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

Federal RegisterAug 14, 2009

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XL89

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

AGENCY:

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

ACTION:

Notice; issuance and modification of an incidental take authorization.

SUMMARY:

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

DATES:

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

ADDRESSES:

A copy of the IHA and application are available by writing to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3235 or by telephoning the contact listed here. A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (

see

FOR FURTHER INFORMATION CONTACT

), or online at:

http://www.nmfs.noaa.gov/pr/permits/incidental.htm

. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT:

Howard Goldstein or Ken Hollingshead, Office of Protected Resources, NMFS, 301-713-2289.

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361

et seq.

) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of marine mammals by United States (U.S.) citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

Authorization for incidental taking shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “ * * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:

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

16 U.S.C. 1362(18)

Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.

Summary of Request

On October 27, 2008, NMFS received an application from L-DEO for the taking, by Level B harassment only, of small numbers of marine mammals incidental to conducting, under cooperative agreement with the National Science Foundation (NSF), a marine seismic survey in SE Asia. The funding for the Taiwan Integrated Geodynamics Research (TAIGER) survey is provided by the NSF. The proposed survey will encompass the area 17°30′-26°30′ N, 113°30′-126° E within the Exclusive Economic Zones (EEZ) of Taiwan, Japan, and the Philippines, and on the high seas, and is scheduled to occur from March 31 to July 20, 2009. Some minor deviation from these dates is possible, depending on logistics and weather.

Taiwan is one of only a few sites of arc-continent collision worldwide; and one of the primary tectonic environments for large scale mountain building. The primary purpose of the TAIGER project is to investigate the processes of mountain building, a fundamental set of processes which plays a major role in shaping the face of the Earth. The vicinity of Taiwan is particularly well-suited for this type of study, because the collision can be observed at different stages of its evolution, from incipient, to mature, and finally to post-collision.

As a result of its location in an ongoing tectonic collision zone, Taiwan experiences a great number of earthquakes, most are small, but many are large and destructive. This project will provide a great deal of information about the nature of the earthquakes around Taiwan and will lead to a better assessment of the earthquake hazards in the area. The information obtained from this study will help the people and the earthquake hazards in the area. The information obtained from this study will help the people and government of Taiwan to better prepare for future seismic events and may thus mitigate some of the loss of life and economic disruptions that will inevitably occur.

The action is planned to take place in the territorial seas and EEZ's of foreign nations, and will be continuous with the activity that takes place on the high seas. NMFS does not authorize the incidental take of marine mammals in the territorial seas of foreign nations, as the MMPA does not apply in those waters. However, NMFS still needs to calculate the level of incidental take in territorial seas as part of the analysis supporting issuance of an IHA in order to determine the biological accuracy of the small numbers and negligible impact determination.

Description of the Specified Activity

The planned survey will involve one source vessel, the R/V

Marcus G.

Langseth

(

Langseth

), which will occur in SE Asia. The

Langseth

will deploy an array of 36 airguns (6,600 in

) as an energy source at a tow depth of 6-9 m (20-30 ft). The receiving system will consist of a hydrophone streamer and approximately 100 ocean bottom seismometers (OBSs). The

Langseth

will deploy an 8 km (5 mi) long streamer for most transects requiring a streamer; however, a shorter streamer (500 m to 2

km or 1,640 ft to 1.2 mi) will be used during surveys in Taiwan (Formosa) Strait. As the airgun array is towed along the survey lines, the hydrophone streamer will receive the returning acoustic signals and transfer the data to the on-board processing system. The OBSs record the returning acoustic signals internally for later analysis. The OBSs to be used for the TAIGER program will be deployed and retrieved numerous times by a combination of 4 or 5 Taiwanese support vessels, as well as the

Langseth.

The

Langseth

will also retrieve 20 OBSs that were deployed in the study area during previous years to record earthquake activity.

Approximately 100 OBSs will be deployed during the survey. OBSs will likely be deployed and retrieved by the

Langseth

as well as a combination of 4 to 5 Taiwanese vessels. The Taiwanese vessels to be used include two 30 m (98.4 ft) vessels (the R/V

Ocean Researcher

and the R/V

Ocean Researcher

) and two vessels greater than 60 m (196.8 ft) in length (R/V

Fisheries Research

and the Navy ship

Taquan

). The R/V

Ocean Research

may also be used if the

Langseth

is not used to deploy OBSs. The OBS deployment spacing will vary depending on the number of instruments available and shiptime. The nominal spacing is 15 km (9.3 mi), but this will vary from as little as 5 km (3.1 mi) to perhaps as much as 25 km (15.5 mi). The OBSs will be deployed and recovered several (2 to 4) times. 60 of the 100 OBSs may be deployed from the

Langseth.

All OBSs will be retrieved at the end of the study.

Up to 3 different types of OBSs may be used during the 2009 program. The Woods Hole Oceanographic Institution (WHOI) “D2” OBS has a height of approximately 1 m (3.3 ft) and a maximum diameter of 50 cm. The anchor is made of hot-rolled steel and weighs 23 kg (50.7 lbs). The anchor dimensions are 2.5 x 30.5 x 38.1 cm. The LC4x4 OBS from the Scripps Institution of Oceanography (SIO) has a volume of approximately 1 m

(3.3 ft

), with an anchor that consists of a large piece of steel grating (approximately 1 m

or 3.3 ft

). Taiwanese OBSs will also be used; their anchor is in the shape of an `x' with dimensions of 51-76 cm

(1.7-2.5 ft

). Once the OBS is ready to be retrieved an acoustic release transponder interrogates the OBS at a frequency of 9-11 kHz, and a response is received at a frequency of 9-13 kHz. The burn wire release assembly is then activated, and the instrument is released from the anchor to float to the surface.

The seismic survey as described in the

Federal Register

notice (73 FR 78294, December 22, 2008) for the proposed IHA was 15,902 km (9,881 mi) in length. After public comment, L-DEO revised the tracklines so that the seismic survey consists of approximately 14,515 km (9,019 mi) of transect lines within the South and East China Seas as well as the Philippine Sea, with the majority of the survey effort occurring in the South China Sea. The total length of the revised tracklines is approximately 9 percent less than the total length of the original tracklines. The survey will take place in water depths ranging from approximately 25 to 6,585 m (82-21,598 ft), but most of the survey effort (approximately 84.4 percent) will take place in water greater than 1,000 m (3,280 ft), 11.4 percent will take place in intermediate depth waters (100-1,000 m or 328-3,280 ft), and 4.2 percent will occur in shallow depth water (less than 100 m or 328 ft).

All planned geophysical data acquisition activities will be conducted by L-DEO with onboard assistance by the scientists who have proposed the study. The scientific team consists of Dr. Francis Wu (State University of New York at Binghamton) and Dr. Kirk McIntosh (University of Texas at Austin, Institute of Geophysics). The vessel will be self-contained, and the crew will live aboard the vessel for the entire cruise.

In addition to the operations of the airgun array, a 12 kHz Simrad EM 120 multibeam echosounder (MBES) and a 3.5 kHz sub-bottom profiler (SBP) will be operated from the

Langseth

continuously throughout the TAIGER cruise.

Dates, Duration, and Region of Activity

The survey will encompass the area from approximately 17°30′-26°30′ N, 113°30′-126° E within the EEZs of Taiwan, Japan, and the Philippines. The vessel will approach mainland Taiwan within 5.2 km (3.2 mi) and mainland China within 116 km (72 mi). The vessel will approach within 3.7 km (2.3 mi) and 105 km (65 mi) of islands off the coast of Taiwan and China, respectively. The closest approach to the Ryuku Islands and Okinawa Islands will be 51.5 km (32 mi) and approximately 400 km (249 mi), respectively. Although the survey will occur at least 32 km (29.9 mi) from Luzon, Philippines, survey lines will take place approximately 28.6 km (17.8 mi) and 8.8 km (5.5 mi) from the Babuyan and Batan islands, respectively. Water depths in the survey area range from approximately 25 to 6,280 m (164-20,603 ft). There are not seismic lines in less than 50 m (164 ft) water depth. The closest seismic line to land is approximately 3.7 km (2.3 mi) from an island off the east coast of Taiwan. The TAIGER program consists of 4 legs, each starting and ending in Kao-hsiung, Taiwan. The first leg is expected to occur from approximately March 31 to April 28, 2009 and will include the survey lines in the South China Sea. The second leg is scheduled for May 3 to June 3, 2009 and will include survey lines around Taiwan. The third leg (approximately June 7-14, 2009) will involve OBS recovery by the

Langseth

only; no seismic acquisition will occur during this leg. The fourth leg, consisting of the survey lines in the Luzon Strait and Philippine Sea, is scheduled to occur from June 18 to July 20, 2009. The program will consist of approximately 103 days of seismic acquisition. The exact dates of the activities depend on logistics and weather conditions.

Safety Radii

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

Source and volume

Tow depth (m)

Water depth

Predicted RMS Distances (m)

190 dB

180 dB

160 dB

Single Bolt airgun 40 in

*6-9

Deep

385

Intermediate

578

Shallow

150

296

1,050

4 strings 36 airguns 6600 in

6-7

Deep

220

710

4,670

Intermediate

330

1,065

5,189

Shallow

1,600

2,761

6,227

8-9

Deep

300

950

6,000

Intermediate

450

1,425

6,667

Shallow

2,182

3,694

8,000

Table 1. Predicted distances to which sound levels ≥190, 180, and 160 dB re 1 μPa might be received in shallow (<100 m; 328 ft), intermediate (100-1,000 m; 328-3,280 ft), and deep (>1,000 m; 3,280 ft) water from the 36 airgun array, as well as a single airgun, used during the Central American SubFac and STEEP Gulf of Alaska survey, and planned during the TAIGER SE Asia survey. *The tow depth has minimal effect on the maximum near-field output and the shape of the frequency spectrum for the single 40 in

airgun; thus, the predicted safety radii are essentially the same at each tow depth. The most precautionary distances (

i.e.,

for the deepest tow depth, 9m) are shown.

Because the predictions in Table 1 are based in part on empirical correction factors derived from acoustic calibration of airgun configurations different from those to be used on the

Langseth

(

cf.

Tolstoy

et al.,

2004a,b), L-DEO conducted an acoustic calibration study of the

Langseth'

s 36 airgun (approximately 6,600 in

) array in late 2007/early 2008 in the Gulf of Mexico (LGL Ltd., 2006). Distances where sound levels (

e.g.,

190, 180, and 160 dB re 1 μPa rms) were received in deep, intermediate, and shallow water will be determined for various airgun configurations. Acoustic data analysis is ongoing and a scientific paper on the

Langseth

calibration study is currently in review for future publication (Tolstoy, pers. comm.). After analysis, the empirical data from the 2007/2008 calibration study will be used to refine the exclusion zones (EZ) proposed above for use during the TAIGER cruise, if the data are appropriate and available for use at the time of the survey.

A more detailed description of the authorized action, including vessel and acoustic source specifications, was included in the proposed IHA notice (73 FR 78294, December 22, 2008).

Comments and Responses

A notice of receipt of the L-DEO application and proposed IHA was published in the

Federal Register

on December 22, 2008 (73 FR 78294). A notice extending the public comment period by 15 days, to February 5, 2009, due to several Federal holidays, was published in the

Federal Register

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

http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

The following are their comments, and NMFS' responses.

Extension Requests

Comment 1:

Numerous parties expressed concern regarding L-DEO's IHA application under the MMPA to incidentally harass marine mammals during a proposed marine geophysical survey in SE Asia from March-July, 2009, as published in the

Federal Register

(73 FR 78294, December 22, 2008). Many interested persons and organizations requested an extension of the 30-day public comment period to allow for the adequate review of lengthy documents associated with the proposed IHA and prepare responses.

Response:

NMFS considered these requests during the 30-day public comment period and published a notice in the

Federal Register

(74 FR 2995, January 16, 2009) extending the public comment period for the proposed IHA from January 21 to February 5, 2009. The 15-day extension is due to the unique circumstances of the timing of the publication of the

Federal Register

notice (74 FR 2995, January 16, 2009) relative to several Federal holidays. The

Federal Register

notice (74 FR 2995, January 16, 2009) published three days before the Christmas holiday, which fell on Thursday, December 25, 2008. The following day, Friday, December 26, 2008 was declared a Federal holiday for executive branch departments and agencies. New Year's Day, a Federal holiday, was the following Thursday, January 1, 2009. The 15-day extension was given in recognition of the fact that the timing of these three holidays led many workers to be away for much of the two-week period and some non-government organizations closed their offices during that period. NMFS is also aware that the proposed action was for a new geographical area rather than a renewal of a prior action, where the associated documents are lengthy and would likely not be familiar to many interested parties. NMFS believes that a 30-day comment period with a 15-day extension (for a total of 45 days) is more than an adequate time period for the public to address concerns and submit comments.

General Comments

Comment 2:

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

was altered upon exposure to airgun sound (Jochens

et al.,

2006).” CRE states that this statement is misleading, and does not accurately reflect the underlying data, and it is not based on the most recent assessment of those data. NMFS' statement cites a 2006 Sperm Whale Seismic Study (SWSS) in the Gulf of Mexico Report which discusses data on foraging behavior and avoidance movements of seven tagged sperm whales in the Gulf of Mexico during exposure to airguns. The CRE requests that NMFS cite the final 2008 Synthesis Report on SWSS which cautions that the “* * * sample size of seven animals that conducted foraging dives during exposure was too small to provide definitive results * * * the power of the test to detect small changes in foraging success was low, and no conclusions on the biological significance of these effects for an individual animal or for the populations can be made from the data sets available.”

Response:

As CRE points out in their letter, L-DEO acknowledges in their application (see Section VI, page 37) that seismic energy alters sperm whale foraging behavior. NMFS acknowledges the commentor's interpretation of 2006 SSWS. However, after reviewing the 2008 Synthesis Report, NMFS believes that the following statement: “* * * sample size of 7 animals conducted foraging dives during exposure was too small to provide definitive results * * * the power of the test to detect small changes in foraging success was low and no conclusions on the biological significance of these effects for an individual animal or for the population can be made from the data sets available,” refers to having the statistical power to detect small changes in foraging success. Conversely, page 264 of the 2008 Synthesis Report states the following: “* * * Our data seem to indicate that airgun exposure—even at low exposure levels observed in this experiment—can result in large reductions in foraging rate for some individual sperm whales.” Therefore, the proposed IHA notice statement that data indicated alterations in foraging behavior, is supported by one of the conclusions discussed in the 2008 Synthesis Report. NSF and L-DEO presented this study as one of several pieces of information that relate to this topic. Though the commenter has presented an alternate interpretation of the data related to foraging behavior, NMFS finds that the EA provides sufficient analysis of the available data and the information is not such that NMFS' findings.

Comment 3:

The Commission is concerned that most of the issues raised in its letter have been raised before and, to their knowledge, little is being done to resolve them. The Commission believes that the action agency and contractor should bear primary responsibility for carrying out the studies needed to reduce the existing uncertainty and that the authorizing and oversight agencies have a degree of responsibility as well.

Response:

NMFS has responded to the best of its ability regarding all of the Commission's concerns on various issues during the public comment process.

Comment 4:

The Commission is concerned that the opportunity for scientists, conservationists, and other interested parties from other countries to comment on research activities to be conducted by U.S. organizations in foreign waters. Scientists, conservationists, and others are generally unfamiliar with the procedures for permit review and authorization in the U.S. but may have a good understanding of the natural history and vulnerability of potentially affected species. The Commission believes that they should be provided with opportunities to contribute to the evaluation of the potential effects of seismic studies in the context of all other factors that may be affecting these species. If U.S. scientists and institutions are to engage in research activities in the waters of other countries, it stands to reason that our system of review should include sufficient opportunities for foreign parties to comment on potential effects. This might be accomplished in any number of ways, such as extending the comment period to give them additional time to comment and promoting interaction between the research organization and concerned parties from other countries. The Commission believes such participation is appropriate and, in the long run, will facilitate international cooperation on conservation issues, more informed comments, and more risk-averse research methods and mitigation procedures.

Response:

NMFS agrees with the Commission's comments. NMFS extended the 30 day public comment for the proposed IHA by an additional 15 days to accommodate requests from the public.

See

Extension Request above.

Comment 5:

Dr. McIntosh and Dr. Wu have provided some comments about the nature and significance of our project and also try to allay some of the expressed concerns. As an introductory statement, the research Dr. McIntosh and Dr. Wu plan targets fundamental Earth processes that remain inadequately understood; this includes topics such as the growth and composition of continents and the fundamental processes of building mountains. Dr. McIntosh and Dr. Wu choose to do this research in the Taiwan region because it is the best location, of only a few places globally, where we can study the collision of an oceanic island chain with a continent.

Response:

NMFS acknowledges Dr. McIntosh and Dr. Wu's comments.

Comment 6:

Dr. McIntosh and Dr. Wu state that as for marine mammal safety, the community of marine mammal biologists can be assured that their project is not a reckless intrusion into the marine habitat of endangered species. In fact, detailed studies have been conducted regarding the possible impacts of this project on marine mammal populations.

Response:

NMFS acknowledges Dr. McIntosh and Dr. Wu's comments. NMFS expects the principal scientists to abide by the requirements described in the IHA issued to L-DEO. After issuance of the proposed IHA, L-DEO negotiated with the project's principal scientists to modify the cruise plan and adopt more precautionary mitigation measures for purposes of marine mammal safety in the study area.

Comment 7:

Dr. McIntosh and Dr. Wu state that they expect to produce the most comprehensive subsurface images of the rapidly rising Taiwan mountains with their data. These images, along with seismicity recorded by L-DEO's arrays, will form a greatly enhanced basis for evaluating earthquake and tsunami potentials of Taiwan and can thus be used to improve the safety and security of the human population at risk to these phenomena.

Response:

NMFS acknowledges Dr. McIntosh and Dr. Wu's comments.

Comment 8:

CSI states that the IHA application and EA are similar in many respects to previous L-DEO EA's. The response, however, is not. The response to this authorization request will prove to be unique, a potential watershed in the manner all future seismic surveys should be critiqued by the scientific community. To be helpful, CSI has attached some relevant expert reviews to their comments, even if they are duplicated by others, to ensure that NMFS has the opportunity to include them in the deliberative process. The expert level of opinion and proof stimulated by the IHA application and EA challenges previous assumption and, CSI hopes, will stimulate adequate, directed research to enable appropriate

mitigations to satisfy various laws, including the MMPA.

Response:

NMFS received numerous comments from interested parties on L-DEO's proposed IHA for a marine geophysical survey in SE Asia, March to July 2009. NMFS acknowledges CSI's and other interested parties' comments on the proposed IHA and EA during the public comment period. After the issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. NMFS believes that L-DEO's revised survey as well as the implementation of the monitoring and mitigation measures described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area.

L-DEO and NSF have formally consulted with NMFS' Permits, Conservation, and Education Division under the MMPA regarding the IHA and NMFS' Endangered Species Division regarding a Biological Opinion under Section 7 of the ESA for the marine geophysical survey in SE Asia. NMFS believes L-DEO and NSF have satisfied their responsibilities under the laws of the MMPA and ESA.

Comment 9:

CSI states that the MMPA only authorizes the lethal taking of marine mammals under extraordinary circumstances that do not apply to the scientific research proposed by this project. In the opinion of experts, as expressed in the attachments, mortalities are likely. How can NMFS believe that all these experts are wrong, or that associated mortalities would not violate the MMPA? CSI urges NMFS to apply these experts comments to the EA and IHA application deficiencies and to require that the L-DEO proposal address them in the only legal format available to them, an application for a LOA under MMPA Section 101(a)(5)(A-C).

Because the L-DEO's geophysical research will have an incidental impact on marine mammals that experts predict will include mortalities and even extirpation it must apply for a letter of authorization under MMPA section 101(a)(5)(A-C).

Response:

While an authorization for taking marine mammals by mortality cannot be authorized under Section 101(a)(5)(D) of the MMPA, those paragraphs do authorize taking by Level A harassment. Level A harassment means any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or a marine mammal stock in the wild. While it is true that an injury can be so severe that it later may result in mortality, the MMPA does not preclude issuance of an authorization under Section 101(a)(5)(D) of the MMPA for activities that have the potential to cause injury. However, as NMFS shows in this document morality and serious injury are not anticipated to occur during this seismic survey cruise due to implementation of mitigation measures (e.g., ramp-up, power-down, shut-down, temporal and spatial avoidance, procedures for species of particular concern, passive acoustic and visual monitoring, and quiet acoustic periods). Nor is take by injury, serious injury, or mortality authorized. Therefore, issuance of an IHA is appropriate. Monitoring and mitigation measures are discussed later in this document.

Comment 10:

CSI states it is a relief to find so many experts willing to contribute their knowledge and experience to this process. They do a far better job than CSI or any NGO could of addressing the specific flaws found in this L-DEO IHA request. While some of these same flaws in previous L-DEO requests have been addressed, they may have been more easily dismissed by NMFS because very few were from world authorities and scientific experts. This time the experts have participated directly, and cannot be dismissed.

Response:

NMFS acknowledges CSI's comments and considers all relevant public comments before making a determination on the issuance of the IHA. After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures in the study area. NMFS believes that L-DEO's revised survey as well as the implementation of the required monitoring and mitigation described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area.

After the issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures in the study area. NMFS believes that L-DEO's revised survey as well as the implementation of the monitoring and mitigation measures described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area.

Comment 11:

CSI states that the intent of LGL's comment is to manipulate NMFS into a fast and uncritical decision. By law, the schedules, as well as the scientific and economic values of this project, remain irrelevant to the scope of NMFS' deliberations on the fitness of the proposal.

Response:

Federal Register

on December 22, 2008 (73 FR 78294). A notice on the 15-day extension of the comment period for the proposed IHA was published on January 16, 2009. NMFS issued an IHA to L-DEO on March 31, 2009 and amended the IHA on May 1, 2009.

After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures in the study area. NMFS believes that L-DEO's revised survey as well as the implementation of the required monitoring and mitigation described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area. See L-DEO's Supplemental EA.

Comment 12:

CSI states that it is well aware that the L-DEO, NSF, and other project supporters represent powerful influences that NMFS must respect. However, CSI trusts that these rational influences also recognize the overwhelming need to define and mitigate anthropogenic affects on the marine environment, with their rapidly accelerating influences on the planet and eventually human societies. Is it necessary to do significant, irrevocable damage to marine life in order to understand geophysical processes?

Response:

On March 31, 2009, NMFS prepared a Finding of No Significant Impact for L-DEO's marine geophysical survey in SE Asia. NMFS determined that the issuance of an IHA for the take, by harassment, of small numbers of marine mammals incidental to L-DEO's March-July, 2009, seismic survey in SE Asia will not significantly impact the quality of the human environment.

Comment 13:

CSI states that in lieu of such loft concerns economic efficiency is an excellent rationale for increased support of appropriate science to

determine adequate mitigations. Without better science this and future proposals will face further challenges that will cause delays in the L-DEO schedule that are likely to have economic consequence. The time and financial loss is neither the fault of the process or the responsibility of NMFS. Why not do the job responsibly?

Response:

NMFS acknowledges CSI's comments. An authorization for incidental taking of marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth.

Comment 14:

CSI states that the fundamental point of CSI's comment and many others, is that this L-DEO project does not qualify for an IHA, according to the criteria at

www.nmfs.noaa.gov/pr/permits/incidental.htm.

The fact that previous L-DEO projects received IHAs does not provide a precedent under which this proposal also should receive an IHA, because no matter how NMFS rationalized those past IHAs this proposal is different, different in scale, scope, and expertise represented by the formal comments and less public complaints it has generated from scientific world authorities and regional and species experts. If these people had been consulted by LGL, the inadequate EA and request would never have been submitted for an IHA. The original intent of the IHA process was to expedite some requests, not all requests. Not this request.

Response:

NMFS disagrees with CSI's comments. L-DEO's marine geophysical survey in SE Asia, March to July 2009, qualifies for an IHA according to the criteria on the NMFS Office of Protected Resources Incidental Take Authorizations Web site. Portions of L-DEO's project occurs on the high seas, which is applicable to the MMPA and ESA. Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment.

Comment 15:

CSI states that there is little knowledge available for most of the species that inhabit the waters of SE Asia. Even the most basic knowledge about the presence/absence of species is incomplete. Only a small proportion of the large expanse of sea in the region (and mostly coastal waters) has been surveyed systematically for marine mammals. Few estimates of abundance or distribution exists for SE Asian marine mammals an in most cases, this information is for a limited region, often bounded by political rather than biological borders. What little is known clearly shows the region to be an area with a high diversity of marine mammal (and other marine) species.

Response:

NMFS agrees that the SE Asia region is likely to have a high diversity of marine mammal species and that impacts on marine mammals should be assessed on the population or stock unit level whenever possible. L-DEO's IHA application provides information on stock abundance in SE Asia (when available), larger water bodies (such as the North Pacific Ocean), and the Eastern Tropical Pacific Ocean (if data was unavailable). NMFS believes that these data are the best scientific information available for estimating impacts on marine mammal species and stocks. However, Congress recognized that information on marine mammal stock abundance may not always be satisfactory. When information is lacking to define a particular population or stock of marine mammals then impacts are to be assessed with respect to the species as a whole (54 FR 40338, September 29, 1989). See relevant discussions throughout this document and L-DEO's Supplemental EA.

Comment 16:

CSI states that the study area is a region where marine mammals are facing a myriad of serious threats that have made the continued existence of several marine mammal populations and possibly some species uncertain (note: some of the same threats and activities have resulted in the recent ‘functional extinction’ of the baiji (Turvey

et al.

2007), which is endemic to the Yangtze River of China).

Response:

L-DEO's EA acknowledges that there are numerous threats to cetaceans in SE Asia including vessel traffic, habitat loss, oil and gas industry, pollution, fisheries, and hunting.

After the issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. NMFS believes that L-DEO's revised survey as well as the implementation of the required monitoring and mitigation measures described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area. See L-DEO's EA and Supplemental EA.

Comment 17:

CSI states that all small cetaceans in Taiwanese waters are threatened by fishermen using hand-harpoons, bycatch in fishing gear, and noise. Those that inhabit coastal waters of western Taiwan also face habitat degradation, pollution, and possibly prey reduction.

Response:

NMFS does not regulate activities (including fishing) in Taiwanese waters. L-DEO's EA discusses direct and indirect effects on marine mammals. The numerous threats to cetaceans in SE Asia include vessel traffic, habitat loss, oil and gas industry, pollution, fisheries, and hunting.

Comment 18:

CSI states that some marine mammals have been reduced to numbers so low that even minimal ‘takes’ will have a large impact on the remaining population.

Response:

Comment 19:

CSI states that a number of marine mammals are discussed in their comments to NMFS based on what

is known about their biology, conservation status and threats in the region. This does not imply other marine mammals that are not specifically discussed in detail are “safer” from the seismic surveys, in most cases, too little information is available to understand the impacts, which may be as great as or greater than the marine mammals discussed in detail in their comments to NMFS.

Response:

NSF's and L-DEO's IHA application, EA, and Supplemental EA sufficiently discusses the marine mammals species and the possible impacts from seismic surveys in the SE Asia region. After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. NMFS believes that the implementation of the required monitoring and mitigation measures will result in a negligible impact on affected species and stocks of marine mammals in the study area.

Comment 20:

ETSSTAWG states that it should be noted that many seismic surveys are conducted in the Taiwan region every year without requesting IHAs. The actions of private oil and gas companies within the EEZ's of other countries is beyond the jurisdiction of the MMPA, thus they need no such U.S. authorizations. However, this means that L-DEO could become a scapegoat for all survey operation in the region, purely because they have to apply for authorization, as they will clearly be operating partly on the high seas (and thus fall under MMPA jurisdiction) and as they have government funding. This is acknowledged, but until such time as NMFS enforcement confirms the locations and tracks of every survey undertaken globally this situation is unlikely to change.

Response:

NMFS is aware of seismic surveys and other activities undertaken worldwide that occur (that may result in incidental takes of marine mammals) without requesting IHAs or LOAs. NMFS may grant IHAs upon request by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region. L-DEO and NSF are considered U.S. citizens under the MMPA. The MMPA applies to U.S. citizens in U.S. waters, and the high seas, but does not apply or authorize the incidental take of marine mammals in the territorial seas of foreign nations. The MMPA does not apply to non-U.S. citizens, unless they are conducting a specified activity (other than commercial fishing) that may result in incidental takes of marine mammals in U.S. waters. NMFS can refer reports of possible violations of the MMPA and this subject IHA issued to L-DEO to NOAA Enforcement for investigation.

The IHA is valid only for the

Langseth'

s activities associated with seismic survey operations that are specified in L-DEO's EA, Supplemental EA, and IHA application. L-DEO is required to comply with the IHA and the terms and conditions of the Incidental Take Statement corresponding to NMFS' Biological Opinion. L-DEO and NSF will be required to reinitiate consultation with NMFS if the identified action is subsequently modified in a manner that causes an effect that was not considered during the analysis for making the necessary determinations for the issuance of the IHA. L-DEO is required to submit a draft report on all activities and monitoring results to the Office of Protected Resources, NMFS, within 90 days of the completion of the

Langseth'

s cruise in SE Asia. The report must contain and summarize information stated in the IHA issued to L-DEO.

Comment 21:

WaH is aware that this L-DEO survey proposal is one of a very small number of requests for authorization for geophysical surveys while other user groups, including the oil and gas industry, are not carrying out such EAs or are not subjected to public scrutiny in this way. Rather than allowing the focus to be limited to geological surveys such as L-DEO's, WaH recommends that measures be taken to ensure that all future marine seismic surveys (whether of an academic or commercial nature) are made subject to the same level of scrutiny and transparency, such as by requiring EAs or EISs to be submitted for professional and public review and with all relevant documents (including post-survey reports and relevant local permits, authorizations and licenses) being made publicly available.

Response:

All applications submitted to NMFS are subject to public comment periods. During the public comment period, their NEPA documents and incidental take authorization applications are available on the NMFS Web site (

http://www.nmfs.noaa.gov/pr/permits/incidental.htm

) and are reviewed by the Commission. NMFS does not force an agency or other organization to apply for and consult on an incidental take authorization under the MMPA.

General Opposition

Comment 22:

A private citizen questioned why this research was being conducted in SE Asia. The commenter also believes the U.S. should not be doing work in the region.

Response:

Dr. McIntosh and Dr. Wu, the principal investigators on the seismic survey, state the primary purpose of the TAIGER project is to investigate the fundamental processes of mountain building, which plays a major role in shaping the face of the Earth. Oceanic island chains, or arcs, along convergent tectonic plate boundaries result from a process known as subduction where one of Earth's tectonic plates slides beneath another as they move toward each other. As the lower plate slides beneath the upper plate, its trajectory usually steepens with depth and eventually reaches depths of several hundred (to greater than 700) km. The arc is made up of a chain of volcanoes on the upper plate, and is typically situated above the point where the lower plate is at about 100 km (62 mi) depth. As this process of subduction and volcanism continues through time (millions of years) the crust of the upper plate becomes thicker, and develops properties more like continental crust, which is much thicker and less dense than ocean crust and allows for land surface above sea level. The results of many studies indicates that much of the crust that forms Earth's continents was accumulated through time by island arcs colliding with continents leaving remnants of the arcs attached to the edge of the continents. Despite this general interpretation, the actual processes of how this happens, including growth of collisional mountain belts and deformation of arc and continental crust, is poorly understood and poorly documented. Ancient collision zones have been studied, but they have typically undergone many stages of deformation and erosion, leaving them difficult to interpret. Currently active arc-continent collision zones include Taiwan, Papua New Guinea, and Timor. Of these active collisions, Taiwan is currently the most active. Taiwan is also the most favorable of these to examine the full spectrum of processes as a plate boundary changes from oceanic subduction to arc-continent collision. This transition is a major target of the TAIGER project requiring that L-DEO obtain a series of crustal-scale seismic transects from south of Taiwan, where subduction is active, to northern Taiwan, where the collision has reached mature steady state.

One of the by-products of the collision in Taiwan is the generation of frequent small earthquakes and less frequent, large, destructive earthquakes. By using the relatively small signals from the

Langseth

source array

(compared to those generated by nature) scientists can topographically image the mountains and thereby localize the major breaks or faults underneath the mountains and assess their seismic potential. In addition to linear arrays of seismographs, the

Langseth

signals will also be recorded, as an integrated TAIGER acquisition program, on over 200 land seismographs across the island and 20 OBSs, all of which have been recording earthquakes. Scientists expect to produce the most comprehensive subsurface images of the rapidly rising Taiwan mountains with L-DEO's data. These images, along with seismicity recorded by L-DEO's arrays, will form a greatly enhanced basis for evaluating earthquake and tsunami potentials of Taiwan and can thus be used to improve the safety and security of the human population at risk to these phenomena.

A previous U.S.-Taiwan project (the 1995 TAICRUST project) demonstrated the feasibility of the approach to be used in the TAIGER project, but this project did not include significant seismic data acquisition in the Taiwan Strait. Subsequent analysis showed that seismic profiles across the Taiwan, recorded by seismographs in the strait and on land in Taiwan, are necessary to determine the crustal structure of the Taiwan collisional mountain belt. Thus, the principal scientist's plans in the Taiwan Strait are one of the key elements required for the success of the TAIGER project.

Comment 23:

LINC objects to the IHA application and states that other local NGOs have not had time to respond due to the lack of sufficient notice. LINC is concerned that NMFS is eager to approve the L-DEO application and authorize destructive activities in the SE Asia region without verifying that L-DEO has complied with relevant local conservation laws and regulations. LINC strongly urges the NMFS to reject the application of L-DEO until it can be proven that they have (1) complied with local laws and regulations, and (2) have completed a comprehensive consultation with local governments, scientists, researchers, and NGOs based in this region. LINC states that the approval of the current L-DEO application, as is, would demonstrate a clear lack of concern for the conservation laws, threats, and environmental protection efforts in this region.

Response:

NMFS believes local NGOs have had sufficient time to respond to the proposed IHA published in the

Federal Register.

A 30-day comment period with a 15-day extension (for a total of 45 days) is more than an adequate time period for the public to address concerns and submit comments. The NMFS has received numerous comments from persons and organizations located nationally and worldwide. Generally, under the MMPA, NMFS may authorize the harassment of small numbers of marine mammals incidental to an otherwise lawful activity, provided NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth to achieve the least practicable adverse impact. L-DEO and NSF have consulted with the various governments in the action area. To date, L-DEO and NSF have received foreign clearance notices from the governments of the Philippines, Taiwan, and Japan.

See

International Legal Compliance below.

Comment 24:

Given the large volume of evidence for the association between anthropogenic noise and disturbance in cetaceans and other marine mammal, a precautionary approach is surely required (as recommended by Gordon

et al.,

2004). AAF urges NMFS to consider the application from L-DEO with information provided, and the findings and recommendations of the independent reviews of the Eastern Taiwan Strait Sousa Technical Advisory Working Group (ETSSTAWG) and others, in mind.

Response:

NMFS has developed conservative monitoring, mitigation, and reporting requirements in order to reduce the potential effects of anthropogenic noise on marine mammals. L-DEO and NSF have considered the numerous public comments and revised the seismic survey described in its IHA application. L-DEO's Supplemental EA is in response to the comments received by NMFS through the public comment period associated with the IHA process. L-DEO considered the recommendations from several independent reviewers including ETSSTAWG. NSF received no direct public comments on the draft EA during (or after) the open comment period November 14, 2008 through December 15, 2008. Included in L-DEO's Supplemental EA are a number of changes to the survey design that were made by L-DEO to address specific comments, some received by a number of individuals and agencies, and to enhance measures already included in the original documents to mitigate effects of the proposed survey on marine mammals. NMFS has made its necessary determinations based on L-DEO's revised seismic survey and Supplemental EA.

Comment 25:

Several commenters requested that NMFS deny issuing the IHA to L-DEO. They questioned: (1) The adequacy of L-DEO's scientific research and lack of consultation with local experts; (2) the survey's potential to expose ETS humpback dolphins to received levels of 180 dB re 1 μPa (rms) which they believed could cause permanent physiological damage, thus constituting at a minimum Level A harassment; (3) the number of ETS humpback dolphins that L-DEO proposed to harass, stating that the requested take of ETS humpback dolphins to be harassed was likely to exceed a sustainable level of take for the population; (4) the adequacy of the monitoring and mitigation measures for endangered or cryptic species that may be vulnerable to noise impacts (e.g., ETS humpback dolphin and finless porpoise); (5) the timing of the surveys and their impacts on migration routes; (6) biased and non-precautionary assumptions; and (7) the cumulative effects analyses in the EA.

Response:

NMFS disagrees with the commenters' argument that NMFS should have denied L-DEO's application for an IHA.

(1) NMFS is charged with issuing IHAs for otherwise lawfully activity. L-DEO's research is otherwise lawful. NMFS opened the proposed IHA to public comment. L-DEO plans to conduct the seismic survey along the Taiwan arc-continental collision in the China and Philippine Seas. Taiwan is one of only a few sites of arc-continent collision worldwide—one of the primary tectonic environments for large-scale mountain building. The primary purpose for the TAIGER project is to investigate the processes of mountain building, a fundamental set of processes which plays a major role in shaping the face of the Earth. The vicinity of Taiwan is particularly well-suited for this type of study, because the collision can be observed at different stages of its evolution, from incipient, to mature, and finally to post-collision. As a result of its location in an ongoing tectonic collision zone, Taiwan experiences a great number of earthquakes; most are small, but many are large and destructive. This project will provide a great deal of information about the nature of the earthquakes around Taiwan and will lead to a better assessment of earthquake hazards in the area. The information obtained from this study will help the people and government of Taiwan to better prepare

for future seismic events and may thus mitigate some of the loss of life and economic disruptions that will inevitably occur.

(2) NMFS disagrees with the commenter's characterization of the potential risk to the ETS sub-population of Indo-Pacific humpback dolphins. After the issuance of the proposed IHA, L-DEO negotiated with the project's principal scientists to modify the cruise plan and adopt more precautionary mitigation measures. L-DEO will limit seismic survey lines to take place at least 20 km from the west coast of Taiwan, except for in the passage between the Penghu Islands and the Waishanding Jhou sandbar, where the survey will pass through the approximately 17.1 km mid-line distance between the two possibly sensitive areas, subject to the limitations imposed by other foreign nations, to minimize the potential for exposing Indo-Pacific humpback dolphins, finless porpoises, and other coastal species to SPLs greater than or equal to 160 dB re 1 μPa (rms). Thus, the precautionary buffer recommended by ETSSTAWG in their comments to NMFS will be maintained, “at least 13 km and perhaps a more precautionary 15 km of the ETS

Sousa

population—meaning up to around 20 km from shore.” L-DEO will also shut-down the airgun array if an ETS Indo-Pacific humpback dolphin is visually sighted regardless of the distance of the animal(s) to the sound source. The array will not resume firing until 15 minutes after the last documented whale visual sighting.

(3) NMFS disagrees with the commenter's assertion that the requested take of ETS Indo-Pacific humpback dolphins by harassment is likely to exceed a sustainable level of take for the population. L-DEO's seismic survey was modified after the issuance of the proposed IHA to include more precautionary mitigation measures. The incorporation of precautionary measures reduced the estimated number of ETS Indo-Pacific humpback dolphins expected to be harassed to zero, which is clearly a sustainable level of take for the sub-population.

(4) and (5) NMFS believes that the mitigation and monitoring measures in the IHA are adequate to protect species of concern that may be vulnerable to noise impacts. After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary mitigation measures, especially for species that are of particular concern and have cryptic behaviors that may be vulnerable to noise impacts as well as to address concerns on the timing of the surveys and their impacts on migration routes. See Monitoring, Mitigation, Species of Particular Concern, and Temporal and Spatial Avoidance sections below and L-DEO's Supplemental EA for more information. NMFS has included requirements to these effects in the IHA issued to L-DEO.

(6) After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary mitigation measures to address concerns of potential impacts of the seismic survey on affected species and stocks of marine mammals in the study area. NMFS believes that L-DEO's IHA application, EA, and Supplemental EA are not biased as they adequately consider alternatives, and provides analysis on the affected environment and environmental consequences of the study area.

(7) The EA adequately addresses the cumulative impacts of a relatively short-term seismic airgun survey in relation to long-term noise and events, such as vessel traffic, habitat loss, oil and gas industry, pollution, fishing, hunting, and other human activities. These other activities are long-term activities which are unaffected by NMFS' action here. Nor does this action, when considered in light of the other activities, become significant.

For more information, see further relevant discussions in this notice, L-DEO's IHA application, EA, and Supplemental EA.

Comment 26:

HSI states that while they appreciate L-DEO's efforts to comply with the MMPA and the NEPA, HSI is concerned that this request for an incidental harassment authorization is premature and that in fact a letter of authorization for incidental take may be required. HSUS/HSI strongly urges the NMFS to deny this request as submitted and at a minimum to require L-DEO to resubmit its request with an updated review of the region's marine mammals, a more complete review of relevant literature, modified survey track lines and schedules, and additional mitigation measures.

Response:

NMFS does not agree that a Letter of Authorization for incidental take is necessary in this case. Due to the incorporation of monitoring and mitigation measures, including L-DEO's revision of tracklines after the issuance of the proposed IHA and in response to public comments, NMFS does not anticipated a potential for injury, serious injury, or mortality to any marine mammals under the jurisdiction of the MMPA. Based on numerous concerns regarding the proposed IHA, L-DEO has revised its seismic survey and adopted more precautionary mitigation measures. L-DEO has prepared a Supplemental EA in response to the comments received. NSF received no direct public comments on the draft EA during (or after) the open comment period of November 14, 2008 through December 15, 2008. Included are a number of changes to the survey design that were made by L-DEO to address specific comments, some received by a number of individuals and agencies, and to enhance precautionary measures already included in the original documents to mitigate potential effects of the survey on marine mammals.

Comment 27:

ETTSTAWG states the L-DEO project, as presently described in the U.S.

Federal Register,

poses an unacceptable risk to the ‘critically endangered' population of ETS Indo-Pacific humpback dolphins.

Response:

NMFS disagrees with ETSSTAWG's characterization of the risk to the sub-population of ETS Indo-Pacific humpback dolphins. After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary mitigation measures, especially considering the `critically endangered' ETS sub-population of Indo-Pacific humpback dolphins.

See

“Species of Particular Concern” section below and other discussions presented in this document.

Comment 28:

Dr. Linda Weilgart urges NMFS to reject this application for an IHA and states that L-DEO's powerful array of airguns, and argues that the permit application does not seriously consider the possibility of irreversible harm to marine mammals and the marine environment.

Response:

NMFS disagrees with Dr. Weilgart's comments. After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary mitigation measures. NMFS believes L-DEO's planned seismic survey, as revised, will have a negligible impact on the affected species and stocks of marine mammals in the study area.

Comment 29:

The strong bias in the

Federal Register

notice is disturbing. The notice should be an objective discussion that leaves open whether the agency should issue the authorization or not. As published, however, the notice's language leads inevitably to a decision to issue the authorization, despite the applicant's failure to argue convincingly, as required by law, that the surveys will not result in serious injury or death or even, in this case, Level A harassment. In fact, there is an insufficient scientific basis for concluding that no serious injury, death,

or Level A harassment of any marine mammal species will occur. Accordingly, the NMFS must deny this request as submitted and at a minimum request the applicant to submit a revised application with a more realistic and conservative analysis of potential impacts. If a compelling argument to support the conclusion that only harassment (Level B or Level A) will occur is not forthcoming, then the NMFS must deny the request outright and require the applicant to seek a letter of authorization for incidental take under Section 101(a)(5)(A-C) of the MMPA.

Response:

NMFS disagrees with the commenter's characterization of the Notice of Proposed Issuance. Furthermore, as NMFS shows in this document mortality and serious injury are not expected to occur during this seismic survey cruise due to implementation of monitoring and mitigation measures (e.g., ramp-up, power-down, shut-down, passive acoustic and visual monitoring, and quiet acoustic periods) as well as L-DEO's revision of tracklines in the cruise plan. Nor is incidental take by injury, serious injury, or mortality authorized. Therefore, issuance of an IHA is appropriate. The revised survey and monitoring and mitigation measures are discussed further in this document.

Comment 30:

Minor and Wilson, as scientists, are greatly saddened to see government funding being used to cause the “Level B harassment” of 71,669 cetaceans. Minor and Wilson also doubt that the data that might be gained from the proposed “taking” is worth the harm that it will do. Minor and Wilson are concerned about what the proposed undertaking will do to the reputation of U.S. science. Recently, one species of cetacean was declared extinct in this region, and several more endangered species are in the proposed study area. To have a U.S. flagged ship, owned by the NSF, cruising around in the critical habitat of multiple endangered species conducting seismic testing is clearly poor public relations. If another of these species goes extinct soon, the NSF will find itself trying to “sell” the notion that its contribution to the extinction was insignificant. The NMFS could make a positive contribution to the long term reputation of U.S. science if it could show some backbone and talk the NSF out of this idiocy.

Response:

After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. NMFS believes that L-DEO's revised survey as well as the implementation of the monitoring and mitigation measures described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area. See relevant discussions in this document as well as L-DEO's Supplemental EA.

Thresholds

Thresholds—Acoustic Thresholds for Behavior

Comment 31:

The proposed IHA notice also draws conclusions that are heavily biased in favor of a finding of “no impact.” For example, the notice states that “many cetaceans * * * are likely to show some avoidance of the area with high received levels of airgun sound * * * [and] the avoidance responses of the animals themselves will reduce or (most likely) avoid any possibility of hearing impairment” (emphasis added, p. 78303). Setting aside the lack of scientific substantiation for the degree of certainty displayed by this claim, there is no presentation or discussion of the opposing (and equally likely) possibility that many cetaceans might not show avoidance of an area ensonified by airguns because it is important habitat.

Response:

NMFS refers the commenter to L-DEO's EA (Chapter 4 and Appendix B) which summarized avoidance response levels to seismic pulses for a number of cetaceans. L-DEO provided ample evidence of avoidance behavior in marine mammals in response to seismic surveys from several peer-reviewed studies including data on gray, bowhead, and humpback whales (Richardson

et al.,

1995); Gordon

et al.

(2004); humpback whale (McCauley

et al.,

1998 and 2000a); bowhead whales (Miller

et al.,

1999; Richardson

et al.,

1999); and eastern Pacific gray whales (Malme

et al.,

1986, 1988).

Conversely, the EA discussed the possibility that cetaceans might not exhibit avoidance behavior or may not be as sensitive to seismic sources. L-DEO presents data from peer-reviewed focusing on humpback whales (Malme

et al.,

1985); bowhead whales (Miller

et al.,

2005; Harris

et al.,

2007); and fin and sei whales (Stone, 2003; Stone and Tasker, 2006). For marine mammals that do not avoid the vessel and sound source, L-DEO will implement mitigation measures such as power-downs and shut-downs for animals that enter the respective safety zones to prevent Temporary Threshold Shift (TTS)/Permanent Threshold Shift (PTS) for those respective species.

With the respect to the ETS population of humpback dolphins, NMFS has instituted precautionary mitigation measures to protect these species within their habitat in Taiwanese waters. L-DEO will limit seismic survey lines to take place at least 20 km from the west coast of Taiwan, except for in the passage between the Penghu Islands and the Waishanding Jhou sandbar, where the survey will pass through the approximately 17.1 km mid-line distance between the two possibly sensitive areas, subject to the limitations imposed by other foreign nations, to minimize the potential for exposing Indo-Pacific humpback dolphins, finless porpoises, and other coastal species to SPLs greater than or equal to 160 dB re μPa (rms).

Comment 32:

The proposed IHA notice states that “if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on animals or on the stock or species could potentially be significant” (p. 78301). It does not, however, consider the reverse; that the failure of a sound source to displace animals from important feeding or breeding habitat may indicate that the area is so important that the animals are willing/forced to tolerate a level of noise exposure that is in fact harmful (see, e.g., the discussion of this concept in Richardson

et al.

1995). The failure to consider the possibility of an animal not reacting because leaving a prime feeding spot is more costly than moving laterally along a migration pathway is an example of the bias permeating the entire analysis and has contributed to an unacceptably incomplete level of evaluation and discussion regarding impacts and mitigation.

Response:

NMFS refers the commenter to page 78302 of the proposed IHA notice, Chapter 4 and Appendix B of the EA for L-DEO's presentation of cetaceans not exhibiting avoidance behavior when exposed to seismic pulses. L-DEO has acknowledged the public's concern for coastal dwelling species in Taiwan, has modified their cruise plan, and has adopted more precautionary monitoring and mitigation measures, especially for species of particular concern. See responses to comments regarding mitigation measures such as the implementation of power-downs and shut-downs for animals discussed within this document as well as within L-DEO's Supplemental EA.

Comment 33:

The EA noted that “captive bottlenose dolphins and beluga whales exhibited changes in behavior when exposed to strong pulsed sounds similar in duration to those typically used in seismic surveys (Finneran

et al.

2000, 2002). However, the animals

tolerated high received levels of sound before exhibiting aversive behaviors.” It should be noted, however, that the animals in the abovementioned Navy studies were reported by Nowacek

et al.

(2007) to be generally “tested in a context where they were being rewarded for tolerating high levels of noise” and were “usually `punished' in some way * * * for failing to return to the experimental station for additional exposures.” This was not a problem for their main results as the focus of the work was on to TTS, but the setup does invalidate any conclusions based on the behavioral responses reported in the same studies. For further discussion of the need for precaution in the use of captive studies to set exposure criteria for wild animals, see Parsons

et al.

(2008) and Wright

et al.

(in press).

Response:

NMFS acknowledges the commenter's interpretation of captive studies and have taken them into consideration. Thresholds for behavioral response are not based upon captive studies. The 160 dB re 1 μPa threshold was derived from data for mother-calf pairs of migrating gray whales (Malme

et al.,

1983, 1984) and bowhead whales (Richardson

et al.,

1985, 1986) responding when exposed to seismic airguns (impulsive sound source).

Comment 34:

The idea that behavioral tolerance is a proxy for no impact has no scientific merit. In fact, some fairly sizable impacts have been reported in various species despite a lack of behavioral response. A recent panel of experts also noted that an apparently unresponsive animal may still be undergoing a chronic and/or severe acute stress response, with associated physiological and psychological consequences. These can result from exposure directly, or through masking and other phenomenon indirectly. Thus, taking is entirely possible without observable behavioral disturbance reactions and this needs to be accounted for.

Response:

Section 101(a)(5)(D) of the MMPA allows citizens of the United States to take by harassment, small numbers of marine mammals incidental to a specified activity (other than commercial fishing) within a specified geographical region if NMFS is able to make certain findings. NMFS must issue an incidental harassment authorization if the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth.

The mitigation measures set forth in the IHA ensure that there will be negligible impacts on the marine mammals. Cetaceans are expected, at most, to show an avoidance response to the seismic pulses. Mitigation measures such as visual marine mammal monitoring, and shut-downs when marine mammals are detected within the defined ranges should further reduce short-term reactions to disturbance, and minimize any effects on hearing sensitivity. Due to these mitigation measures, and other reasons discussed in the Conclusions section of this document, NMFS believes the impacts will be negligible.

Comment 35:

Mortality (by human causes) of even a single individual per year from this population may not be sustainable, and unless effective mitigation measures are taken immediately to reduce the threats to this population, it is unlikely that the population will continue to exist (Wang

et al.,

2004, 2007b). Any single threat has the potential to be the final cause of extinction for this small population of dolphins.

Response:

Please note that in response to public comments received on the application and EA, L-DEO has modified the survey design (see L-DEO's Supplemental EA) and adopted more precautionary mitigation measures to protect the critically endangered ETS population, as well as ease potential pressure on other coastal species.

Comment 36:

One commenter was concerned about the masking of the noises made by threats, hindering detection of the threats and increasing the impact of the existing threats (e.g., water rushing past a gillnet, commercial shipping) and the chances of mortality.

Response:

NMFS expects the masking effects of pulsed sounds on natural sounds or other anthropogenic sounds to be limited. Because of the intermittent nature and low duty cycle of seismic pulses, animals can emit and receive sounds in the relatively quiet intervals between pulses. Further, masking effects of seismic pulses are expected to be negligible in the case of the smaller odontocetes, given the intermittent nature of seismic pulses plus the fact that sounds important to these species are predominantly found at much higher frequencies than are the dominant components of airgun sounds.

Marine mammal communications will not be masked appreciably by the multibeam echosounder signals given the low duty cycle of the echosounder and the brief period when an individual mammal is likely to be within its beam. The majority of energy should be concentrated in the beam (Kremser

et al.,

2005). Furthermore, in the case of baleen whales, the MBES signals (12 kHz) do not overlap with the predominant frequencies in the calls, which would avoid any significant masking. Masking effects on marine mammals are discussed further in Appendix B(4) of L-DEO's EA.

Comment 37:

Another commenter was concerned about the impacts on cetaceans due to displacement into other waters. He noted that for populations with low numbers, restricted distributions, displacement may increase energy expenditures by the species already compromised energetically (such as mothers with calves) and increase exposure to other threats (e.g., changes in migration routes may result in animals using waters with higher densities of fishing nets or lines and thus increase their risk of mortality due to entanglement).

Response:

The incidental harassment authorization includes mitigation and monitoring measures to reduce potential effects on populations with low numbers and restricted distributions. L-DEO and TAIGER's principal investigators have modified the cruise plan and survey design to protect displacing populations with low numbers and restricted distributions. First, L-DEO will shut down the airgun array immediately if there is a sighting at any distance of the Indo-Pacific humpbacked dolphin or finless porpoise. Second, L-DEO has re-routed the cruise's tracklines offshore Taiwan's west coast by approximately 20 km (10.8 nautical mi) to protect the critically endangered Sousa population and the finless porpoise (except for in the passage between the Penghu Islands and the Waishanding Jhou (Wau-san-ting Chou) sandbar, where the survey will pass through the 17.1 km (9.2 nautical mi) mid-line distance between the two possibly sensitive areas). Finally, L-DEO is restricted to conducting seismic surveys in water depths greater than 200 m (656 ft) in the South China Sea, and as far east as possible from the mainland China side of the Taiwan Strait, to reduce potential for effects on eastern Pacific gray whales, Indo-Pacific humpback dolphins, and finless porpoises.

Comment 38:

Given the serious conservation status of the ETS sub-population and the small population size of the JRE provisional population, there must be a higher level of precaution to avoid negative impacts of additional threats on these dolphins. Because even low level noise may increase risks to these dolphins by altering dolphin behavior, increasing ambient noise levels that can `mask'

biologically important sounds as well as `mask' sounds that allow the detection of other threats (e.g., the sound of water flowing past gillnets, approaching boats, etc.) should be avoided.

Response:

Please see NMFS' responses to comments under the Species of Particular Concern section.

Thresholds—Acoustic Thresholds for TTS and PTS

Comment 39:

The notice states that “There is no specific evidence that exposure to pulses of airgun sound can cause PTS in any marine mammal, even with large arrays of airguns” (p. 78304). Such a statement is misleading on many levels. For one, marine mammal science has yet to develop ways to measure or identify PTS (permanent threshold shift or permanent hearing loss) in the field. For another, it is known that exposure to loud impulsive sounds such as are produced by airguns can deafen terrestrial species, including people. To state that no specific evidence exists of PTS in marine mammals exposed to airguns when science cannot yet identify such evidence is both specious and disingenuous.

Response:

First, mitigation and monitoring requirements under the IHA are expected to prevent TTS, thus preventing PTS. NMFS acknowledges the limitations of current data on the measurement or identification of PTS in marine mammals, let along free-ranging animals.

Recent scientific research on marine mammals and noise, include: estimating hearing capabilities using various behavioral and anatomical techniques; measuring sub-injurious impacts on hearing (temporary threshold shift, or TTS); and estimating lethal and injurious effects of acoustic exposure. Richardson

et al.

(1995) noted, based on terrestrial mammal data, that the magnitude of TTS in marine mammals was expected to depend on the level and duration of noise exposure, among other considerations. Southall

et al.,

(2005) showed that long-term (four to seven years) noise exposure on three experimental pinniped species (northern elephant seal (

Mirounga angustirostris

), harbor seal (

Phoca vitulina

), and California sea lion (

Zalophus californianus

) had caused no change on their underwater hearing thresholds at frequencies of 0.2 to 6.4 kHz.

Finally, NMFS believes that the 180-dB re: 1 μPascal (rms) criteria is a reasonable and precautionary interpretation of the current data at this time. The precautionary nature of these criteria is discussed in Appendix B(6) of L-DEO's application and in previous

Federal Register

notices (

e.g.

, 67 FR 46711, July 16, 2002). The current safety zones of 180 dB re: 1 μPa (rms) for cetaceans is conservative and will protect marine mammals from injury (Level A harassment).

Comment 40:

Recent research examining the propagation of airgun noise has shown that, contrary to predictions, received levels can decrease between 5 km and 9 km, but then increase at distances between 9 km and 13 km (Madsen

et al.

2006). The researchers stated that received levels “can be just as high * * * at 12 km as at a range of 2 km from the array” (Madsen

et al.

2006, p. 2374), “beyond where visual observers on the source vessel can monitor effectively” (Madsen

et al.

2006, p. 2376). Arguably, this suggests that if the goal is to avoid subjecting animals to Level A harassment or worse, seismic surveys should be conducted at a minimum greater than 12 km from the offshore boundary of a coastal species' home range.

Response:

With regards to the

Langseth's

survey offshore of Taiwan's west coast, L-DEO has re-routed the survey by approximately 20 km (10.8 nautical mi) to reduce potential effects for marine mammals. For the passage between the Penghu Islands and the Waishanding Jhou (Wau-san-ting Chou) sandbar, the survey will pass through the 17.1 km (9.2 nautical mi) mid-line distance between the two possibly sensitive areas. Please see the Mitigation—Tracklines section for additional information.

Comment 41:

HSI notes that the

Federal Register

notice states (p. 78306): NMFS believes that to avoid the potential for permanent physiological damage (Level A harassment), cetaceans and pinnipeds should not be exposed to pulsed underwater noise at received levels exceeding, respectively, 180 and 190 dB re 1 μPa (rms). The precautionary nature of these criteria is discussed in Appendix B (6) of L-DEO's application, including the fact that the minimum sound level necessary to cause permanent hearing impairment is higher, by a variable and generally unknown amount, than the level that induces barely-detectable TTS and the level associated with the onset of TTS is often considered to be a level below which there is no danger of permanent damage [emphasis added]. The language (see emphasis) functionally defining Level A harassment is not found in the MMPA or in its implementing regulations. We advise the NMFS against inserting “unofficial” definitions of harassment into notices, regardless of the context (here, it could be argued only hearing impairment was in question, but these words could be taken out of context). This wording could be seen to encompass a broad range of “damage”—from a wound that heals into a scar (clearly minor) to a crippling injury that leads to death (so clearly not Level A harassment but rather serious injury). It also could be seen to exclude reversible injuries that should be categorized as Level A, not Level B harassment (such as, for example, broken bones that, until healed, could result in lost mating opportunities). We strongly recommend that this language be expunged from any subsequent rule on this application and not used again in any future notices.

Response:

NMFS concurs with HSI and offers the following amendment to the language contained in the proposed rule: “NMFS believes that to avoid the potential for Level A harassment from exposure to pulsed underwater noise, cetaceans and pinnipeds should not be exposed to received levels exceeding, respectively, 180 and 190 dB re 1 μPa (rms). The precautionary nature of these criteria is discussed in Appendix B(6) of L-DEO's application, including the fact that the minimum sound level necessary to cause permanent hearing impairment is higher, by a variable and generally unknown amount, than the level that induces barely detectable TTS and the level associated with the onset of TTS is often considered to be a level below which there is no danger of permanent damage [emphasis added].”

However, while not redefining the statutory definition, it is necessary for NMFS to include functional definitions of effects that fall into the category of Level A (or B) harassment in order to meet our statutory responsibility to quantify take. For example, for acoustic effects, because the tissues of the ear appear to be the most susceptible to the physiological effects of sound, and because threshold shifts tend to occur at lower exposures than other more serious auditory effects, NMFS has determined that PTS is the best indicator for the smallest degree of injury that can be measured. Therefore, the acoustic exposure associated with onset PTS is used to define the lower limit of the Level A harassment for acoustic effects.

Comment 42:

L-DEO should use the more precautionary 15 dB difference being employed in converting the SEL-based safety zones to SPL-based safety zones. (From the EA: “At the distances where rms levels are 160-190 dB re 1 μ Pa, the difference between the SEL and SPL values for the same pulse measured at the same location usually average approximately 10-15 dB, depending on the propagation characteristics of the

location (Greene, 1997; McCauley

et al.,

1998, 2000a; Appendix B). In this EA, we assume that rms pressure levels of received seismic pulses will be 10 dB higher than the SEL values predicted by L-DEO's model. Thus, we assume that 170 dB SEL ~ 180 dB re 1 μPa rms.”). Thus 180 dB rms SPL would be reached with a SEL of 165 dB.

Response:

L-DEO's results indicate (for shallow water, at least) the difference between rms and SEL varies between 8 and 13 dB. This result is more or less in line with that found by Madsen

et al.

(2006). The difference is higher at offsets, where the more impulsive direct arrival dominates the sound field, and lower at larger offsets, where the signal is more reverbatory. The range at which the decrease occurs depends a lot on water depth, but it's obvious that to use a 15 dB correction elsewhere would nearly double the numbers as far as offsets. The length of the signal is an important factor as well since there are greater differences between SEL and SPL, which means the signal is shorter, since it stretches as it travels further.

Comment 43:

The EA notes that Southall

et al.

(2007) stated that TTS is not injury. However I believe that they have overstated their conclusions. It is true that Southall

et al.

(2007) state: “[impacts resulting in] * * * TTS rather than a permanent change in hearing sensitivity * * * are within the nominal bounds of physiological variability and tolerance and do not represent physical injury (Ward, 1997).” However, they also note that “at present, however, there are insufficient data to allow formulation of quantitative criteria for non-auditory injuries” and later acknowledge that, while they believe that “strong behavioral responses to single pulses * * * are expected to dissipate rapidly enough as to have limited long-term consequence” there are occasions where such responses may “secondarily result in injury or death (

e.g.,

stampeding)” (Southall

et al.,

2007).

Response:

In its 2002 Final Rule for SURTASS LFA sonar, NMFS stated that temporary threshold shift (TTS) is not an injury. The required power-down and shut-down zones, if properly implemented, will avoid exposing marine mammals to levels associated with injury and minimize the number of marine mammals exposed to levels associated with TTS (

See

Mitigation section).

With regards to non-auditory injuries, the conclusion that the potential effects on the stocks of marine mammals from non-auditory injuries would be minimal is discussed in the L-DEO's EA. NMFS believes that L-DEO's seismic survey has met all of these requirements and has been operating since 2003 without any known physical injuries to marine animals.

Comment 44:

“Southall

et al.

(2007) also add the following caveat with regards to their report: Finally, we emphasize that exposure criteria for single individuals and relatively short-term (not chronic) exposure events, as discussed here, are insufficient to describe the cumulative and ecosystem-level effects likely to result from repeated and/or sustained human input of sound into the marine environment and from potential interactions with other stressors. Also, the injury criteria proposed here do not predict what may have been indirect injury from acoustic exposure in several cases where cetaceans of mass stranded following exposure to mid-frequency military sonar. Thus, since they did not attempt to consider all possible methods of injury in their deliberations and thus their final figures, they should not be directly applied to management decisions that must, by law, consider the full suite of potential impacts. Direct application of their criteria would thus not be precautionary enough to meet the required legal standards.”

Response:

NMFS currently uses the existing thresholds for Level A harassment (sound pressure level of 180 dB re 1 μ Pa [rms]) (dB SPL), and Level B harassment (160 dB SPL for impulse noise and 120 dB SPL for continuous sound). The science in the field of marine mammals and underwater sound is evolving relatively rapidly. NMFS is in the process of revisiting our acoustic criteria with the goal of developing a framework (Acoustic Guidelines) that allows for the regular and scientifically-valid incorporation of new data into our acoustic criteria. We acknowledge that this model has limitations; however, the limitations are primarily based on the lack of applicable quantitative data. We believe that the best available science has been used in the development of the criteria used in this IHA. We appreciate the input from the public and intend to consider it further as we move forward and develop the Acoustic Guidelines.

Comment 45:

It should be noted that repeated TTS can lead eventually to PTS, which would not be classed as injury under these criteria. Other potentially injurious impacts have also been shown to occur below levels that would cause TTS in humans. For example, impaired reading comprehension and recognition memory in children is linked to aircraft noise at exposure levels considerably less than 75 dB (Stansfeld

et al.,

2005), which, according to the U.S. National Institute on Deafness and Other Communication Disorders (NIDCD, 2007), are unlikely to cause hearing loss (temporary or otherwise) even after long exposure (NIDCD, 2007).

Response:

Mitigation and monitoring requirements under the IHA should prevent TTS. While there have been debates among scientists regarding whether a permanent shift in hearing threshold (PTS) can occur with repeated exposures of TTS, at least one study showed that long-term (four to seven years) noise exposure on three experimental pinniped species had caused no change on their underwater hearing thresholds at frequencies of 0.2-6.4 kHz (Southall

et al.,

2005).

TTS may be considered to be an adaptive process (analogous to the dark adaptation in visual systems) wherein sensory cells change their response patterns to sound. Tissues are not irreparably damaged with the onset of TTS, the effects are temporary (particularly for onset-TTS), and NMFS does not believe that this effect qualifies as an injury.

Comment 46:

It is strange that an entire special issue devoted to noise-related stress responses in marine mammals resulting from a multi-disciplinary panel of experts does not get a single mention in this section, even though a discussion of likely impacts is offered in Wright

et al.

(2007a, b) and the other papers within (all of which are cited therein). The papers are cited in Southall

et al.

(2007), which the authors have obviously read. I will not repeat the conclusions here, but suggest they are included within the EA (or more likely an EIS) before this survey begins.

Response:

NSF/L-DEO presented the Southall

et al.

(2007) study as one of several pieces of information that relate to this topic. However, NMFS does not solely rely upon NSF's EA to arrive at its determinations. NMFS is aware of Wright

et al.

(2007a, b) paper as well as others published in the International Journal of Comparative Psychology. However, NMFS finds that the information is not such that it will affect NMFS' findings.

Comment 47:

There is a high likelihood that many individuals will be exposed to sound levels that qualify as Level A harassment. Any additional threats (especially those where many uncertainties exist about their impacts and that have the potential to cause serious harm or even death) to cetaceans on the brink of extinction are not “negligible” for the affected species or stocks.

Response:

The mitigation and monitoring requirements under the IHA are expected to prevent TTS (Level B harassment), thus preventing PTS (Level A harassment). NMFS believes that it is very unlikely that Level A harassment will result and, therefore, NMFS has not authorized Level A harassment in this IHA.

The IHA includes mitigation and monitoring measures to reduce the potential for injury or mortality, as well as instituting immediate shutdown protocols for the North Pacific right whale, Western Pacific gray whale, Indo-Pacific humpbacked dolphin, or finless porpoise.

The mitigation measures (e.g., ramp-up, passive acoustic and visual monitoring, and quiet acoustic periods) set forth in the IHA ensure that there will be negligible impacts on the marine mammals by reducing short-term reactions to disturbance and minimizing any effects on hearing sensitivity. Due to these measures, and other reasons discussed in the Conclusions of this document, NMFS believes the impacts will be negligible.

Comment 48:

Until the effects of seismic surveys on these shallow water dolphins and the combined and cumulative impacts of all threats can be better understood, a “safe” exposure level cannot be determined.

Response:

The temporary nature of the activity and the implementation of the new shut-down criteria and mitigation measures as described in the Species of Particular Concern and the Mitigation sections, leads NMFS to believe the activity will have a negligible impact on shallow water populations of the Indo-Pacific humpback dolphin and finless porpoise.

Comment 49:

Variability and uncertainty in TTS threshold values. Furthermore the TTS threshold is based on limited information from only a few species of cetaceans. Most of the species of concern (

e.g.,

baleen whales, beaked whales, humpback dolphin, finless porpoise, etc.) have not been examined and there appears to be great variability amongst individual cetaceans tested so interspecific extrapolations need to be considered cautiously (for a review, see Weilgart, 2007).

Response:

NMFS acknowledges that the test-animals may not fully represent the range of hearing responses across multiple taxa. However, NMFS has used the best science available to develop these thresholds which have been in effect for almost a decade. The current safety zone of 180 dB rms for cetaceans is conservative and will protect marine mammals from injury (Level A harassment).

Comment 50:

The difficulty in predicting sound levels underwater must be taken into account. Madsen

et al.

(2006) reported that seismic sounds did not always attenuate predictably and sound levels can be the same at 2 km as well as at 12km. The same unpredictability was found for sounds from acoustic harassment and deterrent devices, where increasing distance from the sound source did not always result in a reduction of exposure levels (Shapiro

et al.,

2009). Even within a fraction of a meter, sound level differences may be several orders of magnitude (Wahlberg, 2006 as cited in Shapiro

et al.,

2009). These studies are inconsistent with classic ideas of sound propagation and attenuation (see Richardson

et al.,

1995) and are very concerning because the very dynamic nature of the waters of western Taiwan and the concrete walls lining the shoreline may result in the sounds the airguns to reach unexpectedly dangerous exposure levels within the distribution of the ETS population.

Response:

Please see NMFS' response to Comment # in this section.

Comment 51:

The survey will bring the

Langseth

to waters within 1 km from the shores of Taiwan and right through the middle of almost the entire linear coastal distribution of the eastern Taiwan Strait population. At this distance from shore, the

Langseth

will inevitably subject the entire population to noise levels greater than 180 dB. Even staying at least 2 km from the coastline does absolutely nothing to reduce the noise exposure for these critically endangered (IUCN Red List) dolphins. And based on the values in Table 1 of the

Federal Register

notice, even at 8-10 km from shore, all dolphins will still be exposed to at least 160 dB with an unknown number that may be exposed to > 180 dB.

Response:

Please see the Species of Particular Concern section.

Comment 52:

Given the threat of noise on the health of the ETS dolphins, the ETSSTAWG recommended a buffer for noise threats out to at least 5 km from shore (note: for an area with an expansive littoral zone such as western Taiwan, “shore” can vary greatly with tides; for clarity, “shore” is defined here to include the littoral zone at the lowest tide of the year). Calculations of how far out the

Langseth

should be to prevent exposure of ETS dolphins to received levels greater than 160 dB should be based on at least the recommended 5 km buffer boundary (i.e., the waters from shore, as defined above, to 5 km offshore should not be exposed to levels >160dB). Based on the values presented in Table 1 (of the

Federal Register

) the source should not be closer than 13 km from shore. However, given the population's critical status and the underestimated predicted distances for each exposure threshold level (especially for shallow water; see above), greater precaution is needed (i.e., the airguns should be even further from shore).

Response:

Please see the Mitigation section in this notice.

Comment 53:

For whales that are using the shallow waters (e.g., Taiwan Strait), the predicted distance for exposure levels to be greater than 160 dB was 6,227 to 8,000 m and for 180 dB the distances were 2,761 to 3,694 m. At these distances, detection of whales by observers can be difficult to impossible depending on sighting conditions. Therefore, some whales may be exposed to greater than 180 dB without being detected by observers.

Response:

A key factor in estimating the number of undetected mammals that might occur within the 180 dB radius is the fact that many marine mammals move away from an approaching seismic vessel (e.g., Richardson

et al.,

1995; Stone, 2003). The conventional estimates of the proportions present but missed by visual observations, as described in 73 FR 78294, December 22, 2008, will overestimate (sometimes by very large factors) the numbers of mammals that might be exposed to high levels of sound near the ship. This is an important consideration in assessing possible exposures to high-level sound, especially for the more responsive species, notably some if not all baleen whales, beaked whales, and harbor porpoises. There is also some degree of avoidance by a variety of other odontocetes (Stone, 2003). In order to derive unbiased estimates of numbers that might be exposed to greater than 180 dB, density-based estimates that include allowance for g(0) and f(0) would need further adjustment to allow for an “avoidance probability” factor. Such factors are not generally available. They would depend on species and circumstances, and for some species would, if applied, result in a large decrease the estimates of the numbers that would be exposed to high-level sound.

Detectability is a measure of the probability of detecting a marine mammal that is present on a vessel's trackline (i.e., g(0)). L-DEO uses the most applicable detectability values as provided in Koski

et al.

(1998) whenever estimates of marine mammal detectability have not already been calculated. They have compiled previously reported detectability information for various species and

used data on surfacing/dive cycles to estimate detectability values for species or species groups of marine mammals for which there are no published detectability values. Thus the estimates of incidental take in L-DEO's IHA application and the associated NSF EA are either the same (if detectability had already been taken into account) or higher than would be obtained by direct application of previously reported density data.

NMFS acknowledges these limitations. However, acoustic detection has been demonstrated to augment visual detection of marine mammal in population estimates in a number of studies (e.g., Moore

et al.,

1999; Swartz

et al.,

2002). The use of PAM will improve the detection of marine mammals by indicating to the MMVOs when a vocalizing animal is potentially near and prompting a shut-down when necessary.

Comment 54:

Statements such as “However, there has been no specific documentation of TTS let alone permanent hearing damage, i.e., PTS, in free-ranging marine mammals exposed to sequences of airgun pulses during realistic field conditions” are stupid.

Response:

NMFS acknowledges the commenter's opinion. However, at the time of publication, the statement that “there has been no specific documentation of TTS let alone permanent hearing damage, i.e., permanent threshold shift (PTS), in free-ranging marine mammals exposed to sequences of airgun pulses during realistic field conditions,” was correct. Lucke

et al.,

(2009) recent auditory study on documenting threshold shift in harbor porpoises was published after L-DEO submitted their application.

Monitoring

Comment 55:

ETSSTAWG states that a minimum of two MMOs should be used at all times, with one of those having considerable prior experience as a MMO (preferably within the area of Taiwan).

Response:

Three MMOs are typically on watch at a time, two MMVOs on the observation tower conducting visual observations and the third monitoring the PAM equipment. On the observation tower, two MMOs are on watch during all daylight hours except during meal times. At least one MMO and one MMVO will be on watch during meal times. The MMOs onboard the

Langseth

are experienced and qualified, and additional regional experts have been brought onboard for this survey.

Comment 56:

The Commission recommends that, before issuing the requested authorization, the NMFS provide additional justification for its preliminary determination that the planned monitoring program will be sufficient to detect, with a high level of confidence, all marine mammals within or entering the identified safety zones. At a minimum, such justification should (1) identify those species that it believes can be detected with a high degree of confidence using visual monitoring only, (2) describe detection probability as a function of distance from the observer, (3) describe changes in detection probability at night, and (4) explain how close to the vessel marine mammals must be for observers to achieve the anticipated high nighttime detection rate.

Response:

NMFS believes that the planned monitoring program will be sufficient to detect (using visual detection and passive acoustic monitoring [PAM]), with reasonable certainty, most marine mammals within or entering identified safety zones. This monitoring, along with the required mitigation measures (see below), will result in the least practicable adverse impact on the affected species or stocks and will result in a negligible impact on the affected species or stocks.

The

Langseth

is utilizing a team of trained marine mammal observers (MMOs) to both visually monitor from the high observation tower of the

Langseth

and to conduct PAM. However, there are limitations on marine mammal detection, and ramp-ups are required as mitigation measures due to these limitations. This monitoring, along with the required mitigation measures (see below), will result in the least practicable adverse impact on the affected species and/or stocks and will result in a negligible impact on the affected species and/or stocks.

When stationed on the observation platform of the

Langseth,

the eye level will be approximately 17.8 m (58.4 ft) above sea level, so the visible distance (in good weather) to the horizon is 16.5 km (10.3 mi; the largest safety radii is approximately 3.7 km, 2.3 mi). Big eyes are most effective at scanning the horizon (for blows), while 7x50 reticle binoculars are more effective closer in (MMOs also use a naked eye scan). Night vision devices (NVDs) will be used in low light situations. Additionally, MMOs will have a good view in all directions around the entire vessel. Also, nearly 93 percent of the survey lines are in intermediate or deep water depths, where the safety radii are all less than 1.4 km (0.87 mi).

Theoretical distance of this PAM system is tens of kilometers. The PAM is operated both during the day and at night. Though it depends on the lights on the ship, the sea state, and thermal factors, MMOs estimated that visual detection is effective out to between 150 and 250 m (492 and 820 ft) using NVDs and about 30 m (98.4 ft) with the naked eye. However, the PAM operates equally as effectively at night as during the day, especially for sperm whales and dolphins.

The PAM has reliable detection rates out to 3 km (1.9 mi) and more limited ability out to 10s of km. The largest 180-dB safety radii (3.7 km, 2.3 mi), which is the radii within which the

Langseth

is required to shut down if a marine mammal enters, are found when the 36 airgun array is operating in shallow water at a 9 m (29.5 ft) tow depth. Only approximately seven percent of the total 15,902 km survey lines of the planned seismic survey (excluding contingency) will take place in water less than 100 m deep (shallow water). The species most likely to be encountered in the waters off of SE Asia are pantropical spotted, Fraser's, and spinner dolphins, which have relatively larger group sizes (10s to 100s to 1,000s of animals for these various dolphin species), are not cryptic at the surface, and have relatively short dive times (approximately 6 min for some dolphin species), all which generally make them easier to visually detect. Other species that are likely to be encountered during the seismic survey include Bryde's whales and humpback whales, which have relatively long dive times; however they are not cryptic at the surface, have large blows and distinct physical features, all which generally make them easier to visually detect. Furthermore, the vocalizations of most of these species are easily detected by the PAM. During the

Ewing

cruise in the GOM in 2003, MMOs detected marine mammals at a distance of approximately 10 km (6.2 mi) from the vessel and identified them to species level at approximately 2.7 km (1.7 mi) from the vessel, though the bridge of that vessel was only 11 m (36 ft) above the water (vs. the

Langseth

which is more than 17 m (55.8 ft) above sea level). All of the 180-dB safety radii for other water depths and tow depths and for the single 40 in

airgun to be used during ramp-ups and power-downs (see below) are less than 2 km (1.2 mi).

The likelihood of visual detection at night is significantly lower than during the day, though the PAM remains just as effective at night as during the day. However, the

Langseth

will not be starting up the airguns unless the safety zone is visible for the entire 30 min prior (i.e., not at night), and therefore in all cases at night, the airguns will already be operating, which NMFS

believes will cause many cetaceans to avoid the vessel, which therefore will reduce the number likely to come within the safety radii. Additionally all of the safety radii in intermediate and deep water depths are smaller than 3 km (1.9 mi) and fall easily with the reliable detection capabilities of PAM.

Comment 57:

The Commission recommends that, before issuing the requested authorization, the NMFS clarify the qualifiers “when practical” and “when feasible” with respect to (1) using two MMOs to monitor the exclusion zone for marine mammals during daytime operations and nighttime start-ups of the airguns, and (2) using MMOs during daytime periods to compare sighting rates and animal behavior when the seismic airguns are operating and when they are not.

Dr. John Wang states that the inadequacy of MMVO coverage in this respect would be wholly inadequate even for small-scale marine mammal surveys where the consequence of failing to detect animals are much less serious.

Response:

The

Langseth

carries five trained, NMFS-qualified and experienced MMOs for every seismic study involving use of an airgun system comparable to that planned for the TAIGER project. MMOs are appointed by L-DEO with NMFS concurrence. L-DEO plans to employ a regional expert as one of the MMOs, and negotiations were currently underway with experts from National Taiwan University, Academia Sinica, and National Taiwan Ocean University during the preparation of this notice. L-DEO will have a sixth MMO and regional expert during the second leg of the cruise as well. L-DEO will utilize two (except during meal times), NMFS-qualified, vessel-based MMVOs to watch for and monitor marine mammals near the seismic source vessel during all daytime airgun operations and before and during start-ups of airguns day or night. MMVOs will have access to reticle binoculars (7×50 Fujinon), big-eye binoculars (25x150), and night vision devices to scan the area around the vessel. MMOs will alternate between binoculars and the naked eye to avoid eye fatigue. During all daytime periods, two MMVOs will be on effort from the observation town to monitor greater than 90 percent of the time. During mealtimes it is sometimes difficult to have two MMOs on effort, but at least one MMVO will be on watch during those brief scheduled times. Three MMOs are typically on watch at a time, and typically observe for one to three hours. Two MMVOs will also be on watch during all nighttime start-ups of the seismic airguns. A third MMO will be monitoring the PAM equipment 24 hours a day to detect vocalizing marine mammals present in the action area.

Comment 58:

Dr. John Wang states that in shallow waters (Taiwan Strait), the predicted distance for exposure levels of 180dB and 190dB was estimated by L-DEO to be 2,761 to 3,694m and 1,600 to 2,182 m, respectively. At these distances (which are underestimated) and under ideal sighting conditions, detection of finless porpoises by observers is of limited ineffectiveness at the closest range and very ineffective at the greater distances. Sighting effectiveness will drop dramatically even for highly experienced observers in slight seas. Under conditions where white caps are present, sightings of finless porpoises are rarely made and researchers generally stop observations. At several kilometers distance in shallow water, PAM would not be able to detect finless porpoises adequately because finless porpoises are not always actively vocalizing and the very high frequency sounds emitted by porpoises (Akamatsu

et al.,

1998) attenuate quickly so the PAM's detection range will be limited. Therefore, finless porpoises can and will likely be exposed to >>180dB without being detected especially if sighting conditions are not ideal. For finless porpoises, L-DEO's airguns have the potential to inflict serious permanent injuries or even cause death, directly or indirectly.

Response:

There is a scientific methodology to estimate the probability of detection marine mammal on the surface, as explained in detail in Buckland

et al.

(1993). This includes several components, including the probability that the mammal will be at the surface and potentially sightable while within visible range of the observers, the probability that an animal at the surface will in fact be detected, and the relationship between sighting probability and lateral distance from the trackline.

A certain portion of the population is presumed to be submerged at any given time and is therefore unavailable for detection. However, if the ship speed is slow, many of these animals would surface at some point while within visual range of MMVO's aboard the approaching vessel. The speed of the

Langseth,

and other seismic vessels while operating airguns, will generally be four to five knots of vessels conducting marine mammal line transect surveys.

All L-DEO estimates of potential numbers of animals take account of all these factors to the extent that available data allow. Detectability is a measure of the probability of detecting a marine mammal that is present on a vessel's trackline. L-DEO uses the most applicable detectability values as provided in Koski

et al.

(1998) whenever estimates of marine mammal detectability have not already been calculated. They compiled previously reported detectability information on various species and used data on surfacing/dive cycles to estimate detectability values for species or species groups of marine mammals for which there is no published detectability values. Thus the estimates of incidental take in L-DEO's IHA application and Supplemental EA are either the same (if detectability had already been taken into account) or higher than would be obtained by direct application of previously reported density data.

Monitoring—PAM

Comment 59:

ETSSTAWG asks about the frequency range of the PAM system, and if it is suitable for detecting signals produced by all the marine mammals within the area.

Response:

L-DEO's PAM system is suitable for detecting frequencies up to 96 kHz (192 sampling rate). The virtual bandwidth of the new digital array and sound analysis workstation is 96 kHz (the real bandwidth is around 90 kHz), which is at least double when compared to some of the best PAM systems normally available and four times that of most of the basic systems. L-DEO has the potential for expanding the PAM system to a bandwidth of 160 kHz, but a new hydrophone array will need to be designed to add the required special additional sensors. The array is capable of detecting porpoises, but not harbor porpoises (

Phocena phocena

), which have clicks at 140 kHz.

The low frequency sensor end of the PAM system can detect mysticetes, however there is a problem with low frequency noise and vibration induced in the array by movements in towing the acoustic array system, in particular if a short cable and a depressor are used. To allow detection of low frequency waves,

it is necessary to have a long cable towed with a good vibration damping system and the array should be deep and far from the ship. In the past, Right Wave's PAM system has been able to detect frequencies as low as 10 Hz for fin whales (on the NATO Alliance), but due to towing conditions on the

Langseth

the current configuration can detect a minimum low frequency of 100 Hz.

The digital array is suitable for detecting beaked whales, as it can monitor and record at 48 kHz to get their clicks. The PAM's sound analysis and display system has been proven effective for detecting Cuvier's beaked whale clicks (Sirena 2008 cruise in the Alboran Sea). It is important to note here that in order to detect very diverse sound categories, it is necessary to set up a very powerful computer that is able to signal process to produce and display different real-time views, each view well-tailored on that particular signals' characteristics.

The PAM system has been improved and now has a shot blanking system. A new piece of hardware compresses the shots without blanking them. It works on the PAM operator's headphone output and doesn't affect the recording system. This allows the PAM operator to hear faint signals along with the (volume compressed) “shots” so that they are always aware of what is occurring underwater.

Comment 60:

ETSSTAWG states the MMO operating the PAM system (which should be in addition to the other two at all times) should have considerable experience working with the acoustic signals of many of the marine mammal taxa that are likely to be encountered in the survey.

Response:

The MMO operating the PAM system will be on watch in addition to the two MMVOs watching from the observation tower. Right Waves, an Italian bioacoustics company, is providing L-DEO with state-of-the-art underwater acoustic equipment and skilled operators. Right Waves started their studies on underwater acoustics more than 15 years ago at the Interdisciplinary Center for Bioacoustics and Environmental Research (CIBRA) Institute, which is part of the University of Pavia in Italy. They have organized and conducted several research cruises in order to develop their software, hardware, and data collection protocols. The PAM operators have applied acoustic monitoring and mitigation worldwide for both civil and military institutions. Right Waves is currently working with organizations such as WHOI and NATO to provide their expertise in underwater acoustics. They are also involved in writing mitigation policies for the Italian Navy, NATO, and other European organizations. Part of their activities is described and can be found on the CIBRA Web site at

http://www.unipv.it/cibra.

The Right Waves Web site will be available online soon. NMFS considers the operators of L-DEO's PAM system to be qualified and experienced.

Comment 61:

The Commission recommends that, before issuing the requested authorization, the NMFS consult with the applicant to clarify and describe the potential conditions that would render the use of PAM impracticable for complementing the visual monitoring program.

Response:

Before the issuance of the requested authorization, NMFS consulted with L-DEO to clarify and describe the potential conditions that would render the use of PAM impracticable for complementing the visual monitoring program. L-DEO's lead bioacoustician has stated that there are difficulties with towing the PAM array because the space off the stern of the

Langseth

is mostly filled by the airgun array and streamers. L-DEO tried to tow the PAM from the paravane boom, paravane tow cable, and with floats. Using these methods was not acceptable because the quality of acoustics was considered poor due to tow depth and it also posed a higher risk of totally losing the array. During L-DEO's recent seismic survey near Tonga, PAM operators have found a more successful solution to towing the PAM array by using a depressor (intended to sink fishing gear) that can withstand rough weather and sea conditions. The depressor sinks the PAM array's lead-in cable so that it does not get too close to the airgun array cables. This technique, while it works, can still be improved for a series of reasons. Potential problems that the current PAM set up could experience on the

Langseth

include operations in very shallow waters (20 m or less) and operations in areas with large amounts of fishing gear (longlines, driftnets, etc.) that could lead to entanglement. L-DEO has been provided two new PAM hydrophone arrays that are state-of-the-art, one is a unique digital PAM array.

Comment 62:

Dr. John Wang states that L-DEO should address the effectiveness of PAM for detecting very high frequency vocalizations of small cetaceans in shallow waters several kilometers away (due to rapid attenuation of high frequency sounds).

Response:

Currently, the detection of high-frequency marine mammals signals in shallow water using PAM has limitations in terms of physics, and perhaps even more limitations in terms of the deployment of hydrophone arrays. The size of the cetacean is not likely to be a factor.

After the issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures, including temporal and spatial avoidance of species of particular concern, which includes some small cetacean species (e.g., Indo-Pacific humpback dolphins and finless porpoises). See NMFS' responses to comments above and L-DEO's Supplemental EA.

Comment 63:

Dr. John Wang states that L-DEO should address the ineffectiveness of PAM at determining the location and direction of travel of cetaceans.

Response:

One of the major reasons PAM is not a self standing mitigation tool is the limitations of determining range and bearing. For a seismic vessel on a fixed tract, the signal processing to determine a range has not yet arrived. Bearing is useful, but range is the critical measure for purposes of implementing mitigation measures for the safety radii. In a research vessel situation, free to change course, and with highly trained visual and acoustic teams, PAM can be quite effective to track and stay with vocal marine mammals. The potential to improve PAM technology certainly exists. See NMFS' responses to comments above.

Comment 64:

CSI states that in shallow water, PAM is unlikely to be effective in detecting finless porpoises. Finless porpoises are not always vocalizing and the high frequency sounds produced by finless porpoises attenuate quickly.

Response:

L-DEO's PAM system is capable of detecting the high frequency vocalizations of finless porpoises. See responses to comments regarding finless porpoises in Species of Particular Concern section below. See L-DEO's Supplemental EA for information. After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted additional monitoring and mitigation measures to reduce potential impacts on finless porpoises. NMFS has not authorized any takes of finless porpoises in the IHA issued to L-DEO.

Comment 65:

Dr. John Wang states that in shallow water, PAM would be almost completely ineffective at detecting (never mind locating or tracking) cetaceans especially at the predicted rms distances for the different exposure levels. Furthermore, PAM is only capable of detecting cetaceans when they are vocalizing. Some species have been known to reduce

vocalizations during seismic surveys while other species do not vocalize much at or near the surface (e.g., beaked whales).

Response:

MFS believes that visual observers and PAM are effective tools for monitoring marine mammals in the affected area during the seismic survey. PAM is required for monitoring on the

Langseth

(when practicable), but not for the implementation of mitigation measures. PAM is used by MMOs and the lead bioacoustician aboard the

Langseth

for the detection of vocalizing marine mammals. Any confirmed marine mammal vocalization detections using PAM are communicated to the MMVOs on watch on the observation tower to help alert the MMVOs to the presence of vocalizing marine mammals in the survey area (not necessarily the safety radii). The use of PAM is therefore used in aid of visual observers, who monitor the applicable safety radii for presence of marine mammals. The detection of marine mammals in the vicinity of the array in turn triggers mitigation requirements specified in the IHA issued to L-DEO.

After the issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. NMFS believes that the L-DEO's revised survey as well as the implementation of the required monitoring and mitigation measures described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area.

Monitoring—Visual

Comment 66:

ETSSTAWG states L-DEO's ability to monitor the exclusion zone (“EZ”) proposed by NMFS cannot be properly evaluated because the EZ has not yet been established and awaits further data from L-DEO's 2007/2008 calibration study.

See

73 FR 78297, December 22, 2008.

Response:

Acoustic data analysis for L-DEO's 2007/2008 calibration study is ongoing. Results from the 2007/2008 calibration study in the Gulf of Mexico are in review and a scientific paper on the

Langseth'

s airgun sound source will be published on a future date (Tolstoy, pers. comm.). After the analysis is complete and published, the empirical data from the 2007/2008 calibration study will be used to refine the EZ's for future proposed cruises as appropriate. NMFS considers the results from the 2004 calibration study to be the best scientific data available for L-DEO's purposes of monitoring the EZ's described in Table 1 (above).

Comment 67:

Dr. John Wang states that although large pink/white animals (i.e., Indo-Pacific humpback dolphins) are highly visible within 1 km in calm conditions, younger grey and spotted animals can be easily missed. However, beyond 1 km, high atmospheric humidity and smog that is often present along the west coast of Taiwan can reduce visibility of these animals by a considerable but unquantified amount (personal observation) even with optical aids. Furthermore, because these dolphins are often swimming along the shoreline next to the surf, even pink/white dolphins can be easily missed by offshore observers looking inshore towards the surf. Jefferson (2000) showed that humpback dolphin sightings dropped off considerably beyond a perpendicular distance of about 400 to 500 m and none were observed beyond about 1,500 m. Within the predicted (but underestimated) distances for exposure to >180 dB, many dolphins can go undetected by MMVOs.

Response:

NMFS agrees that some species of marine mammals can be difficult to visually detect in certain environmental conditions. In order to reduce potential impacts on the ETS sub-population of Indo-Pacific humpback dolphins, L-DEO will limit seismic survey lines to take place at least 20 km from the west coast of Taiwan, except for in the passage between the Penghu Islands and the Waishanding Jhou (Wau-san-ting Chou) sandbar, where the survey will pass through the approximately 17.1 km mid-line distance between the two possibly sensitive areas, subject to the limitations imposed by other foreign nations, to minimize the potential for exposing Indo-Pacific humpback dolphins to SPLs >=160 dB re 1 μPa (rms).

Comment 68:

Dr. John Wang states that L-DEO should address the ineffectiveness of MMVOs at detecting cetaceans, especially small cetaceans, under non-ideal sighting conditions (low light, rough seas, rain) and the ineffectiveness of MMVOs at detecting cetaceans, especially small cetaceans, at distances beyond about 1 km but well within the waters ensonified by levels >180 dB in shallow waters (potentially farther than 3.7km).

Response:

After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. L-DEO will be avoiding areas where some species of small cetaceans that are difficult to visually detect (e.g., Indo-Pacific humpback dolphins and finless porpoises) are likely to occur. A sixth MMO and regional expert will be onboard the

Langseth

for the duration of the survey in order to improve visual detection capabilities. L-DEO will also be using a PAM system in order to detect any vocalizing marine mammals. See L-DEO's Supplemental EA.

Comment 69:

Dr. John Wang states that L-DEO should address the ineffectiveness of MMVOs at detecting finless porpoise at distances beyond 1 km under any conditions, but well within the waters ensonified by levels >180dB (possibly >190 dB) in shallow waters (potentially farther than 3.7km).

Response:

The monitoring methods for detection of marine mammals on the

Langseth

are relatively standard methods used onboard vessels for conducting marine mammal abundance surveys and under IHA's. The PAM system onboard the vessel is capable of detecting the vocalizations of finless porpoises. A description of the monitoring methods can be found below (see Monitoring and Mitigation). In response to concerns about marine mammal species of particular concern, L-DEO will be avoiding the potential habitat of finless porpoises. L-DEO will shut-down the airgun array immediately if there is a sighting at any distance of finless porpoises in order to prevent exposure of animals to received levels greater than or equal to 160 dB and especially 180 dB. No incidental take of finless porpoises are anticipated or authorized in the IHA issued to L-DEO.

Comment 70:

Dr. John Wang states that L-DEO should address the ineffectiveness of MMVOs with little experience with local marine mammal species and conditions (species identification can be problematic even for experienced researchers in this region due to the large number of species). MMVOs that are highly experienced with the fauna and conditions of the region need to be involved.

Response:

The

Langseth

normally carries five qualified and experienced MMOs for every seismic study involving use of an airgun system comparable to the array used for this project. L-DEO will also employ a sixth MMO and regional expert for the duration of the survey. MMOs are appointed by L-DEO with NMFS concurrence.

Comment 71:

Dr. John Wang states that L-DEO should address MMVO fatigue and lack of vigilance during search (on-duty search times of up to four hours is far too long; should be reduced to rotations of between 30 and 60 minutes at most).

Response:

MMO's typically observe for one to three hours. Because there are usually two MMVO's on visual watch at a time, they alternate between visually observing with reticle binoculars (7x50

Fujinon), Big-eye binoculars (25x150), and the naked eye to avoid eye fatigue.

Comment 72:

Dr. John Wang states that L-DEO should address the ineffectiveness of night vision equipment for small cetaceans, especially at distances beyond about 1 km but well within the waters ensonified by levels >180dB in shallow waters (potentially farther than 3.7km).

Response:

Though it depends on the lights on the ship, the sea state, and thermal factors, MMVOs estimated that visual detection is effective out to between 150 and 250 m using NVDs and about 30 m with the naked eye. However, the PAM operates equally as effectively at night as during the day, especially for sperm whales and dolphins (dolphins and porpoises are the only species likely to be detected in the “shallow” depths, where the safety zones are the largest).

Marine geophysical surveys may continue into night and low-light hours is such segment(s) of the survey is initiated when the entire relevant safety zones are visible and can be effectively monitored. No initiation of airgun array operations is permitted from a shut-down position at night or during low-light hours (such as in dense fog or heavy rain) when the entire relevant safety zone cannot be effectively monitored by the MMVOs on duty. NMFS has included a requirement to this effect in the IHA issued to L-DEO.

Comment 73:

Dr. John Wang states that L-DEO should address the ineffectiveness of MMVOs at detecting beaked whales, especially when they are very quiet near the surface (detection is known to be very low even for experienced observers in good conditions).

Response:

NMFS agrees that beaked whales are difficult to detect at the surface. Three MMOs are typically on watch at a time, two on the observation tower conducting visual observations and the third monitoring the PAM equipment. The MMVOs will alternate between surveying with reticle binoculars (7x50 Fujinon), Big-eye binoculars (25x150), and the naked eye to avoid eye fatigue. The PAM system is capable of detecting beaked whale clicks as well.

Statements have been made in the past that little information is available on beaked whales because they avoid survey vessels. One can presume therefore, that MMOs onboard a vessel conducting seismic operations are unlikely to see beaked whales not only because they are cryptic, but also because beaked whales are likely to avoid an approaching sound source and leave the area.

When operating the sound source(s), L-DEO will minimize approaches to slopes, submarine canyons, seamounts, and other underwater geologic features, if possible, because of sensitivity of beaked whales and possible beaked whale habitat. If concentrations or groups of beaked whales are observed (by visual or passive acoustic detection) at a site such as on the continental slope, submarine canyon, seamount, or other underwater geologic feature just prior to or during the airgun operations, those operations will be powered/shut-down and/or moved to another location along the site, if possible, based on recommendations by the on-duty MMO aboard the

Langseth.

NMFS has included requirements to this effect in the IHA issued to L-DEO.

Comment 74:

Dr. John Wang states that L-DEO should address the ineffectiveness of MMVOs at detecting, tracking and following animals entering and exiting the area being ensonified by sounds greater than the thresholds stated (in shallow waters >180dB can be farther than 3.7km).

Response:

There are significant limitations to PAM as PAM technology is presently immature, yet constantly improving. PAM is a useful enhancement tool to visual observer efforts and every effort is made to use it when practicable. NMFS believes that visual observers and PAM are effective tools for monitoring marine mammals in the affected area during the seismic survey. PAM is required for monitoring on the

Langseth

(when practicable), but not for the implementation of mitigation measures. PAM is used by MMOs and the lead bioacoustician aboard the

Langseth

After the issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. NMFS believes that L-DEO's revised survey as well as the implementation of the monitoring and mitigation measures described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area.

Comment 75:

Dr. John Wang states that it is unclear how it can be visually observed that an animal has left the EZ if the EZ is more distant than 1 km and during poor sighting conditions. Not detecting an animal within the EZ boundary may be determined erroneously as the animal having left the area rather than observers failing to see the animal. Such situations are likely to occur very frequently when sightings conditions are not ideal and the EZ's distance from source extends beyond 1km. Obviously, this can have serious consequences.

Response:

After the issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. L-DEO will alter speed or course during seismic operations if a marine mammal, based on its position and relative motion, appears likely to enter the relevant safety zone. If speed or course alteration is not safe or practicably, or if after alteration the marine mammal still appears likely to enter the safety zone, further mitigation measures, such as a power-down or shut-down, will be taken. Following a power-down, if the marine mammal approaches the smaller designated safety radius, the airguns must then be completely shut-down. Airgun activity will not resume until the MMVO has visually observed the marine mammal(s) exiting the safety radius and is not likely to return, or has not been seen within the radius for 15 min (species with shorter dive durations—smaller odontocetes) or 30 min (species with longer dive durations—mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales). Following a power-down or shut-down and subsequent animal departure, airgun operations may resume following ramp-up procedures described in the IHA. NMFS has included requirements to these effects in the IHA issued to L-DEO. NMFS believes that L-DEO's revised survey as well as the implementation of the required monitoring and mitigation measures described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area.

Comment 76:

Dr. John Wang states that secondary support vessels should be used to search for cetaceans with MMVOs to cover a sufficient amount of water to reduce the number of marine mammals being exposed to >160 dB.

Response:

Prior to issuing this IHA, NMFS thoroughly investigated all

measures that might reduce the incidental taking of marine mammals to the lowest level practicable. Monitoring and mitigation measures are discussed later in this document. Mitigation measures, such as aerial overflights or support vessels to look for marine mammals prior to an animal entering a safety zone, may be given consideration if the safety zone cannot be adequately monitored from the source vessel. Consideration also must be given to aircraft/vessel availability, access to nearby airfields, distance from an airfield to the survey area, and the aircraft's flight duration. These are serious safety issues regarding aircraft flights over water that must be considered prior to requiring aerial overflights. Additional consideration must be give to the potential for aircraft to also result in Level B harassment since a plane or helicopter would need to fly at low altitudes to be effective.

Even if aircraft or a second vessel are not necessary or feasible to monitor a safety zone, they might be appropriate to monitor shorelines (presumably for strandings related to the activity). For this survey, the most appropriate monitoring is for the MMOs onboard the

Langseth

to observe visually and using the PAM system.

Comment 77:

CSI states that based on the table of predicted rms distances for different received levels, MMVOs may be completely ineffective for detecting small cetaceans in shallow coastal waters because the distance from source will be great even for 190 dB received level (1,600 to 2,182 m); for 180 dB, the distances can be 2,761 to 3,694 m from source and for 160 dB, the distances are 6,227 to 8,000 m. Again, these distances must be considered underestimates because the coastal waters of western Taiwan in which some cetaceans inhabit are much shallower than 100 m (e.g., the critically endangered ETS sub-population of Indo-Pacific humpback dolphin are in waters from 1.5 to 15 m deep; finless porpoises and Indo-Pacific bottlenose dolphins are often commonly observed in waters shallower than about 50 m). Finless porpoises are difficult to detect even if they are within several hundred meters and sighting is during excellent conditions and by experienced observers (note: excellent weather conditions for sighting cetaceans in the waters around most of Taiwan, especially western Taiwan, are very limited). Nighttime visual detection of these coastal species is impossible at the distances shown above even with night-vision equipment. MMVOs have limited effectiveness in detecting many deep-diving species such as beaked whales and

Kogia

sp. These are all difficult species to observe and study by experienced researchers. Barlow (1999) reported that very few beaked whales are detected even in prime sighting conditions by cetacean researchers, Barlow and Gisiner (2006) estimated that less than 2% of the beaked whales are likely to be observed by typical mitigation monitoring (this estimation did not account for observer experience, which will greatly affect detection). With such a low detection rate, other mitigation measures dependent upon detection and tracking will be compromised. None of the mitigation measures takes into account sighting conditions. This is important as several of the mitigation measures are dependent upon observers sighting marine mammals.

Response:

NMFS agrees that some deep-diving species (such as beaked whales and

Kogia

sp.), which may be found in the study area, are cryptic at the surface and difficult to observe. The

Langseth

carried five qualified and experienced MMOs for every seismic study involving use of an airgun system comparable to that used for this project. MMOs are appointed by L-DEO with NMFS concurrence. L-DEO is also employing a regional expert as a sixth MMO.

Comment 78:

CSI states that L-DEO claims that “marine mammal detection by MMVOs is high at short distances from the source.” With the possible exception of 180 dB at 950 m for deep water, the distances mentioned above (especially for operations in shallow waters) are not short for sighting cetaceans (small or large). Detection of most species drops off beyond 1 km from a ship. Even 25x150 (Big-eye) binoculars may have limited use in a region with high humidity and smog in coastal regions (e.g., western Taiwan), which can reduce the clarity of high power optical aids. The detection of finless porpoises at distances beyond 1 km is poor. At 3,694 m, detection for small cetaceans is limited and maybe questionable (especially for finless porpoises) when sighting conditions are sub-optimal. In no way can the detection of small cetaceans in shallow water at distances of several kilometers be considered high. For beaked whales, only a small proportion of the animals are detected by experienced observers in good sighting conditions (Barlow, 1999). As such, beaked whale detection cannot be considered to be high either. Because detection of both shallow water small cetaceans and beaked whales were wrongly concluded to be high, take by injury or death cannot be dismissed and the potential for temporary or permanent hearing impairment is not low and (as discussed above) cannot be avoided by implementing the inadequate mitigation measures proposed.

Response:

The

Langseth

travels at a much slower operation speed (four to five kts) than vessels conducting cetacean surveys (typically 10 kts). Statements have been made in the past that little information is available on beaked whales because they avoid survey vessels. One can presume therefore, that MMVO's onboard a vessel conducting seismic operations are unlikely to see beaked whales not only because they are cryptic, but also because the animals would see or hear the slowly approaching vessel and leave the area. NMFS presumes that beaked whales will similarly avoid sources of anthropogenic noise, provided they are afforded sufficient notice of the activity through a gradual increase in noise levels rather than receiving a sudden, loud sound that might inflict a panic reaction or perhaps serious injury.

See

Species of Particular Concern and L-DEO's Supplemental EA.

Comment 79:

Seismic surveys should not be conducted in poor cetacean sighting conditions (low light, SS>4, rain, heavy fog or haze) until a proven (acceptable to most marine mammal scientists) method for detecting cetaceans is developed for such conditions. Low light and night time seismic surveys should not be permitted at this time.

Dr. John Wang states that detection of marine mammals as part of a mitigation measure has to be at least as effective, but preferably better, at detecting cetaceans as cetacean survey projects because the consequences are more serious if cetaceans are not detected.

Response:

MMO's effectively conduct systematic surveys for detecting cetaceans during the seismic cruise onboard the

Langseth.

In addition to visual observations using reticle binoculars, big-eye binoculars, night vision devices, and the naked eye, PAM is used day and night (as practical), which can detect vocalizing marine mammals present in the area. Many dedicated cetacean survey projects use the same or similar equipment as the MMO's onboard the

Langseth.

The

Langseth'

s crew will also assist in detecting marine mammal, when practicable.

During ramp-ups of the airgun array, if for any reason the entire radius cannot be seen for the entire 30 min (i.e., rough seas, fog, darkness), or if marine mammals are near, approaching, or in the safety radius, the airguns may not be started up. Marine seismic surveys may continue into night and low-light hours if such segment(s) of the survey is initiated when the entire relevant safety zones are visible and can be effectively monitored. No initiation of airgun array operations is permitted from a shut-down position at night or during low-light hours (such as dense fog or heavy rain) when the entire relevant safety zone cannot be effectively monitored by the MMVOs on duty.

Comment 80:

The Commission recommends that, before issuing the requested authorization, the NMFS extend the monitoring period to at least one hour before initiation of seismic activities and at least one hour before the resumption of airgun activities after a power-down because of a marine mammal sighting within the safety zone.

Response:

As the Commission points out, several species of deep-diving cetaceans are capable of remaining underwater for more than 30 minutes, however, for the following reasons NMFS believes that 30 minutes is an adequate length for the monitoring period prior to the start-up of airguns: (1) Because the

Langseth

is required to ramp-up the time of monitoring prior to start-up of any but the smallest array is effectively longer than 30 minutes (ramp-up will begin with the smallest gun in the array and airguns will be added in sequence such that the source level of the array will increase in steps not exceeding approximately 6 dB per 5 min period over a total duration of 20-30 min), (2) in many cases MMOs are making observations during times when seismic is not being operated and will actually be observing prior to the 30 min observation period anyway, (3) the majority of the species that may be exposed do not stay underwater more than 30 minutes, and (4) all else being equal and if deep diving individuals happened to be in the area in the short time immediately prior to the pre-start-up monitoring, if an animal's maximum underwater time is 45 min, there is only a one in three chance that the last random surfacing would be prior to the beginning of the required 30 min monitoring period.

Also, seismic vessels are moving continuously (because of the long, towed array) and NMFS believes that unless the animal submerges and follows at the speed of the vessel (highly unlikely, especially when considering that a significant part of their movements is vertical [deep-diving]), the vessel will be far beyond the length of the safety radii within 30 min, and therefore it will be safe to start the airguns again.

Mitigation

Comment 81:

Dr. John Wang states that the effectiveness of the mitigation measures proposed by L-DEO for reducing threats range between having questionable effectiveness and being entirely inadequate.

Response:

After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. NMFS believes that L-DEO's revised survey as well as the implementation of the required monitoring and mitigation measures described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area.

Comment 82:

NRDC is concerned that L-DEO's EA and NMFS' proposed IHA do not meet the rigorous standards of environmental review required by the NEPA and the MMPA. For example, L-DEO's EA does not properly analyze impacts or adopt adequate mitigation measures. Although the EA notes the lack of scientific information regarding species distribution and acoustic impacts of seismic activities, it nonetheless and without basis concludes that the proposed surveys will have only “minor” effects on marine mammal species. NMFS' proposed IHA also notes the lack of density data yet nevertheless concludes, again without basis, that the proposed seismic surveys will have only negligible impacts on marine mammals. And, like L-DEO, NMFS does not propose meaningful mitigation measures.

Response:

After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. NMFS believes that L-DEO's revised survey as well as the implementation of the required monitoring and mitigation measures described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area. NMFS and NSF have satisfied all requirements of NEPA and the MMPA.

Comment 83:

WaH states that while it may be true that some of the planned monitoring and mitigation measures “would reduce the possibility of injurious effects,” the proposed monitoring and mitigation measures are inadequate and cannot be argued to prevent the possibility of injurious effects to cetaceans, which are highly likely to occur. The claim in the EA that “no long-term or significant effects are expected on individual marine mammals * * * the populations to which they belong, or their habitats” is ill-founded and should be reconsidered in light of the above concerns.

Response:

After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. NMFS believes that L-DEO's revised survey as well as the implementation of the required monitoring and mitigation measures described in the IHA issued to L-DEO will have a negligible impact on the affected species or stocks of marine mammals in the study area.

See

L-DEO's Supplemental EA.

Comment 84:

WaH states that there is a lack of understanding of the distribution and status of the species and populations mentioned in their comments highlights the need for greater precaution and investigation prior to carrying out seismic surveys in this region. However several proposed monitoring and mitigation measures do not reflect the need for precaution, for example: (1) The proposed number of MMOs is insufficient (a minimum of only one observer working during daytime operations, except for 30 minutes before and after ramp-up when this will be increased to two observers); (2) nighttime seismic survey could be (but are not) prohibited, meaning impaired effectiveness of MMVOs and greater reliance on PAM, which

provides no certainty of detection of animals that are not vocalizing.

Response:

After issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. The

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carries five qualified and experience MMOs for every seismic study involving the use of an airgun system comparable to that planned for this project. L-DEO is employing a regional expert as a sixth MMO. Three MMOs are typically on watch at a time, two on the observation tower conducting visual watch and the third MMO monitoring the PAM equipment. On the tower, two MMVOs are on watch during all daylight hours except during meal times. The scientists conducting the survey have considered the recommendation for no nighttime seismic operations, and have decided that it is not feasible, as limiting the surveys to daytime only would either result in the loss of half of the data or would necessitate doubling the duration of the project. Doubling the duration of the surveys is not possible because the

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has other research commitments after this cruise, and because of weather conditions associated with the typhoon season. However, the seismic source will not be started if the observers cannot view the entire safety radius for any reason (darkness, for, or rough seas). In addition, PAM is being used day and night as practical, which can detect vocalizing marine mammals present in the study area. NMFS believes that L-DEO's revised survey as well as the implementation of the required monitoring and mitigation measures described in the IHA will have a negligible impact on the affected species or stocks of marine mammals in the study area.

Comment 85:

Minor and Wilson are greatly saddened to see the high proportion of cetaceans that are endangered in the proposed study area. Some of the species have population levels that are so low that the loss of a single individual could significantly increase the chances of extinction. Minor and Wilson do not feel that chasing these animals around with a boat that produces seismic “bangs” that are still 170 dB at a distance of 7,808 m from the boat will be anything other than harmful to these endangered animals.

Response:

After the issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures. NMFS believes that L-DEO's revised survey as well as the implementation of the monitoring and mitigation measures described in the IHA will have a negligible impact on affected species or stocks of marine mammals in the study area.

The principal investigator's intended work in the Taiwan Strait is designed so that seismic energy from the

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can be recorded by OBSs in the Taiwan Strait and by land instruments. By using both seismic reflections from various rock layers and refracted seismic energy they can determine the thickness of the crust and get an idea of the type of rocks in the crust. If they record data on a long profile they can compare the crustal structure, and, in the case of Taiwan, identify what the structure is before and after deformation caused by the collision with the Luzon volcanic arc. In Taiwan, the affects of collision increase from south to north and also from west to east.

Comment 86:

Dr. Linda Weilgart states that the treatment of possible impact is very superficial, and does not take into account that ecological and population-level consequences may result. Especially where many depleted species in the area are faced with a myriad of threats and stressors already, the addition of noise may prove to be the final straw. In nature, cumulative stressors often interact synergistically, particularly if there are several stressors. Noise impacts should not be reduced to merely hearing impairment, though that is certainly possible and serious. Even TTS can compromise an animal's survival, in that its feeding, predator avoidance, and social behavior are impacted. Other behavioral responses such as permanent avoidance of an area that is associated with a frightening, loud noise are also possible.

Response:

After the issuance of the proposed IHA, L-DEO modified the cruise plan and adopted more precautionary monitoring and mitigation measures in the study area. NMFS believes t

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