[Federal Register Volume 78, Number 72 (Monday, April 15, 2013)]
[Notices]
[Pages 22239-22251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08795]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC238


Takes of Marine Mammals Incidental to Specified Activities; 
Marine Geophysical Survey on the Mid-Atlantic Ridge in the Atlantic 
Ocean, April 2013, Through June 2013

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulation, we hereby give notification that we have issued an 
Incidental Harassment Authorization (Authorization) to Lamont-Doherty 
Earth Observatory (Observatory), a part of Columbia University, in 
collaboration with the National Science Foundation (Foundation), to 
take marine mammals, by harassment, incidental to conducting a marine 
geophysical (seismic) survey on the Mid-Atlantic Ridge in the north 
Atlantic Ocean in international waters, from April 2013 through June 
2013.

DATES: Effective April 8, 2013, through June 24, 2013.

ADDRESSES: To obtain an electronic copy of the Authorization, write to 
P. Michael Payne, Chief, Permits and Conservation Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225 or download an electronic copy 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    To obtain an electronic copy of (1) the application containing a 
list of the references within this document; and (2) the Foundation's 
draft environmental analysis titled, ``Marine geophysical survey by the 
R/V Marcus G. Langseth on the mid-Atlantic Ridge, April-May 2013,'' for 
their federal action of funding the Observatory's seismic survey; or 
(3) our Environmental Assessment titled, ``Issuance of an Incidental 
Harassment Authorization to Lamont-Doherty Earth Observatory to Take 
Marine Mammals by Harassment Incidental to a Marine Geophysical Survey 
in the Atlantic Ocean, April-June, 2013,'' and the Finding of No 
Significant Impact; write to the previously mentioned address, 
telephone the contact listed here (see FOR FURTHER INFORMATION 
CONTACT), or download the file at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    The Service's Biological Opinion will be available online at: 
http://www.nmfs.noaa.gov/pr/consultation/opinions.htm.

FOR FURTHER INFORMATION CONTACT: Jeannine Cody, National Marine 
Fisheries Service, Office of Protected Resources, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, 
as amended (MMPA; 16 U.S.C. 1361 et seq.) directs the Secretary of 
Commerce

[[Page 22240]]

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, after 
notice of a proposed authorization to the public for review and public 
comment: (1) We make certain findings; and (2) the taking is limited to 
harassment.
    We shall grant authorization for the incidental taking of small 
numbers of marine mammals if we find 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 taking. We have 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 
our 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, we must either issue or deny the 
authorization and must publish a notice in the Federal Register within 
30 days of our determination to issue or deny the authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].

Summary of Request

    On December 7, 2012, we received an application from the 
Observatory requesting that we issue an Incidental Harassment 
Authorization (Authorization) for the take, by Level B harassment only, 
of small numbers of marine mammals incidental to conducting a marine 
seismic survey in the north Atlantic Ocean in international waters 
April through May 13, 2013. We received a revised application from the 
Observatory on December 23, 2012 and January 17, 2013, which reflected 
updates to the mitigation safety zones, incidental take requests for 
marine mammals, and information on marine protected areas. We 
determined the application complete and adequate on January 18, 2013 
and released the application for public comment (see ADDRESSES) for 
consideration of issuing an Authorization to the Observatory.
    The Observatory, with research funding from the Foundation, plans 
to conduct the seismic survey plans to conduct a two-dimensional (2-D) 
seismic survey on the Mid-Atlantic Ridge in the north Atlantic Ocean to 
image the Rainbow massif to determine the characteristics of the magma 
body that supplies heat to the Rainbow hydrothermal field; determine 
the distribution of the different rock types that form the Rainbow 
massif; document large- and small-scale faults in the vicinity and 
investigate their role in controlling hydrothermal fluid discharge. The 
Observatory plans to use one source vessel, the R/V Marcus G. Langseth 
(Langseth), a seismic airgun array, a single hydrophone streamer, and 
ocean bottom seismometers (seismometers) to conduct the seismic survey. 
In addition to the operations of the seismic airgun array and 
hydrophone streamer, and the seismometers, the Observatory intends to 
operate a multibeam echosounder and a sub-bottom profiler continuously 
throughout the proposed survey.
    Acoustic stimuli (i.e., increased underwater sound) generated 
during seismic operations, may have the potential to cause behavioral 
disturbance for marine mammals in the survey area. This is the 
principal means of marine mammal taking associated with these 
activities. We expect these disturbances to be temporary and result in 
a temporary modification in behavior and/or low-level physiological 
effects (Level B harassment only) of small numbers of certain species 
of marine mammals.
    We do not expect that the movement of the Langseth, during the 
conduct of the seismic survey, has the potential to harass marine 
mammals because of the relatively slow operation speed of the vessel 
(4.6 knots (kts); 8.5 kilometers per hour (km/h); 5.3 miles per hour 
(mph)) during seismic acquisition.
    We also do not expect that the operation of the echosounder, sub-
bottom profiler, and ocean bottom seismometers have the potential to 
harass marine mammals because they would already experience affects 
from the airgun array. Whether or not the airguns are operating 
simultaneously with the other sources, we expect the marine mammals to 
exhibit no more than temporary and inconsequential responses to the 
echosounder, sub-bottom profiler, and ocean bottom seismometers given 
their characteristics (e.g., narrow, downward-directed beam).
    Some minor deviation from the Observatory's requested dates of 
April through May 2013, is possible, depending on logistics, weather 
conditions, and the need to repeat some lines if data quality is 
substandard. Therefore, we would issue an Authorization that is 
effective from April 8, 2013, to June 24, 2013.
    We have outlined the purpose of the program in a previous notice 
for the proposed Authorization (78 FR 10137, February 13, 2013). The 
Observatory's proposed activities have not changed between the proposed 
Authorization notice and this final notice announcing the issuance of 
the Authorization. Refer to the to the notice of the proposed 
Authorization (78 FR 10137, February 13, 2013), the application, and 
the Foundation's environmental analysis for a more detailed description 
of the authorized action, including vessel and acoustic source 
specifications.

Description of the Specified Geographic Region

    The Observatory would conduct the survey in international waters 
outside of the Azorean Exclusive Economic Zone. The study area would 
encompass an area on the Mid-Atlantic Ridge bounded by the following 
coordinates: approximately 35.5 to 36.5[deg] North by 33.5 to 34.5[deg] 
West.

Comments and Responses

    We published a notice of receipt of the Observatory's application 
and proposed Authorization in the Federal Register on February 13, 2013 
(78 FR 10137). During the 30-day public comment period, we received 
comments from the Marine Mammal Commission (Commission) and one private 
citizen. These comments are online at: http://www.nmfs.noaa.gov/pr/
permits/

[[Page 22241]]

incidental.htm. Following are the comments and our responses.
    Comment 1: One private citizen requested that we deny the 
Observatory's Authorization application because they believed that the 
activity would kill marine mammals in the survey area.
    Response: As described in detail in the Federal Resister notice for 
the proposed Authorization (78 FR 10137, February 13, 2013), as well as 
in this document, we do not believe that the Observatory's seismic 
surveys would cause injury or mortality to marine mammals. The required 
monitoring and mitigation measures that the Observatory would implement 
during the survey would further reduce the adverse effect on marine 
mammals to the lowest levels practicable. Therefore, we do not 
anticipate that any injuries, serious injuries, or mortalities would 
occur as a result of the Observatory's planned marine seismic surveys, 
and we do not propose to authorize injury, serious injury or mortality 
for this survey. We anticipate only behavioral disturbance to occur 
during the conduct of the survey activities.
    Comment 2: The Commission recommends that, before issuing the 
requested Authorization, we require the Observatory to: (1) Re-estimate 
the proposed exclusion zones and buffer zones and associated number of 
marine mammal takes using operational and site-specific environmental 
parameters, using simple ratios to adjust for tow depth, and, applying 
a correction factor of 1.5 to estimate sound propagation in 
intermediate water depths; and (2) if the Observatory does not re-
estimate the zones, provide a detailed justification for basing the 
proposed survey's zones on modeling that relies on measurements from 
the Gulf of Mexico instead of the Atlantic Ocean.
    Response: With respect to the Commission's first point, based upon 
the best available information and our analysis of the likely effects 
of the specified activity on marine mammals and their habitat, we are 
satisfied that the data supplied by the Observatory and the information 
that we evaluated in the proposal including the referenced documents 
comprise the best available information on the likely effects of the 
activities on marine mammals are sufficient to inform our analysis and 
determinations under the MMPA, ESA of 1973 (16 U.S.C. 1531 et seq.), 
and the National Environmental Policy Act (NEPA). The identified zones 
are appropriate for the survey. Thus, for this survey, we will not 
require the Observatory to re-estimate the proposed exclusion zones and 
buffer zones and associated number of marine mammal takes using 
operational and site-specific environmental parameters.
    With respect to the Commission's second point, the Observatory has 
predicted received sound levels in the action area using their acoustic 
model (Diebold et al., 2010) as a function of distance from the airguns 
for the 36-airgun array and for a single 1900LL 40-cubic inch (in\3\) 
airgun. This modeling approach uses ray tracing for the direct wave 
traveling from the array to the receiver and its associated source 
ghost (reflection at the air-water interface in the vicinity of the 
array), in a constant-velocity half space (infinite homogeneous ocean 
layer, unbounded by a seafloor). The Observatory's application and the 
Foundation's environmental analysis includes detailed information on 
the study, and their modeling process of the calibration experiment in 
shallow, intermediate, and deep water. Additionally, the conclusions in 
Appendix H of the ``2011 Programmatic Environmental Impact Statement/
Overseas Environmental Impact Statement for Marine Seismic Research 
Funded by the National Science Foundation or Conducted by the U.S. 
Geological Survey'' (2011 PEIS) also show that the Observatory's model 
represents the actual produced sound levels, particularly within the 
first few kilometers, where the predicted zone (i.e., exclusion zone) 
lie. At greater distances, local oceanographic variations begin to take 
effect, and the Observatory's model tends to over predict.
    Because the modeling matches the observed measurement data, the 
authors concluded that those using the models to predict zones can 
continue to do so, including predicting exclusion zones around the 
vessel for various tow depths. At present, the Observatory's model does 
not account for site-specific environmental conditions and the 
calibration study analysis of the model predicted that using site-
specific information may actually estimate less conservative exclusion 
zones at greater distances.
    While it is difficult to estimate exposures of marine mammals to 
acoustic stimuli, we are confident that the Observatory's approach to 
quantifying the exclusion and buffer zones uses the best available 
scientific information (as required by our regulations) and estimation 
methodologies. After considering this comment and evaluating the 
respective approaches for establishing exclusion and buffer zones, we 
have determined that the Observatory's approach and corresponding 
monitoring and mitigation measures will effect the least practicable 
impact on the affected marine mammal species or stocks.
    Comment 3: The Commission recommends that, before issuing the 
requested Authorization, we use species-specific maximum densities 
(i.e., estimated by multiplying the existing density estimates by a 
precautionary correction factor) to account for uncertainty and then 
re-estimate the anticipated number of takes.
    Response: For purposes of this Authorization, the Observatory used 
the cetacean densities based on densities calculated from sightings, 
effort, mean group sizes, and values for f(0) in Waring et al. (2008), 
which extends from the Azores at approximately 38[deg] N to 
approximately 53[deg] N. The Observatory's use of these peer-reviewed 
density estimates are the best available information to estimate 
density for the survey area and to estimate the number of authorized 
takes for the seismic survey on the Mid-Atlantic Ridge in the Atlantic 
Ocean. The results of the associated monitoring reports show that our 
past use of best estimates in international waters was appropriate and 
has not refuted our past determinations.
    Comment 4: The Commission recommends that we prohibit an eight-
minute pause following the sighting of a marine mammal in the exclusion 
zone and extend that pause to cover the maximum dive times of the 
species likely to be encountered prior to resuming airgun operations 
after both power-down and shut-down procedures.
    Response: The Authorization specifies the conditions under which 
the Langseth will resume full-power operations of the airguns after a 
power-down or shut-down. During periods of active seismic operations, 
there are occasions when the airguns need to be temporarily shut-down 
(e.g., due to equipment failure, maintenance, or shut-down) or when a 
power-down is necessary (e.g., when a marine mammal is seen entering or 
about to enter the exclusion zone).
    Following a shutdown, if the observer has visually confirmed that 
the animal has departed the 180-dB exclusion zone within a period of 
less than or equal to eight minutes after the shutdown, then the 
Langseth may resume airgun operations at full power. Else, if the 
observer has not seen the animal depart the 180-dB exclusion zone, the 
Langseth shall not resume airgun activity until 15 minutes after the 
last sighting has passed for species with shorter dive times (i.e., 
small odontocetes and

[[Page 22242]]

pinnipeds) or 30 minutes after the last sighting has passed for species 
with longer dive durations (i.e., mysticetes and large odontocetes, 
including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales). 
The Langseth may then initiate the 30-minute ramp-up. However, ramp-up 
will not occur as long as a marine mammal is detected within the 
exclusion zone, which provides more time for animals to leave the 
exclusion zone, and accounts for the position, swim speed, and heading 
of marine mammals within the exclusion zone.
    We, the Observatory, and the Foundation believe that the eight-
minute 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 Observatory to reactivate the 
airguns without exceeding the eight-minute period (e.g., equipment is 
fixed or a marine mammal is visually observed to have left the 
exclusion zone for the full source level), then the Observatory would 
reactivate the airguns to the full operating source level identified 
for the survey (in this case 6,600 in\3\) without need for initiating 
ramp-up procedures.
    We recognize that several species of deep-diving cetaceans are 
capable of remaining underwater for more than 30 minutes (e.g., sperm 
whales and several species of beaked whales); however, for the 
following reasons we believe that 30 minutes 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 minutes (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 five minute period over a 
total duration of about 30 minutes);
    (2) In many cases Protected Species Observers are observing during 
times when the Observatory is not operating the seismic airguns and 
would observe the area prior to the 30-minute observation period;
    (3) The majority of the species that may be exposed do not stay 
underwater more than 30 minutes; and
    (4) All else being equal and if deep-diving individuals happened to 
be in the area in the short time immediately prior to the pre-ramp-up 
monitoring, if an animal's maximum underwater dive time is 45 minutes, 
then there is only a one in three chance that the last random surfacing 
would occur prior to the beginning of the required 30-minute monitoring 
period and that the animal would not be seen during that 30-minute 
period.
    (5) Finally, seismic vessels are moving continuously (because of 
the long, towed array and streamer) and we believe 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 exclusion zone within 30 minutes, 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.'' We believe 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 
exclusion zones and thus further minimize the potential for take.
    Comment 5: The Commission recommends that we provide additional 
justification for our 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 
exclusion and buffer zones--such justification should (1) identify 
those species that it believes can be detected with a high degree of 
confidence using visual monitoring only under the expected 
environmental conditions, (2) describe detection probability as a 
function of distance from the vessel, (3) describe changes in detection 
probability under various sea state and weather conditions and light 
levels, and (4) explain how close to the vessel marine mammals must be 
for observers to achieve high nighttime detection rates.
    Response: We believe that the planned monitoring program would be 
sufficient to detect (using visual monitoring and passive acoustic 
monitoring), with reasonable certainty, marine mammals within or 
entering the identified exclusion zones. This monitoring, along with 
the required mitigation measures, would result in the least practicable 
impact on the affected species or stocks and would result in a 
negligible impact on the affected species or stocks of marine mammals. 
Also, we expect some animals to avoid areas around the airgun array 
ensonified at the level of the exclusion zone.
    We acknowledge that the detection probability for certain species 
of marine mammals varies depending on the animal's size and behavior, 
as well as sea state, 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, we view the 
combination of visual monitoring and passive acoustic monitoring as the 
most effective monitoring and mitigation techniques available for 
detecting marine mammals within or entering the exclusion zone. The 
final monitoring and mitigation measures are the most effective and 
feasible measures, and we are not aware of any additional measures 
which could meaningfully increase the likelihood of detecting marine 
mammals in and around the exclusion zone. Further, public comment has 
not revealed any additional monitoring and mitigation measures that 
could be feasibly implemented to increase the effectiveness of 
detection.
    The Foundation and Observatory 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 Protected Species Visual Observers for ramp-ups, passive 
acoustic monitoring, night vision devices provided to Protected Species 
Visual Observers, 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, the Observatory suspends the data collection 
until 30 minutes after nautical twilight-dawn (when Protected Species 
Visual Observers are able to clear the exclusion zone). The Observatory 
will not activate the airguns until the entire exclusion zone is 
visible and free of marine mammals for at least 30 minutes.
    In cooperation with us, the Observatory will be conducting efficacy 
experiments of night vision devices during a future Langseth cruise. In 
addition, in response to a recommendation from us, the

[[Page 22243]]

Observatory 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 throughout 
the world, the Observatory successfully used these devices while 
conducting nighttime seismic operations.
    Comment 6: The Commission recommends that we consult with the 
funding agency (i.e., the Foundation) and individual applicants (i.e., 
the Observatory and U.S. Geological Survey) 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: There will be periods of transit time during the cruise, 
and Protected Species Observers will be on watch prior to and after the 
seismic portions of the surveys, in addition to during the surveys. The 
collection of this visual observational data by Protected Species 
Observers 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 these 
cruises alone would result in any statistically robust conclusions for 
any particular species because of the small number of animals typically 
observed.
    We acknowledge the Commission's recommendations and are open to 
further coordination with the Commission, Foundation (the vessel 
owner), and the Observatory (the ship operator on behalf of the 
Foundation), 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.
    Comment 7: The Commission recommends that we require the 
Observatory 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 Authorization requires that Protected Species 
Acoustic Observers on the Langseth do and record the following when a 
marine mammal is detected by passive acoustic monitoring:
    (i) Notify the on-duty Protected Species Visual Observer(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, 
data, 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.
    We acknowledge the Commission's request for a comparison between 
the Observatory's visual and acoustic monitoring programs, and we will 
work with the Foundation (the vessel owner) and the Observatory (the 
ship operator on behalf of the Foundation) to analyze the results of 
the two monitoring methods to help identify their respective strengths 
and weaknesses. The results of our analyses may provide information to 
improve mitigation and monitoring for future seismic surveys.
    The Observatory reports on the number of acoustic detections made 
by the passive acoustic monitoring system within the post-cruise 
monitoring reports as required by the Incidental Harassment 
Authorization. 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: total operations effort in daylight (hours), total 
operation effort at night (hours), total number of hours of visual 
observations conducted, total number of sightings, and total number of 
hours of acoustic detections conducted.
    Post-cruise monitoring reports produced by the Observatory are 
currently available on our MMPA Incidental Take Program Web site at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications should 
there be interest in further analysis of this data by the public.
    Comment 8: The Commission recommends that we work with the 
Foundation to analyze those data collected during ramp-up procedures to 
help determine the effectiveness of those procedures as a mitigation 
measure for seismic surveys.
    Response: We acknowledge the Commission's request for an analysis 
of ramp-ups and will work with the Foundation and the Observatory to 
help identify the effectiveness of the mitigation measure for seismic 
surveys. The Incidental Harassment Authorization requires that 
Protected Species Observers on the Langseth make observations for 30 
minutes prior to ramp-up, during all ramp-ups, and during all daytime 
seismic operations and record the following information when a marine 
mammal is sighted:
    (i) Species, group size, age/size/sex categories (if determinable), 
behavior when first sighted and after initial sighting, heading (if 
consistent), bearing and distance from the 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 shut-down), Beaufort wind force and sea state, visibility, and sun 
glare.
    One of the primary purposes of monitoring is to result in 
``increased knowledge of the species'' and the effectiveness of 
required 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. We require the Foundation and the 
Observatory to gather all data that could potentially provide 
information regarding the effectiveness of ramp-up as a mitigation 
measure in its monitoring report. However, considering the low numbers 
of marine mammal sightings and low number 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 Protected Species 
Observers detect animals during ramp-up.

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

    Twenty-eight marine mammal species under our jurisdiction may occur 
in the proposed survey area, including seven mysticetes (baleen 
whales), and 21 odontocetes (toothed cetaceans) during April through 
June, 2013. Six of these species are listed as endangered under the 
Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531 et seq.), 
including:

[[Page 22244]]

the blue (Balaenoptera musculus), fin (Balaenoptera physalus), humpback 
(Megaptera novaeangliae), north Atlantic right (Eubalaena glacialis), 
sei (Balaenoptera borealis), and sperm (Physeter macrocephalus) whales.
    Based on the best available data, the Observatory does not expect 
to encounter the following species because of these species rare and/or 
extralimital occurrence in the survey area. They include the: Atlantic 
white-sided dolphin (Lagenorhynchus acutus), white-beaked dolphin 
(Lagenorhynchus albirostris), harbor porpoise (Phocoena phocoena), 
Clymene dolphin (Stenella clymene), Fraser's dolphin (Lagenodelphis 
hosei), spinner dolphin (Stenella longirostris), melon-headed whale 
(Peponocephala electra), Atlantic humpback dolphin (Souza teuszii), 
long-beaked common dolphin (Delphinus capensis), and any pinniped 
species. Accordingly, we did not consider these species in greater 
detail and the Authorization would only address requested take 
authorizations for the 28 species.
    Of these 28 species, the most common marine mammals in the survey 
area would be the: short-beaked common dolphin (Delphinus delphis), 
striped dolphin (Stenella coeruleoalba), and short-finned pilot whale 
(Globicephala macrorhynchus). We have presented a more detailed 
discussion of the status of these stocks and their occurrence in the 
central Pacific Ocean in Federal Resister notice for the proposed 
Authorization (78 FR 10137, February 13, 2013).

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 proposed survey area. 
The effects of sounds from airgun operations might include one or more 
of the following: tolerance, masking of natural sounds, behavioral 
disturbance, temporary or permanent impairment, or non-auditory 
physical or physiological effects (Richardson et al., 1995; Gordon et 
al., 2004; Nowacek et al., 2007; Southall et al., 2007).
    Permanent hearing impairment, in the unlikely event that it 
occurred, would constitute injury, but temporary threshold shift is not 
an injury (Southall et al., 2007). Although we cannot exclude the 
possibility entirely, it is unlikely that the proposed 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, we expect some 
behavioral disturbance, but we expect the disturbance to be localized.
    The notice for the proposed Authorization (78 FR 10137, February 
13, 2013) included a discussion of the effects of sounds from airguns 
on mysticetes and odontocetes including tolerance, masking, behavioral 
disturbance, hearing impairment, and other non-auditory physical 
effects. We also refer the reader to the Observatory's application and 
the Foundation's environmental analysis for additional information on 
the behavioral reactions (or lack thereof) by all types of marine 
mammals to seismic vessels. We have reviewed these data and determined 
them to be the best available scientific information for the purposes 
of the Authorization. In general, we expect that the masking effects of 
seismic pulses would be minor, given the normally intermittent nature 
of seismic pulses.

Anticipated Effects on Marine Mammal Habitat

    We included a detailed discussion of the potential effects of this 
action on marine mammal habitat, including physiological and behavioral 
effects on marine fish and invertebrates in the notice of the proposed 
Authorization (78 FR 10137, February 13, 2013) and or our Environmental 
Assessment titled, ``Issuance of an Incidental Harassment Authorization 
to Lamont-Doherty Earth Observatory to Take Marine Mammals by 
Harassment Incidental to a Marine Geophysical Survey in the Atlantic 
Ocean, April-June, 2013.''
    While we anticipate that the specified activity may result in 
marine mammals avoiding certain areas due to temporary ensonification, 
this impact to habitat is temporary and reversible. We considered these 
impacts in detail in the notice of the proposed Authorization (78 FR 
10137, February 13, 2013) as behavioral modification. The main impact 
associated with the activity would be temporarily elevated noise levels 
and the associated direct effects on marine mammals.

Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, we must set forth the permissible methods of 
taking pursuant to such activity, and other means of effecting the 
least practicable adverse impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and the availability of such species or 
stock for taking for certain subsistence uses.
    The Observatory has reviewed the following source documents and 
have incorporated a suite of proposed mitigation measures into their 
project description.
    (1) Protocols used during previous Foundation and Observatory-
funded seismic research cruises as approved by us and detailed in the 
Foundation's 2011 PEIS;
    (2) Previous incidental harassment authorizations applications and 
authorizations that we have approved and authorized; 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, the Observatory, and/or its designees 
have proposed to implement the following mitigation measures for marine 
mammals:
    (1) Vessel-based visual mitigation monitoring;
    (2) Proposed exclusion zones;
    (3) Power down procedures;
    (4) Shutdown procedures;
    (5) Ramp-up procedures; and
    (6) Speed and course alterations.

Vessel-Based Visual Mitigation Monitoring

    The Observatory would position observers aboard the seismic source 
vessel to watch for marine mammals near the vessel during daytime 
airgun operations and during any start-ups at night. Observers would 
also watch for marine mammals near the seismic vessel for at least 30 
minutes prior to the start of airgun operations after an extended 
shutdown (i.e., greater than approximately eight minutes for this 
proposed cruise). When feasible, the observers would 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 the 
observations, the Langseth would power down or shutdown the airguns 
when marine mammals are observed within or about to enter a designated 
180-dB exclusion zone.
    During seismic operations, at least four protected species 
observers would be aboard the Langseth. The Observatory would appoint 
the observers with our concurrence and they would conduct observations 
during ongoing daytime operations and nighttime ramp-ups of the airgun 
array. During the majority of seismic operations, two observers would 
be on duty from the observation tower to

[[Page 22245]]

monitor marine mammals near the seismic vessel. Using two observers 
would increase the effectiveness of detecting animals near the source 
vessel. However, during mealtimes and bathroom breaks, it is sometimes 
difficult to have two observers on effort, but at least one observer 
would be on watch during bathroom breaks and mealtimes. Observers would 
be on duty in shifts of no longer than four hours in duration.
    Two observers on the Langseth would also be on visual watch during 
all nighttime ramp-ups of the seismic airguns. A third observer would 
monitor the passive acoustic monitoring 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 observers 
(visual) on duty from the observation tower, and an observer (acoustic) 
on the passive acoustic monitoring system. Before the start of the 
seismic survey, the Observatory would instruct the vessel's crew to 
assist in detecting marine mammals and implementing mitigation 
requirements.
    The Langseth is a suitable platform for marine mammal observations. 
When stationed on the observation platform, the eye level would be 
approximately 21.5 m (70.5 ft) above sea level, and the observer would 
have a good view around the entire vessel. During daytime, the 
observers would 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 
would 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) would 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 the observers see marine mammals within or about to enter the 
designated exclusion zone, the Langseth would immediately power down or 
shutdown the airguns. The observer(s) would continue to maintain watch 
to determine when the animal(s) are outside the exclusion zone by 
visual confirmation. Airgun operations would not resume until the 
observer has confirmed that the animal has left the zone, or if not 
observed after 15 minutes for species with shorter dive durations 
(small odontocetes and pinnipeds) or 30 minutes for species with longer 
dive durations (mysticetes and large odontocetes, including sperm, 
pygmy sperm, dwarf sperm, killer, and beaked whales).
    Proposed Exclusion Zones--The Observatory would use safety radii to 
designate exclusion zones and to estimate take for marine mammals. 
Table 1 shows the distances at which one would expect to receive three 
sound levels (160- and 180-dB) from the 36-airgun array and a single 
airgun. The 180-dB level shutdown criteria are applicable to cetaceans 
as specified by us (2000). The Observatory used these levels to 
establish the exclusion zones.

 Table 1--Modeled Distances to Which Sound Levels Greater Than or Equal to 160 and 180 dB Re: 1 [mu]Pa Could Be
    Received During the Proposed Survey Over the Mid-Atlantic Ridge in the North Atlantic Ocean, During April
                                               Through June, 2013
----------------------------------------------------------------------------------------------------------------
                                                                                    Predicted RMS distances \1\
                                                                                                (m)
       Source and volume (in\3\)        Tow depth  (m)      Water depth  (m)     -------------------------------
                                                                                      160 dB          180 dB
----------------------------------------------------------------------------------------------------------------
Single Bolt airgun (40 in\3\).........              12  > 1,000.................             388             100
                                                        100 to 1,000............             582             100
36-Airgun Array (6,600 in\3\).........              12  > 1,000.................           6,908           1,116
                                                        100 to 1,000............          10,362           1,674
----------------------------------------------------------------------------------------------------------------
\1\ Diebold, J.B., M. Tolstoy, L. Doermann, S.L. Nooner, S.C. Webb, and T.J. Crone. 2010. R/V Marcus G. Langseth
  seismic source: Modeling and calibration. Geochem. Geophys. Geosyst.

    If the protected species visual observer detects marine mammal(s) 
within or about to enter the appropriate exclusion zone, the Langseth 
crew would immediately power down the airgun array, or perform a 
shutdown if necessary (see Shut-down Procedures).
    Power Down Procedures--A power down involves decreasing the number 
of airguns in use such that the radius of the 180-dB zone is smaller to 
the extent that marine mammals are no longer within or about to enter 
the exclusion zone. 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, the Langseth would operate one airgun (40 
in\3\). The continued operation of one airgun is intended to alert 
marine mammals to the presence of the seismic vessel in the area. A 
shutdown occurs when the Langseth suspends all airgun activity.
    If the observer detects a marine mammal outside the exclusion zone 
and the animal is likely to enter the zone, the crew would power down 
the airguns to reduce the size of the 180-dB exclusion zone before the 
animal enters that zone. Likewise, if a mammal is already within the 
zone when first detected, the crew would power-down the airguns 
immediately. During a power down of the airgun array, the crew would 
operate a single 40-in\3\ airgun which has a smaller exclusion zone. If 
the observer detects a marine mammal within or near the smaller 
exclusion zone around the airgun (Table 1), the crew would shut down 
the single airgun (see next section).
    Resuming Airgun Operations After a Power Down--Following a power-
down, the Langseth crew would not resume full airgun activity until the 
marine mammal has cleared the 180-dB exclusion zone (see Table 1). The 
observers would consider the animal to have cleared the exclusion zone 
if:
     The observer has visually observed the animal leave the 
exclusion zone; or
     An observer has not sighted the animal within the 
exclusion zone for 15 minutes for species with shorter dive durations 
(i.e., small odontocetes or pinnipeds), or 30 minutes for species with 
longer dive durations (i.e., mysticetes and large odontocetes, 
including sperm, pygmy sperm, dwarf sperm, and beaked whales); or
    The Langseth crew would resume operating the airguns at full power 
after 15 minutes of sighting any species with short dive durations 
(i.e., small odontocetes or pinnipeds). Likewise, the crew would resume 
airgun operations at full power after 30 minutes of sighting any 
species with longer dive durations

[[Page 22246]]

(i.e., mysticetes and large odontocetes, including sperm, pygmy sperm, 
dwarf sperm, and beaked whales).
    The Langseth's observers are continually monitoring the exclusion 
zone for the full source level while the mitigation airgun is firing. 
On average, observers can observe to the horizon (10 km; 6.2 mi) from 
the height of the Langseth's observation deck and should be able to say 
with a reasonable degree of confidence whether a marine mammal would be 
encountered within this distance before resuming airgun operations at 
full power.
    Shutdown Procedures--The Langseth crew would shutdown the operating 
airgun(s) if a marine mammal is seen within or approaching the 
exclusion zone for the single airgun. The crew would implement a 
shutdown:
    (1) If an animal enters the exclusion zone of the single airgun 
after the crew has initiated a power down; or
    (2) If an animal is initially seen within the exclusion zone of the 
single airgun when more than one airgun (typically the full airgun 
array) is operating.
    Considering the conservation status for north Pacific right whales, 
the Langseth crew would shutdown the airgun(s) immediately in the 
unlikely event that this species is observed, regardless of the 
distance from the vessel. The Langseth would only begin ramp-up would 
only if the north Pacific right whale has not been seen for 30 minutes.
    Resuming Airgun Operations After a Shutdown--Following a shutdown 
in excess of eight minutes, the Langseth crew would initiate a ramp-up 
with the smallest airgun in the array (40-in\3\). The crew would turn 
on additional airguns in a sequence such that the source level of the 
array would increase in steps not exceeding 6 dB per five-minute period 
over a total duration of approximately 30 minutes. During ramp-up, the 
observers would monitor the exclusion zone, and if he/she sights a 
marine mammal, the Langseth crew would implement a power down or 
shutdown as though the full airgun array were operational.
    During periods of active seismic operations, there are occasions 
when the Langseth crew would need to temporarily shut down the airguns 
due to equipment failure or for maintenance. In this case, if the 
airguns are inactive longer than eight minutes, the crew would follow 
ramp-up procedures for a shutdown described earlier and the observers 
would monitor the full exclusion zone and would implement a power down 
or shutdown if necessary.
    If the full exclusion zone is not visible to the observer for at 
least 30 minutes prior to the start of operations in either daylight or 
nighttime, the Langseth crew would not commence 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 vessel's crew would not ramp up the airgun array 
from a complete shutdown at night or in thick fog, because the outer 
part of the zone for that array would not be visible during those 
conditions.
    If one airgun has operated during a power down period, ramp-up to 
full power would be permissible at night or in poor visibility, on the 
assumption that marine mammals would be alerted to the approaching 
seismic vessel by the sounds from the single airgun and could move 
away. The vessel's crew would not initiate a ramp-up of the airguns if 
a marine mammal is sighted within or near the applicable exclusion 
zones during the day or close to the vessel at night.
    Ramp-up Procedures--Ramp-up of an airgun array provides a gradual 
increase in sound levels, and involves a step-wise increase in the 
number and total volume of airguns firing until the full volume of the 
airgun array is achieved. The purpose of a ramp-up is to ``warn'' 
marine mammals in the vicinity of the airguns, and to provide the time 
for them to leave the area and thus avoid any potential injury or 
impairment of their hearing abilities.
    Ramp-up would begin with the smallest airgun in the array (40 
in\3\). The crew would add airguns in a sequence such that the source 
level of the array would increase in steps not exceeding six dB per 
five-minute period over a total duration of approximately 30 to 35 
minutes. During ramp-up, the observers would monitor the exclusion 
zone, and if marine mammals are sighted, the Observatory would 
implement a power-down or shut-down as though the full airgun array 
were operational.
    If the complete exclusion zone has not been visible for at least 30 
minutes prior to the start of operations in either daylight or 
nighttime, the Observatory would 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 crew would not ramp up the airgun array from a 
complete shut-down at night or in thick fog, because the outer part of 
the exclusion zone for that array would not be visible during those 
conditions. If one airgun has operated during a power-down period, 
ramp-up to full power would be permissible at night or in poor 
visibility, on the assumption that marine mammals would be alerted to 
the approaching seismic vessel by the sounds from the single airgun and 
could move away. The Observatory would not initiate a ramp-up of the 
airguns if a marine mammal is sighted within or near the applicable 
exclusion zones.

Speed and Course Alterations

    If during seismic data collection, the Observatory detects marine 
mammals outside the exclusion zone and, based on the animal's position 
and direction of travel, is likely to enter the exclusion zone, the 
Langseth would change speed and/or direction if this does not 
compromise operational safety. Due to the limited maneuverability of 
the primary survey vessel, altering speed and/or course can result in 
an extended period of time to realign onto the transect. However, if 
the animal(s) appear likely to enter the exclusion zone, the Langseth 
would undertake further mitigation actions, including a power down or 
shut down of the airguns.
    We have carefully evaluated the Authorization's mandatory 
mitigation measures and have considered a range of other measures in 
the context of ensuring that we have prescribed the means of effecting 
the least practicable adverse impact on the affected marine mammal 
species and stocks and their habitat. Our evaluation of measures 
included consideration of the following factors in relation to one 
another:
    (1) The manner in which, and the degree to which, we expect that 
the successful implementation of the measure would minimize adverse 
impacts to marine mammals;
    (2) The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
    (3) The practicability of the measure for applicant implementation.
    Based on our evaluation of the measures, as well as other measures 
considered by us or recommended by the public for previous low-energy 
seismic surveys, we have determined that the mitigation measures 
provide the means of effecting the least practicable adverse 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 incidental take authorization for an activity, 
section 101(a)(5)(D) of the MMPA states that we must set forth 
``requirements pertaining to the monitoring and reporting of such 
taking.'' The Act's implementing

[[Page 22247]]

regulations at 50 CFR 216.104(a)(13) indicate that requests for an 
authorization must include the suggested means of accomplishing the 
necessary monitoring and reporting that would result in increased 
knowledge of the species and our expectations of the level of taking or 
impacts on populations of marine mammals present in the action area.

Monitoring

    The Observatory would conduct 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 issued Authorization. We describe the Observatory's 
Monitoring Plan below this section. The Observatory has planned the 
monitoring work as a self-contained project independent of any other 
related monitoring projects that may be occurring simultaneously in the 
same regions. Further, the Observatory would discuss coordination of 
its monitoring program with any other related work by other groups 
working in the same area, if practical.

Vessel-Based Passive Acoustic Monitoring

    Passive acoustic monitoring would complement the visual mitigation 
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. Passive acoustical monitoring 
can be used in conjunction with visual observations to improve 
detection, identification, and localization of cetaceans. The passive 
acoustic monitoring would 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. The acoustic observer would monitor 
the system in real time so that he/she can advise the visual observers 
if they acoustic detect cetaceans.
    The passive acoustic monitoring 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 Langseth crew would deploy the array from a 
winch located on the back deck. A deck cable would connect the tow 
cable to the electronics unit in the main computer lab where the 
acoustic station, signal conditioning, and processing system would 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 acoustic observer, an expert bioacoustician with primary 
responsibility for the passive acoustic monitoring system would be 
aboard the Langseth in addition to the four visual observers. The 
acoustic observer would monitor the towed hydrophones 24 hours per day 
during airgun operations and during most periods when the Langseth is 
underway while the airguns are not operating. However, passive acoustic 
monitoring may not be possible if damage occurs to both the primary and 
back-up hydrophone arrays during operations. The primary passive 
acoustic monitoring streamer on the Langseth is a digital hydrophone 
streamer. Should the digital streamer fail, back-up systems should 
include an analog spare streamer and a hull-mounted hydrophone.
    One acoustic observer would 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 observer monitoring the 
acoustical data would be on shift for one to six hours at a time. The 
other observers would rotate as an acoustic observer, although the 
expert acoustician would be on passive acoustic monitoring duty more 
frequently.
    When the acoustic observer detects a vocalization while visual 
observations are in progress, the acoustic observer on duty would 
contact the visual observer immediately, to alert him/her to the 
presence of cetaceans (if they have not already been seen), so that the 
vessel's crew can initiate a power down or shutdown, if required. The 
observer would enter the information regarding the call into a 
database. Data entry would 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.

Observer Data and Documentation

    Observers would record data to estimate the numbers of marine 
mammals exposed to various received sound levels and to document 
apparent disturbance reactions or lack thereof. They would use the data 
to estimate numbers of animals potentially `taken' by harassment (as 
defined in the MMPA). They would also provide information needed to 
order a power down or shut down of the airguns when a marine mammal is 
within or near the exclusion zone.
    When an observer makes a sighting, they would record the following 
information:
    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 observer would record the data listed under (2) 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.
    Observers would record all observations and power downs or 
shutdowns in a standardized format and would enter data into an 
electronic database. The observers would verify the accuracy of the 
data entry by computerized data validity checks as the data are entered 
and by subsequent manual checking of the database. These procedures 
will allow the preparation of initial summaries of data during and 
shortly after the field program, and would facilitate transfer of the 
data to statistical, graphical, and other programs for further 
processing and archiving.
    Results from the vessel-based observations would provide:
    1. The basis for real-time mitigation (airgun power down or 
shutdown).
    2. Information needed to estimate the number of marine mammals 
potentially taken by harassment, which the Observatory must report to 
the Office of Protected Resources.
    3. Data on the occurrence, distribution, and activities of marine 
mammals and turtles in the area where

[[Page 22248]]

the Observatory would conduct the seismic study.
    4. Information to compare the distance and distribution of marine 
mammals and turtles relative to the source vessel at times with and 
without seismic activity.
    5. Data on the behavior and movement patterns of marine mammals 
detected during non-active and active seismic operations.

Reporting

    The Observatory would submit a report to us and to the Foundation 
within 90 days after the end of the cruise. The report would describe 
the operations that were conducted and sightings of marine mammals and 
turtles near the operations. The report would provide full 
documentation of methods, results, and interpretation pertaining to all 
monitoring. The 90-day report would summarize the dates and locations 
of seismic operations, and all marine mammal sightings (dates, times, 
locations, activities, associated seismic survey activities). The 
report would 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 not permitted by the 
authorization (if issued), such as an injury, serious injury, or 
mortality (e.g., ship-strike, gear interaction, and/or entanglement), 
the Observatory shall immediately cease the specified activities and 
immediately report the incident to the Incidental Take Program 
Supervisor, Permits and Conservation Division, Office of Protected 
Resources, NMFS, at 301-427-8401 and/or by email to 
[email protected] and [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).
    The Observatory shall not resume its activities until we are able 
to review the circumstances of the prohibited take. We shall work with 
the Observatory to determine what is necessary to minimize the 
likelihood of further prohibited take and ensure MMPA compliance. The 
Observatory may not resume their activities until notified by us via 
letter, email, or telephone.
    In the event that the Observatory discovers an injured or dead 
marine mammal, and the lead visual observer 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 we describe in 
the next paragraph), the Observatory would immediately report the 
incident to the Incidental Take Program Supervisor, Permits and 
Conservation Division, Office of Protected Resources, at 301-427-8401 
and/or by email to [email protected] and [email protected]. The 
report must include the same information identified in the paragraph 
above this section. Activities may continue while we review the 
circumstances of the incident. We would work with the Observatory to 
determine whether modifications in the activities are appropriate.
    In the event that the Observatory discovers an injured or dead 
marine mammal, and the lead visual observer determines that the injury 
or death is not associated with or related to the authorized activities 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Observatory would report the 
incident to the Incidental Take Program Supervisor, Permits and 
Conservation Division, Office of Protected Resources, at 301-427-8401 
and/or by email to [email protected] and [email protected], 
within 24 hours of the discovery. The Observatory would provide 
photographs or video footage (if available) or other documentation of 
the stranded animal sighting to us.

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].
    We anticipate and authorize take by Level B harassment only for the 
proposed seismic survey in the Atlantic Ocean. Acoustic stimuli (i.e., 
increased underwater sound) generated during the operation of the 
seismic airgun array may have the potential to result in the behavioral 
disturbance of some marine mammals. There is no evidence that planned 
activities could result in injury, serious injury, or mortality within 
the specified geographic area for which we have issued the requested 
authorization. Take by injury, serious injury, or mortality is thus 
neither anticipated nor authorized. We have determined that the 
required mitigation and monitoring measures would minimize any 
potential risk for injury, serious injury, or mortality.
    The following sections describe the Observatory's methods to 
estimate take by incidental harassment and present their estimates of 
the numbers of marine mammals that could be affected during the 
proposed seismic program. The estimates are based on a consideration of 
the number of marine mammals that could be harassed by seismic 
operations with the 36-airgun array during approximately 5,572 km\2\ 
(2,151 mi\2\) of transect lines on the Mid-Atlantic Ridge in the 
Atlantic Ocean.
    We assume that during simultaneous operations of the airgun array 
and the other sources, any marine mammals close enough to be affected 
by the echosounder and sub-bottom profiler would already be affected by 
the airguns. However, whether or not the airguns are operating 
simultaneously with the other sources, we expect that the marine 
mammals would exhibit no more than temporary and inconsequential 
responses to the echosounder and profiler given their characteristics 
(e.g., narrow downward-directed beam) and other considerations 
described previously. Based on the best available information, we do 
not consider that these reactions constitute a ``take'' (NMFS, 2001). 
Therefore, the Observatory did not provide any additional allowance for 
animals that could be affected by sound sources other than the airguns.
    We have presented a more detailed discussion of the Observatory's 
methods to estimate take by incidental harassment in the notice of the 
proposed Authorization (78 FR 10137, February 13, 2013). Refer to the 
notice for more detailed information on the density data and their 
methodology to estimate take.
    The Observatory's estimates of exposures to various sound levels

[[Page 22249]]

assume that they will complete the surveys in full (i.e., approximately 
20 days of seismic airgun operations); however, the ensonified areas 
calculated using the planned number of line-kilometers have been 
increased by 25 percent to accommodate lines that may need to be 
repeated, equipment testing, account for repeat exposure, 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 
exclusion zone will result in the shutdown of seismic operations as a 
mitigation measure. Thus, the following estimates of the numbers of 
marine mammals potentially exposed to 160-dB re:1 [micro]Pa sounds are 
precautionary, and probably overestimate the actual numbers of marine 
mammals that might be involved. These estimates assume that there will 
be no weather, equipment, or mitigation delays, which is highly 
unlikely.
    Table 2 in this notice shows estimates of the number of individual 
cetaceans that potentially could be exposed to greater than or equal to 
160 dB re: 1 [mu]Pa during the seismic survey if no animals moved away 
from the survey vessel. We present the take authorization in the third 
column from the left in Table 2.

  Table 2--Estimates of the Possible Numbers of Marine Mammals Exposed to Sound Levels Greater Than or Equal to
 160 dB Re: 1 [mu]Pa During the Proposed Seismic Survey Over the Mid-Atlantic Ridge in the North Atlantic Ocean,
                                         dring April Through June, 2013
----------------------------------------------------------------------------------------------------------------
                                   Estimated number
                                    of individuals
                                   exposed to Sound      Requested or     Regiona population  Approx. percent of
             Species               Levels >= 160 dB      adjusted take            \3\              regional
                                    re: 1 [micro]Pa    authorization \2\                        population \3\
                                          \1\
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    Humpback whale..............                   0                  50              11,570                0.43
    Minke whale.................                   0               3 \4\             121,000                   0
    Bryde's whale...............                   1                   1       Not available       Not available
    Sei whale...................                   1                   9              13,000                0.07
    Fin whale...................                  25                 198              24,887                0.80
    Blue whale..................                   8                  66                 937                7.04
Odontocetes:
    Sperm whale.................                  21                 164              13,190                1.24
    Cuvier's beaked whale.......                   0               7 \4\               3,513                 0.2
    Mesoplodon spp..............                  39                  39               3,502                1.12
        True's beaked whale
        Gervais beaked whale
        Sowerby's beaked whale
        Blainville's beaked
         whale
    Northern bottlenose whale...                   0               4 \4\             ~40,000                   0
    Common bottlenose dolphin...                  47                  47              81,588                0.06
    Atlantic spotted dolphin....                 112                 112              50,978                0.22
    Striped dolphin.............               1,034               1,034              94,462                1.09
    Short-beaked common dolphin.               2,115               2,115             120,741                1.75
    Risso's dolphin.............                  21                  21              20,479                0.10
    False killer whale..........                   7                   7       Not available       Not available
    Killer whale................                   0               5 \4\       Not available                   0
    Short-finned pilot whale....                 674                 674             780,000                0.09
----------------------------------------------------------------------------------------------------------------
N/A = Not Available.
\1\ Estimates are based on densities in the Observatory's application an ensonified area of (5,571 km\2\; (2,151
  mi\2\)
\2\ Requested or adjusted take includes a 25 percent contingency for repeated exposures due to the overlap of
  parallel survey tracks or adjusted take for listed species based on the Section 7 consultation.
\3\ Regional population size estimates are from the Observatory's application or based on the Section 7
  consultation.
\4\ Requested take authorization increased to group size for species for which densities were not calculated but
  for which there were OBIS sightings around the Azores.

    The total estimate of the number of individual cetaceans that could 
be exposed to seismic sounds with received levels greater than or equal 
to 160 dB re: 1 [mu]Pa during the survey is 4,556 (see Table 2 in this 
notice). That total includes: 50 humpback whales (0.43 percent of the 
regional population); nine Sei whales (0.07 percent of the regional 
population); 25 fin whales (0.80 percent of the regional population); 
66 blue whales (7.04 percent of the regional population); and 164 sperm 
whales (1.24 percent of the regional population) could be exposed 
during the survey. These species are listed as endangered under the 
ESA.
    The Observatory did not estimate take of endangered north Atlantic 
right whale because of the low likelihood of encountering these species 
during the cruise. Most of the cetaceans that could be potentially 
exposed are delphinids (e.g., striped and short-beaked common dolphins 
are estimated to be the most common species in the area) with maximum 
estimates ranging from four to 2,115 species potentially exposed to 
levels greater than or equal to 160 dB re: 1 [mu]Pa.

Encouraging and Coordinating Research

    The Observatory would coordinate the planned marine mammal 
monitoring program associated with the seismic survey on the Mid-
Atlantic Ridge in the north Atlantic Ocean with other parties that may 
have interest in the area and/or may be conducting marine mammal 
studies in the same region during the seismic surveys.

[[Page 22250]]

Negligible Impact and Small Numbers Analysis and Determination

    We have defined ``negligible impact'' in 50 CFR 216.103 as ``* * 
*an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' In making a negligible impact determination, 
we consider:
    (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, and in the notice 
of the proposed Authorization (78 FR 10137, February 13, 2013), the 
specified activities associated with the marine seismic surveys are not 
likely to cause permanent threshold shift, or other non-auditory 
injury, serious injury, or death. They include:
    (1) The likelihood that, given sufficient notice through relatively 
slow ship speed, we expect marine mammals 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 that we would likely avoid this impact through the 
incorporation of the required monitoring and mitigation measures 
(including power-downs and shutdowns); and
    (3) The likelihood that marine mammal detection ability by trained 
visual observers is high at close proximity to the vessel.
    We do not anticipate that any injuries, serious injuries, or 
mortalities would occur as a result of the Observatory's planned marine 
seismic surveys, and we do not propose to authorize injury, serious 
injury or mortality for this survey. We anticipate only behavioral 
disturbance to occur during the conduct of the survey activities.
    Table 2 in this document outlines the number of requested Level B 
harassment takes that we anticipate 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 in this notice), we do not expect the activity to 
impact rates of recruitment or survival for any affected species or 
stock.
    Further, the seismic surveys would not take place in areas of 
significance for marine mammal feeding, resting, breeding, or calving 
and would 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 hour 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 we anticipate 
that the seismic operations would occur on consecutive days, the 
estimated duration of the survey would last no more than 20 days. 
Additionally, the seismic survey would be increasing sound levels in 
the marine environment in a relatively small area surrounding the 
vessel (compared to the range of the animals), which is constantly 
travelling over distances, and some animals may only be exposed to and 
harassed by sound for shorter less than day.
    Of the 28 marine mammal species under our jurisdiction that are 
known to occur or likely to occur in the study area, six of these 
species are listed as endangered under the ESA, including: the blue, 
fin, humpback, north Atlantic right, sei, and sperm whales. These 
species are also categorized as depleted under the MMPA. With the 
exception of the north Atlantic right whale, the Observatory has 
requested authorized take for these listed species. The Observatory did 
not request take of endangered north Atlantic right whales because of 
the low likelihood of encountering these species during the cruise. We 
agree that the likelihood of co-occurrence of the north Atlantic right 
whales with the survey activities is extremely low and we have 
determined that the survey activities are likely to have no effect on 
this species. To protect these animals (and other marine mammals in the 
study area), the Observatory must cease or reduce airgun operations if 
animals enter designated zones.
    As mentioned previously, we estimate that 28 species of marine 
mammals under our jurisdiction could be potentially affected by Level B 
harassment over the course of the proposed authorization. For each 
species, these take numbers are small (most estimates are less than or 
equal to seven percent) relative to the regional or overall population 
size and we have provided the regional population estimates for the 
marine mammal species that may be taken by Level B harassment in Table 
2 in this document.
    Our practice has been to apply the 160 dB re: 1 [micro]Pa received 
level threshold for underwater impulse sound levels to determine 
whether take by Level B harassment occurs. Southall et al. (2007) 
provides 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]).
    We have determined, provided that the Observatory implements the 
previously described mitigation and monitoring measures, that the 
impact of conducting a seismic survey on the Mid-Atlantic Ridge in the 
Atlantic Ocean in international waters, from April 2013 through June, 
2013, may result, at worst, in a modification in behavior and/or low-
level physiological effects (Level B harassment) of certain species of 
marine mammals. While these species may make behavioral modifications, 
including temporarily vacating the area during the operation of the 
airgun(s) 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 us to determine that this 
action would have a negligible impact on the species in the specified 
geographic region.
    Based on the analysis contained in this document, and in the notice 
of the proposed Authorization (78 FR 10137, February 13, 2013) 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, we find that the Observatory's 
planned research activities would result in the incidental take of 
small numbers of marine mammals, by Level B harassment only, and that 
the required measures mitigate impacts to affected species or stocks of 
marine mammals to the lowest level practicable.

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

    Section 101(a)(5)(D) of the Marine Mammal Protection Act also 
requires us to determine that the authorization

[[Page 22251]]

would 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 (on the 
Mid-Atlantic Ridge in the north Atlantic Ocean in international waters) 
that implicate section 101(a)(5)(D) of the Marine Mammal Protection 
Act.

Endangered Species Act

    Of the species of marine mammals that may occur in the proposed 
survey area, several are listed as endangered under the Endangered 
Species Act, including the blue, fin, humpback, north Atlantic right, 
sei, and sperm whales. The Observatory did not request take of 
endangered north Atlantic right whales because of the low likelihood of 
encountering these species during the cruise.
    Under section 7 of the Act, the Foundation has initiated formal 
consultation with the Service's, Office of Protected Resources, 
Endangered Species Act Interagency Cooperation Division, on this 
proposed seismic survey. We (i.e., National Marine Fisheries Service, 
Office of Protected Resources, Permits and Conservation Division), have 
also consulted under section 7 of the Act with the Endangered Species 
Act Interagency Cooperation Division to obtain a Biological Opinion 
(Opinion) evaluating the effects of issuing an incidental harassment 
authorization for threatened and endangered marine mammals and, if 
appropriate, authorizing incidental take. These two consultations were 
consolidated and addressed in a single Biological Opinion addressing 
the direct and indirect effects of these interdependent actions.
    In April 2013, the Endangered Species Act Interagency Cooperation 
Division issued an Opinion to us and the Foundation which concluded 
that the issuance of the Authorization and the conduct of the seismic 
survey were not likely to jeopardize the continued existence of blue, 
fin, humpback, sei, and sperm whales. The Opinion also concluded that 
the issuance of the Authorization and the conduct of the seismic survey 
would not affect designated critical habitat for these species.
    The Foundation and the Observatory must comply with the Relevant 
Terms and Conditions of the Incidental Take Statement corresponding to 
the Opinion issued to us, the Foundation, and the Observatory. The 
Observatory must also comply with the Authorization's mitigation and 
monitoring requirements-incorporated as Terms and Conditions in the 
Incidental Take Statement in order for take of listed species otherwise 
prohibited under Section 9 of the Act to be exempt.

National Environmental Policy Act (NEPA)

    To meet our NEPA requirements for the issuance of an Authorization 
to the Observatory, we prepared an Environmental Assessment (EA) titled 
``Issuance of an Incidental Harassment Authorization to the Lamont-
Doherty Earth Observatory to Take Marine Mammals by Harassment 
Incidental to a Marine Geophysical on the Mid-Atlantic Ridge in the 
north Atlantic Ocean, from April 2013 through June 2013.'' This EA 
incorporated relevant portions of the Foundation's 2013 Environmental 
Analysis Pursuant To Executive Order 12114 (NSF, 2010) titled, ``Marine 
geophysical survey by the R/V Marcus G. Langseth on the mid-Atlantic 
Ridge, April-May 2013,'' and the Foundation's 2011 ``Programmatic 
Environmental Impact Statement/Overseas Environmental Impact Statement 
for Marine Seismic Research Funded by the National Science Foundation 
or Conducted by the U.S. Geological Survey,'' by reference pursuant to 
40 CFR 1502.21 and NOAA Administrative Order (NAO) 216-6 Sec.  5.09(d).
    We provided relevant environmental information to the public 
through notice of the proposed Authorization (78 FR 10137, February 13, 
2013) and considered public comments received in response prior to 
finalizing our EA and deciding whether or not to issue a Finding of No 
Significant Impact (FONSI).
    We conclude that issuance of an Incidental Harassment Authorization 
would not significantly affect the quality of the human environment and 
have issued a FONSI. Because of this finding, it is not necessary to 
prepare an environmental impact statement for the issuance of an 
Authorization to the Observatory for this activity. Our EA and FONSI 
for this activity are available upon request (see ADDRESSES).

Authorization

    We have issued an Incidental Harassment Authorization to the 
Observatory for the take of marine mammals incidental to conducting a 
marine seismic survey in the Atlantic Ocean, April to June, 2013, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: April 10, 2013.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2013-08795 Filed 4-12-13; 8:45 am]
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