Incidental Takes of Marine Mammals Incidental to Specified Activities; Marine Geophysical Survey in the Southwest Pacific Ocean, January - February, 2009, 6387-6395 [E9-2664]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 25 (Monday, February 9, 2009)]
[Notices]
[Pages 6387-6395]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2664]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XM65


Incidental Takes of Marine Mammals Incidental to Specified 
Activities; Marine Geophysical Survey in the Southwest Pacific Ocean, 
January -- February, 2009

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

ACTION: Notice; issuance of incidental take authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to Lamont-Doherty Earth 
Observatory (L-DEO), a part of Columbia University, to take small 
numbers of marine mammals, by Level B harassment only, incidental to 
conducting a marine seismic survey in the southwest Pacific Ocean.

DATES: Effective January 14, 2009, through February 21, 2009.

ADDRESSES: A copy of the IHA and the application are available by 
writing to P. Michael Payne, Chief, Permits, Conservation and Education 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225 or by 
telephoning the contact listed here. A copy of the application 
containing a list of the references used in this document may be 
obtained by writing to the address specified above, telephoning the 
contact listed below (see FOR FURTHER INFORMATION CONTACT), or by 
visiting the internet at: https://www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications. Documents cited in this notice may be 
viewed, by appointment, during regular business hours, at the 
aforementioned address.

FOR FURTHER INFORMATION CONTACT: Jeannine Cody, Office of Protected 
Resources, NMFS, (301) 713-2289.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of marine mammals by United 
States citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental taking shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ''...an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Except with respect to certain activities not pertinent here, the MMPA 
defines ``harassment'' as:

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

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

Summary of Request

    On August 18, 2008, NMFS received an application from L-DEO for the 
taking by Level B harassment only, of small numbers of 29 species of 
marine mammals incidental to conducting, with research funding from the 
National Science Foundation (NSF), a marine seismic survey within the 
Exclusive Economic Zone (EEZ) of Tonga in the southwest Pacific Ocean 
during January through February 2009. NMFS outlined the purpose of the 
research program in a previous notice for the proposed IHA (73 FR 
71606, November 25, 2008).

Description of the Activity

    The planned survey will involve one source vessel, the R/V Marcus 
G. Langseth (Langseth), a seismic vessel owned by the NSF. NSF expects 
the Langseth to depart Nuku'alofa, Tonga on January 14, 2009 for a one-
day transit to the study area in the Lau Basin in the southwest Pacific 
Ocean (between 19-21[deg] S. and 175-176[deg] W.).
    To obtain high-resolution three-dimensional (3D) structures of the 
Lau Basin's magmatic systems and thermal structures, the Langseth will 
deploy a towed array of 36 airguns with a total discharge volume of 
approximately 6,600 cubic inches (in\3\). The array configuration 
consists of four identical linear arrays or strings, with 10 airguns on 
each string. L-DEO will distribute the four airgun strings across an 
approximate area of 24 x 16 meters (m) (79 x 52 feet (ft)) behind the 
Langseth which will tow the array approximately 50-100 m (164-328 ft) 
behind the vessel at a tow-depth of 9-12 m (29.5-39.4 ft). The airgun 
array will fire for a brief (0.1 second (s)) pulse every 180 s. The 
array will remain silent at all other times.
    The Langseth will also deploy 55 to 64 Ocean Bottom Seismometers 
(OBS) for the survey. As the airgun array is towed along the survey 
lines, the OBS will receive the returning acoustic signals and record 
them internally for later analysis. In addition to the operations of 
the airgun array, the Langseth will operate a multibeam echosounder 
(MBES) and a sub-bottom profiler (SBP) continuously throughout the 
Eastern Lau Spreading Center cruise.
    The survey area is approximately 42 kilometers (km) (26 miles (mi)) 
offshore from Tonga in water depths ranging from 1000 - 2600 m (3280 -- 
9186 ft). The seismic survey effort (e.g., equipment testing, startup, 
line changes, repeat coverage of any areas, and equipment recovery) 
will require approximately 19 days to complete 42 transects of variable 
lengths, totaling 3650 km (2268 mi) and will include approximately 456 
hours of airgun operation. Please see L-DEO's application for more 
detailed information. The exact dates of the activities will depend on 
logistics,

[[Page 6388]]

weather conditions, and the need to repeat some lines if data quality 
is substandard.
    L-DEO will conduct all geophysical data acquisition activities with 
on-board assistance by the scientists who have proposed the NSF-funded 
study. The scientific team consists of Dr. Doug Wiens (Washington 
University), Dr. Robert Dunn (University of Hawaii), Dr. Donna Blackman 
(Scripps Institution of Oceanography), and Dr. Spahr Webb (L-DEO). The 
vessel will be self-contained, and the crew will live aboard the vessel 
for the entire cruise.
    NMFS has provided a more detailed description of the authorized 
action, including vessel and acoustic source specifications, in a 
previous notice for the proposed IHA (73 FR 71606, November 25, 2008).

Safety Radii

    The distance from the sound source at which an animal would be 
exposed to these different received sound levels may be estimated and 
is typically referred to as safety radii. These safety radii are 
specifically used to help NMFS estimate the number of marine mammals 
likely to be harassed by the proposed activity and in deciding how 
close a marine mammal may approach an operating sound source before the 
applicant will be required to power-down or shut down the sound source.
    L-DEO's acoustic models predict received sound levels in relation 
to distance and direction from the 36-airgun array in order to estimate 
the safety radii around their operations. L-DEO's model is based on 
empirical data gathered during the acoustic calibration study of the R/
V Maurice Ewing's (Ewing) array of 20 airguns (total volume 8600 in\3\) 
conducted in the northern Gulf of Mexico in 2003. L-DEO provides a more 
detailed description of the modeling effort and calculations of the 
safety radii in the previous notice for the proposed IHA (73 FR 71606, 
November 25, 2008), Section I of L-DEO's IHA application, and in 
Appendix A of the Environmental Assessment report prepared by LGL 
Limited environmental research associates (LGL) on behalf of NSF.
    Using the modeled distances and various correction factors, Table 1 
outlines the predicted distances at which three root mean square (rms) 
sound levels (190 decibels (dB), 180 dB, and 160 dB) are expected to be 
received from the 36-airgun array and a single airgun operating in 
water greater than 1000 m (3,820 ft) in depth.

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                                                                      Predicted RMS Distances (m)
        Source and Volume            Tow Depth (m)   -----------------------------------------------------------
                                                            190 dB              180 dB              160 dB
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Single Bolt airgun 40 in\3\       9-12                12                  40                  385
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4 strings 36 airguns 6600 in\3\   9                   300                 950                 6000
                                 -------------------------------------------------------------------------------
                                  12                  340                 1120                6850
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Table 1. Predicted distances to which sound levels [gteqt]190, 180, and 160 dB re 1 [mu]Pa might be received in
  deep (>1000 m; 3280 ft) water from the 36-airgun array during the seismic survey, January -- February, 2009.

Comments and Responses

    NMFS published a notice of receipt of the L-DEO application and 
proposed IHA in the Federal Register on November 25, 2008 (73 FR 
71606). During the comment period, NMFS received comments from the 
Marine Mammal Commission (Commission), the Center for Regulatory 
Effectiveness (CRE); and the South Pacific Whale Research Consortium 
(SPWRC).
    Following are the comments from the Commission, CRE, and SPWRC and 
NMFS' responses.
    Comment 1: The Commission recommends that NMFS provide additional 
justification for its preliminary determination that the planned 
monitoring program will be sufficient to detect, with a high level of 
confidence, all marine mammals within or entering the identified safety 
zones; as such monitoring is essential for determining whether animals 
are being taken in unanticipated ways and unexpected numbers.
    Response: NMFS believes that the planned monitoring program will be 
sufficient to detect (using visual detection and passive acoustic 
monitoring (PAM)), with reasonable certainty, most marine mammals 
within or entering identified safety radii. This monitoring, along with 
the required mitigation measures (see below), will result in the least 
practicable adverse impact on the affected species or stocks and will 
result in a negligible impact on the affected species or stocks. The 
Langseth is utilizing a team of trained marine mammal observers (MMOs) 
to visually monitor marine mammals and conduct passive acoustic 
monitoring (PAM).
    The Langseth's high observation tower is a suitable platform for 
conducting marine mammal and turtle observations. When stationed on the 
observation platform, the MMO's eye level will be approximately 18 m 
(59 ft) above sea level, providing a panoramic view around the entire 
vessel. During the daytime, the MMO(s) will scan the area around the 
vessel systematically using reticle binoculars (e.g., 7 x 50 Fujinon), 
big-eye binoculars (25 x 150), and the naked eye. The platform of the 
Langseth is high enough that, in good weather, MMOs can see out to 8.9 
nm (16.5 km, 10.2 mi). All of the 180-dB safety radii that MMOs will 
monitor during ramp-ups and power-downs are less than 2 km (1.1 nm, 1.2 
mi).
    MMOs will use night vision devices (NVDs) (ITT F500 Series 
Generation 3 binocular-image intensifier or equivalent), during dusk or 
nighttime, when required. Finally, L-DEO will provide laser 
rangefinding binoculars (Leica LRF 1200 laser rangefinder or 
equivalent) to MMOs to assist with distance estimation. MMOs estimate 
that visual detection from the ship is between 150 and 250 m (492 and 
820 ft) using NVDs and about 30 m (98.4 ft) with the naked eye, which 
are affected by ambient lighting conditions, sea state, and thermal 
factors.
    The Langseth will complement visual observations of marine mammals 
with an acoustical monitoring program. L-DEO will use a PAM system to 
improve detection, identification, localization, and tracking of marine 
mammals. The acoustic monitoring will alert visual observers (if on 
duty) when vocalizing cetaceans are detected. When an MMO detects a 
vocalization while visual observations are in progress, the acoustic 
MMO will contact the visual MMO immediately, to alert him/her to the 
presence of cetaceans (if they have not already been seen), and to 
initiate a power down or shut down, if required.
    The theoretical detection distance of this PAM system is tens of 
kilometers and it has reliable detection rates out to 3 km (1.6 nm) and 
more limited ability out to tens of kilometers. During the

[[Page 6389]]

Ewing's cruise in the Gulf of Mexico in 2003, MMOs detected marine 
mammals at a distance of approximately 10 km (5.4 nm) from the vessel 
and identified them to species level at approximately 5 km (2.7 nm) 
from the vessel, though the bridge of that vessel was only 11 m (36 ft) 
above the water (vs. the Langseth, which is 18 m (59 ft) above sea 
level).
    The likelihood of MMOs visual detecting a marine mammal at night is 
significantly lower than the ability to detect any species during the 
day. However, the PAM operates equally as effective at night as during 
the day, and does not depend on good visibility.
    The Langseth will not start up the airguns unless the MMO can 
visibly detect the safety range for the 30 minutes prior (i.e., not an 
night) to start up. In all cases at night, the Langseth will already be 
operating the airguns. NMFS believes that operating the airguns at 
night will cause many cetaceans to avoid the vessel; thus reducing the 
number of cetaceans likely to come within the safety radii. 
Additionally, all of the safety radii in deep water depths are smaller 
than 2 km (1.1 nm, 1.2 mi) and fall easily within the reliable 
detection capabilities of the PAM.
    Comment 2: The Commission recommends that observations be made 
during all ramp-up procedures to gather data needed to analyze and 
report on its effectiveness as a mitigation measure.
    Response: The IHA requires that MMOs on the Langseth make 
observations for 30 minutes prior to ramp-up, during all ramp-ups, and 
during all daytime seismic operations and record the following 
information when a marine mammal is sighted:
    (i) Species, group size, age/size/sex categories (if determinable), 
behavior when first sighted and after initial sighting, heading (if 
consistent), bearing and distance from seismic vessel, sighting cue, 
apparent reaction to the airguns or vessel (e.g., none, avoidance, 
approach, paralleling, etc., and including responses to ramp-up), and 
behavioral pace; and
    (ii) Time, location, heading, speed, activity of the vessel 
(including number of airguns operations and whether in state of ramp-up 
or power-down), sea state, visibility, cloud cover, and sun glare.
    These requirements should provide information regarding the 
effectiveness of ramp-up as a mitigation measure, provided animals are 
detected during ramp-up.
    Comment 3: The Commission recommends that the monitoring period 
prior to the initiation of seismic activities and to the resumption of 
airgun activities after a power-down be extended to one hour.
    Response: As the MMC points out, several species of deep-diving 
cetaceans are capable of remaining underwater for more than 30 minutes, 
however, for the following reasons NMFS believes that 30 minutes is an 
adequate length for the monitoring period prior to the start-up of 
airguns: (1) because the Langseth is required to ramp-up, the time of 
monitoring prior to start-up of any but the smallest array is 
effectively longer than 30 minutes (Ramp up will begin with the 
smallest gun in the array and airguns will be added in a sequence such 
that the source level of the array will increase in steps not exceeding 
approximately 6 dB per 5-min period over a total duration of 20-30 
min), (2) in many cases MMOs are making observations during times when 
sonar is not being operated and will actually be observing prior to the 
30-minute observation period anyway, (3), the majority of the species 
that may be exposed do not stay underwater more than 30 minutes, and 
(4) all else being equal and if a deep diving individual happened to be 
in the area in the short time immediately prior to the pre-start-up 
monitoring, if an animal's maximum underwater time is 45 minutes, there 
is only a 1 in 3 chance that his last random surfacing would be prior 
to the beginning of the required 30-minute monitoring period.
    Also, seismic vessels are moving continuously (because of long-
towed array) and NMFS believes that unless the animal submerges and 
follows at the speed of the vessel (highly unlikely), the vessel will 
be far beyond the length of the safety radii within 30 minutes, and 
therefore it will be safe to start the airguns again.
    Comment 4: In the proposed IHA on page 71612, column 2, paragraph 
2: The statement ``However, controlled exposure experiments in the Gulf 
of Mexico indicate that foraging behavior was altered upon exposure to 
airgun sound (Jochens et al., 2006),'' is not based on the most recent 
assessment of the data. NMFS' statement cites a 2006 Sperm Whale 
Seismic Study (SWSS) in the Gulf of Mexico Report which discusses data 
on foraging behavior and avoidance movements of seven tagged sperm 
whales in the Gulf of Mexico during exposure to airguns. The CRE 
requests that NMFS cite the final 2008 Synthesis Report on the sperm 
whale seismic study which cautions that the ``...sample size of 7 
animals that conducted foraging dives during exposure was too small to 
provide definitive results...the power of the test to detect small 
changes in foraging success was low, and no conclusions on the 
biological significance of these effects for an individual animal or 
for the population can be made from the data sets available.''
    Response: As CRE points out in their letter, L-DEO acknowledges in 
their application (see Section 7, page 34) that seismic energy alters 
sperm whale foraging behavior. NMFS acknowledges the commentor's 
interpretation of the 2006 SSWS. However, after reviewing the 2008 
Synthesis Report, NMFS believes that the following statement: 
``...sample size of 7 animals that conducted foraging dives during 
exposure was too small to provide definitive results...the power of the 
test to detect small changes in foraging success was low, and no 
conclusions on the biological significance of these effects for an 
individual animal or for the population can be made from the data sets 
available,'' refers to having the statistical power to detect small 
changes in foraging success. Conversely, page 264 of the 2008 Synthesis 
Report states the following: ``...Our data seem to indicate that airgun 
exposure -- even at the low exposure levels observed in this experiment 
-- can result in large reductions in foraging rate for some individual 
sperm whales.'' Therefore, the proposed IHA notice statement that data 
indicated alterations in foraging behavior, is supported by one of the 
conclusions discussed in the 2008 Synthesis Report. NSF/L-DEO presented 
this study as one of several pieces of information that relate to this 
topic. Though the commenter has presented an alternate interpretation 
of the data related to foraging behavior, NMFS finds that the 
Environmental Assessment (EA) provides sufficient analysis of the 
available data and the information is not such that it will affect 
NMFS' findings.
    Comment 5: The safety zone (power down/shut down zones) proposed 
are currently based on 180 dB (re 1[mu]Pa\2\ rms) received level for 
cetaceans. While this is based on exposure levels that may cause a 
temporary threshold shift (TTS) in exposed cetaceans, biologically 
significant behavioral changes may occur at lower levels. Current best-
practice is to power down at received levels of 160 dB (re 1[mu]Pa\2\ 
rms). The SPWRC recommends that NMFS base the exclusion zones on the 
received levels of 160 dB.
    Response: NMFS' marine mammal incidental take authorizations 
typically require a shutdown zone that corresponds to the isopleths 
associated with the Level A harassment threshold (i.e., 180 dB). NMFS 
does not require shutdown at the threshold associated

[[Page 6390]]

with the onset of Level B behavioral harassment (i.e., 160 dB), as that 
would effectively be an avoidance of take, which would render a take 
authorization under the MMPA unnecessary. The MMOs will still be 
looking beyond the safety zone and will use the information to help 
implement the current safety zone measures. Further, though NMFS does 
not ask for protective measures meant to entirely avoid disturbance of 
marine mammals, which would preclude the need for an authorization, we 
have included measures intended to affect the least practicable adverse 
impact on the species.
    Comment 6: If the designated exclusion zone for power down/shut 
down zones is based on the received levels of 160 dB, SPWRC does not 
consider that L-DEO can effectively monitor such a large safety zone (> 
6 km radius) in normal operating sea conditions and detect cetaceans at 
that distance. We recommend that a suitable support vessel with a high 
observation platform, with at least two experienced MMOs operates at 
least 3 to 4 km ahead of the seismic vessel as a forward lookout.
    Response: See Comment 5. The designated exclusion zone for power 
down/shut down zones is based on the received levels of 180 dB, not 160 
dB. The visual and acoustic monitoring program (see below) will be 
sufficient to detect, most marine mammals within or entering identified 
safety radii. This monitoring, along with the required mitigation 
measures, will result in the least practicable adverse impact on the 
affected species or stocks and will result in a negligible impact on 
the affected species or stocks.
    Comment 7: As no systematic cetacean surveys have been undertaken 
to determine the diversity, abundance and distribution cetaceans within 
the Lau Basin during summer months and PAM systems cannot be relied 
upon to detect all cetaceans present during periods of night, SWPC 
recommends that should high densities of cetaceans be observed 
resulting in interruptions to seismic operations during daylight hours, 
a trigger for ceasing night time operations be included for the survey.
    Response: It is NMFS' opinion that once a safety zone is determined 
visually to be free of marine mammals, seismic may continue into 
periods of poor visibility. It should be understood that the safety 
zone is not stationary but is moving along with the ship at whatever 
speed the ship is progressing.
    The IHA authorizes L-DEO to continue marine geophysical surveys 
into night and low-light hours if such segment of the survey is 
initiated when the entire relevant safety zones are visible and can be 
monitored for the entire 30 minutes prior (i.e., not an night) to 
starting the airguns. The IHA prohibits the initiation of the airgun 
array operation from a shut-down position at night or during low-light 
hours (such as in dense fog) when the full safety zone cannot be 
monitored by the MMOs. Finally, if L-DEO wishes to conduct seismic 
surveys at night or during low-light hours, a small airgun with the 
source level of at least 180 dB re [mu]Pa (rms) shall be initiated 
during the day-time with good visibility when no marine mammal is in 
the safety zone, and be kept on and monitored before ramping up for the 
survey.
    Therefore, in cases where the airguns are already operating at 
night, NMFS believes that the continuing airgun operation will cause 
many cetaceans to avoid the vessel, which therefore will reduce the 
number likely to come within the safety radii. Additionally, because of 
normal operating procedures, which entail beginning seismic operations 
as soon after dawn as possible, at the most, less than one third of 
actual airgun operation (and much less, most likely) will occur at 
nighttime.
    Comment 8: It is recommended that if three or more cetacean related 
interruptions (shutdowns or power downs) occur during the daylight 
hours then no nighttime seismic operations are conducted the following 
night. This is best practice and a requirement for all seismic surveys 
in Australian waters.
    Response: See Comment 7. It is NMFS opinion that once a safety zone 
is determined visually to be free of marine mammals, seismic should 
continue into periods of poor visibility. As a general rule, 
termination of seismic during nighttime and poor visibility is simply 
not practicable due to cost considerations and ship time schedules. A 
review of previous monitoring programs indicates that these species 
were not within a distance to incur Level A harassment.
    L-DEO's monitoring plan, along with the required mitigation 
measures in the IHA, will result in the least practicable adverse 
impact on the affected species or stocks and will result in a 
negligible impact on the affected species or stocks.
    Comment 9: As the proposed seismic survey is an activity governed 
by the Tongan Fisheries Act of 1989, we recommend a Tonga Fisheries 
Observer be invited to participate in the survey (with all costs 
covered).
    Response: NMFS acknowledges the commentor's interpretation of the 
Tongan Fisheries Act 1989 and will forward SPWRC's request to NSF and 
L-DEO. NSF/L-DEO has received approval from the Tonganeese government 
to conduct the survey and the terms and conditions of the IHA encourage 
NSF to coordinate with the Tongan government regarding the proposed 
seismic activity.
    Comment 10: It is recommended that at least one SPWRC 
representative who is familiar with the cetacean species within the 
region be included, in the MMO team for the survey (with all costs 
associated with participating in the survey covered) and that the 
Consortium have full access to all cetacean sighting data collected.
    Response: L-DEO appoints NMFS-qualified marine mammal observers 
with NMFS' concurrence. If an SPWRC representative requests to 
participate in the seismic survey, they should discuss this directly 
with a representative from L-DEO.
    The IHA requires L-DEO to submit a report on all activities and 
monitoring results to the Office of Protected Resources, NMFS, within 
90 days after the expiration of the IHA. L-DEO is then required to 
submit a final report within 30 days after receiving comments from NMFS 
on the draft report. NMFS will make a copy of the final report 
available on the internet at: https://www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications.

Description of Marine Mammals in the Activity Area

    Twenty-nine marine mammal species may occur off the coast of Tonga, 
including 21 odontocetes (toothed cetaceans, such as dolphins), and 8 
mysticetes (baleen whales). Pinnipeds are unlikely to be encountered in 
or near the Lau Basin survey area where seismic operations will occur, 
and are, therefore, not addressed further in this document. Five of 
these species are listed as endangered under the U.S. Endangered 
Species Act (ESA), including the humpback (Megaptera novaeanliae), sei 
(Balaenoptera borealis), fin (Balenoptera physalus), blue (Balenoptera 
musculus), and sperm (Physeter macrocephalus) whales. This IHA will 
only address requested take authorizations for cetaceans as L-DEO does 
not expect to encounter pinnipeds that far offshore in the study area. 
Thus L-DEO is not requesting any takes for pinnipeds in this IHA.
    Table 2 below outlines the species, their habitat and abundance in 
the proposed survey area, and the estimated exposure levels. Additional 
information regarding the status and distribution of the marine mammals 
in the area as well as how L-DEO calculated the densities were included 
in a previous notice for

[[Page 6391]]

the proposed IHA (73 FR 71606, November 25, 2008) and in Sections III 
and IV of L-DEO's application.

----------------------------------------------------------------------------------------------------------------
                                                                                     Maximum        Percent of
                                                   Abundance in   Occurrence in    Estimate of       Estimated
             Species                  Habitat         the SW       the Survey      Individuals      Population
                                                     Pacific          Area          Exposed to      Exposed to
                                                                                  [gteqt] 160 dB  [gteqt] 160 dB
----------------------------------------------------------------------------------------------------------------
Humpback whale\*\                  Nearshore      6,200          Rare            3                0.01
                                    waters
----------------------------------------------------------------------------------------------------------------
Sei whale\*\                       Offshore,      12,000         Common          3                0.01
                                    pelagic
----------------------------------------------------------------------------------------------------------------
Fin whale\*\                       Pelagic,       3,031          Uncommon        3                0.03
                                    continental
                                    slope
----------------------------------------------------------------------------------------------------------------
Blue whale\*\                      Pelagic,       756            Uncommon        3                0.12
                                    coastal
----------------------------------------------------------------------------------------------------------------
Pygmy right whale                  Coastal,       N.A.           Common          3                N.A.
                                    oceanic
----------------------------------------------------------------------------------------------------------------
Minke whale                        Pelagic,       155,000        Rare in Jan.    3                0.001
                                    coastal
----------------------------------------------------------------------------------------------------------------
Dwarf minke whale                  Coastal        N.A.           N.A.            3                N.A.
----------------------------------------------------------------------------------------------------------------
Bryde's whale                      Pelagic,       16,500         Common          14               0.02
                                    coastal
----------------------------------------------------------------------------------------------------------------
Sperm whale\*\                     Pelagic, deep  22,700         Common          22               0.03
                                    seas
----------------------------------------------------------------------------------------------------------------
Pygmy sperm whale                  Deep waters    N.A.           Common          353              N.A.
                                    off the
                                    shelf
----------------------------------------------------------------------------------------------------------------
Dwarf Sperm whale                  Deep waters    11,200         Uncommon        353              0.85
                                    off the
                                    shelf
----------------------------------------------------------------------------------------------------------------
Cuvier's beaked whale              Pelagic        20,000         Common          40               0.09
----------------------------------------------------------------------------------------------------------------
Southern bottlenose whale          Pelagic        N.A.           Rare            0                N.A.
----------------------------------------------------------------------------------------------------------------
Longman's beaked whale             Pelagic        N.A.           Uncommon        16               N.A.
----------------------------------------------------------------------------------------------------------------
Blainville's beaked whale          Pelagic        25,300         Common          40               0.07
----------------------------------------------------------------------------------------------------------------
Ginkgo-toothed beaked whale        Pelagic        25,300         Rare            16               0.03
----------------------------------------------------------------------------------------------------------------
Rough-toothed dolphin              Deep water     145,900        Uncommon        1,649            0.59
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                 Coastal,       243,500        Common          330              0.07
                                    oceanic
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin        Coastal,       1,298,400      Uncommon        1,649            0.07
                                    pelagic
----------------------------------------------------------------------------------------------------------------
Spinner dolphin                    Coastal,       1,019,300      Rare            3,298            0.17
                                    pelagic
----------------------------------------------------------------------------------------------------------------
Striped dolphin                    Continental    1,918,000      Rare            330              0.01
                                    shelf
----------------------------------------------------------------------------------------------------------------
Fraser's dolphin                   Waters > 1000  289,300        Rare            989              0.18
                                    m
----------------------------------------------------------------------------------------------------------------
Short-beaked common dolphin        Shelf,         2,210,900      Common          330              0.01
                                    pelagic
----------------------------------------------------------------------------------------------------------------
Risso's dolphin                    Waters > 1000  175,800        Common          330              0.10
                                    m
----------------------------------------------------------------------------------------------------------------
Melon-headed whale                 Oceanic        45,400         Uncommon        152              0.10
----------------------------------------------------------------------------------------------------------------
Pygmy killer whale                 Deep,          38,900         Uncommon        30               0.02
                                    pantropical
----------------------------------------------------------------------------------------------------------------
False killer whale                 Pelagic        39,800         Uncommon        91               0.07
----------------------------------------------------------------------------------------------------------------
Killer whale                       Widely         8,500          Common          61               0.20
                                    distributed
----------------------------------------------------------------------------------------------------------------
Short-finned pilot whale           Pelagic        160,200        Common          61               0.01
----------------------------------------------------------------------------------------------------------------
Total                                                                            10,173
----------------------------------------------------------------------------------------------------------------
Table 2. Abundance, preferred habitat, and commonness of the marine mammal species that may be encountered
  during the proposed survey within the Lau Basin survey area. The far right columns indicate the estimated
  number of each species that will be exposed to [gteqt] 160 dB based on maximum density estimates. NMFS
  believes that, when mitigation measures are taken into consideration, the activity is likely to result in take
  of numbers of animals less than those indicated by the column titled ``Maximum Estimate of Individuals Exposed
  to [gteqt] 160 dB.''
\*\ Federally listed endangered species.


[[Page 6392]]

Potential Effects on Marine Mammals

    The effects of sounds from airguns might include one or more of the 
following: tolerance, masking of natural sounds, behavioral 
disturbances, and at least in theory, temporary or permanent hearing 
impairment, or non-auditory physical or physiological effects 
(Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; 
Southall et al., 2007). Permanent hearing impairment, in the unlikely 
event that it occurred, would constitute injury, but temporary 
threshold shift (TTS) is not an injury (Southall et al., 2007). It is 
unlikely that the project would result in any cases of temporary 
impairment, or any significant non-auditory physical or physiological 
effects. Some behavioral disturbance is expected, but this would be 
localized and short-term. Also, behavioral disturbance is expected to 
be limited to relatively short distances.
    The notice of the proposed IHA (73 FR 71606, November 25, 2008) 
included a discussion of the effects of sounds from airguns on 
mysticetes (baleen whales) and odontocetes (toothed whales), including 
tolerance, masking, behavioral disturbance, hearing impairment, and 
other non-auditory physical effects. Additional information on the 
behavioral reactions (or lack thereof) by all types of marine mammals 
to seismic vessels can be found in Appendix B of L-DEO's application.
    The notice of the proposed IHA also included a discussion of the 
potential effects of the multibeam echosounder (MBES) and the sub-
bottom profiler (SBP). Because of the shape of the beams of these 
sources and their power, NMFS believes it unlikely that marine mammals 
will be exposed to either the MBES or the SBP at levels at or above 
those likely to cause harassment. Further, NMFS believes that the brief 
exposure of cetaceans or pinnipeds to few signals from the multi-beam 
bathymetric sonar system is not likely to result in the harassment of 
marine mammals.

Estimated Take by Incidental Harassment

    The notice of the proposed IHA (73 FR 71606, November 25, 2008) 
included an in-depth discussion of the methods used to calculate the 
densities of the marine mammals in the area of the seismic survey and 
the take estimates. Based on numbers of animals encountered during 
previous L-DEO seismic surveys, the likelihood of the successful 
implementation of the required mitigation measures, and the likelihood 
that some animals will avoid the area around the operating airguns, 
NMFS believes that L-DEO's airgun seismic testing program may result in 
the Level B harassment of some lower number of individual marine 
mammals (a few times each) than is indicated by the column titled, 
Maximum Estimate of Individuals Exposed to [gteqt] 160 dB, in Table 2. 
L-DEO has asked for authorization for take of their ``maximum 
estimate'' of numbers for each species. Though NMFS believes that take 
of the requested numbers is unlikely, we still find these numbers small 
relative to the population sizes.
    Few have conducted systematic aircraft- or ship-based surveys for 
marine mammals in the offshore waters of the southern Pacific Ocean. 
Hence, the species of marine mammals that occur in the area are not 
well known. L-DEO's estimates are based on species accounts in part 
derived from Reeves et al. (1999), who summarized distribution 
information from the area served by the South Pacific Regional 
Environment Programme (SPREP). The SPREP region covers a vast area of 
the Pacific Ocean between the Tropic of Capricorn and the Equator from 
Papua New Guinea (140[deg]E.) to Pitcairn Island (130[deg]W.).
    Estimates of the numbers of marine mammals that might be affected 
are based on consideration of the number of marine mammals that could 
be disturbed appreciably by approximately 3,650 km of seismic surveys 
during the proposed seismic program in the Lau Basin, Tonga. The 
estimates of exposures to various sound levels assume that the surveys 
will be completed; in fact, the planned number of line-kilometers has 
been increased by 25 percent to accommodate lines that may need to be 
repeated, equipment testing, etc.
    All anticipated ``takes by harassment'' authorized by this IHA are 
Level B harassment only, involving temporary changes in behavior. 
Because of the required implementation of mitigation measures and the 
likelihood that some cetaceans will avoid the area around the operating 
airguns of their own accord, NMFS does not expect any marine mammal to 
approach the sound source close enough to be injured (Level A 
harassment). Given these considerations, the predicted number of marine 
mammals that might be exposed to sounds at or greater than 160 dB may 
be somewhat overestimated. Thus, the following estimates of the numbers 
of marine mammals potentially exposed to sounds equal to or greater 
than 160 dB are precautionary, and probably overestimate the actual 
numbers of marine mammals that might be exposed.

Potential Effects on Habitat

    A detailed discussion of the potential effects of this action on 
marine mammal habitat, including was included in the notice of the 
proposed IHA (73 FR 71606, November 25, 2008). Based on the discussion 
in the proposed IHA notice, the authorized operations are not expected 
to have any habitat-related effects that could cause significant or 
long-term consequences for individual marine mammals or their 
populations or stocks and will not result in any permanent impact on 
habitats used by marine mammals, or to the food sources they use. The 
main impact issue associated with the proposed activity will be 
temporarily elevated noise levels and the associated direct effects on 
marine mammals.
    The Langseth will deploy and retrieve approximately 55-64 OBS. The 
OBS anchors will remain upon equipment recovery. Although OBS placement 
will disrupt a very small area of seafloor habitat and may disturb 
benthic invertebrates, the impacts are expected to be localized and 
transitory. The vessel will deploy the OBS in such a way that creates 
the least disturbance to the area. Thus, it is not expected that the 
placement of OBS would have adverse effects beyond naturally occurring 
changes in this environment, and any effects of the planned activity on 
marine mammal habitats and food resources are expected to be 
negligible.

Monitoring and Mitigation

    Mitigation and monitoring measures required to be implemented for 
the proposed seismic survey have been developed and refined during 
previous L-DEO seismic survey studies and associated environmental 
assessments, IHA applications, and IHAs. The mitigation and monitoring 
measures described herein represent a combination of the procedures 
required by past IHAs for other similar projects and on recommended 
best practices in Richardson et al. (1995), Pierson et al. (1998), and 
Weir and Dolman (2007). The measures are described in detail below.
    Required mitigation measures include: (1) safety radii; (2) speed 
or course alteration, provided that doing so will not compromise 
operational safety requirements; (2) power-down procedures; (3) 
shutdown procedures; (4) ramp-up procedures; and (5) special procedures 
for nighttime and low-light hour operations.

Vessel-based Visual Monitoring

    Vessel-based marine mammal visual observers (MMVOs) will be based

[[Page 6393]]

aboard the seismic source vessel and will watch for marine mammals near 
the vessel during daytime airgun operations and during start-ups of 
airguns at night. MMVOs will also watch for marine mammals near the 
seismic vessel for at least 30 minutes prior to the start of airgun 
operations and after an extended shutdown of the airguns (i.e., 7 
minutes). When feasible, MMVOs will also make observations during 
daytime periods when the seismic system is not operating for comparison 
of animal abundance and behavior. Based on MMVO observations, airguns 
will be powered down, or if necessary, shut down completely (see 
below), when marine mammals are detected within or about to enter a 
designated safety radius corresponding to 180-dB isopleths. The MMVOs 
will continue to maintain watch to determine when the animal(s) are 
outside the safety radius, and airgun operations will not resume until 
the animal has left that zone. The predicted distances for the safety 
radii are listed according to the sound source, water depth, and 
received isopleth in Table 1.
    During seismic operations in the southwest Pacific Ocean, at least 
three visual observers and one bioacoustician will be based aboard the 
Langseth. MMVOs will be appointed by L-DEO with NMFS' concurrence. At 
least one MMVO, and when practical two, will monitor the safety radii 
for marine mammals during daytime operations and nighttime startups of 
the airguns. Use of two simultaneous MMVOs will increase the proportion 
of the animals present near the source vessel that are detected. 
MMVO(s) will be on duty in shifts of duration no longer than 4 hours. 
The vessel crew will also be instructed to assist in detecting marine 
mammals and implementing mitigation requirements (if practical). Before 
the start of the seismic survey the crew will be given additional 
instruction regarding how to do so.
    The Langseth's high observation tower is a suitable platform for 
conducting marine mammal and turtle observations. When stationed on the 
observation platform, the MMO's eye level will be approximately 18 m 
(59 ft) above sea level, providing a panoramic view around the entire 
vessel. During the daytime, the MMO(s) will scan the area around the 
vessel systematically using reticle binoculars (e.g., 7 x 50 Fujinon), 
big-eye binoculars (25 x 150), and the naked eye. The platform of the 
Langseth is high enough that, in good weather, MMOs can see out to 8.9 
nm (16.5 km, 10.2 mi). All of the 180-dB safety radii that MMOs will 
monitor during ramp-ups and power-downs are less than 2 km (1.1 nm, 1.2 
mi).
    MMOs will use night vision devices (NVDs) (ITT F500 Series 
Generation 3 binocular-image intensifier or equivalent), during dusk or 
nighttime, when required. Finally, L-DEO will provide laser 
rangefinding binoculars (Leica LRF 1200 laser rangefinder or 
equivalent) to MMOs to assist with distance estimation. MMOs estimate 
that visual detection from the ship is between 150 and 250 m (492 and 
820 ft) using NVDs and about 30 m (98.4 ft) with the naked eye, which 
are affected by ambient lighting conditions, sea state, and thermal 
factors.

Passive Acoustic Monitoring

    PAM will take place to complement the visual monitoring program. 
Acoustic monitoring can be used in addition to visual observations to 
improve detection, identification, localization, and tracking of 
cetaceans. It is only useful when marine mammals call, but it can be 
effective either by day or by night and does not depend on good 
visibility. The acoustic monitoring will serve to alert visual 
observers when vocalizing cetaceans are detected. It will be monitored 
in real time so visual observers can be advised when cetaceans are 
detected. When bearings (primary and mirror-image) to calling 
cetacean(s) are determined, the bearings will be relayed to the visual 
observer to help him/her sight the calling animal(s).
    The PAM system consists of hardware (i.e., hydrophones) and 
software. The ``wet end'' of the system consists of a low-noise, towed 
hydrophone array that is connected to the vessel by a ``hairy'' faired 
cable. The array will be deployed from a winch located on the back 
deck. A deck cable will connect from the winch to the main computer lab 
where the acoustic station and signal condition and processing system 
will be located. The lead-in from the hydrophone array is approximately 
400 m (1,312 ft) long, and the active part of the hydrophone is 
approximately 56 m (184 ft) long. The hydrophone array is typically 
towed at depths of 20 m (65.6 ft).
    The towed hydrophone array will be monitored 24 hours per day while 
at the survey area during airgun operations and also during most 
periods when the Langseth is underway with the airguns not operating. 
One MMO and/or bioacoustician will monitor the acoustic detection 
system at any one time, by listening to the signals from two channels 
via headphones and/or speakers and watching the real time 
spectrographic display for frequency ranges produced by cetaceans. MMOs 
monitoring the acoustical data will be on shift for 1-6 hours. Of the 
three observers required on board, one will have primarily 
responsibility for PAM during the seismic survey. However, all MMOs are 
expected to rotate through the PAM position, although the most 
experienced with acoustics will be on PAM duty more frequently.
    When a vocalization is detected, the acoustic MMO will, if visual 
observations are in progress, contact the MMVO immediately to alert 
him/her to the presence of the vocalizing marine mammal(s) (if they 
have not already been seen), and to allow a power down or shutdown to 
be initiated, if required. The information regarding the call will be 
entered into a database. The data to be entered includes an acoustic 
encounter identification number, whether it was linked with a visual 
sighting, date, time when first and last heard and whenever any 
additional information was recorded, position and water depth when 
first detected, bearing if determinable, species or species group 
(e.g., unidentified dolphin, sperm whale), types and nature of sounds 
heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst 
pulses, strength of signal, etc.), and any other notable information. 
The acoustic detection can also be recorded for further analysis.
    Speed or Course Alteration - If a marine mammal is detected outside 
the safety radius and, based on its position and the relative motion, 
is likely to enter the safety radius or exclusion zone (EZ), the 
vessel's speed and/or direct course may be changed. This would be done 
if practicable while minimizing the effect on the planned science 
objectives. The activities and movements of the marine mammal(s) 
(relative to the seismic vessel) will then be closely monitored to 
determine whether the animals is approaching the applicable EZ. If the 
animal appears likely to enter the EZ, further mitigation actions will 
be taken, i.e., either further course alterations or a power down or 
shut down of the airguns. Typically, during seismic operations, major 
course and speed adjustments are often impractical when towing long 
seismic streamers and large source arrays, thus alternative mitigation 
measures (see below) will need to be implemented.
    Power-down Procedures - A power-down involves reducing the number 
of operating airguns in use to minimize the exclusion zone, so that 
marine mammals are no longer in or about to enter this zone. A power-
down of the airgun array to a reduced number of operating airguns may 
also occur when the vessel is moving from one seismic line to another. 
During a power down for mitigation, one airgun will be operated. The 
continued operation of at least one airgun is intended to alert

[[Page 6394]]

marine mammals to the presence of the seismic vessel in the area. In 
contrast, a shut down occurs when all airgun activity is suspended.
    If a marine mammal is detected outside the safety radii but is 
likely to enter it, and if the vessel's speed and/or course cannot be 
changed to avoid the animal(s) entering the EZ, the airguns will be 
powered down to a single airgun before the animal is within the EZ. 
Likewise, if a mammal is already within the EZ when first detected, the 
airguns will be powered down immediately. During a power down of the 
airgun array, the 40-in\3\ airgun will be operated. If a marine mammal 
is detected within or near the smaller safety radii around that single 
airgun (see Table 1 above), all airguns will be shutdown (see next 
subsection).
    Following a power down, airgun activity will not resume until the 
marine mammal is outside the safety radius for the full array. The 
animal will be considered to have cleared the safety radius if it:
    (1) Is visually observed to have left the safety radius; or
    (2) Has not been seen within the safety radius for 15 minutes in 
the case of small odontocetes; or
    (3) Has not been seen within the safety radius for 30 minutes in 
the case of mysticetes and large odontocetes, including sperm, pygmy 
sperm, dwarf sperm, and beaked whales; or
    (4) During airgun operations following a power-down (or shut-down) 
and subsequent animal departure as above, the airgun array will resume 
operations following ramp-up procedures described below.
    Shutdown Procedures - The operating airgun(s) will be shut down if 
a marine mammal is detected within or approaching the safety radius for 
the then-operating single 40 in\3\ airgun while the airgun array is at 
full volume or during a power down. Airgun activity will not resume 
until the marine mammal has cleared the safety radius or until the MMO 
is confident that the animal has left the vicinity of the vessel. 
Criteria for judging that the animal has cleared the safety radius will 
be as described in the preceding subsection.
    Ramp-up Procedures - A ramp-up procedure will be followed when the 
airgun array begins operating after more than seven minutes without 
airgun operations or when a power-down has exceeded seven minutes. This 
period is based on the modeled 180-dB radius for the 36-airgun array 
(see Table 1) in relation to the planned speed of the Langseth while 
shooting. Similar periods (approximately eight to 10 minutes) were used 
during previous L-DEO surveys.
    Ramp-up will begin with the smallest airgun in the array (40 
in\3\). Airguns will be added in a sequence such that the source level 
of the array will increase in steps not exceeding 6 dB per 5-minute 
period over a total duration of approximately 20 to 25 minutes. During 
ramp-up, the MMVOs will monitor the safety radius, and if marine 
mammals are sighted, a course/speed change, power down, or shutdown 
will be implemented as though the full array were operational.
    If the complete safety radius has not been visible for at least 30 
minutes prior to the start of operations in either daylight or 
nighttime, ramp-up will not commence unless at least one airgun (40 
in\3\ or similar) has been operating during the interruption of seismic 
survey operations. Given these provisions, it is likely that the airgun 
array will not be ramped up from a complete shut down at night or in 
thick fog, because the other part of the safety radius for that array 
will not be visible during those conditions. If one airgun has operated 
during a power down period, ramp up to full power will be permissible 
at night or in poor visibility, on the assumption that marine mammals 
will be alerted to the approaching seismic vessel by the sounds from 
the single airgun and have the opportunity to move away. Ramp up of the 
airguns will not be initiated if a marine mammal is sighted within or 
near the applicable safety radius during the day or close to the vessel 
at night.

MMVO Data and Documentation

    MMVOs will record data to estimate the numbers of marine mammals 
exposed to various received sound levels and to document any apparent 
disturbance reactions or lack thereof. Data will be used to estimate 
the numbers of mammals potentially ``taken'' by harassment. They will 
also provide information needed to order a power-down or shutdown of 
airguns when marine mammals are within or near the relevant safety 
radius. When a sighting is made, the following information about the 
sighting will be recorded:
    (1) Species, group size, age/size/sex categories (if determinable), 
behavior when first sighted and after initial sighting, heading (if 
consistent), bearing and distance from seismic vessel, sighting cue, 
apparent reaction to the airguns or vessel (e.g., none, avoidance, 
approach, paralleling, etc. and including responses to ramp-up), and 
behavioral pace.
    (2) Time, location, heading, speed, activity of the vessel 
(including number of airguns operating and whether in state or ramp-up, 
power-down, or full power), sea state, visibility, cloud cover, and sun 
glare.
    The data listed under (2) will also be recorded at the start and 
end of each observation watch and during a watch, whenever there is a 
change in one or more of the variables.
    All observations, as well as information regarding airgun power 
down and shutdown, will be recorded in a standardized format. Data will 
be entered into a custom electronic database. The accuracy of data will 
be verified by computerized data validity checks as the data are 
entered and by subsequent manual checking of the database. Preliminary 
reports will be prepared during the field program and summaries 
forwarded to the operating institution's shore facility and to NSF 
weekly or more frequently. MMO observations will provide the following 
information:
    (1) The basis for decisions about powering down or shutting down 
airgun arrays.
    (2) Information needed to estimate the number of marine mammals 
potentially `taken by harassment.' These data will be reported to NMFS 
per terms of MMPA authorizations or regulations.
    (3) Data on the occurrence, distribution, and activities of marine 
mammals in the area where the seismic study is conducted.
    (4) Data on the behavior and movement patterns of marine mammals 
seen at times with and without seismic activity.

Reporting

    A draft report will be submitted to NMFS within 90 days after 
expiration of the IHA. The report will describe the operations that 
were conducted and sightings of marine mammals near the operations. The 
report will be submitted to NMFS, providing full documentation of 
methods, results, and interpretation pertaining to all monitoring and 
mitigation. The 90-day draft report will summarize the dates and 
locations of seismic operations (dates, times, locations, heading, 
speed, weather, sea state, activities), and all marine mammal sightings 
(dates, times, locations, species, behavior, number of animals, 
associated seismic survey activities).
    The report will also include the estimates of the amount and nature 
of potential ``take'' of marine mammals by harassment or in other ways, 
as well as a description of the implementation and effectiveness of the 
monitoring and mitigation measures of the IHA and

[[Page 6395]]

Biological Opinion's (BiOp) Incidental Take Statement. L-DEO is then 
required to submit a final report within 30 days after receiving 
comments from NMFS on the draft report.

Endangered Species Act (ESA)

    Pursuant to section 7 of the ESA, NSF has consulted with the NMFS, 
Office of Protected Resources, Endangered Species Division on this 
seismic survey. NMFS Headquarters' Office of Protected Resources, 
Permits, Conservation, and Education Division has also consulted 
internally pursuant to section 7 of the ESA on the issuance of an IHA 
under section 101(a)(5)(D) of the MMPA for this activity. On January 
13, 2009, NMFS issued a BiOp and concluded that the issuance of an IHA 
is not likely to jeopardize the continued existence of blue, fin, 
humpback, sei, and sperm whales; green sea turtles (Chelonia mydas); 
hawksbill sea turtles (Eretmochelys imbricata); leatherback sea turtles 
(Dermochelys coriacea); loggerhead sea turtles (Caretta caretta); and 
olive ridley sea turtles (Lepidochelys olivacea). The BiOp also 
concluded that the proposed activities would have no effect on critical 
habitat, as the Tongan government has no such designation within the 
action area. Finally, NMFS has incorporated the Relevant Terms and 
Conditions of the Incidental Take Statement in the BiOp into the IHA.

National Environmental Policy Act (NEPA)

    On September 22, 2005 (70 FR 55630), NSF published a notice of 
intent to prepare a Programmatic Environmental Impact Statement/
Overseas Environmental Impact Statement (EIS/OES) to evaluate the 
potential environmental impacts associated with the use of seismic 
sources in support of NSF-funded research by U.S. academic scientists. 
NMFS agreed to be a cooperating agency in the preparation of the EIS/
OEIS. This EIS/OEIS has not been completed. Therefore, in order to meet 
NSF's and NMFS' NEPA requirements for the proposed activity and 
issuance of an IHA to L-DEO, the NSF has prepared an EA that is 
specific to the marine geophysical survey conducted by the R/V Marcus 
G. Langseth in the Southwest Pacific Ocean off the coast of Tonga. The 
NSF has made a Finding of No Significant Impact (FONSI) determination 
based on information contained within its EA that implementation of the 
proposed action is not a major Federal action having significant 
effects on the environment within the meaning of NEPA. NSF determined, 
therefore, that an environmental impact statement would not be 
prepared. On November 25, 2008 (73 FR 71606), NMFS noted that the NSF 
had prepared an EA for the southwest Pacific Ocean surveys and made 
this EA available upon request. NMFS has reviewed the information 
contained in NSF's EA and determined that the NSF EA describes the 
proposed action alternative, and the potential impacts on marine 
mammals, endangered species, and other marine life that could be 
impacted by the preferred alternative and the other alternatives. 
Accordingly, NMFS adopted the NSF EA under 40 CFR 1506.3 and made its 
own FONSI. The NMFS FONSI also takes into consideration additional 
mitigation measures required by the IHA that are not in NSF's EA. 
Therefore, NMFS has determined that it is not necessary to issue a new 
EA, supplemental EA or an EIS for the issuance of an IHA to L-DEO for 
this activity. A copy of the EA and the NMFS FONSI for this activity is 
available upon request (see ADDRESSES).

Determinations

    NMFS has determined that the impact of conducting the seismic 
survey in the southwest Pacific Ocean may result, at worst, in a 
temporary modification in behavior (Level B harassment) of small 
numbers of 29 species of cetaceans. Though NMFS believes that take of 
the requested numbers is unlikely, we still find these numbers small 
relative to the population sizes. Further, this activity is expected to 
result in a negligible impact on the affected species or stocks.
    The