Friday, August 14, 2009

Part III

Department of Commerce National Oceanic and Atmospheric Administration

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

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DEPARTMENT OF COMMERCE geographical region if certain findings Japan, and the Philippines, and on the are made and either regulations are high seas, and is scheduled to occur National Oceanic and Atmospheric issued or, if the taking is limited to from March 31 to July 20, 2009. Some Administration harassment, a notice of a proposed minor deviation from these dates is RIN 0648–XL89 authorization is provided to the public possible, depending on logistics and for review. weather. Incidental Takes of Marine Mammals Authorization for incidental taking Taiwan is one of only a few sites of During Specified Activities; Marine shall be granted if NMFS finds that the arc-continent collision worldwide; and Geophysical Survey in Southeast Asia, taking will have a negligible impact on one of the primary tectonic March–July 2009 the species or stock(s), will not have an environments for large scale mountain unmitigable adverse impact on the building. The primary purpose of the AGENCY: National Marine Fisheries availability of the species or stock(s) for TAIGER project is to investigate the Service (NMFS), National Oceanic and subsistence uses (where relevant), and if processes of mountain building, a Atmospheric Administration (NOAA), the permissible methods of taking and fundamental set of processes which Commerce. requirements pertaining to the plays a major role in shaping the face of ACTION: Notice; issuance and mitigation, monitoring and reporting of the Earth. The vicinity of Taiwan is modification of an incidental take such takings are set forth. NMFS has particularly well-suited for this type of authorization. defined ‘‘negligible impact’’ in 50 CFR study, because the collision can be 216.103 as ‘‘ * * * an impact resulting observed at different stages of its SUMMARY: In accordance with the from the specified activity that cannot evolution, from incipient, to mature, Marine Mammal Protection Act be reasonably expected to, and is not and finally to post-collision. (MMPA) regulations, notification is reasonably likely to, adversely affect the As a result of its location in an hereby given that NMFS issued and species or stock through effects on ongoing tectonic collision zone, Taiwan modified an Incidental Harassment annual rates of recruitment or survival.’’ experiences a great number of Authorization (IHA) to Lamont-Doherty Section 101(a)(5)(D) of the MMPA earthquakes, most are small, but many Earth Observatory (L–DEO), a part of established an expedited process by are large and destructive. This project Columbia University, for the take small which citizens of the U.S. can apply for will provide a great deal of information numbers of marine mammals, by an authorization to incidentally take about the nature of the earthquakes harassment, incidental to conducting a small numbers of marine mammals by around Taiwan and will lead to a better marine seismic survey in Southeast (SE) harassment. Except with respect to assessment of the earthquake hazards in Asia during March–July 2009. certain activities not pertinent here, the the area. The information obtained from DATES: Effective March 31, 2009, MMPA defines ‘‘harassment’’ as: this study will help the people and the through August 20, 2009. earthquake hazards in the area. The any act of pursuit, torment, or annoyance information obtained from this study ADDRESSES: A copy of the IHA and which (i) has the potential to injure a marine will help the people and government of application are available by writing to P. mammal or marine mammal stock in the wild Taiwan to better prepare for future Michael Payne, Chief, Permits, [‘‘Level A harassment’’]; or (ii) has the seismic events and may thus mitigate Conservation, and Education Division, potential to disturb a marine mammal or some of the loss of life and economic Office of Protected Resources, National marine mammal stock in the wild by causing disruption of behavioral patterns, including, disruptions that will inevitably occur. Marine Fisheries Service, 1315 East- but not limited to, migration, breathing, The action is planned to take place in West Highway, Silver Spring, MD nursing, breeding, feeding, or sheltering the territorial seas and EEZ’s of foreign 20910–3235 or by telephoning the [‘‘Level B harassment’’]. nations, and will be continuous with the contact listed here. A copy of the 16 U.S.C. 1362(18) activity that takes place on the high application containing a list of the Section 101(a)(5)(D) establishes a 45- seas. NMFS does not authorize the references used in this document may day time limit for NMFS’ review of an incidental take of marine mammals in be obtained by writing to the address application followed by a 30-day public the territorial seas of foreign nations, as specified above, telephoning the contact notice and comment period on any the MMPA does not apply in those FOR FURTHER listed below (see proposed authorizations for the waters. However, NMFS still needs to INFORMATION CONTACT), or online at: incidental harassment of small numbers calculate the level of incidental take in http://www.nmfs.noaa.gov/pr/permits/ of marine mammals. Within 45 days of territorial seas as part of the analysis incidental.htm. Documents cited in this the close of the comment period, NMFS supporting issuance of an IHA in order notice may be viewed, by appointment, must either issue or deny issuance of to determine the biological accuracy of during regular business hours, at the the authorization. the small numbers and negligible aforementioned address. impact determination. FOR FURTHER INFORMATION CONTACT: Summary of Request Howard Goldstein or Ken Hollingshead, On October 27, 2008, NMFS received Description of the Specified Activity Office of Protected Resources, NMFS, an application from L–DEO for the The planned survey will involve one 301–713–2289. taking, by Level B harassment only, of source vessel, the R/V Marcus G. SUPPLEMENTARY INFORMATION: small numbers of marine mammals Langseth (Langseth), which will occur incidental to conducting, under in SE Asia. The Langseth will deploy an Background cooperative agreement with the National array of 36 airguns (6,600 in3) as an Sections 101(a)(5)(A) and (D) of the Science Foundation (NSF), a marine energy source at a tow depth of 6–9 m MMPA (16 U.S.C. 1361 et seq.) direct seismic survey in SE Asia. The funding (20–30 ft). The receiving system will the Secretary of Commerce to allow, for the Taiwan Integrated Geodynamics consist of a hydrophone streamer and upon request, the incidental, but not Research (TAIGER) survey is provided approximately 100 ocean bottom intentional, taking of marine mammals by the NSF. The proposed survey will seismometers (OBSs). The Langseth will by United States (U.S.) citizens who encompass the area 17°30′–26°30′ N, deploy an 8 km (5 mi) long streamer for engage in a specified activity (other than 113°30′–126° E within the Exclusive most transects requiring a streamer; commercial fishing) within a specified Economic Zones (EEZ) of Taiwan, however, a shorter streamer (500 m to 2

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km or 1,640 ft to 1.2 mi) will be used transponder interrogates the OBS at a The closest approach to the Ryuku during surveys in Taiwan (Formosa) frequency of 9–11 kHz, and a response Islands and Okinawa Islands will be Strait. As the airgun array is towed is received at a frequency of 9–13 kHz. 51.5 km (32 mi) and approximately 400 along the survey lines, the hydrophone The burn wire release assembly is then km (249 mi), respectively. Although the streamer will receive the returning activated, and the instrument is released survey will occur at least 32 km (29.9 acoustic signals and transfer the data to from the anchor to float to the surface. mi) from Luzon, Philippines, survey the on-board processing system. The The seismic survey as described in lines will take place approximately 28.6 OBSs record the returning acoustic the Federal Register notice (73 FR km (17.8 mi) and 8.8 km (5.5 mi) from signals internally for later analysis. The 78294, December 22, 2008) for the the Babuyan and Batan islands, OBSs to be used for the TAIGER proposed IHA was 15,902 km (9,881 mi) respectively. Water depths in the survey program will be deployed and retrieved in length. After public comment, L–DEO area range from approximately 25 to numerous times by a combination of 4 revised the tracklines so that the seismic 6,280 m (164–20,603 ft). There are not or 5 Taiwanese support vessels, as well survey consists of approximately 14,515 seismic lines in less than 50 m (164 ft) km (9,019 mi) of transect lines within as the Langseth. The Langseth will also water depth. The closest seismic line to the South and East China Seas as well retrieve 20 OBSs that were deployed in land is approximately 3.7 km (2.3 mi) as the Philippine Sea, with the majority the study area during previous years to from an island off the east coast of record earthquake activity. of the survey effort occurring in the Approximately 100 OBSs will be South China Sea. The total length of the Taiwan. The TAIGER program consists deployed during the survey. OBSs will revised tracklines is approximately 9 of 4 legs, each starting and ending in likely be deployed and retrieved by the percent less than the total length of the Kao-hsiung, Taiwan. The first leg is Langseth as well as a combination of 4 original tracklines. The survey will take expected to occur from approximately to 5 Taiwanese vessels. The Taiwanese place in water depths ranging from March 31 to April 28, 2009 and will vessels to be used include two 30 m approximately 25 to 6,585 m (82–21,598 include the survey lines in the South (98.4 ft) vessels (the R/V Ocean ft), but most of the survey effort China Sea. The second leg is scheduled Researcher 2 and the R/V Ocean (approximately 84.4 percent) will take for May 3 to June 3, 2009 and will Researcher 3) and two vessels greater place in water greater than 1,000 m include survey lines around Taiwan. than 60 m (196.8 ft) in length (R/V (3,280 ft), 11.4 percent will take place in The third leg (approximately June 7–14, Fisheries Research I and the Navy ship intermediate depth waters (100–1,000 m 2009) will involve OBS recovery by the Taquan). The R/V Ocean Research I or 328–3,280 ft), and 4.2 percent will Langseth only; no seismic acquisition may also be used if the Langseth is not occur in shallow depth water (less than will occur during this leg. The fourth used to deploy OBSs. The OBS 100 m or 328 ft). leg, consisting of the survey lines in the deployment spacing will vary All planned geophysical data Luzon Strait and Philippine Sea, is depending on the number of acquisition activities will be conducted scheduled to occur from June 18 to July instruments available and shiptime. The by L–DEO with onboard assistance by 20, 2009. The program will consist of nominal spacing is 15 km (9.3 mi), but the scientists who have proposed the approximately 103 days of seismic this will vary from as little as 5 km (3.1 study. The scientific team consists of Dr. acquisition. The exact dates of the mi) to perhaps as much as 25 km (15.5 Francis Wu (State University of New activities depend on logistics and mi). The OBSs will be deployed and York at Binghamton) and Dr. Kirk weather conditions. recovered several (2 to 4) times. 60 of McIntosh (University of Texas at Austin, the 100 OBSs may be deployed from the Institute of Geophysics). The vessel will Safety Radii Langseth. All OBSs will be retrieved at be self-contained, and the crew will live L–DEO estimated the safety radii the end of the study. aboard the vessel for the entire cruise. Up to 3 different types of OBSs may In addition to the operations of the around their operations using a model be used during the 2009 program. The airgun array, a 12 kHz Simrad EM 120 and by adjusting the model results Woods Hole Oceanographic Institution multibeam echosounder (MBES) and a based on empirical data gathered in the (WHOI) ‘‘D2’’ OBS has a height of 3.5 kHz sub-bottom profiler (SBP) will Gulf of Mexico in 2003. Additional approximately 1 m (3.3 ft) and a be operated from the Langseth information regarding safety radii in maximum diameter of 50 cm. The continuously throughout the TAIGER general, how the safety radii were anchor is made of hot-rolled steel and cruise. calculated, and how the empirical weighs 23 kg (50.7 lbs). The anchor measurements were used to correct the dimensions are 2.5 x 30.5 x 38.1 cm. Dates, Duration, and Region of Activity modeled numbers may be found in The LC4x4 OBS from the Scripps The survey will encompass the area NMFS’ proposed IHA notice (73 FR Institution of Oceanography (SIO) has a from approximately 17°30′–26°30′ N, 78294, December 22, 2008) and L–DEO’s volume of approximately 1 m3 (3.3 ft2), 113°30′–126° E within the EEZs of application. Using the modeled with an anchor that consists of a large Taiwan, Japan, and the Philippines. The distances and various correction factors, piece of steel grating (approximately 1 vessel will approach mainland Taiwan Table 1 outlines the distances at which m2 or 3.3 ft2). Taiwanese OBSs will also within 5.2 km (3.2 mi) and mainland three rms sound levels (190 dB, 180 dB, be used; their anchor is in the shape of China within 116 km (72 mi). The vessel and 160 dB) are expected to be received an ‘x’ with dimensions of 51–76 cm2 will approach within 3.7 km (2.3 mi) from the various airgun configurations (1.7–2.5 ft2). Once the OBS is ready to and 105 km (65 mi) of islands off the in shallow, intermediate, and deep be retrieved an acoustic release coast of Taiwan and China, respectively. water depths.

Predicted RMS Distances (m) Source and volume Tow depth (m) Water depth 190 dB 180 dB 160 dB

Single Bolt airgun 40 in3 ...... *6–9 Deep ...... 12 40 385 ...... Intermediate ...... 18 60 578 ...... Shallow ...... 150 296 1,050 4 strings 36 airguns 6600 in3 ...... 6–7 Deep ...... 220 710 4,670

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Predicted RMS Distances (m) Source and volume Tow depth (m) Water depth 190 dB 180 dB 160 dB

...... 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), inter- mediate (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 ef- fect on the maximum near-field output and the shape of the frequency spectrum for the single 40 in3 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 Futures Society, and Jean-Michel 2008). Many interested persons and based in part on empirical correction Cousteau), Wild at Heart Legal Defense organizations requested an extension of factors derived from acoustic calibration Association (WaH) (on behalf of the 30-day public comment period to of airgun configurations different from Changhua County Environmental allow for the adequate review of lengthy those to be used on the Langseth (cf. Protection Union, Clymene Enterprises, documents associated with the Tolstoy et al., 2004a,b), L–DEO Green Party Taiwan, Taiwan Friends of proposed IHA and prepare responses. conducted an acoustic calibration study the Global Greens, Leviathan Sciences, Response: NMFS considered these of the Langseth’s 36 airgun Environment and Animal Society of requests during the 30-day public (approximately 6,600 in3) array in late Taiwan, Wild Bird Society of Yunlin, comment period and published a notice 2007/early 2008 in the Gulf of Mexico Matsu’s Fish Conservation Union, Blue in the Federal Register (74 FR 2995, (LGL Ltd., 2006). Distances where sound Dolphin Alliance, Hong Kong Dolphin January 16, 2009) extending the public levels (e.g., 190, 180, and 160 dB re 1 Conservation Society [HKDCS], Dr. comment period for the proposed IHA μPa rms) were received in deep, Ellen Hines, Taiwan Sustainable Union, from January 21 to February 5, 2009. intermediate, and shallow water will be Jo Marie V. Acebes, APEX The 15-day extension is due to the determined for various airgun Environmental, Coral Triangle Oceanic unique circumstances of the timing of configurations. Acoustic data analysis is Cetacean Program and IUCN Species the publication of the Federal Register ongoing and a scientific paper on the Survival Commission—Cetacean notice (74 FR 2995, January 16, 2009) Langseth calibration study is currently Specialist Group, Kimberly Reihl, relative to several Federal holidays. The in review for future publication Changhua Coast Conservation Action, Federal Register notice (74 FR 2995, (Tolstoy, pers. comm.). After analysis, Ocean Park Corporation, Dr. Bradley January 16, 2009) published three days the empirical data from the 2007/2008 White, Ketos Ecology, CSI, Dr. Wang before the Christmas holiday, which fell calibration study will be used to refine Ding, Study Centre for Marine on Thursday, December 25, 2008. The the exclusion zones (EZ) proposed Conservation, AAF, International following day, Friday, December 26, above for use during the TAIGER cruise, Laboratory for Dolphin Behaviour 2008 was declared a Federal holiday for if the data are appropriate and available Research, Mary Speer, and American executive branch departments and for use at the time of the survey. Cetacean Society), CSI, Linking agencies. New Year’s Day, a Federal A more detailed description of the Individuals for Nature Conservation holiday, was the following Thursday, authorized action, including vessel and (LINC), Humane Society International January 1, 2009. The 15-day extension acoustic source specifications, was (HSI), Dr. John Wang, Eastern Taiwan was given in recognition of the fact that included in the proposed IHA notice (73 Strait Sousa Technical Advisory the timing of these three holidays led FR 78294, December 22, 2008). Working Group (ETSSTAWG), AAF, many workers to be away for much of the two-week period and some non- Comments and Responses HKDCS, Dr. Robert Brownell, Dr. Lien- Siang Chou, Dr. Linda Weilgart, Dr. Kirk government organizations closed their A notice of receipt of the L–DEO McIntosh and Dr. Francis Wu (Dr. offices during that period. NMFS is also application and proposed IHA was McIntosh and Dr. Wu), Dr. Lemnuel aware that the proposed action was for published in the Federal Register on Aragones, Dr. Joseph Minor and Dr. a new geographical area rather than a December 22, 2008 (73 FR 78294). A Christine Wilson and James Minor and renewal of a prior action, where the notice extending the public comment Susan Wilson (Minor and Wilson), and associated documents are lengthy and period by 15 days, to February 5, 2009, a private citizen. The public comments would likely not be familiar to many due to several Federal holidays, was can be found online at: http:// interested parties. NMFS believes that a published in the Federal Register on www.nmfs.noaa.gov/pr/permits/ 30-day comment period with a 15-day January 16, 2009 (74 FR 2995). During incidental.htm. extension (for a total of 45 days) is more the comment period, NMFS received The following are their comments, than an adequate time period for the comments from the Marine Mammal and NMFS’ responses. public to address concerns and submit Commission (Commission). NMFS also comments. received comments from the Center for Extension Requests Regulatory Effectiveness (CRE), Natural Comment 1: Numerous parties General Comments Resources Defense Council (NRDC) (on expressed concern regarding L–DEO’s Comment 2: The CRE objects to the behalf of International Fund for Animal IHA application under the MMPA to statement in the proposed IHA (73 FR Welfare, Whale and Dolphin incidentally harass marine mammals 78303, December 22, 2008) on page Conservation Society, Cetacean Society during a proposed marine geophysical 78303, column one, paragraph three, International [CSI], Animals Asia survey in SE Asia from March–July, that states: ‘‘However, controlled Foundation [AAF], New York Whale 2009, as published in the Federal exposure experiments in the Gulf of and Dolphin Action League, Ocean Register (73 FR 78294, December 22, Mexico indicate that foraging behavior

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

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

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

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is known about their biology, MMPA and this subject IHA issued to Response: Dr. McIntosh and Dr. Wu, conservation status and threats in the L–DEO to NOAA Enforcement for the principal investigators on the region. This does not imply other investigation. seismic survey, state the primary marine mammals that are not The IHA is valid only for the purpose of the TAIGER project is to specifically discussed in detail are Langseth’s activities associated with investigate the fundamental processes of ‘‘safer’’ from the seismic surveys, in seismic survey operations that are mountain building, which plays a major most cases, too little information is specified in L–DEO’s EA, Supplemental role in shaping the face of the Earth. available to understand the impacts, EA, and IHA application. L–DEO is Oceanic island chains, or arcs, along which may be as great as or greater than required to comply with the IHA and convergent tectonic plate boundaries the marine mammals discussed in detail the terms and conditions of the result from a process known as in their comments to NMFS. Incidental Take Statement subduction where one of Earth’s Response: NSF’s and L–DEO’s IHA corresponding to NMFS’ Biological tectonic plates slides beneath another as application, EA, and Supplemental EA Opinion. L–DEO and NSF will be they move toward each other. As the sufficiently discusses the marine required to reinitiate consultation with lower plate slides beneath the upper mammals species and the possible NMFS if the identified action is plate, its trajectory usually steepens impacts from seismic surveys in the SE subsequently modified in a manner that with depth and eventually reaches Asia region. After issuance of the causes an effect that was not considered depths of several hundred (to greater proposed IHA, L–DEO modified the during the analysis for making the than 700) km. The arc is made up of a cruise plan and adopted more necessary determinations for the chain of volcanoes on the upper plate, precautionary monitoring and issuance of the IHA. L–DEO is required and is typically situated above the point mitigation measures. NMFS believes to submit a draft report on all activities where the lower plate is at about 100 km that the implementation of the required and monitoring results to the Office of (62 mi) depth. As this process of monitoring and mitigation measures Protected Resources, NMFS, within 90 subduction and volcanism continues will result in a negligible impact on days of the completion of the Langseth’s through time (millions of years) the affected species and stocks of marine cruise in SE Asia. The report must crust of the upper plate becomes mammals in the study area. contain and summarize information thicker, and develops properties more Comment 20: ETSSTAWG states that stated in the IHA issued to L–DEO. like continental crust, which is much it should be noted that many seismic Comment 21: WaH is aware that this thicker and less dense than ocean crust surveys are conducted in the Taiwan L–DEO survey proposal is one of a very and allows for land surface above sea region every year without requesting small number of requests for level. The results of many studies IHAs. The actions of private oil and gas authorization for geophysical surveys indicates that much of the crust that companies within the EEZ’s of other while other user groups, including the forms Earth’s continents was countries is beyond the jurisdiction of oil and gas industry, are not carrying out accumulated through time by island the MMPA, thus they need no such U.S. such EAs or are not subjected to public arcs colliding with continents leaving authorizations. However, this means scrutiny in this way. Rather than remnants of the arcs attached to the that L–DEO could become a scapegoat allowing the focus to be limited to edge of the continents. Despite this for all survey operation in the region, geological surveys such as L–DEO’s, general interpretation, the actual purely because they have to apply for WaH recommends that measures be processes of how this happens, authorization, as they will clearly be taken to ensure that all future marine including growth of collisional operating partly on the high seas (and seismic surveys (whether of an mountain belts and deformation of arc thus fall under MMPA jurisdiction) and academic or commercial nature) are and continental crust, is poorly as they have government funding. This made subject to the same level of understood and poorly documented. is acknowledged, but until such time as scrutiny and transparency, such as by Ancient collision zones have been NMFS enforcement confirms the requiring EAs or EISs to be submitted studied, but they have typically locations and tracks of every survey for professional and public review and undergone many stages of deformation undertaken globally this situation is with all relevant documents (including and erosion, leaving them difficult to unlikely to change. post-survey reports and relevant local interpret. Currently active arc-continent Response: NMFS is aware of seismic permits, authorizations and licenses) collision zones include Taiwan, Papua surveys and other activities undertaken being made publicly available. worldwide that occur (that may result in Response: All applications submitted New Guinea, and Timor. Of these active incidental takes of marine mammals) to NMFS are subject to public comment collisions, Taiwan is currently the most without requesting IHAs or LOAs. periods. During the public comment active. Taiwan is also the most favorable NMFS may grant IHAs upon request by period, their NEPA documents and of these to examine the full spectrum of U.S. citizens who engage in a specified incidental take authorization processes as a plate boundary changes activity (other than commercial fishing) applications are available on the NMFS from oceanic subduction to arc- within a specified geographical region. Web site (http://www.nmfs.noaa.gov/pr/ continent collision. This transition is a L–DEO and NSF are considered U.S. permits/incidental.htm) and are major target of the TAIGER project citizens under the MMPA. The MMPA reviewed by the Commission. NMFS requiring that L–DEO obtain a series of applies to U.S. citizens in U.S. waters, does not force an agency or other crustal-scale seismic transects from and the high seas, but does not apply or organization to apply for and consult on south of Taiwan, where subduction is authorize the incidental take of marine an incidental take authorization under active, to northern Taiwan, where the mammals in the territorial seas of the MMPA. collision has reached mature steady foreign nations. The MMPA does not state. apply to non-U.S. citizens, unless they General Opposition One of the by-products of the are conducting a specified activity Comment 22: A private citizen collision in Taiwan is the generation of (other than commercial fishing) that questioned why this research was being frequent small earthquakes and less may result in incidental takes of marine conducted in SE Asia. The commenter frequent, large, destructive earthquakes. mammals in U.S. waters. NMFS can also believes the U.S. should not be By using the relatively small signals refer reports of possible violations of the doing work in the region. from the Langseth source array

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

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

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or Level A harassment of any marine and mitigation measures described in mitigation measures to protect these mammal species will occur. the IHA will have a negligible impact on species within their habitat in Accordingly, the NMFS must deny this the affected species or stocks of marine Taiwanese waters. L–DEO will limit request as submitted and at a minimum mammals in the study area. See relevant seismic survey lines to take place at request the applicant to submit a revised discussions in this document as well as least 20 km from the west coast of application with a more realistic and L–DEO’s Supplemental EA. Taiwan, except for in the passage conservative analysis of potential between the Penghu Islands and the impacts. If a compelling argument to Thresholds Waishanding Jhou sandbar, where the support the conclusion that only Thresholds—Acoustic Thresholds for survey will pass through the harassment (Level B or Level A) will Behavior approximately 17.1 km mid-line distance between the two possibly occur is not forthcoming, then the Comment 31: The proposed IHA NMFS must deny the request outright sensitive areas, subject to the limitations notice also draws conclusions that are and require the applicant to seek a letter imposed by other foreign nations, to heavily biased in favor of a finding of of authorization for incidental take minimize the potential for exposing ‘‘no impact.’’ For example, the notice under Section 101(a)(5)(A–C) of the Indo-Pacific humpback dolphins, finless states that ‘‘many cetaceans * * * are MMPA. porpoises, and other coastal species to likely to show some avoidance of the Response: NMFS disagrees with the SPLs greater than or equal to 160 dB re area with high received levels of airgun commenter’s characterization of the μPa (rms). Notice of Proposed Issuance. sound * * * [and] the avoidance Comment 32: The proposed IHA Furthermore, as NMFS shows in this responses of the animals themselves notice states that ‘‘if a sound source document mortality and serious injury will reduce or (most likely) avoid any displaces marine mammals from an are not expected to occur during this possibility of hearing impairment’’ important feeding or breeding area for a seismic survey cruise due to (emphasis added, p. 78303). Setting prolonged period, impacts on animals or implementation of monitoring and aside the lack of scientific on the stock or species could potentially mitigation measures (e.g., ramp-up, substantiation for the degree of certainty be significant’’ (p. 78301). It does not, power-down, shut-down, passive displayed by this claim, there is no however, consider the reverse; that the acoustic and visual monitoring, and presentation or discussion of the failure of a sound source to displace quiet acoustic periods) as well as L– opposing (and equally likely) possibility animals from important feeding or DEO’s revision of tracklines in the that many cetaceans might not show breeding habitat may indicate that the cruise plan. Nor is incidental take by avoidance of an area ensonified by area is so important that the animals are injury, serious injury, or mortality airguns because it is important habitat. willing/forced to tolerate a level of noise authorized. Therefore, issuance of an Response: NMFS refers the exposure that is in fact harmful (see, IHA is appropriate. The revised survey commenter to L–DEO’s EA (Chapter 4 e.g., the discussion of this concept in and monitoring and mitigation measures and Appendix B) which summarized Richardson et al. 1995). The failure to are discussed further in this document. avoidance response levels to seismic consider the possibility of an animal not Comment 30: Minor and Wilson, as pulses for a number of cetaceans. L– reacting because leaving a prime feeding scientists, are greatly saddened to see DEO provided ample evidence of spot is more costly than moving government funding being used to cause avoidance behavior in marine mammals laterally along a migration pathway is the ‘‘Level B harassment’’ of 71,669 in response to seismic surveys from an example of the bias permeating the cetaceans. Minor and Wilson also doubt several peer-reviewed studies including entire analysis and has contributed to an that the data that might be gained from data on gray, bowhead, and humpback unacceptably incomplete level of the proposed ‘‘taking’’ is worth the harm whales (Richardson et al., 1995); evaluation and discussion regarding that it will do. Minor and Wilson are Gordon et al. (2004); humpback whale impacts and mitigation. concerned about what the proposed (McCauley et al., 1998 and 2000a); Response: NMFS refers the undertaking will do to the reputation of bowhead whales (Miller et al., 1999; commenter to page 78302 of the U.S. science. Recently, one species of Richardson et al., 1999); and eastern proposed IHA notice, Chapter 4 and cetacean was declared extinct in this Pacific gray whales (Malme et al., 1986, Appendix B of the EA for L–DEO’s region, and several more endangered 1988). presentation of cetaceans not exhibiting species are in the proposed study area. Conversely, the EA discussed the avoidance behavior when exposed to To have a U.S. flagged ship, owned by possibility that cetaceans might not seismic pulses. L–DEO has the NSF, cruising around in the critical exhibit avoidance behavior or may not acknowledged the public’s concern for habitat of multiple endangered species be as sensitive to seismic sources. L– coastal dwelling species in Taiwan, has conducting seismic testing is clearly DEO presents data from peer-reviewed modified their cruise plan, and has poor public relations. If another of these focusing on humpback whales (Malme adopted more precautionary monitoring species goes extinct soon, the NSF will et al., 1985); bowhead whales (Miller et and mitigation measures, especially for find itself trying to ‘‘sell’’ the notion that al., 2005; Harris et al., 2007); and fin species of particular concern. See its contribution to the extinction was and sei whales (Stone, 2003; Stone and responses to comments regarding insignificant. The NMFS could make a Tasker, 2006). For marine mammals that mitigation measures such as the positive contribution to the long term do not avoid the vessel and sound implementation of power-downs and reputation of U.S. science if it could source, L–DEO will implement shut-downs for animals discussed show some backbone and talk the NSF mitigation measures such as power- within this document as well as within out of this idiocy. downs and shut-downs for animals that L–DEO’s Supplemental EA. Response: After issuance of the enter the respective safety zones to Comment 33: The EA noted that proposed IHA, L–DEO modified the prevent Temporary Threshold Shift ‘‘captive bottlenose dolphins and beluga cruise plan and adopted more (TTS)/Permanent Threshold Shift (PTS) whales exhibited changes in behavior precautionary monitoring and for those respective species. when exposed to strong pulsed sounds mitigation measures. NMFS believes With the respect to the ETS similar in duration to those typically that L–DEO’s revised survey as well as population of humpback dolphins, used in seismic surveys (Finneran et al. the implementation of the monitoring NMFS has instituted precautionary 2000, 2002). However, the animals

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tolerated high received levels of sound The mitigation measures set forth in al., 2005). Furthermore, in the case of before exhibiting aversive behaviors.’’ It the IHA ensure that there will be baleen whales, the MBES signals (12 should be noted, however, that the negligible impacts on the marine kHz) do not overlap with the animals in the abovementioned Navy mammals. Cetaceans are expected, at predominant frequencies in the calls, studies were reported by Nowacek et al. most, to show an avoidance response to which would avoid any significant (2007) to be generally ‘‘tested in a the seismic pulses. Mitigation measures masking. Masking effects on marine context where they were being rewarded such as visual marine mammal mammals are discussed further in for tolerating high levels of noise’’ and monitoring, and shut-downs when Appendix B(4) of L–DEO’s EA. were ‘‘usually ‘punished’ in some way marine mammals are detected within Comment 37: Another commenter was * * * for failing to return to the the defined ranges should further concerned about the impacts on experimental station for additional reduce short-term reactions to cetaceans due to displacement into exposures.’’ This was not a problem for disturbance, and minimize any effects other waters. He noted that for their main results as the focus of the on hearing sensitivity. Due to these populations with low numbers, work was on to TTS, but the setup does mitigation measures, and other reasons restricted distributions, displacement invalidate any conclusions based on the discussed in the Conclusions section of may increase energy expenditures by behavioral responses reported in the this document, NMFS believes the the species already compromised same studies. For further discussion of impacts will be negligible. energetically (such as mothers with the need for precaution in the use of Comment 35: Mortality (by human calves) and increase exposure to other captive studies to set exposure criteria causes) of even a single individual per threats (e.g., changes in migration routes for wild animals, see Parsons et al. year from this population may not be may result in animals using waters with (2008) and Wright et al. (in press). sustainable, and unless effective higher densities of fishing nets or lines Response: NMFS acknowledges the mitigation measures are taken and thus increase their risk of mortality commenter’s interpretation of captive immediately to reduce the threats to this due to entanglement). studies and have taken them into population, it is unlikely that the Response: The incidental harassment consideration. Thresholds for behavioral population will continue to exist (Wang authorization includes mitigation and response are not based upon captive et al., 2004, 2007b). Any single threat monitoring measures to reduce potential studies. The 160 dB re 1 μPa threshold has the potential to be the final cause of effects on populations with low was derived from data for mother-calf extinction for this small population of numbers and restricted distributions. L– pairs of migrating gray whales (Malme dolphins. DEO and TAIGER’s principal et al., 1983, 1984) and bowhead whales Response: Please note that in response investigators have modified the cruise (Richardson et al., 1985, 1986) to public comments received on the plan and survey design to protect responding when exposed to seismic application and EA, L–DEO has displacing populations with low airguns (impulsive sound source). modified the survey design (see L– numbers and restricted distributions. Comment 34: The idea that behavioral DEO’s Supplemental EA) and adopted First, L–DEO will shut down the airgun tolerance is a proxy for no impact has more precautionary mitigation measures array immediately if there is a sighting no scientific merit. In fact, some fairly to protect the critically endangered ETS at any distance of the Indo-Pacific sizable impacts have been reported in population, as well as ease potential humpbacked dolphin or finless various species despite a lack of pressure on other coastal species. porpoise. Second, L–DEO has re-routed behavioral response. A recent panel of Comment 36: One commenter was the cruise’s tracklines offshore Taiwan’s experts also noted that an apparently concerned about the masking of the west coast by approximately 20 km unresponsive animal may still be noises made by threats, hindering (10.8 nautical mi) to protect the undergoing a chronic and/or severe detection of the threats and increasing critically endangered Sousa population acute stress response, with associated the impact of the existing threats (e.g., and the finless porpoise (except for in physiological and psychological water rushing past a gillnet, commercial the passage between the Penghu Islands consequences. These can result from shipping) and the chances of mortality. and the Waishanding Jhou (Wau-san- exposure directly, or through masking Response: NMFS expects the masking ting Chou) sandbar, where the survey and other phenomenon indirectly. Thus, effects of pulsed sounds on natural will pass through the 17.1 km (9.2 taking is entirely possible without sounds or other anthropogenic sounds nautical mi) mid-line distance between observable behavioral disturbance to be limited. Because of the the two possibly sensitive areas). reactions and this needs to be accounted intermittent nature and low duty cycle Finally, L–DEO is restricted to for. of seismic pulses, animals can emit and conducting seismic surveys in water Response: Section 101(a)(5)(D) of the receive sounds in the relatively quiet depths greater than 200 m (656 ft) in the MMPA allows citizens of the United intervals between pulses. Further, South China Sea, and as far east as States to take by harassment, small masking effects of seismic pulses are possible from the mainland China side numbers of marine mammals incidental expected to be negligible in the case of of the Taiwan Strait, to reduce potential to a specified activity (other than the smaller odontocetes, given the for effects on eastern Pacific gray commercial fishing) within a specified intermittent nature of seismic pulses whales, Indo-Pacific humpback geographical region if NMFS is able to plus the fact that sounds important to dolphins, and finless porpoises. make certain findings. NMFS must issue these species are predominantly found Comment 38: Given the serious an incidental harassment authorization at much higher frequencies than are the conservation status of the ETS sub- if the taking will have a negligible dominant components of airgun sounds. population and the small population impact on the species or stock(s), will Marine mammal communications will size of the JRE provisional population, not have an unmitigable adverse impact not be masked appreciably by the there must be a higher level of on the availability of the species or multibeam echosounder signals given precaution to avoid negative impacts of stock(s) for subsistence uses, and if the the low duty cycle of the echosounder additional threats on these dolphins. permissible methods of taking and and the brief period when an individual Because even low level noise may requirements pertaining to the mammal is likely to be within its beam. increase risks to these dolphins by mitigation, monitoring, and reporting of The majority of energy should be altering dolphin behavior, increasing such takings are set forth. concentrated in the beam (Kremser et ambient noise levels that can ‘mask’

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

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

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

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used data on surfacing/dive cycles to provide additional justification for its night. Though it depends on the lights estimate detectability values for species preliminary determination that the on the ship, the sea state, and thermal or species groups of marine mammals planned monitoring program will be factors, MMOs estimated that visual for which there are no published sufficient to detect, with a high level of detection is effective out to between 150 detectability values. Thus the estimates confidence, all marine mammals within and 250 m (492 and 820 ft) using NVDs of incidental take in L–DEO’s IHA or entering the identified safety zones. and about 30 m (98.4 ft) with the naked application and the associated NSF EA At a minimum, such justification should eye. However, the PAM operates equally are either the same (if detectability had (1) identify those species that it believes as effectively at night as during the day, already been taken into account) or can be detected with a high degree of especially for sperm whales and higher than would be obtained by direct confidence using visual monitoring dolphins. application of previously reported only, (2) describe detection probability The PAM has reliable detection rates density data. as a function of distance from the out to 3 km (1.9 mi) and more limited NMFS acknowledges these observer, (3) describe changes in ability out to 10s of km. The largest 180- limitations. However, acoustic detection detection probability at night, and (4) dB safety radii (3.7 km, 2.3 mi), which has been demonstrated to augment explain how close to the vessel marine is the radii within which the Langseth visual detection of marine mammal in mammals must be for observers to is required to shut down if a marine population estimates in a number of achieve the anticipated high nighttime mammal enters, are found when the 36 studies (e.g., Moore et al., 1999; Swartz detection rate. airgun array is operating in shallow et al., 2002). The use of PAM will Response: NMFS believes that the water at a 9 m (29.5 ft) tow depth. Only improve the detection of marine planned monitoring program will be approximately seven percent of the total mammals by indicating to the MMVOs sufficient to detect (using visual 15,902 km survey lines of the planned when a vocalizing animal is potentially detection and passive acoustic seismic survey (excluding contingency) near and prompting a shut-down when monitoring [PAM]), with reasonable will take place in water less than 100 m necessary. certainty, most marine mammals within deep (shallow water). The species most Comment 54: Statements such as or entering identified safety zones. This likely to be encountered in the waters ‘‘However, there has been no specific monitoring, along with the required off of SE Asia are pantropical spotted, documentation of TTS let alone mitigation measures (see below), will Fraser’s, and spinner dolphins, which permanent hearing damage, i.e., PTS, in result in the least practicable adverse have relatively larger group sizes (10s to free-ranging marine mammals exposed impact on the affected species or stocks 100s to 1,000s of animals for these to sequences of airgun pulses during and will result in a negligible impact on various dolphin species), are not cryptic realistic field conditions’’ are stupid. the affected species or stocks. at the surface, and have relatively short Response: NMFS acknowledges the The Langseth is utilizing a team of dive times (approximately 6 min for commenter’s opinion. However, at the trained marine mammal observers some dolphin species), all which time of publication, the statement that (MMOs) to both visually monitor from generally make them easier to visually ‘‘there has been no specific the high observation tower of the detect. Other species that are likely to be documentation of TTS let alone Langseth and to conduct PAM. encountered during the seismic survey permanent hearing damage, i.e., However, there are limitations on include Bryde’s whales and humpback permanent threshold shift (PTS), in free- marine mammal detection, and ramp- whales, which have relatively long dive ranging marine mammals exposed to ups are required as mitigation measures times; however they are not cryptic at sequences of airgun pulses during due to these limitations. This the surface, have large blows and realistic field conditions,’’ was correct. monitoring, along with the required distinct physical features, all which Lucke et al., (2009) recent auditory mitigation measures (see below), will generally make them easier to visually study on documenting threshold shift in result in the least practicable adverse detect. Furthermore, the vocalizations of harbor porpoises was published after L– impact on the affected species and/or most of these species are easily detected DEO submitted their application. stocks and will result in a negligible by the PAM. During the Ewing cruise in impact on the affected species and/or the GOM in 2003, MMOs detected Monitoring stocks. marine mammals at a distance of Comment 55: ETSSTAWG states that When stationed on the observation approximately 10 km (6.2 mi) from the a minimum of two MMOs should be platform of the Langseth, the eye level vessel and identified them to species used at all times, with one of those will be approximately 17.8 m (58.4 ft) level at approximately 2.7 km (1.7 mi) having considerable prior experience as above sea level, so the visible distance from the vessel, though the bridge of a MMO (preferably within the area of (in good weather) to the horizon is 16.5 that vessel was only 11 m (36 ft) above Taiwan). km (10.3 mi; the largest safety radii is the water (vs. the Langseth which is Response: Three MMOs are typically approximately 3.7 km, 2.3 mi). Big eyes more than 17 m (55.8 ft) above sea on watch at a time, two MMVOs on the are most effective at scanning the level). All of the 180-dB safety radii for observation tower conducting visual horizon (for blows), while 7x50 reticle other water depths and tow depths and observations and the third monitoring binoculars are more effective closer in for the single 40 in3 airgun to be used the PAM equipment. On the observation (MMOs also use a naked eye scan). during ramp-ups and power-downs (see tower, two MMOs are on watch during Night vision devices (NVDs) will be below) are less than 2 km (1.2 mi). all daylight hours except during meal used in low light situations. The likelihood of visual detection at times. At least one MMO and one Additionally, MMOs will have a good night is significantly lower than during MMVO will be on watch during meal view in all directions around the entire the day, though the PAM remains just times. The MMOs onboard the Langseth vessel. Also, nearly 93 percent of the as effective at night as during the day. are experienced and qualified, and survey lines are in intermediate or deep However, the Langseth will not be additional regional experts have been water depths, where the safety radii are starting up the airguns unless the safety brought onboard for this survey. all less than 1.4 km (0.87 mi). zone is visible for the entire 30 min Comment 56: The Commission Theoretical distance of this PAM prior (i.e., not at night), and therefore in recommends that, before issuing the system is tens of kilometers. The PAM all cases at night, the airguns will requested authorization, the NMFS is operated both during the day and at already be operating, which NMFS

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believes will cause many cetaceans to the seismic airguns. A third MMO will data allow. Detectability is a measure of avoid the vessel, which therefore will be monitoring the PAM equipment 24 the probability of detecting a marine reduce the number likely to come hours a day to detect vocalizing marine mammal that is present on a vessel’s within the safety radii. Additionally all mammals present in the action area. trackline. L–DEO uses the most of the safety radii in intermediate and Comment 58: Dr. John Wang states applicable detectability values as deep water depths are smaller than 3 km that in shallow waters (Taiwan Strait), provided in Koski et al. (1998) (1.9 mi) and fall easily with the reliable the predicted distance for exposure whenever estimates of marine mammal detection capabilities of PAM. levels of 180dB and 190dB was detectability have not already been Comment 57: The Commission estimated by L–DEO to be 2,761 to calculated. They compiled previously recommends that, before issuing the 3,694m and 1,600 to 2,182 m, reported detectability information on requested authorization, the NMFS respectively. At these distances (which various species and used data on clarify the qualifiers ‘‘when practical’’ are underestimated) and under ideal surfacing/dive cycles to estimate and ‘‘when feasible’’ with respect to (1) sighting conditions, detection of finless detectability values for species or using two MMOs to monitor the porpoises by observers is of limited species groups of marine mammals for exclusion zone for marine mammals ineffectiveness at the closest range and which there is no published during daytime operations and very ineffective at the greater distances. detectability values. Thus the estimates nighttime start-ups of the airguns, and Sighting effectiveness will drop of incidental take in L–DEO’s IHA (2) using MMOs during daytime periods dramatically even for highly application and Supplemental EA are to compare sighting rates and animal experienced observers in slight seas. either the same (if detectability had behavior when the seismic airguns are Under conditions where white caps are already been taken into account) or operating and when they are not. present, sightings of finless porpoises higher than would be obtained by direct Dr. John Wang states that the are rarely made and researchers application of previously reported inadequacy of MMVO coverage in this generally stop observations. At several density data. respect would be wholly inadequate kilometers distance in shallow water, After the issuance of the proposed even for small-scale marine mammal PAM would not be able to detect finless IHA, L–DEO modified the cruise plan surveys where the consequence of porpoises adequately because finless and adopted more precautionary failing to detect animals are much less porpoises are not always actively monitoring and mitigation measures. serious. vocalizing and the very high frequency NMFS believes that L–DEO’s revised Response: The Langseth carries five sounds emitted by porpoises (Akamatsu survey as well as the implementation of trained, NMFS-qualified and et al., 1998) attenuate quickly so the the required monitoring and mitigation experienced MMOs for every seismic PAM’s detection range will be limited. measures described in the IHA will have study involving use of an airgun system Therefore, finless porpoises can and a negligible impact on the affected comparable to that planned for the will likely be exposed to >>180dB species or stocks of marine mammals in TAIGER project. MMOs are appointed without being detected especially if the study area. See Effects Analysis, by L–DEO with NMFS concurrence. L– sighting conditions are not ideal. For Species of Particular Concern, and L– DEO plans to employ a regional expert finless porpoises, L–DEO’s airguns have DEO’s Supplemental EA. as one of the MMOs, and negotiations the potential to inflict serious Monitoring—PAM were currently underway with experts permanent injuries or even cause death, from National Taiwan University, directly or indirectly. Comment 59: ETSSTAWG asks about Academia Sinica, and National Taiwan Response: There is a scientific the frequency range of the PAM system, Ocean University during the preparation methodology to estimate the probability and if it is suitable for detecting signals of this notice. L–DEO will have a sixth of detection marine mammal on the produced by all the marine mammals MMO and regional expert during the surface, as explained in detail in within the area. second leg of the cruise as well. L–DEO Buckland et al. (1993). This includes Response: L–DEO’s PAM system is will utilize two (except during meal several components, including the suitable for detecting frequencies up to times), NMFS-qualified, vessel-based probability that the mammal will be at 96 kHz (192 sampling rate). The virtual MMVOs to watch for and monitor the surface and potentially sightable bandwidth of the new digital array and marine mammals near the seismic while within visible range of the sound analysis workstation is 96 kHz source vessel during all daytime airgun observers, the probability that an animal (the real bandwidth is around 90 kHz), operations and before and during start- at the surface will in fact be detected, which is at least double when compared ups of airguns day or night. MMVOs and the relationship between sighting to some of the best PAM systems will have access to reticle binoculars probability and lateral distance from the normally available and four times that (7×50 Fujinon), big-eye binoculars trackline. of most of the basic systems. L–DEO has (25x150), and night vision devices to A certain portion of the population is the potential for expanding the PAM scan the area around the vessel. MMOs presumed to be submerged at any given system to a bandwidth of 160 kHz, but will alternate between binoculars and time and is therefore unavailable for a new hydrophone array will need to be the naked eye to avoid eye fatigue. detection. However, if the ship speed is designed to add the required special During all daytime periods, two slow, many of these animals would additional sensors. The array is capable MMVOs will be on effort from the surface at some point while within of detecting porpoises, but not harbor observation town to monitor greater visual range of MMVO’s aboard the porpoises (Phocena phocena), which than 90 percent of the time. During approaching vessel. The speed of the have clicks at 140 kHz. mealtimes it is sometimes difficult to Langseth, and other seismic vessels The low frequency sensor end of the have two MMOs on effort, but at least while operating airguns, will generally PAM system can detect mysticetes, one MMVO will be on watch during be four to five knots of vessels however there is a problem with low those brief scheduled times. Three conducting marine mammal line frequency noise and vibration induced MMOs are typically on watch at a time, transect surveys. in the array by movements in towing the and typically observe for one to three All L–DEO estimates of potential acoustic array system, in particular if a hours. Two MMVOs will also be on numbers of animals take account of all short cable and a depressor are used. To watch during all nighttime start-ups of these factors to the extent that available allow detection of low frequency waves,

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

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

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

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

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Response: MMO’s effectively conduct level of the array will increase in steps again without basis, that the proposed systematic surveys for detecting not exceeding approximately 6 dB per 5 seismic surveys will have only cetaceans during the seismic cruise min period over a total duration of 20– negligible impacts on marine mammals. onboard the Langseth. In addition to 30 min), (2) in many cases MMOs are And, like L–DEO, NMFS does not visual observations using reticle making observations during times when propose meaningful mitigation binoculars, big-eye binoculars, night seismic is not being operated and will measures. vision devices, and the naked eye, PAM actually be observing prior to the 30 min Response: After issuance of the is used day and night (as practical), observation period anyway, (3) the proposed IHA, L–DEO modified the which can detect vocalizing marine majority of the species that may be cruise plan and adopted more mammals present in the area. Many exposed do not stay underwater more precautionary monitoring and dedicated cetacean survey projects use than 30 minutes, and (4) all else being mitigation measures. NMFS believes the same or similar equipment as the equal and if deep diving individuals that L–DEO’s revised survey as well as MMO’s onboard the Langseth. The happened to be in the area in the short the implementation of the required Langseth’s crew will also assist in time immediately prior to the pre-start- monitoring and mitigation measures detecting marine mammal, when up monitoring, if an animal’s maximum described in the IHA will have a practicable. underwater time is 45 min, there is only negligible impact on the affected species During ramp-ups of the airgun array, a one in three chance that the last or stocks of marine mammals in the if for any reason the entire radius cannot random surfacing would be prior to the study area. NMFS and NSF have be seen for the entire 30 min (i.e., rough beginning of the required 30 min satisfied all requirements of NEPA and seas, fog, darkness), or if marine monitoring period. the MMPA. mammals are near, approaching, or in Also, seismic vessels are moving Comment 83: WaH states that while it the safety radius, the airguns may not be continuously (because of the long, may be true that some of the planned started up. Marine seismic surveys may towed array) and NMFS believes that monitoring and mitigation measures continue into night and low-light hours unless the animal submerges and ‘‘would reduce the possibility of if such segment(s) of the survey is follows at the speed of the vessel (highly injurious effects,’’ the proposed initiated when the entire relevant safety unlikely, especially when considering monitoring and mitigation measures are zones are visible and can be effectively that a significant part of their inadequate and cannot be argued to monitored. No initiation of airgun array movements is vertical [deep-diving]), prevent the possibility of injurious operations is permitted from a shut- the vessel will be far beyond the length effects to cetaceans, which are highly down position at night or during low- of the safety radii within 30 min, and likely to occur. The claim in the EA that light hours (such as dense fog or heavy therefore it will be safe to start the ‘‘no long-term or significant effects are rain) when the entire relevant safety airguns again. expected on individual marine zone cannot be effectively monitored by mammals * * * the populations to Mitigation the MMVOs on duty. which they belong, or their habitats’’ is After the issuance of the proposed Comment 81: Dr. John Wang states ill-founded and should be reconsidered IHA, L–DEO modified the cruise plan that the effectiveness of the mitigation in light of the above concerns. and adopted more precautionary measures proposed by L–DEO for Response: After issuance of the monitoring and mitigation measures. reducing threats range between having proposed IHA, L–DEO modified the NMFS believes that the L–DEO’s revised questionable effectiveness and being cruise plan and adopted more survey as well as the implementation of entirely inadequate. precautionary monitoring and the required monitoring and mitigation Response: After issuance of the mitigation measures. NMFS believes measures described in the IHA will have proposed IHA, L–DEO modified the that L–DEO’s revised survey as well as a negligible impact on the affected cruise plan and adopted more the implementation of the required species or stocks of marine mammals in precautionary monitoring and monitoring and mitigation measures the study area. mitigation measures. NMFS believes described in the IHA issued to L–DEO Comment 80: The Commission that L–DEO’s revised survey as well as will have a negligible impact on the recommends that, before issuing the the implementation of the required affected species or stocks of marine requested authorization, the NMFS monitoring and mitigation measures mammals in the study area. See L– extend the monitoring period to at least described in the IHA will have a DEO’s Supplemental EA. one hour before initiation of seismic negligible impact on the affected species Comment 84: WaH states that there is activities and at least one hour before or stocks of marine mammals in the a lack of understanding of the the resumption of airgun activities after study area. distribution and status of the species a power-down because of a marine Comment 82: NRDC is concerned that and populations mentioned in their mammal sighting within the safety zone. L–DEO’s EA and NMFS’ proposed IHA comments highlights the need for Response: As the Commission points do not meet the rigorous standards of greater precaution and investigation out, several species of deep-diving environmental review required by the prior to carrying out seismic surveys in cetaceans are capable of remaining NEPA and the MMPA. For example, L– this region. However several proposed underwater for more than 30 minutes, DEO’s EA does not properly analyze monitoring and mitigation measures do however, for the following reasons impacts or adopt adequate mitigation not reflect the need for precaution, for NMFS believes that 30 minutes is an measures. Although the EA notes the example: (1) The proposed number of adequate length for the monitoring lack of scientific information regarding MMOs is insufficient (a minimum of period prior to the start-up of airguns: species distribution and acoustic only one observer working during (1) Because the Langseth is required to impacts of seismic activities, it daytime operations, except for 30 ramp-up the time of monitoring prior to nonetheless and without basis minutes before and after ramp-up when start-up of any but the smallest array is concludes that the proposed surveys this will be increased to two observers); effectively longer than 30 minutes will have only ‘‘minor’’ effects on (2) nighttime seismic survey could be (ramp-up will begin with the smallest marine mammal species. NMFS’ (but are not) prohibited, meaning gun in the array and airguns will be proposed IHA also notes the lack of impaired effectiveness of MMVOs and added in sequence such that the source density data yet nevertheless concludes, greater reliance on PAM, which

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

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

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

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

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

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

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

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

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

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

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

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

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

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the ETS Sousa population—meaning up sound levels, for purposes of this mitigation measures to reduce impacts to around 20 km from shore.’’ NMFS has seismic survey, the model used for on species and stocks of marine included requirements to this effect in predicting received levels in L–DEO’s mammals in the study area. See NMFS’ the IHA issued to L–DEO. IHA application and EA is the best responses to comments in this Comment 144: CSI states that science available. After the issuance of document for more relevant calculations of how far the Langseth the proposed IHA, L–DEO has modified information. should be to prevent the ETS population the cruise plan and adopted more MMPA Concerns from being exposed to levels greater precautionary monitoring and than 160 dB should be based on at least mitigation measures to reduce impacts Comment 148: Dr. Robert Brownell the recommended 5 km buffer boundary on species and stocks of marine states that the possible numbers of (i.e., the waters from shore to 5 km mammals in the study area. See NMFS’ marine mammals exposed to sound offshore should not be exposed to levels responses to comments in this levels greater than or equal to 160 dB, greater than 160 dB). However, given document for relevant information. during the proposed L–DEO seismic the population’s critical status and the Comment 146: Dr. John Wang states survey in SE Asia, should be considered fact that Table 1 underestimates the the water depths in the very broad erroneous based on regional population actual exposure levels in shallow water, category of ‘‘shallow’’ water (being <100 estimates from two main sources. Of the the recommended distance should be m in the proposed IHA’s Federal 37 cetacean populations listed in Table even more precautionary, i.e., greater Register notice) are not sufficient to 2 of the Federal Register notice (78 FR than 13 km from shore based on the understand the exposure level for a 78294, December 22, 2008), 22 are from values presented in Table 1 of the species (e.g., ETS Indo-Pacific the ETP and have no relationship at all Federal Register notice. humpback dolphins) that occupies to the region to be surveyed in the Response: After issuance of the water depths at the lowest end of the western North Pacific. Humpback proposed IHA, L–DEO negotiated with ‘‘shallow’’ water category. It is expected whales are correct. The minke whale the project’s principal scientists to that the exposure levels will be much and Bryde’s whale estimates are modify the cruise plan and adopt more higher at any given distance from the generally correct. Omura’s whale may precautionary mitigation measures. Off source than the predicted values be common in some parts of the survey Taiwan’s west coast the cruise tracks suggested. area. Sei, fin, and blue whales are likely have been re-routed by approximately Response: After issuance of the to be rare at best in the survey area. For 20 km, except for in the passage proposed IHA, L–DEO modified the the small cetacean, 15 of the 28 between the Penghu Islands and the cruise plan and adopted more population estimates are from the ETP Waishanding Jhou sandbar, where the precautionary monitoring and and these should not be used for the survey will pass through the mitigation measures. The revised survey proposed survey area. Sperm whales approximately 17.1 km mid-line will maintain the precautionary buffer may be common as opposed to distance between the two possibly recommended by ETSSTAWG in their ‘‘uncommon’’ in deeper waters off the sensitive areas, subject to the limitations comments to NMFS, ‘‘at least 13 km and eastern side of Taiwan and in some of foreign nations, to protect the perhaps a more precautionary 15 km of parts of the Philippines. The estimate critically endangered ETS Indo-Pacific the ETS Sousa population—meaning up for Pacific white-sided dolphins is for humpback dolphin sub-population and to around 20 km from shore.’’ See L– the entire North Pacific and this species the finless porpoise as well as ease DEO’s Supplemental EA for more as noted is rare or does not occur in potential pressure on other coastal information. most of the proposed survey area. Most species. Thus, L–DEO is maintaining the Comment 147: Dr. John Wang states of the estimated 5,220 to 10,220 finless precautionary buffer recommended by the waters of western Taiwan are highly porpoise occur in the coastal waters of ETSSTAWG in their public comments dynamic with seasonal, monthly, daily Japan, not in Taiwan or along the coast to NMFS, ‘‘at least 13 km and perhaps and diel changes in water salinity, tidal of China. In the case of Indo-Pacific a more precautionary 15 km of the ETS fluctuations, water temperature and humpback dolphins, the estimate of Sousa population—meaning up to surface conditions that can not be 1,680 animals includes about 100 from around 20 km from shore.’’ explained by the simple model for Taiwan. The IUCN has listed the Comment 145: Dr. John Wang states predicting levels that was used in the L– subpopulation of these dolphins along the predicted rms distances for different DEO proposal. Given that a critically the limited part of the western coast of levels of exposure (Table 1 of the endangered population (the ETS sub- Taiwan as ‘‘critically endangered’’ and proposed IHA’s Federal Register population of Sousa chinensis), two the subpopulation is estimated at 100 notice), underestimates actual exposure vulnerable and very difficult species to individuals. Based on the problems of levels in shallow waters and does not detect (i.e., finless porpoises) and the the population estimates noted above, consider the issues with: reflection, Indo-Pacific bottlenose dolphin are the estimates of the possible number of reverberation, rarefaction, superposition found in very shallow waters it is cetaceans exposed in Table 3 of the and constructive interference (see crucial that sound levels under differing Federal Register notice (78 FR 78294, Shapiro et al., 2009) of sound waves in conditions in shallow waters be better December 22, 2008) are unrealistic waters that abut concrete sea walls understood before impacts to cetaceans either as the best estimate or maximum. found along much of the central western are trivialized. Response: NMFS acknowledges Dr. coast of Taiwan; the very shallow water Response: NMFS believes that while Robert Brownell’s comment and the depths of western Taiwan (with a tidal oceanographic conditions may alter information provided. The information fluctuation up to about 5–6 m that can sound levels, for purposes of this included in the proposed IHA has been affect the depth in which the dolphins seismic survey, the model used for updated in this Federal Register notice are found during exposure); and the predicting received levels in L–DEO’s based on comments from the public. As many sandbars and some extensive IHA application and EA is the best noted previously, when information is mudflats that can force animals to be science available. After the issuance of unavailable on a local population size, further ‘offshore’ during lower tides. the proposed IHA, L–DEO has modified NMFS uses either stock or species Response: NMFS believes that while the cruise plan and adopted more information on abundance. Since oceanographic conditions may alter precautionary monitoring and NMFS, uses the best information that is

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

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

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

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For the purposes of NMFS’ Federal that fish, sea turtles and marine species cease vocalizing when exposed action (i.e., the issuance of an MMPA mammals are exposed to, remains valid. to seismic airguns), they pass over them authorization) the alternatives are quickly with little discussion. Similarly, Precautionary Approach adequate. Thus, for the reasons stated the Federal Register notice frequently throughout the text of this notice, NMFS Comment 164: WaH states the emphasizes the lack of evidence for believes that the agency is in proposed mitigation measures are impacts, in what seems to be an effort compliance with both the MMPA and inadequate, do not sufficiently allow for to make the classic (and inappropriate) NEPA. local marine mammal observation argument that absence of evidence is Comment 163: Several commenters conditions, and are weaknesses which evidence of absence of impacts. At no disagreed with the EA’s conclusion that augment the risk of impacts in a region time does the Federal Register notice the TAIGER seismic survey would add where cetacean status and distribution take the position that a lack of little to the cumulative impacts of are relatively poorly understood. information should be treated as anthropogenic noise in the survey area. According to WaH, the lack of reliable grounds for a precautionary approach. As such, they alleged that L–DEO: (1) information from systematic surveys in Response: NMFS disagrees with this Did not assess the cumulative impacts the relatively poorly-studied SE Asian characterization of the Federal Register of multiple sources of noise; (2) failed region, as in other regions, necessitates notice. NMFS relies on the best to consider the synergistic effects of the highest levels of precaution in scientific information available. NMFS noise with other stressors in producing estimating and attempting to mitigate believes that the mitigation and or magnifying a stress-response; and (3) potential impacts. WaH states that even monitoring measures that have been presented an invalid argument that best practice marine mammal visual imposed under the IHA issued to L– impacts on marine mammals were observation, shut down, and other DEO are conservative and ensure the expected to be no more than minor and measures can provide no guarantee least practicable adverse impacts. short-term. against significant impacts on Mitigation measures such as power- populations in these regions (citing Response: NMFS has determined that downs, shut-downs, speed and course inherently low observation sighting the EA adequately addressed the alterations, and the use of MMVO’s and rates for species such as beaked whales cumulative impacts of a short-term, low- PAM for visual and acoustic detection and evidence that some species decrease intensity seismic airgun survey in will ensure that marine mammals that or cease vocalizing in response to relation to long-term noise and taking do not avoid the Langseth while seismic surveys). WaH states that L– events, such as vessel traffic, habitat operating seismic sound sources will DEO has not attempted to adopt all loss, oil and gas industry, pollution, not be potentially impacted during the available precautionary measures that survey. The monitoring and mitigation fisheries, and hunting. may help to reduce impacts. measures also ensure that the takings NMFS endangered species scientists Response: NMFS disagrees with will be limited to Level B harassment have conducted a thorough review of WaH’s comments. NMFS believes that and will result in a negligible impact on the best available information on the the monitoring and mitigation measures the affected species or stocks of marine cumulative effects of the proposed ensure the least practicable impacts and mammals in the study area. After project. As a result, NMFS issued a ensure that any incidental takings will issuance of the proposed IHA, L–DEO BiOp on the proposed action on March be limited to Level B harassment and modified the cruise plan and adopted 31, 2009 (NMFS, 2009), which stated will result in a negligible impact on the more precautionary monitoring and that the survey was not likely to affected species or stocks of marine mitigation measures. L–DEO has also jeopardize the continued existence of mammals in the study area. As subsequently increased observer listed marine mammals in the survey discussed elsewhere in this document, personnel and re-routed survey area. after issuance of the proposed IHA, L– tracklines. See L–DEO’s Supplemental L–DEO discusses cumulative effects DEO has modified the cruise plan and EA. of noise in the EA (see pages 71–79) and adopted more precautionary monitoring Comment 166: ETTSTAWG states that drew comparisons between TAIGER and and mitigation measures to reduce the project description must adopt a other sources of anthropogenic noise potential impacts on marine mammals. ‘precautionary approach’ when (i.e., vessel traffic, habitat loss, oil and NMFS believes that the implementation extrapolating from the literature to the gas industry, pollution, fisheries, and of these monitoring and mitigation particular acoustic environment of the hunting) in the proposed survey areas. measures described in the IHA issued to study area, and when considering These multiple sources of L–DEO will ensure that the seismic ‘unknowns’ (‘absence of evidence is not anthropogenic noise are considered to survey will have a negligible impact on evidence of absence’). be long-term, continuous activities the affected species and stocks of Response: After issuance of the which are unaffected by NMFS’ marine mammals in the study area. See proposed IHA, L–DEO modified the issuance of an incidental take L–DEO’s Supplemental EA. cruise plan and adopted more authorization for Level B harassment Comment 165: HSI states the agency precautionary monitoring and only, in the form of temporary and the applicant focus in great detail mitigation measures. NMFS believes behavioral disturbance. on specific results from the limited that L–DEO’s revised survey as well as In regards to stating that the impacts number of scientific studies on acoustic the implementation of the monitoring of seismic surveys are small compared impacts on marine mammals (when, for and mitigation measures described in to other activities, NMFS believes that example, results show some marine the IHA will have a negligible impact on the signals do not add appreciably to the mammal species do not avoid vessels the affected species or stocks of marine ambient noise levels, and therefore do conducting seismic surveys) in order to mammals in the study area. See NMFS’ not accumulate, or collect, to greater support their conclusion that impacts responses to comments in Precautionary effects. The conclusion reached in the from the proposed surveys will be Approach above and other relevant EA that even when considered in negligible. When specific study results discussions throughout this document. combination with other underwater do not support their conclusion of Comment 167: ETTSTAWG states that sounds, seismic sound does not add negligible impacts (when, for example, since empirical data is not available for appreciably to the underwater sounds results show that some marine mammal L–DEO operations (and what is

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

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

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

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

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Comment 180: The applicant and the exposed to sound levels that would the temporal and spatial correlation agency must improve their consultation constitute Level B harassment to zero between the [stranding] and the sound with regional experts on the protected (zero percent of the ETS sub- source.’’ Finally, Hildebrand (2005) species in the region(s) of interest. Many population). NMFS took the revised illustrated the approximate temporal- of the omissions and inaccuracies of the tracklines into account when making spatial relationships between the application (and, quite frankly, much of the necessary MMPA determinations, stranding and the Ewing’s tracks, but the local resistance to this proposed including small numbers, towards the noted that the time of the stranding was research) could have been avoided if the issuance of the IHA. not known with sufficient precision for applicants had sought out and consulted Comment 182: The Langseth will accurate determination of the closest with regional scientific experts and deploy an 8 km long streamer for most point of approach (CPA) distance of the regional non-governmental transects requiring a streamer; however, whales to the Ewing. organizations (NGO) with relevant a shorter streamer (500 m to 2 km) will The MBES and SBP have anticipated expertise. be used during surveys in Taiwan radii of influence significantly less than Response: The conditions of the IHA (Formosa) Strait (EA2). Do the effective that for the airgun array. For reasons encourage NSF and L–DEO to source levels offered in the EA pertain noted in the EA, the 160 dB and 180 dB coordinate with the Taiwanese to the longer or shorted streamers? isopleths of the MBES and SBP are government regarding the proposed Response: The effective source level either too small or the acoustic beams seismic activity. In December 2008, output from the Langseth’s airgun array are very narrow, making the duration of NMFS published notice of the proposed pertains to both the longer and shorter the exposure and the potential for taking IHA in the Federal Register. During the streamers. Streamer lengths generally marine mammals by harassment small public comment period, regional relate to hydrophones, not airguns, and to non-existent. NMFS believes that it is scientific experts and regional NGOs changes are often due to convenience, unlikely that marine mammals would be with relevant expertise were free to particularly to improve affected by sub-bottom profiler signals provide comments on the survey. NMFS maneuverability. whether operating alone or in considered these requests during the 30 Comment 183: According to the EA, conjunction with other acoustic devices day public comment period and the Multibeam Echosounder and Sub- since the animals would need to be published a notice in the Federal bottom Profiler have outputs up to 204 swimming immediately adjacent to the Register (74 FR 2995, January 16, 2009) dB re 1 μPa m, at the dominant vessel or directly under the vessel. extending the public comment period frequency of 3.5 kHz. This is perilously Additionally, NMFS believes that the for the proposed IHA to facilitate close to the US Navy’s AN/SQS–53C MBES and SBP are not likely to be additional review by regional scientific tactical mid-frequency sonar system capable of causing marine mammal experts. If a regional expert or regional implicated in many of the mass strandings because of their short NGO representative requests to consult strandings of beaked whales and other duration and brief pings on the effects of the seismic survey on cetaceans, which produces ‘pings’ Comment 184: Several commenters protected species in the region, NMFS primarily in the 2.6 to 3.3 kHz range. expressed that the impacts of masking encourages them to discuss this directly Another LDEO survey has been (including the physiological and with a representative from L–DEO or associated with a stranding (as psychological consequences potentially NSF. acknowledged in the EA: ‘‘* * * resulting from masking) were likely to Finally, based on comments received association of mass strandings of beaked be greatest for baleen whales throughout from the public, including regional whales with naval exercises and, in one the survey area and requested that the experts, L–DEO completed a case, an L–DEO seismic survey Langseth should avoid calving grounds Supplemental EA for the TAIGER (Malakoff, 2002)’’). There may thus also at breeding season, and feeding and survey. NMFS believes that the be concern for beaked whales and other migratory habitat for several species of monitoring and mitigation measures, animals, because, while ‘‘[t]here is no threatened and endangered marine which have been enhanced when conclusive evidence of cetacean mammals. Several expressed concern compared to the proposed IHA notice, strandings or deaths at sea as a result of for the range of the critically endangered ensure the least practicable adverse exposure to seismic surveys’’ (EA), there Eastern Taiwan Strait (ETS) population impact on marine mammals in the SE is also no conclusive evidence that of Indo-Pacific humpbacked dolphin; Asia study area. seismic surveys do not lead to the partial range of Jiulong River Estuary Comment 181: According to the tables strandings or death either. (JRE) population of Indo-Pacific within the EA, more Sousa will be Response: The evidence linking humpbacked dolphin; calving and impacted than there actually are Sousa beaked whale strandings and seismic migratory habitat for western Pacific in the area. I am unclear on how this surveys remains inconclusive at best. In humpback whales; a migratory pathway meets the ‘‘small number’’ criteria. This September, 2002, two Cuvier’s beaked for the critically endangered western number would, of course, go up further whales stranded in the Gulf of Pacific gray whale; and beaked and if the distances reported by Madsen et California, Mexico. The Ewing had been sperm whale habitat in southeastern and al. (2006—noted above) were taken into operating a 20-airgun, 8,490-in3 airgun southwestern Taiwan. account. Of course, these distances array 22 km offshore the general area at Response: Please see NMFS’ would increase the take numbers for all the time that strandings occurred. responses to comments under the animals in the area. However, the link between the stranding Species of Particular Concern section Response: Since the issuance of the and the seismic surveys was and the response to Comment EA2 proposed IHA notice, L–DEO negotiated inconclusive and not based on any under this section. The IHA contains with the project’s principal scientists to physical evidence (Hogarth, 2002; measures to mitigate against the modify the cruise plan and adopt more Yoder, 2002) as some vacationing potential effects of the surveys on precautionary monitoring and marine mammal researchers who mother/calf pairs, ETS and JRE mitigation measures. Based on the re- happened upon the stranding were ill- humpbacked dolphins, and western routed tracklines, L–DEO has revised equipped to perform an adequate Pacific gray whales. estimates of the possible numbers of necropsy. In addition, Cox et al. (2006) Comment 185: NMFS has determined ETS Indo-Pacific humpback dolphins noted the ‘‘lack of knowledge regarding that the proposed activity ‘‘may result,

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

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within whose EEZs it will be consult with all stakeholders regarding and behavioral impacts, not be conducting surveys. NMFS must request projects in a specified region. permitted. and receive the relevant paperwork from Response: NMFS disagrees with CSI’s Recommendations for Consultation and the applicant, that L–DEO has a recommendations. NMFS believes that Research minimum initiated and preferably L–DEO’s revised seismic survey as well completed. It cannot take at face value Comment 194: Dr. McIntosh and Dr. as the implementation of the required the assurances of L–DEO that such Wu state they have already contacted monitoring and mitigation measures compliance will occur. It is a long- marine biologists highly knowledgeable will have a negligible impact on the standing concern of HSUS/HSI (and and very concerned about the ecology of affected species or stocks of marine other NGOs, both domestic and all marine mammals in the National mammals in the planned study area. L– international) that U.S. agencies issue Taiwan University, Academica Sinica DEO will limit seismic survey lines to environmental permits and and the National Taiwan Ocean water depths greater than 200 m in the authorizations for activities that will in University. They will continue to South China Sea, and as far east as part be conducted within foreign provide guidance to the planning of the possible from the mainland China side jurisdictions without first verifying that TAIGER program. of the Taiwan Strait, to reduce potential the applicant has complied or even Response: NMFS acknowledges the for effects on Western Pacific gray initiated compliance with local laws principal investigators comment. whales, Indo-Pacific humpback and regulations of these four nations. Comment 195: CSI states that in dolphins, and finless porpoises. L–DEO Response: NMFS has communicated December, 2008, for the ETSSTAWG (an will limit seismic survey lines to take with NSF and L–DEO regarding the international working group established place at least 20 km from the west coast seismic survey in SE Asia. NMFS has in early 2008 to provide scientific of Taiwan, except for in the passage received copies of L–DEO’s foreign guidance and advice to all interest between the Penghu Islands and the clearances from Taiwan, Japan, and the groups) recommended that a buffer for Waishanding Jhou sandbar, where the Philippines. L–DEO has been denied noise threats be out to at least 5 km from survey will pass through the access to the waters of China. NMFS shore for the ETS population after approximately 17.1 km mid-line expects NSF and L–DEO to coordinate reviewing a proposal for designation of distance between the two possibly with the governments of Taiwan, Japan, Majore Wildlife Habitat for the ETS sensitive areas, subject to the limitations and the Philippines, as well as adhere population (review letter to Wild At imposed by other foreign nations, to to local conservation laws and Heart Legal Defense Association—dated minimize the potential for exposing regulations of nations while in foreign 29 December, 2008). Indo-Pacific humpback dolphins, finless waters, and known rules and boundaries Response: After issuance of the porpoises, and other coastal species to of Marine Protected Areas (MPA), proposed IHA, L–DEO negotiated with SPLs greater than or equal to 160 dB re regarding the marine geophysical the project’s principal scientists to 1 μPa (rms). activity in SE Asia. In the absence of modify the cruise plan and adopt more Comment 197: Several interested local conservation laws and regulations precautionary mitigation measures. Off parties recommend dedicated marine or MPA rules, L–DEO will continue to Taiwan’s west coast, the cruise tracks mammal systematic surveys in waters use the monitoring and mitigation have been re-routed offshore by off eastern Taiwan (particularly in measures identified in the IHA. NMFS approximately 20 km to protect the waters beyond 20 km from shore where has included conditions to these effects ‘critically endangered’ ETS Indo-Pacific almost no cetacean survey effort exists) in the IHA. L–DEO is required to submit humpback dolphin population and the and of the Penghu Channel to better a draft report on all activities and finless porpoise, as well as ease understand the region’s waters, monitoring results to the Office of potential pressure on other coastal determine concentrations of beaked Protected Resources, NMFS, within 90 species. Thus, the precautionary buffer whales, and reduce impacts on other days of the completion of the Langseth’s recommended by ETSSTAWG in their cetaceans. Systematic cetacean surveys SE Asia cruise (see ‘‘Reporting’’ section comments to NMFS, ‘‘at least 13 km and of the waters of these waters are needed below). perhaps a more precautionary 15 km of before seismic surveys are conducted so Comment 193: HSI states that far too the ETS Indo-Pacific humpback dolphin that better planning with adequate often, applicants for MMPA Incidental subpopulation—meaning up to around information can reduce impacts on Harassment Authorizations, who are 20 km from shore’’ will be adopted. L– marine mammals. Better coverage of the working on geophysical and other DEO will limit seismic survey lines to region’s waters by cetaceans surveys can projects that do not directly concern take place at least 20 km from the west also allow fine turning of spatial and marine mammals, but result in their coast of Taiwan, expect for in the temporal avoidance of humpback incidental harassment and that will passage between the Penghu Islands and whales by seismic surveys. Simple occur at least partially within foreign the Waishanding Jhou (Wau-san-ting strategic scheduling of seismic surveys jurisdictions, fail to consult much or at Chou) sandbar, where the survey will can eliminate or at least greatly reduce all with regional entities who can be pass through the approximately 17.1 km the impacts on this population. considered stakeholders in the decisions mid line distance between the two Response: In this case, NMFS does to authorize such projects. The possibly sensitive areas, subject to the not agree that marine mammal authorizing agency compounds this limitations imposed by other foreign assessment surveys are needed prior to failing by accepting the applicant’s nations, to minimize the potential for issuing an IHA. When information is assurances at face value that sufficient exposing the ETS sub-population and unavailable on a local marine mammal consultation has occurred or will occur. other coastal species to SPLs greater population size, NMFS uses either stock HSI strongly advises the NMFS (and than or equal to 160 dB re 1 μPa (rms). or species information on abundance. applicants such as L–DEO) to rectify NMFS has included conditions to this Also, while information may be lacking this problem in the future. effect in the IHA as well. for many species of cetaceans, Response: NMFS acknowledges HSI’s Comment 196: CSI recommends that information on some of the locally- recommendation and expects applicants activities that would increase the risk of found species is found in the L–DEO’s to comply with all foreign and domestic extinction of Sousa chinensis IHA application, EA, and Supplemental laws. NMFS encourages applicants to populations, including physiological EA. See L–DEO’s IHA application, EA,

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

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

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

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

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

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November and leave in May or even on International Trade in Endangered et al., 2007). The dugong is managed June, with peak occurrence during Species (CITES). Several species are under the jurisdiction of the U.S. Fish February through March or April listed as Endangered under the ESA, and Wildlife Service (USFWS). The (Acebes et al., 2007). including the Western North Pacific USFWS concurred with L–DEO’s To mitigate against the potential gray, North Pacific right, sperm, determination that the survey is likely effects of the surveys on humpback humpback, fin, sei, and blue whales, to have no effects on the species and no whales, particularly mothers and calves and the dugong (Dugong dugon). In consultation under Section 7 of the ESA on the breeding grounds or during the addition, the Indo-Pacific humpback is required, therefore, it is not beginning of migration to summer dolphin is listed as Near Threatened considered further in this analysis. feeding grounds, the surveys that and the finless porpoise is listed as Wang et al. (2001a) noted that during approach the Babuyan Islands have Vulnerable under the 2008 IUCN Red the spring/summer off southern Taiwan, been rescheduled as late as possible, to List of Threatened Species (IUCN, the highest number of marine mammal Leg 4 (June 18 to July 20, 2009). L–DEO 2008). sightings and species occur during April will also be required to shut-down Although the dugong may have and June. The number of sightings per immediately if there is a visual sighting inhabited waters off Taiwan, it is no survey effort and the number of species at any distance for mother/calf pairs of longer thought to occur there (March et were highest directly west of the humpback whales. al., n.d.; Chou, 2004; Perrin et al., 2005). southern tip of Taiwan and northeast off Similarly, although the dugong was the southern tip. Description of Marine Mammals in the once widespread through the Table 2 (below) outlines the cetacean Proposed Activity Area Philippines, current data suggest that it species, their habitat and abundance in A total of 34 cetacean species, does not inhabit the Batan or Babuyan the proposed project area, and the including 25 odontocete (dolphins and Islands or northwestern Luzon (Marsh et requested take levels. Additional small- and large-toothed whales) species al., n.d.; Perrin et al., 2005), where information regarding the distribution of and 9 mysticetes (baleen whales) are seismic operations will occur. However, these species expected to be found in known to occur in the proposed the dugong does occur off northeastern the project area and how the estimated TAIGER study area (see Table 2 of L– Luzon (Marsh et al., n.d.; Perrin et al., densities were calculated was included DEO’s application). Cetaceans and 2005) outside the study area. In China, in the notice of the proposed IHA (73 FR pinnipeds are managed by NMFS and it is only known to inhabit the waters 78294, December 22, 2008) and may be are the subject of this IHA application. off Guangxi and Guangdong and the found in L–DEO’s application. Information on the occurrence, west coast of Hanain Island (Marsh et The occurrence, habitat, regional distribution, population size, and al., n.d.; Perrin et al., 2005), which do abundance, conservation status, best conservation status for each of the 34 not occur near the study area. It is rare and maximum density estimates, marine mammal species that may occur in the Ryuku Islands, but can be sighted number of marine mammals that could in the proposed project area is presented in Okinawa, particularly off the east be exposed to sound level at or above in the Table 2 of L–DEO’s application as coast of the island (Yoshida and Trono, 160dB re 1μPa, best estimate of number well as here in the table below (Table 2). 2004; Shirakihara et al., 2007); some of individuals exposed, and best The status of these species is based on individuals may have previously estimate of number of exposures per the U.S. Endangered Species Act (ESA), occurred in the southernmost of the marine mammal in or near the proposed the International Union for Ryuku Islands, Yaeyama (Marsh et al., seismic survey area in SE Asia. See Conservation of Nature (IUCN) Red List n.d.), but these animals have not been Tables 2–4 in L–DEO’s application for of Threatened Species, and Convention documented there recently (Shirakihara further detail.

TABLE 2

Percent of Occurrence in Density/ Density/ Number of estimated Regional b c indiv. Species study area in Habitat population size 1000km 1000km exposed to population SE Asia (best) (max) ≥ exposed to 160 dB ≥ 160 dB

Mysticetes Western Pacific gray whale Rare ...... Coastal ...... 131 d ...... 0 0 0 0 (Eschrichtius robustus). North Pacific right whale Rare ...... Pelagic and Less than 100 e 0 0 0 0 (Eubalaena japonica). coastal. Humpback whale Uncommon ..... Mainly near 938–1107 f ...... 0.89 1.33 6 0.60 (Megaptera shore waters novaeangliae). and banks. Minke whale (Balaenoptera Uncommon ..... Pelagic and 25,000 g ...... 0.03 0.04 0 0 acutorostrata). coastal. Bryde’s whale Common ...... Pelagic and 20,000– 0.27 0.41 43 0.17 Balaenoptera brydei). coastal. 30,000 eh. Omura’s whale Common? ...... Pelagic and N.A...... 0.03 0.04 4 N.A. (Balaenoptera omurai). coastal. Sei whale (Balaenoptera Rare ...... Primarily off- 7,260–12,620 i 0.03 0.04 4 0.04 borealis). shore, pe- lagic. Fin whale (Balaenoptera Rare ...... Continental 13,620–18,680 j 0.03 0.04 4 0.03 physalus). slope, mostly pelagic.

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TABLE 2—Continued

Number of Percent of Density/ estimated Occurrence in Regional Density/ indiv. b 1000km c population Species study area in Habitat population size 1000km exposed to SE Asia (best) (max) ≥ exposed to 160 dB ≥ 160 dB

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

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TABLE 2—Continued

Number of Percent of Density/ estimated Occurrence in Regional Density/ indiv. b 1000km c population Species study area in Habitat population size 1000km exposed to SE Asia (best) (max) ≥ exposed to 160 dB ≥ 160 dB

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

Potential Effects on Marine Mammals NMFS believes it unlikely that marine platforms (approximately 3 m or 10 ft mammals will be exposed to either the above sea level) as follows: Potential Effects of Airguns MBES or the SBP at levels at or above • Off the east central coast of Taiwan The sounds from airguns might result those likely to cause harassment. to a maximum of approximately 20 km in one or more of the following: Further, NMFS believes that the brief (12.4 mi) from shore in water depths up tolerance, masking of natural sounds, exposure of cetaceans to a few signals to approximately 1,200 m deep between behavioral disturbances, temporary or from the multi-beam bathymetric sonar June 1996 and July 1997 (all cetacean; permanent hearing impairment, and system is not likely to result in the Yang et al., 1999); non-auditory physical or physiological harassment of marine mammals. • Off the south coast of Taiwan to a effects (Richardson et al., 1995; Gordon distance of approximately 50 km (mi) et al., 2004; Nowacek et al., 2007; Estimated Take by Incidental and depths greater than 1,000 m (3,280 Southall et al., 2007). Permanent Harassment ft) during April 13–September 9, 2000 hearing impairment, in the unlikely (all cetaceans; Wang et al., 2001a); The notice of the proposed IHA (73 • event that it occurred, would constitute FR 78294, December 22, 2008) included Off the west coast of Taiwan close injury, but temporary threshold shift an in-depth discussion of the methods to shore during early April–early (TTS) is not an injury (Southall et al., used to calculate the densities of the August, 2002–2006 (Indo-Pacific 2007). With the possible exception of marine mammals in the area of the humpback dolphins; Wang et al., 2007); some cases of temporary threshold shift seismic survey and the take estimates. and in harbor seals, it is unlikely that the • Additional information was included in Around and between the Babuyan project would result in any cases of L–DEO’s application. A summary is Islands off northern Philippines in temporary or especially permanent included here. waters less than 1,000 m deep during hearing impairment, or any significant late February-May 2000–2003 non-auditory physical or physiological All anticipated ‘‘takes by harassment’’ (humpback whales; Acebes et al., 2007). effects. Some behavioral disturbance is authorized by this IHA are Level B The only density calculated by the expected, but this would be localized harassment only, involving temporary authors was for the Indo-Pacific and short-term. changes in behavior. The mitigation humpback dolphin (Wang et al., 2007). The notice of the proposed IHA (73 measures are expected to minimize the In addition, a density estimate was also FR 78294, December 22, 2008) included possibility of injurious takes. Take available for the Indo-Pacific bottlenose a discussion of the effects of sounds calculations were based on maximum dolphin (Yang et al., 2000 in Perrin et from airguns on mysticetes, exposure estimates (based on maximum al., 2005). odontocetes, and pinnipeds, including density estimates) vs. best estimates and In the absence of any other density tolerance, masking, behavioral are based on the 160 dB isopleths of a data, L–DEO used the survey effort and disturbance, hearing impairment, and larger array of airguns. Given these sightings in Yang et al. (1999) and Wang other non-auditory physical effects. considerations, the predicted number of et al. (2001a) to estimate densities of Additional information on the marine mammals that might be exposed marine mammals in the TAIGER study behavioral reactions (or lack thereof) by to sounds 160 dB or greater may be area. To correct for detection bias (bias all types of marine mammals to seismic somewhat overestimated. associated with diminishing sightability vessels can be found in L–DEO’s No systematic aircraft- or ship-based with increasing lateral distance from the application and associated EA. surveys have been conducted for marine trackline), L–DEO used mean group The notice of the proposed IHA also mammals in waters near Taiwan, and sizes given by or calculated from Wang included a discussion of the potential the species of marine mammals that et al. (2001a, 2007) and Yang et al., effects of the multibeam echosounder occur there are not well known. A few (1999), and a value for ƒ(0) of 5.32 (MBES) and the sub-bottom profiler surveys have been conducted from calculated from the data and density (SBP). Because of the shape of the small vessels (approximately 10–12 m equation in Wang et al. (2007); Yang et beams of these sources and their power, or 33–40 ft long) with low observation al. (1999), and Wang et al. (2001a) did

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not give a value for ƒ(0), but they used toothed beaked whales; however, these two densities from the Taiwan surveys a vessel and methods similar to those of two species are represented by densities and the eastern Pacific survey blocks. Wang et al. (2007). To correct for for unidentified beaked whales. For the sperm whales, mysticetes, two availability and perception bias, which Large whales were not sighted during delphinids (Indo-Pacific humpback and are attributable to the less than 100 the surveys by Yang et al. (1999) or Indo-Pacific bottlenose dolphins), as percent probability of sighting an Wang et al. (2001a). The only available well as for the finless porpoise, the animals present along the survey abundance estimate for large whales in maximum estimates are the best trackline, L–DEO used g(0) values the area (except that for humpbacks, see estimates multiplied by 1.5. Densities calculated using surfacing and dive data below) is that of Shimada et al. (2008), calculated or estimated as described from Erickson (1976), Barlow and who estimated abundances of Bryde’s above are given in Table 3 of L–DEO’s Sexton (1996), Forney and Barlow whales in several blocks in the application. (1998), and Barlow (1999): 0.154 for northwestern Pacific based on surveys The estimated numbers of individuals Mesoplodon sp., 0.102 for Cuvier’s in 1998–2002, the closest of which to potentially exposed on each leg of the beaked whale, 0.193 for the dwarf sperm the proceed survey area is the block survey are based on the 160 dB re 1 μPa whale and Kogia sp., 0.238 for the killer bounded by 10° N–25° N and 130° E– (rms) Level B harassment exposure whale, and 1.0 for delphinids. 137.5° E. The resulting abundance and threshold for cetaceans and pinnipeds. The surveys of Yang et al. (1999) and area were used to calculate density. It is assumed that marine mammals Wang et al. (2001a) were carried out in Sperm, sei, Omura’s, fin, minke, and exposed to airgun sounds at these levels areas of steep slopes and complex blue whales are less common than might experience disruption of bathymetric features, where many Bryde’s whales in these waters, so L– behavioral patterns. cetacean species are known to DEO assigned a density of 10 percent of It should be noted that the following concentrate. It did not seem reasonable that calculated for Bryde’s whale. North estimates of takes by harassment assume to extrapolate those densities to the Pacific right, and Western Pacific gray that the surveys will be fully completed. overall survey area, which is whales are unlikely to occur in the As is typical during offshore ship predominantly in areas of deep water TAIGER study area, thus, densities were surveys, inclement weather and without complex bathymetry. For latter estimated to be zero. equipment malfunctions are likely to areas, L–DEO used density data from For humpback whales in the Babuyan cause delays and may limit the number two 5° x 5° blocks in the eastern tropical Islands, L–DEO used the population of useful line-km to seismic operations Pacific Ocean (ETP) surveyed by estimate of Acebes et al. (2007) and that can be undertaken. Furthermore, Ferguson and Barlow (2001): Blocks 87 applied it to an area of approximately any marine mammal sightings within or and 882, bounded by 20° N to 25° N (the 78,000 km2, extending from the north near the designated EZ will result in the same latitudes as the proposed survey coast of Luzon to just south of Orchid power-down or shut-down of seismic area and 115° W to 125° W, in deep Island to derive a density estimate. That operations as a mitigation measure. water and just offshore from Mexico. L– area is a historically well-documented Thus, the following estimates of the DEO then calculated an overall estimate breeding ground that whaling records numbers of marine mammals exposed to weighted by the estimated lengths of indicate was used until at least the 160 dB sounds probably overestimate seismic lines over complex bathymetry 1960s (Acebes et al., 2007), and an area the actual numbers of marine mammals or slope (approximately 1,200 km or 746 where humpbacks have been sighted that might be involved. These estimates mi) and over deep, flat, or gently sloping more recently. assume that there will be no weather, bottom (approximately 12,934 km or There is some uncertainty about the equipment, or mitigation delays, which 8,037 mi). representatives of the density data and is highly unlikely. The density estimate for the Indo- the assumptions used in the The number of different individuals Pacific hump-backed dolphin is from calculations. For example, the timing of that may be exposed to airgun sounds Wang et al. (2007) and applies only to the surveys of Indo-Pacific humpback with received levels ≥160 dB re 1 μPa the population’s limited range on the dolphins (early April-early August) and (rms) on one or more occasions was west coat of Taiwan. No density data humpback whales (late February–May) estimated by considering the total were available for the Pacific white- overlaps the timing of the proposed marine area that would be within the sided or short-beaked common dolphin surveys, but the Bryde’s whale surveys 160 dB radius around the operating for the study area. As these species are (August and September), and those of airgun array on at least one occasion. rare in the area, densities are expected Yang et al. (1999) (year-round) include The number of possible exposures to be near zero. In addition, density data different seasons, and would not be as (including repeated exposures of the were unavailable for striped and long- representative if there are seasonal same individuals) can be estimated by beaked common dolphins. As these two density differences. Perhaps the greatest considering the total marine area that species were not seen during the above- uncertainty results from using survey would be within the 160 dB radius mentioned surveys and are considered results from the northeast Pacific Ocean. around the operating airguns, including uncommon in the TAIGER study area, However, the approach used here is areas of overlap. The seismic lines are L–DEO assigned these two species 10 believed to be the best available widely spaced in the survey area, and percent of the density estimate of the approach. Also, to provide some are further spaced in time because the delphinid occurring in similar habitat in allowance for these uncertainties, survey is planned in discrete legs the area with the lowest density (i.e., ‘‘maximum estimates’’ as well as ‘‘best separated by several days. Thus, an pygmy killer whale). Also no density estimates’’ of the densities present and individual mammal would not be estimate was available for finless numbers of marine mammals potentially exposed numerous times during the porpoise. As this species was not affected have been derived. Best survey; the areas including overlap are sighted during surveys of southern estimates for most species are based on 1.1 to 1.3 times the areas excluding Taiwan in 2000 (Wang et al., 2001a), L– average densities from the surveys of overlap, depending on the leg, so the DEO assigned it 10 percent of the lowest Yang et al. (1999), Wang et al. (2001a), numbers of exposures are not discussed density (i.e., Indo-Pacific bottlenose and Ferguson and Barlow (2001), further. Moreover, it is unlikely that a dolphin). Density data were unavailable weighted by effort, whereas maximum particular animal would stay in the area for Longman’s beaked and ginkgo- estimates are based on the higher of the during the entire survey.

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The number of different individuals Applying the approach described Additional information regarding the potentially exposed to received levels above and in L–DEO’s Supplemental status, abundance, and distribution of ≥160 dB re 1 μPa (rms) was calculated EA, approximately 160,132 km2 (61,827 the marine mammals in the area and by multiplying: mi2), which is approximately 5 percent how densities were calculated was 2 • The expected species density, either less than the original 168,315 km , included in Table 2 (see above), the ‘‘mean’’ (i.e., best estimate) or would be within the 160 dB isopleth on notice of the proposed IHA (73 FR ‘‘maximum,’’ times one or more occasions during the 78294, December 22, 2008) and may be • survey. Because this approach does not found in L–DEO’s application. The anticipated minimum area to allow for turnover in the mammal The estimates of the possible numbers be ensonified to that level during airgun populations in the study area during the operations excluding overlap. course of the survey, the actual number of marine mammals exposed to sound The area expected to be ensonified of individuals exposed could be levels greater than or equal to 160 dB was determined by entering the planned underestimated. However, the approach during L–DEO’s proposed seismic survey lines into a MapInfo Geographic assumes that no cetaceans will move survey in SE Asia in March–July 2009. Information System (GIS), using the GIS away from or toward the trackline as the The proposed sound source consists of to identify the relevant areas by Langseth approaches in response to a 36-airgun, 6,600 in3 array. Received μ ‘‘drawing’’ the applicable 160 dB buffer increasing sound levels prior to the time levels are expressed in dB re 1 Pa (rms) around each seismic line (depending on the levels reach 160 dB, which will (averaged over pulse duration), water and tow depth) and then result in overestimates for those species consistent with NMFS’ practice. Not all calculating the total area within the known to avoid seismic vessels. marine mammals will change their buffers. Areas where overlap occurred Table 3 (see below) outlines the behavior when exposed to these sound were limited and included only once to species, estimated stock population levels, but some may alter their behavior determine the area expected to be (minimum and best), and estimated when levels are lower (see text). See ensonified when estimating the number percentage of the stock exposed to Tables 2–4 in L–DEO’s application for of individuals exposed. seismic pulses in the project area. further detail.

TABLE 3

Number of Number of Approx. per- individuals individuals cent regional Species exposed exposed population (best)1 (max)1 (best) 2

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

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TABLE 3—Continued

Number of Number of Approx. per- individuals individuals cent regional Species exposed exposed population (best)1 (max)1 (best) 2

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

Table 1 of L–DEO’s Supplemental EA (0.60 percent of the regional most common species in the area, with shows the best and maximum estimates population), 4 sei whales (0.04 percent), best estimates of 20,169 (2.52 percent of of the number of exposures and the 4 fin whales (0.03 percent), and 4 blue the regional population), 16,749 (5.80 number of individual marine mammals whales (regional population unknown). percent), and 9,485 (1.19 percent) that potentially could be exposed to These estimates were derived from the individuals exposed to greater or equal greater than or equal to 160 dB re 1 μPa best density estimates calculated for to 160 dB re μPa (rms) respectively. (rms) during the different legs of the these species in the area (see Table 1 of Potential Effects on Habitat seismic survey if no animals moved L–DEO’s Supplemental EA). In addition, away from the survey vessel. 4 sperm whales (0.01 percent of the A detailed discussion of the potential The ‘‘best estimate’’ of the number of regional population), as well as 0 Indo- effects of this action on marine mammal individual marine mammals that could Pacific humpback dolphins (0 percent habitat, including physiological and be exposed to seismic sounds with population, and 0 percent of the eastern behavioral effects on marine fish and received levels greater than or equal to Taiwan Strait (ETC) population), 0 invertebrates was included in the 160 dB re 1 μPa (rms) (but below Level finless porpoise (0 percent), and 597 proposed IHA (73 FR 78294, December A harassment thresholds) during the beaked whales (including Longman’s 22, 2008). Based on the discussion in survey is shown in Table 1 of L–DEO’s and ginkgo-toothed beaked whales) are the proposed IHA notice and the nature Supplemental EA and Table 3 (shown included in the ‘‘best estimate’’ total. of the activities (limited duration), the above). The ‘‘best estimate’’ total Most (97.8 percent) of the cetaceans authorized operations are not expected includes 65 baleen whale individuals, potentially exposed are delphinids; to have any habitat-related effects that 25 of which are listed as Endangered pantropical spotted, Fraser’s, and could cause significant or long-term under the ESA: 6 humpback whales spinner dolphins are estimated to be the consequences for individual marine

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mammals or their populations or stocks. Mitigation measures that will be During seismic operations in SE Asia, Similarly, any effects to food sources are adopted during the TAIGER survey at least four MMOs and one expected to be negligible. include: bioacoustician will be based aboard the The L–DEO seismic survey will not (1) Speed or course alteration, Langseth (five total MMOs). MMVOs provided that doing so will not result in any permanent impact on will be appointed by L–DEO with NMFS compromise operational safety habitats used by marine mammals, or to concurrence. At least two MMVOs requirements; the food sources they use. The main (except during meal times) will monitor (2) Power-down procedures; the EZ from the observation tower for impact issue associated with the (3) Shut-down procedures; marine mammals during ongoing proposed activity will be temporarily (4) Ramp-up procedures; daytime operations and nighttime elevated noise levels and the associated (5) Temporal and spatial avoidance of startups of the airguns. Three MMOs are direct effects on marine mammals, as sensitive species and areas, provided typically on watch at a time, two on the described above. The following sections that doing so will not compromise observation tower conducting and the briefly review effects of airguns on fish operational safety requirements (see third monitoring the PAM equipment. and invertebrates, and more details are ‘‘temporal and spatial avoidance,’’ Use of two simultaneous MMVOs and included in L–DEO’s application and below); one bioacoustician will increase the EA, respectively. (6) Special procedures for situations effectiveness of detecting animals near or species of particular concern, e.g., Subsistence Activities the sound source. MMVOs typically emergency shutdown procedures if a visually observe for one to three hours, There is no legal subsistence hunting North Pacific right whale, Western and MMVOs will be on duty in shifts of for marine mammals in the waters of Pacific gray whale, humpback whale duration no longer than three hours. Taiwan, China, or the Philippines, so mother/calf pairs, Indo-Pacific MMOs and/or the lead bioacoustician the proposed activities will not have humpback and bottlenose dolphins, and will monitor the PAM equipment at all any impact on the availability of the finless porpoise are sighted from any times in shifts of one to six hours. L– species or stocks for subsistence users. distance (see ‘‘shut-down procedures’’ DEO has employed a regional expert as Today, Japan still hunts whales and and ‘‘special procedures for species of at least one of the MMOs, and has dolphins for ‘‘scientific’’ purposes. Up particular concern’’ below); and negotiated with experts from National until 1990, a drive fishery of false killer minimization of approaches to slopes Taiwan University, Academia Sinica, whales occurred in the Penghu Islands, and submarine canyons, if possible, and the National Taiwan Ocean Taiwan, where dozens of whales were because of sensitivity for beaked whales; University. L–DEO is carrying an taken. Although killing and capturing of and additional MMO (six total MMOs), who (7) Additional mitigation measures cetaceans has been prohibited in is a Taiwan regional expert from Dr. (see ‘‘additional mitigation measures’’ Taiwan since August 1990 under the Lien-Siang Chou’s team, during Leg 2 of below). The thresholds for estimating Wildlife Conservation Law (Zhou et al., the seismic survey (and during Leg 4 as take are also used in connection with 1995; Chou, 2004), illegal harpooning well). The vessel crew will also be mitigation. still occurs (Perrin et al., 2005). Until instructed to assist in detecting marine the 1990’s, there was a significant hunt Vessel-Based Visual Monitoring mammals and implementing mitigation of around 200 to 300 dolphins annually measures (if practical). Before the start Vessel-based Marine Mammal Visual of the seismic survey the crew was in the Philippines. Catches included Observers (MMVOs) will be based dwarf sperm, melon-headed, and short- given additional instruction regarding aboard the seismic source vessel and how to do so. finned pilot whales, as well as will watch for marine mammals near the bottlenose, spinner, Fraser’s, and Risso’s The Langseth is a suitable platform for vessel during daytime airgun operations marine mammal observations. When dolphins (Rudolph and Smeenk, 2002). and during start-ups of airguns at night. Reports also indicate that perhaps 5 stationed on the observation platform, MMVOs will also watch for marine the eye level will be approximately 18 Bryde’s whales were caught annually mammals near the seismic vessel for at (Rudolph and Smeenk, 2002), although m (58 ft) above sea level, and the least 30 minutes prior to the start of observer will have a good view around the last Bryde’s whales were caught in airgun operations and after an extended 1996 (Reeves, 2002). Successive bans on the entire vessel. During the daytime, shutdown of the airguns (i.e., 8 the MMVO(s) will scan the area around the harvesting of whales and dolphins minutes). When feasible, MMVOs will the vessel systematically with reticle were issued by the Philippine also make observations during daytime binoculars (e.g., 7x50 Fujinon), Big-eye Government during the 1990’s. periods when the seismic system is not binoculars (25x150), and with the naked Mitigation and Monitoring operating for comparison of sighting eye to avoid eye fatigue. During rates and animal behavior with vs. darkness, night vision devices will be Mitigation and monitoring measures without airgun operations. Based on available (ITT F500 Series Generation 3 for the seismic survey have been MMVO observations, the airguns will be binocular-image intensifier or developed and refined during previous powered-down, or if necessary, shut- equivalent), when required. Laser L–DEO seismic studies and associated down completely (see below), when rangefinding binoculars (Leica LRF 1200 environmental assessments (EAs), IHA marine mammals are detected within or laser rangefinder or equivalent) will be applications, and IHAs. The mitigation about to enter a designated EZ. The available to assist with distance and monitoring measures described MMVOs will continue to maintain estimation. Those are useful in training herein represent a combination of watch to determine when the animal(s) MMVOs to estimate distances visually, procedures required by past IHAs for are outside the safety radius, and airgun but are generally not useful in other similar projects and on operations will not resume until the measuring distances to animals directly; recommended best practices in animal has left that zone. The predicted that is done primarily with the reticles Richardson et al. (1995), Pierson et al. distances for the safety radius are listed on the binocular’s lenses. (1998), and Weir and Dolman (2007). according to the sound source, water Speed or Course Alteration—If a The measures are described in detail depth, and received isopleths in marine mammal is detected outside the below. Table 1. safety radius and based on its position

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and the relative motion, is likely to and large odontocetes, including sperm, EZ, and if marine mammals are sighted, enter the EZ, the vessel’s speed and/or pygmy sperm, dwarf sperm, killer, and a course/speed change, power-down, or direct course may be changed. This beaked whales. shut-down will be implemented as would be done if practicable while During airgun operations following a though the full array were operational. minimizing the effect on the planned power-down (or shut-down) whose If the complete EZ has not been science objectives. The activities and duration has exceeded the limits visible for at least 30 min prior to the movements of the marine mammal(s) specified above and subsequent animal start of operations in either daylight or (relative to the seismic vessel) will then departures, the airgun array will be nighttime, ramp-up will not commence be closely monitored to determine ramped-up gradually. Ramp-up unless at least one airgun (40 in3 or whether the animal(s) is approaching procedures are described below. similar) has been operating during the the applicable EZ. If the animal appears Shut-down Procedures—The interruption of seismic survey likely to enter the EZ, further mitigative operating airgun(s) will be shut down if operations. Given these provisions, it is actions will be taken, i.e., either further a marine mammal is detected within or likely that the airgun array will not be course alterations or a power-down or approaching the EZ for a single airgun ramped up from a complete shut-down shut-down of the airguns. Typically, source. Shut-downs will be at night or in thick fog, because the during seismic operations, major course implemented (1) if an animal enters the other part of the EZ for that array will and speed adjustments are often EZ of the single airgun after a power- not be visible during those conditions. impractical when towing long seismic down has been initiated, or (2) if an If one airgun has operated during a streamers and large source arrays, thus animal is initially seen within the EZ of power down period, ramp-up to full alternative mitigation measures (see a single airgun when more than one power will be permissible at night or in below) will need to be implemented. airgun (typically the full array) is poor visibility, on the assumption that Power-down Procedures—A power- operating. Airgun activity will not marine mammals will be alerted to the down involves reducing the number of resume until the marine mammal has approaching seismic vessel by the airguns in use such that the radius of cleared the EZ, or until the MMVO is sounds from the single airgun and could the 180 dB or 190 dB zone is decreased confident that the animal has left the move away if they choose. Ramp-up of to the extent that marine mammals are vicinity of the vessel. Criteria for the airguns will not be initiated if a no longer in or about to enter the EZ. A judging that the animal has cleared the marine mammal is sighted within or power-down of the airgun array can also EZ will be as described in the preceding near the applicable EZ during the day or occur when the vessel is moving from subsection. close to the vessel at night. one seismic line to another. During a Considering the conservation status Temporal and Spatial Avoidance— power-down for mitigation, one airgun for North Pacific right whales and The Langseth will not acquire seismic will be operated. The continued Western Pacific gray whales, and Indo- data in the humpback winter operation of one airgun is intended to Pacific humpback dolphins, the concentration areas during the early part alert marine mammals to the presence of airgun(s) will be shut-down of the seismic program. North Pacific the seismic vessel in the area. In immediately if either of these species humpback whales are known to winter contrast, a shut-down occurs when all are observed, regardless of the distance and calve around Ogasawara (400 km airgun activity is suspended. from the Langseth. Due to additional north of the most northerly survey) and If a marine mammal is detected concerns, shut-downs will also occur for Ryuku Islands in southern Japan and in outside the EZ but is likely to enter it, visual sightings of humpback whale the Babuyan Islands in Luzon Strait in and if the vessel’s speed and/or course mother/calf pair, Indo-Pacific bottlenose the northern Philippines (Perry et al., cannot be changed to avoid the dolphins and/or finless porpoises. 1999a; Acebes et al., 2007; animal(s) entering the EZ, the airguns Ramp-up will only begin 30 min after Calambokidis et al., 2008). In the Luzon will be powered down to a single airgun the last documented whale visual Strait, a small population of humpback before the animal is within the EZ. sighting, and 15 min after the last whales may arrive in the area as early Likewise, if a mammal is already within documented dolphin/porpoise sighting. as November and leave in May or even the EZ when first detected, the airguns Ramp-up Procedures—A ramp-up June, with a peak occurrence during will be powered down immediately. procedure will be followed when the February through March or April During a power-down of the airgun airgun array begins operating after a (Acebes et al., 2007). To mitigate against array, the 40 in3 airgun will be operated. specified period without airgun the potential effects of the surveys on If a marine mammal is detected within operations or when a power-down has humpback whales, particularly mothers or near the smaller EZ around that exceeded that period. It is proposed and calves on the breeding grounds or single airgun (see Table 1 of L–DEO’s that, for the present cruise, this period during the beginning of migration to application and Table 1 above), all would be approximately 8 minutes. This summer feeding grounds, the Langseth airguns will be shut down (see next period is based on the largest modeled will avoid these wintering areas at the subsection). 180 dB radius for the 36-airgun array time of peak occurrence, by surveying Following a power-down, airgun (see Table 1 of L–DEO’s application and the lines that approach the Babuyan activity will not resume until the marine Table 1 here) in relation to the planned Islands as late as possible to Leg 4 (June mammal is outside the EZ for the full speed of the Langseth while shooting. 18 to July 20). array. The animal will be considered to Similar periods (approximately 7–10 Due to the conservation status of have cleared the EZ if it: minutes) were used during previous L– Indo-Pacific humpback dolphins in the (1) Is visually observed to have left DEO surveys. Taiwan Strait, particularly the central the EZ, or Ramp-up will begin with the smallest western coast off Taiwan’s west coast (2) Has not been seen within the EZ airgun in the array (40 in3). Airguns will (including the Waishanding Jhou for 15 minutes in the case of species be added in a sequence such that the sandbar), the cruise tracks will be with shorter dive durations—small source level of the array will increase in approximately 20 km (12.4 mi) offshore odontocetes and pinnipeds; or steps not exceeding 6 dB per 5 min to protect this sub-population and (3) Has not been seen within the EZ period over a total duration of finless porpoises, as well as to ease for 30 minutes in the case of species approximately 35 minutes. During potential pressure on other coastal with longer dive durations—mysticetes ramp-up, the MMVOs will monitor the species. This is consistent with the

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conservative buffer recommended by survey (Figure 1 of L–DEO’s winch to the main computer lab where ETSSTAWG in their comments to application); and the acoustic station and signal condition NMFS, ‘‘at least 13 km (8.1 mi) and (3) If visually sighted, avoidance of and processing system will be located. perhaps a more precautionary 15 km concentrations of humpback, sperm, The lead-in from the hydrophone array (9.3 mi) to the ETS Sousa population and beaked whales, and dugongs. is approximately 400 m (1,312 ft) long, (Indo-Pacific humpback dolphin)— Additional Mitigation Measures and the active part of the hydrophone is meaning up to 20 km from shore’’ to approximately 56 m (184 ft) long. The minimize the potential of exposing (1) To the maximum extent hydrophone array is typically towed at these threatened dolphins to SPLs practicable, L–DEO will schedule depths less than 20 m (65.6 ft). greater than 160 dB re 1 μPa (rms), seismic operations in inshore or shallow waters during daylight hours and OBS The towed hydrophone array will be subject to the limitations imposed by monitored 24 hours per day while at the other foreign nations. Regarding the operations to nighttime hours. (2) To the maximum extent survey area during airgun operations, buffer for the area between the Penghu and also during most periods when the Islands and the Waishanding Jhou practicable, inshore seismic surveys will be conducted from the coast (inshore) Langseth is underway while the airguns sandbar, the widest point between the are not operating. One MMO will closest Penghu island and the sandbar is and proceed towards the sea (offshore) monitor the acoustic detection system at 34.2 km (21.3); therefore the mid-line in order to avoid trapping marine any one time, by listening to the signals for the planned survey is 17.1 km (10.6 mammals in shallow water. from two channels via headphones and/ mi). The total distance between Taiwan (3) NSF and L–DEO have coordinated or speakers and watching the real time and the Penghu Islands is with the governments of Taiwan, Japan, spectrographic display for frequency approximately 45 km and the planned and the Philippines regarding the ranges produced by cetaceans. MMOs seismic survey line off the west coast of marine geophysical activity. (4) NMFS expects NSF and L–DEO to monitoring the acoustical data will be Taiwan is within the territorial sea of adhere to conservation laws and on shift for 1–6 hours. Besides the Taiwan. regulations of nations while in foreign ‘‘visual’’ MMOs, an additional MMO Because of the concerns about waters, and known rules and boundaries with primary responsibility for PAM potential effects of the seismic surveys of Marine Protected Areas (MPA). In the will also be aboard. However, all MMOs on Western Pacific gray whales absence of local conservation laws and are expected to rotate through the PAM (wintering areas and migration), Indo- regulations or MPA rules, L–DEO will position, although the most experienced Pacific humpback dolphins, and finless continue to use the monitoring and with acoustics will be on PAM duty porpoises, the seismic survey lines in mitigation measures identified in the more frequently. the South China Sea south of the IHA. Taiwan Strait have been re-routed so When a vocalization is detected, the that they are now located in water Passive Acoustic Monitoring acoustic MMO will, if visual depths greater than 200 m (656 ft), as Passive Acoustic Monitoring (PAM) observations are in progress, contact the recommended by NRDC. Those in the will take place to complement the visual MMVO immediately to alert him/her to Taiwan Strait will be as far east as monitoring program, if practicable. the presence of the cetacean(s) (if they possible from the mainland China side. Visual monitoring typically is not have not already been seen), and to The seismic lines that were proposed in effective during periods of poor allow a power down or shutdown to be the IHA application in the western visibility (e.g., bad weather) or at night, initiated, if required. The information Taiwan Strait have been dropped. and even with good visibility, is unable regarding the call will be entered into a Because of concerns about potential to detect marine mammals when they database. The data to be entered include effects of the seismic surveys on coastal are below the surface or beyond visual an acoustic encounter identification species and those that frequent the range. Acoustical monitoring can be number, whether it was linked with a continental shelf break and steep slopes used in addition to visual observations visual sighting, date, time when first (e.g., beaked and sperm whales), the to improve detection, identification, and last heard and whenever any proposed survey line paralleling the east localization, and tracking of cetaceans. additional information was recorded, coast of Taiwan (the continental shelf is The acoustic monitoring will serve to position and water depth when first narrow there) has also been moved alert visual observers (if on duty) when detected, bearing if determinable, offshore by more than 20 km to decrease vocalizing cetaceans are detected. It is species or species group (e.g., potential impacts on these species (see only useful when marine mammals call, unidentified dolphin, sperm whale), Figure 1 of L–DEO’s Supplemental EA). but it can be effective either by day or types and nature of sounds heard (e.g., Procedures for Species of Particular by night and does not depend on good clicks, continuous, sporadic, whistles, Concern—Several species of particular visibility. It will be monitored in real creaks, burst pulses, strength of signal, concern could occur in the study area. time so visual observers can be advised etc.), and any other notable information. Special mitigation procedures will be when cetaceans are detected. When The acoustic detection can also be used for these species as follows: bearings (primary and mirror-image) to recorded for further analysis. (1) The airguns will be shut-down if calling cetacean(s) are determined, the L–DEO will coordinate the planned a North Pacific right whale, Western bearings will be relayed to the visual marine mammal monitoring program Pacific gray whale, humpback whale observer to help him/her sight the associated with the TAIGER seismic mother/calf pair, Indo-Pacific humpback calling animal(s). survey in SE Asia with other parties that and bottlenose dolphin, and/or finless The PAM system consists of hardware may have interest in the area and/or be porpoise is sighted at any distance from (i.e., hydrophones) and software. The conducting marine mammal studies in the vessel; ‘‘wet end’’ of the system consists of a the same region during the proposed (2) Because of the sensitivity of low-noise, towed hydrophone array that seismic survey. L–DEO and NSF will beaked whales, approach to slopes, is connected to the vessel by a ‘‘hairy’’ coordinate with Taiwan, Japan, and the submarine canyons, and other faired cable. The array will be deployed Philippines, as well as applicable U.S. underwater geologic features will be from a winch located on the back deck. agencies (e.g., NMFS), and will comply minimized, if possible, during the A deck cable will connect from the with their requirements.

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Reporting of methods, results, and interpretation detections were of unidentified toothed pertaining to all monitoring. The 90-day whales and three of unidentified MMVO Data and Documentation report will summarize the dates and dolphins. Only one of those acoustic MMVOs will record data to estimate locations of seismic operations, and all detections was concurrent with a visual the numbers of marine mammals marine mammal sightings (dates, times, sighting (unidentified toothed whale). exposed to various received sound locations, activities, associated seismic During week three of Leg 2, MMOs on levels and to document apparent survey activities). The report will also the Langseth recorded four visual disturbance reactions or lack thereof. include estimates of the amount and sightings of marine mammals (all during Data will be used to estimate numbers nature of potential ‘‘take’’ of marine seismic operations), one of which of animals potentially ‘taken’ by mammals by harassment or in other required a power-down. MMOs have harassment (as defined in the MMPA). ways. visually sighted four groups of They will also provide information All injured or dead marine mammals unidentified dolphins (one probably needed to order a shut-down of the (regardless of cause) will be reported to bottlenose dolphin group). The groups seismic source when a marine mammal NMFS as soon as practicable. Report ranged from approximately 12 to 75 or sea turtle is within or near the EZ. should include species or description of individuals. No acoustic detections When a sighting is made, the animal, condition of animal, location, were made during week three. following information about the sighting time first found, observed behaviors (if During week four of Leg 2, MMOs on will be recorded: alive) and photo or video, if available. the Langseth recorded one visual (1) Species, group size, and age/size/ sighting of spinner dolphins Monitoring to Date sex categories (if determinable); (approximately 75 individuals), and behavior when first sighted and after During Leg 1 of the TAIGER survey, implemented a power-down during the initial sighting; heading (if consistent), L–DEO’s MMOs onboard the Langseth sighting. No other sightings were made bearing, and distance from seismic have reported four visual sightings and during week four. Three acoustic vessel; sighting cue; apparent reaction to four acoustic detections during detections of delphinids were made the seismic source or vessel (e.g., none, operations in the study area. MMOs during week three, all on the same day. avoidance, approach, paralleling, etc.); have visually sighted a group of sperm No monitoring for marine mammals and behavioral pace. whales (approximately 3 individuals), a was conducted during Leg 3 of the (2) Time, location, heading, speed, group of short-finned pilot whales TAIGER survey, as it only consisted of activity of the vessel, sea state, (approximately 36 individuals), an OBS operations. During week one of Leg visibility, cloud cover, and sun glare. unidentified toothed whale, and a single 4, three marine mammal sightings were The data listed (time, location, etc.) unidentified sea turtle during the four made. No sightings occurred during will also be recorded at the start and visual sightings. For the four acoustic seismic periods; thus, not shut-downs or end of each observation watch, and detections made, spectrograms power-downs of the airgun array were during a watch whenever there is a resembling known sounds made by required. The sightings included an change in one or more of the variables. sperm whales and melon-headed whales unidentified sea turtle, sperm whales All observations, as well as were recorded during visual (approximately two individuals), melon- information regarding seismic source observations of the sperm whale and headed whales (approximately 20 shutdown, will be recorded in a unidentified toothed whale, individuals), and unidentified dolphins standardized format. Data accuracy will respectively. Spectrograms resembling a (approximately 12 individuals). On June be verified by the MMVOs at sea, and call of a melon-headed whale and an 23, 2009, two acoustic detections of preliminary reports will be prepared unidentified whistle were recorded on delphinids were made, and another during the field program and summaries different nights. Two of the visual delphinid acoustic detection was made forwarded to the operating institution’s sightings of cetaceans occurred while on June 28, 2009. All acoustic shore facility and to NSF weekly or one airgun was in operations and did detections occurred during seismic more frequently. MMVO observations not require additional mitigation action. activity, but none required mitigation will provide the following information: The visual sighting of a group of pilot measures. (1) The basis for decisions about whales occurred during a period of no During week one of Leg 4, MMOs on powering down or shutting down airgun seismic activity. A power-down was the Langseth recorded three marine arrays. initiated for the sighting of the single mammal sightings and an unidentified (2) Information needed to estimate the unidentified sea turtle. sea turtle. No sightings occurred during number of marine mammals potentially During Leg 2 of the TAIGER survey, seismic periods; thus, no shut-downs or ‘taken by harassment.’ These data will L–DEO’s MMOs onboard the Langseth power-downs of the airgun array were be reported to NMFS per terms of have reported 11 visual sightings and 8 required. The marine mammal sightings MMPA authorizations or regulations. acoustic detections during operations in included one of sperm whales (3) Data on the occurrence, the study area. No visual or acoustic (approximately 2 individuals), a group distribution, and activities of marine detections were made during week one of melon-headed whales (approximately mammals in the area where the seismic of Leg 2. During week two of the Leg 2, 20 individuals), and a group of study is conducted. MMOs on the Langseth recorded six unidentified dolphins (approximately (4) Data on the behavior and visual sightings of marine mammals (all 12 individuals). On June 23, 2009, two movement patterns of marine mammals during seismic operations), two of acoustic detections of delphinids were seen at times with and without seismic which sightings required a power-down. made. On June 28, 2009, an additional activity. MMOs have visually sighted two groups delphinid acoustic detection was made. A report will be submitted to NMFS of unidentified dolphins, two groups of All acoustic detections occurred during within 90 days after the end of the unidentified toothed whales (both seismic activity, but none required cruise. The report will describe the probable false killer whales), a group of mitigation measures. operations that were conducted and pantropical (approximately 100 During week two of Leg 4, MMOs on sightings of marine mammals near the individuals), and a group of Fraser’s the Langseth recorded two marine operations. The report will be submitted dolphins (approximately 50 mammal sightings. Both sightings of to NMFS, providing full documentation individuals). A total of five acoustic unidentified dolphins (approximately 2

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and 100 individuals) occurred during between the Penghu Islands and the Endangered Species Act (ESA) seismic activity, but only one sighting Waishanding Jhou sandbar. The widest Pursuant to Section 7 of the ESA, NSF required a power-down of the airgun point between the closest Penghu island has consulted with the NMFS, Office of array. There were no shut-downs due to and the sandbar is 34.2 km (21.3 mi); Protected Resources, Endangered marine mammal sightings during this therefore the mid-line for the planned Species Division on this seismic survey. period. There were four acoustic survey is 17.1 km (10.6 mi). The total NMFS has also consulted internally detections, all of which occurred during distance between Taiwan and the pursuant to Section 7 of the ESA on the seismic activity. Penghu Islands is approximately 45 km issuance of an IHA under section During week three of Leg 4, MMOs on and the planned seismic survey line off the Langseth recorded one marine 101(a)(5)(D) of the MMPA for this the west coast of Taiwan is within the activity. On March 31, 2009, NMFS mammal sighting. The group of five territorial sea of Taiwan. Additionally, individual sperm whales consisted of concluded consultation with NMFS and as requested by L–DEO, distances stated NSF and issued a Biological Opinion four adults and one calf. This sighting in the IHA now include nautical miles occurred during seismic activity, but (BiOp), which concluded that the for navigational purposes. did not require the implementation of proposed action and issuance of an IHA any mitigation measures. No acoustic In addition, NMFS clarified condition are not likely to jeopardize the detections were made during this 10(s). Condition 10(s) needed to be continued existence of North Pacific period. modified to more specifically describe right, Western Pacific gray, blue, fin, sei, During week four of Leg 4, MMOs on the geographical area of the Taiwan humpback, and sperm whales, and the Langseth recorded one marine Strait where the first and second legs of leatherback (Dermochelys coriacea), mammal sighting. One sighting of 36 the TAIGER survey are being conducted. green (Chelonia mydas), loggerhead pantropical spotted dolphins (24 adults Prior to the issuance of the original IHA, (Caretta caretta), hawksbill and 12 calves) was made during this L–DEO voluntarily dropped the seismic (Eretmochelys imbricata), and olive period. This sighting occurred during survey tracklines in the western Taiwan ridley (Lepidochelys olivacea) sea seismic activity, but did not require the Strait for a number of reasons, including turtles. The BiOp also concluded that implementation of any mitigation concerns about the effects of the surveys designated critical habitat for these measures. There were two acoustic on Western Pacific gray whales, Indo- species does not occur in the action area detections made during this period, Pacific humpback dolphins, and finless and would not be affected by the survey. both of which occurred during seismic porpoises, and because China denied L– Relevant Terms and Conditions of the Incidental Take Statement in the BiOp activity. DEO access to their waters. Condition have been incorporated into the IHA. 10(s), as modified, better reflects these IHA Modifications Since NMFS modified the IHA issued circumstances. On March 31, 2009, NMFS issued an to L–DEO, a review under Section 7 was IHA to L–DEO to take small numbers of A copy of the modified IHA can be conducted. On May 1, 2009, NMFS marine mammals incidental to found online at: http:// concluded that the proposed revisions conducting a marine geophysical survey www.nmfs.noaa.gov/pr/pdfs/permits/ to the IHA would not cause adverse in SE Asia, under a cooperative taiger_iha_modified.pdf. effects on species or designated critical agreement with NSF, as part of the On July 13, 2009, NMFS received a habitat. Given this, the consultation TAIGER program from March–July, request from L–DEO for an additional 16 requirements have been met and no 2009. On April 21, 2009, NMFS authorized takes of sperm whales for the additional consultation is required for received a request from L–DEO, asking remainder of the seismic survey. It is the issuance of the revised IHA. that IHA conditions (10(u) and 10(w)) be unlikely that his many animals will be modified for clarification because as National Environmental Policy Act exposed to these sound levels, but with (NEPA) currently written, the conditions would the group dynamic for this particular effectively preclude the complete species, additional numbers have been NSF prepared an EA titled ‘‘Marine execution of Leg 2—the seismic survey Seismic Survey in Southeast Asia, requested to allow for a chance line along the west coast of Taiwan. March–July 2009’’ that references L– encounter of a large sperm whale group. Specifically, condition 10(u) only DEO’s EA and Supplemental EA of a During vessel operations in the TAIGER allowed the survey to occur if the Marine Geophysical Survey by the R/V study area, there have been 13 Taiwan Strait were more than 170 km Marcus G. Langseth in Southeast Asia, individual sperm whales sighted in wide throughout its entire length or March–July 2009. LGL Limited, only in the southern portion of the area. three groups. On July 8, 2009, five Environmental Research Associates, The area between Taixi and Tongshiao, individuals were identified by MMOs to prepared the EA and Supplemental EA have been exposed to sound levels which demarcates the primary μ on behalf of L–DEO and NSF. NMFS has distribution of the ‘critically greater than or equal to 160 dB re 1 Pa adopted NSF’s EA and issued a Finding endangered’ (IUCN, 2008) Indo-Pacific (rms) in the study area. These five of No Significant Impact (FONSI) for the humpback dolphin Eastern Taiwan animals were observed in a single group issuance of the IHA. The modification of Strait sub-population, is typically about 2 km (1.24 mi) from the MMO the IHA was within the scope of the narrower than 170 km. L–DEO stated observation tower (approximately 2.2 impacts considered in the EA and used that the 150 km distance probably km [1.37 mi] from the closest airgun) to support the FONSI. originated as an error with an early draft onboard the Langseth. These animals Determinations of the Supplemental EA. showed similar movement and Condition 10(w) did not specifically behavioral responses as those observed NMFS has determined that the impact address the maintenance of a outside the 160 dB isopleths. L–DEO of conducting the seismic survey in SE conservative buffer from the Penghu has provided additional sighting data as Asia may result, at worst, in a temporary Islands and the Waishanding Jhou well. Authorized takes of 20 sperm modification in behavior (Level B sandbar. Under the modification to whales (0.08 percent of the regional harassment) of small numbers of marine condition 10(w) the planned seismic population) are included in the IHA mammals. Further, this activity is survey line will only change in the area modified on July 15, 2009. expected to result in a negligible impact

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on the affected species or stocks. The (4) The fact that marine mammals the required monitoring and mitigation provision requiring that the activity not would have to be closer than 6,000 m measures. have an unmitigable impact on the (3.7 mi) in deep water, 6,667 m (4.1 mi) While the number of marine availability of the affected species or at intermediate depths, and 8,000 m (4.9 mammals potentially incidentally stock for subsistence uses is not mi) in shallow water when the full array harassed will depend on the implicated for this action. is in use at a 9 m (29.5 ft) tow depth distribution and abundance of marine For reasons stated previously in this from the vessel to be exposed to levels document, this negligible impact of sound (160 dB) believed to have even mammals in the vicinity of the survey determination is supported by: a minimal chance at causing TTS; activity, the number of potential (1) The likelihood that, given (5) The likelihood that marine harassment takings is estimated to be sufficient notice through relatively slow mammal detection ability by trained small, relative to the affected species ship speed, marine mammals are observers is high at that short distance and stock sizes (less than a few percent expected to move away from a noise from the vessel; of any of the estimated population source that is annoying prior to its (6) The use of PAM, which is effective sizes), and has been mitigated to the becoming potentially injurious; out to tens of km, will assist in the lowest level practicable through (2) The fact that marine mammals detection of vocalizing marine mammals incorporation of the measures would have to be closer than 40 m (131 at greater distances from the vessel; mentioned previously in this document. ft) in deep water, 60 m (197 ft) at (7) The incorporation of other intermediate depths, or 296 m (971 ft) required mitigation measures (i.e., Authorization in shallow water when a single airgun ramp-up, power-down, shut-down, is in use from the vessel to be exposed temporal and spatial avoidance, special As a result of these determinations, to levels of sound (180 dB) believed to measures for species of particular NMFS issued and modified an IHA to have even a minimal chance of causing concern, and additional mitigation L–DEO for conducting a marine TTS; measures); and geophysical survey in SE Asia from (3) The fact that cetaceans would have (8) The relatively limited duration March–July, 2009, including the to be closer than 950 m (0.6 mi) in deep and geographically widespread previously mentioned mitigation, water, 1,425 m (0.9 mi) at intermediate distances of the seismic survey in the SE monitoring, and reporting requirements. depths, and 3,694 m (2.3 mi) in shallow Asia study area (approximately 103 water when the full array is in use at a days). As a result, no take by injury or James H. Lecky, 9 m (29.5 ft) tow depth from the vessel death is anticipated, and the potential Director, Office of Protected Resources, to be exposed to levels of sound (180 for temporary or permanent hearing National Marine Fisheries Service. dB) believed to have even a minimal impairment is very low and will be [FR Doc. E9–19459 Filed 8–13–09; 8:45 am] chance of causing TTS; avoided through the incorporation of BILLING CODE 3510–22–P

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