. 
[2007]).
    NMFS has determined, provided that the aforementioned mitigation 
and monitoring measures are implemented, that the impact of conducting 
a marine seismic survey in the CNMI, February to March, 2012, may 
result, at worst, in a temporary modification in behavior and/or low-
level physiological effects (Level B harassment) of small numbers of 
certain species of marine mammals. See Table 3 (above) for the 
requested authorized take numbers of cetaceans.
    While 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, the availability 
of alternate areas within these areas and the short and sporadic 
duration of the research activities, have led NMFS to determine that 
this action will have a negligible impact on the species in the 
specified geographic region.
    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 will 
result in the incidental take of small numbers of marine mammals, by 
Level B harassment only, and that the total taking from the marine 
seismic survey will have a negligible impact on the affected species or 
stocks of marine mammals; and that impacts to affected species or 
stocks of marine mammals have been mitigated to the lowest level 
practicable.

[[Page 6080]]

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

    Section 101(a)(5)(D) also requires NMFS to determine that the 
authorization will not have an unmitigable adverse effect on the 
availability of marine mammal species or stocks for subsistence use. 
There are no relevant subsistence uses of marine mammals in the study 
area (offshore waters of the CNMI) that implicate MMPA section 
101(a)(5)(D).

Endangered Species Act

    Of the species of marine mammals that may occur in the survey area, 
several are listed as endangered under the ESA, including the North 
Pacific right, humpback, sei, fin, blue, and sperm whales. Under 
section 7 of the ESA, NSF initiated formal consultation with the NMFS, 
Office of Protected Resources, Endangered Species Act Interagency 
Cooperation Division, on this seismic survey. NMFS's Office of 
Protected Resources, Permits and Conservation Division, also initiated 
formal consultation under section 7 of the ESA with NMFS's Office of 
Protected Resources, Endangered Species Act Interagency Cooperation 
Division, to obtain a Biological Opinion (BiOp) evaluating the effects 
of issuing the IHA on threatened and endangered marine mammals and, if 
appropriate, authorizing incidental take. In February, 2012, NMFS 
issued a BiOp and concluded that the action and issuance of the IHA are 
not likely to jeopardize the continued existence of North Pacific 
right, humpback, sei, fin, blue, and sperm whales. The BiOp also 
concluded that designated critical habitat for these species would not 
be affected by the survey. NSF and L-DEO must comply with the Relevant 
Terms and Conditions of the Incidental Take Statement (ITS) 
corresponding to NMFS's BiOp issued to NSF, L-DEO, and NMFS's 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

    With L-DEO's complete application, NSF provided NMFS an 
``Environmental Assessment and Finding of No Significant Impact 
Determination Pursuant to the National Environmental Policy Act, 42 
U.S.C. 4321 et seq. and Executive Order 12114 Marine Seismic Survey in 
the Commonwealth of the Northern Mariana Islands, February-March 
2012,'' which incorporates an ``Environmental Assessment of a Marine 
Geophysical Survey by the R/V Marcus G. Langseth in the Commonwealth of 
the Northern Mariana Islands, February-March 2012,'' prepared by LGL on 
behalf of NSF and L-DEO, to met NMFS's NEPA (42 U.S.C. 4321 et seq.) 
requirements for the issuance of an IHA. The EA analyzes the direct, 
indirect, and cumulative environmental impacts of the specified 
activities on marine mammals including those listed as threatened or 
endangered under the ESA. NMFS conducted an independent review and 
evaluation of the document for sufficiency and compliance with the 
Council of Environmental Quality (CEQ) and NOAA Administrative Order 
216-6 Sec.  5.09(d), Environmental Review Procedures for Implementing 
the National Environmental Policy Act, and determined that issuance of 
the IHA is not likely to result in significant impacts on the human 
environment. Consequently, NMFS has adopted NSF's EA and prepared a 
Finding of No Significant Impact (FONSI) for the issuance of the IHA. 
An Environmental Impact Statement is not required and will not be 
prepared for the action.

Authorization

    NMFS has issued an IHA to L-DEO for the take, by Level B 
harassment, of small numbers of marine mammals incidental to conducting 
a marine seismic survey in the CNMI, February to March, 2012, provided 
the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: February 1, 2012.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-2749 Filed 2-6-12; 8:45 am]
BILLING CODE 3510-22-P