Incidental Takes of Marine Mammals During Specified Activities; Marine Geophysical Survey in Southeast Asia, March-July 2009, 41260-41322 [E9-19459]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 156 (Friday, August 14, 2009)]
[Notices]
[Pages 41260-41322]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-19459]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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

Federal Register / Vol. 74 , No. 156 / Friday, August 14, 2009 / 
Notices

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XL89


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

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

ACTION: Notice; issuance and modification of an incidental take 
authorization.

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

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

ADDRESSES: A copy of the IHA and application are available by writing 
to P. Michael Payne, Chief, Permits, Conservation, and Education 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3235 or by 
telephoning the contact listed here. A copy of the application 
containing a list of the references used in this document may be 
obtained by writing to the address specified above, telephoning the 
contact listed below (see FOR FURTHER INFORMATION CONTACT), or online 
at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited 
in this notice may be viewed, by appointment, during regular business 
hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Howard Goldstein or Ken Hollingshead, 
Office of Protected Resources, NMFS, 301-713-2289.

SUPPLEMENTARY INFORMATION: 

Background

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

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

16 U.S.C. 1362(18)
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.
Summary of Request
    On October 27, 2008, NMFS received an application from L-DEO for 
the taking, by Level B harassment only, of small numbers of marine 
mammals incidental to conducting, under cooperative agreement with the 
National Science Foundation (NSF), a marine seismic survey in SE Asia. 
The funding for the Taiwan Integrated Geodynamics Research (TAIGER) 
survey is provided by the NSF. The proposed survey will encompass the 
area 17[deg]30'-26[deg]30' N, 113[deg]30'-126[deg] E within the 
Exclusive Economic Zones (EEZ) of Taiwan, Japan, and the Philippines, 
and on the high seas, and is scheduled to occur from March 31 to July 
20, 2009. Some minor deviation from these dates is possible, depending 
on logistics and weather.
    Taiwan is one of only a few sites of arc-continent collision 
worldwide; and one of the primary tectonic environments for large scale 
mountain building. The primary purpose of the TAIGER project is to 
investigate the processes of mountain building, a fundamental set of 
processes which plays a major role in shaping the face of the Earth. 
The vicinity of Taiwan is particularly well-suited for this type of 
study, because the collision can be observed at different stages of its 
evolution, from incipient, to mature, and finally to post-collision.
    As a result of its location in an ongoing tectonic collision zone, 
Taiwan experiences a great number of earthquakes, most are small, but 
many are large and destructive. This project will provide a great deal 
of information about the nature of the earthquakes around Taiwan and 
will lead to a better assessment of the earthquake hazards in the area. 
The information obtained from this study will help the people and the 
earthquake hazards in the area. The information obtained from this 
study will help the people and government of Taiwan to better prepare 
for future seismic events and may thus mitigate some of the loss of 
life and economic disruptions that will inevitably occur.
    The action is planned to take place in the territorial seas and 
EEZ's of foreign nations, and will be continuous with the activity that 
takes place on the high seas. NMFS does not authorize the incidental 
take of marine mammals in the territorial seas of foreign nations, as 
the MMPA does not apply in those waters. However, NMFS still needs to 
calculate the level of incidental take in territorial seas as part of 
the analysis supporting issuance of an IHA in order to determine the 
biological accuracy of the small numbers and negligible impact 
determination.

Description of the Specified Activity

    The planned survey will involve one source vessel, the R/V Marcus 
G. Langseth (Langseth), which will occur in SE Asia. The Langseth will 
deploy an array of 36 airguns (6,600 in\3\) as an energy source at a 
tow depth of 6-9 m (20-30 ft). The receiving system will consist of a 
hydrophone streamer and approximately 100 ocean bottom seismometers 
(OBSs). The Langseth will deploy an 8 km (5 mi) long streamer for most 
transects requiring a streamer; however, a shorter streamer (500 m to 2

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km or 1,640 ft to 1.2 mi) will be used during surveys in Taiwan 
(Formosa) Strait. As the airgun array is towed along the survey lines, 
the hydrophone streamer will receive the returning acoustic signals and 
transfer the data to the on-board processing system. The OBSs record 
the returning acoustic signals internally for later analysis. The OBSs 
to be used for the TAIGER program will be deployed and retrieved 
numerous times by a combination of 4 or 5 Taiwanese support vessels, as 
well as the Langseth. The Langseth will also retrieve 20 OBSs that were 
deployed in the study area during previous years to record earthquake 
activity.
    Approximately 100 OBSs will be deployed during the survey. OBSs 
will likely be deployed and retrieved by the Langseth as well as a 
combination of 4 to 5 Taiwanese vessels. The Taiwanese vessels to be 
used include two 30 m (98.4 ft) vessels (the R/V Ocean Researcher 2 and 
the R/V Ocean Researcher 3) and two vessels greater than 60 m (196.8 
ft) in length (R/V Fisheries Research I and the Navy ship Taquan). The 
R/V Ocean Research I may also be used if the Langseth is not used to 
deploy OBSs. The OBS deployment spacing will vary depending on the 
number of instruments available and shiptime. The nominal spacing is 15 
km (9.3 mi), but this will vary from as little as 5 km (3.1 mi) to 
perhaps as much as 25 km (15.5 mi). The OBSs will be deployed and 
recovered several (2 to 4) times. 60 of the 100 OBSs may be deployed 
from the Langseth. All OBSs will be retrieved at the end of the study.
    Up to 3 different types of OBSs may be used during the 2009 
program. The Woods Hole Oceanographic Institution (WHOI) ``D2'' OBS has 
a height of approximately 1 m (3.3 ft) and a maximum diameter of 50 cm. 
The anchor is made of hot-rolled steel and weighs 23 kg (50.7 lbs). The 
anchor dimensions are 2.5 x 30.5 x 38.1 cm. The LC4x4 OBS from the 
Scripps Institution of Oceanography (SIO) has a volume of approximately 
1 m\3\ (3.3 ft\2\), with an anchor that consists of a large piece of 
steel grating (approximately 1 m\2\ or 3.3 ft\2\). Taiwanese OBSs will 
also be used; their anchor is in the shape of an `x' with dimensions of 
51-76 cm\2\ (1.7-2.5 ft\2\). Once the OBS is ready to be retrieved an 
acoustic release transponder interrogates the OBS at a frequency of 9-
11 kHz, and a response is received at a frequency of 9-13 kHz. The burn 
wire release assembly is then activated, and the instrument is released 
from the anchor to float to the surface.
    The seismic survey as described in the Federal Register notice (73 
FR 78294, December 22, 2008) for the proposed IHA was 15,902 km (9,881 
mi) in length. After public comment, L-DEO revised the tracklines so 
that the seismic survey consists of approximately 14,515 km (9,019 mi) 
of transect lines within the South and East China Seas as well as the 
Philippine Sea, with the majority of the survey effort occurring in the 
South China Sea. The total length of the revised tracklines is 
approximately 9 percent less than the total length of the original 
tracklines. The survey will take place in water depths ranging from 
approximately 25 to 6,585 m (82-21,598 ft), but most of the survey 
effort (approximately 84.4 percent) will take place in water greater 
than 1,000 m (3,280 ft), 11.4 percent will take place in intermediate 
depth waters (100-1,000 m or 328-3,280 ft), and 4.2 percent will occur 
in shallow depth water (less than 100 m or 328 ft).
    All planned geophysical data acquisition activities will be 
conducted by L-DEO with onboard assistance by the scientists who have 
proposed the study. The scientific team consists of Dr. Francis Wu 
(State University of New York at Binghamton) and Dr. Kirk McIntosh 
(University of Texas at Austin, Institute of Geophysics). The vessel 
will be self-contained, and the crew will live aboard the vessel for 
the entire cruise.
    In addition to the operations of the airgun array, a 12 kHz Simrad 
EM 120 multibeam echosounder (MBES) and a 3.5 kHz sub-bottom profiler 
(SBP) will be operated from the Langseth continuously throughout the 
TAIGER cruise.

Dates, Duration, and Region of Activity

    The survey will encompass the area from approximately 
17[deg]30[min]-26[deg]30[min] N, 113[deg]30[min]-126[deg] E within the 
EEZs of Taiwan, Japan, and the Philippines. The vessel will approach 
mainland Taiwan within 5.2 km (3.2 mi) and mainland China within 116 km 
(72 mi). The vessel will approach within 3.7 km (2.3 mi) and 105 km (65 
mi) of islands off the coast of Taiwan and China, respectively. The 
closest approach to the Ryuku Islands and Okinawa Islands will be 51.5 
km (32 mi) and approximately 400 km (249 mi), respectively. Although 
the survey will occur at least 32 km (29.9 mi) from Luzon, Philippines, 
survey lines will take place approximately 28.6 km (17.8 mi) and 8.8 km 
(5.5 mi) from the Babuyan and Batan islands, respectively. Water depths 
in the survey area range from approximately 25 to 6,280 m (164-20,603 
ft). There are not seismic lines in less than 50 m (164 ft) water 
depth. The closest seismic line to land is approximately 3.7 km (2.3 
mi) from an island off the east coast of Taiwan. The TAIGER program 
consists of 4 legs, each starting and ending in Kao-hsiung, Taiwan. The 
first leg is expected to occur from approximately March 31 to April 28, 
2009 and will include the survey lines in the South China Sea. The 
second leg is scheduled for May 3 to June 3, 2009 and will include 
survey lines around Taiwan. The third leg (approximately June 7-14, 
2009) will involve OBS recovery by the Langseth only; no seismic 
acquisition will occur during this leg. The fourth leg, consisting of 
the survey lines in the Luzon Strait and Philippine Sea, is scheduled 
to occur from June 18 to July 20, 2009. The program will consist of 
approximately 103 days of seismic acquisition. The exact dates of the 
activities depend on logistics and weather conditions.

Safety Radii

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

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                                                                            Predicted RMS Distances (m)
       Source and volume         Tow depth (m)     Water depth   -----------------------------------------------
                                                                      190 dB          180 dB          160 dB
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Single Bolt airgun 40 in\3\...            *6-9  Deep............              12              40             385
                                ..............  Intermediate....              18              60             578
                                ..............  Shallow.........             150             296           1,050
4 strings 36 airguns 6600                  6-7  Deep............             220             710           4,670
 in\3\.

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                                ..............  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
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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
  shallow (<100 m; 328 ft), intermediate (100-1,000 m; 328-3,280 ft), and deep (>1,000 m; 3,280 ft) water from
  the 36 airgun array, as well as a single airgun, used during the Central American SubFac and STEEP Gulf of
  Alaska survey, and planned during the TAIGER SE Asia survey. *The tow depth has minimal effect on the maximum
  near-field output and the shape of the frequency spectrum for the single 40 in\3\ airgun; thus, the predicted
  safety radii are essentially the same at each tow depth. The most precautionary distances (i.e., for the
  deepest tow depth, 9m) are shown.

    Because the predictions in Table 1 are based in part on empirical 
correction factors derived from acoustic calibration of airgun 
configurations different from those to be used on the Langseth (cf. 
Tolstoy et al., 2004a,b), L-DEO conducted an acoustic calibration study 
of the Langseth's 36 airgun (approximately 6,600 in\3\) array in late 
2007/early 2008 in the Gulf of Mexico (LGL Ltd., 2006). Distances where 
sound levels (e.g., 190, 180, and 160 dB re 1 [mu]Pa rms) were received 
in deep, intermediate, and shallow water will be determined for various 
airgun configurations. Acoustic data analysis is ongoing and a 
scientific paper on the Langseth calibration study is currently in 
review for future publication (Tolstoy, pers. comm.). After analysis, 
the empirical data from the 2007/2008 calibration study will be used to 
refine the exclusion zones (EZ) proposed above for use during the 
TAIGER cruise, if the data are appropriate and available for use at the 
time of the survey.
    A more detailed description of the authorized action, including 
vessel and acoustic source specifications, was included in the proposed 
IHA notice (73 FR 78294, December 22, 2008).

Comments and Responses

    A notice of receipt of the L-DEO application and proposed IHA was 
published in the Federal Register on December 22, 2008 (73 FR 78294). A 
notice extending the public comment period by 15 days, to February 5, 
2009, due to several Federal holidays, was published in the Federal 
Register on January 16, 2009 (74 FR 2995). During the comment period, 
NMFS received comments from the Marine Mammal Commission (Commission). 
NMFS also received comments from the Center for Regulatory 
Effectiveness (CRE), Natural Resources Defense Council (NRDC) (on 
behalf of International Fund for Animal Welfare, Whale and Dolphin 
Conservation Society, Cetacean Society International [CSI], Animals 
Asia Foundation [AAF], New York Whale and Dolphin Action League, Ocean 
Futures Society, and Jean-Michel Cousteau), Wild at Heart Legal Defense 
Association (WaH) (on behalf of Changhua County Environmental 
Protection Union, Clymene Enterprises, Green Party Taiwan, Taiwan 
Friends of the Global Greens, Leviathan Sciences, Environment and 
Animal Society of Taiwan, Wild Bird Society of Yunlin, Matsu's Fish 
Conservation Union, Blue Dolphin Alliance, Hong Kong Dolphin 
Conservation Society [HKDCS], Dr. Ellen Hines, Taiwan Sustainable 
Union, Jo Marie V. Acebes, APEX Environmental, Coral Triangle Oceanic 
Cetacean Program and IUCN Species Survival Commission--Cetacean 
Specialist Group, Kimberly Reihl, Changhua Coast Conservation Action, 
Ocean Park Corporation, Dr. Bradley White, Ketos Ecology, CSI, Dr. Wang 
Ding, Study Centre for Marine Conservation, AAF, International 
Laboratory for Dolphin Behaviour Research, Mary Speer, and American 
Cetacean Society), CSI, Linking Individuals for Nature Conservation 
(LINC), Humane Society International (HSI), Dr. John Wang, Eastern 
Taiwan Strait Sousa Technical Advisory Working Group (ETSSTAWG), AAF, 
HKDCS, Dr. Robert Brownell, Dr. Lien-Siang Chou, Dr. Linda Weilgart, 
Dr. Kirk McIntosh and Dr. Francis Wu (Dr. McIntosh and Dr. Wu), Dr. 
Lemnuel Aragones, Dr. Joseph Minor and Dr. Christine Wilson and James 
Minor and Susan Wilson (Minor and Wilson), and a private citizen. The 
public comments can be found online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    The following are their comments, and NMFS' responses.

Extension Requests

    Comment 1: Numerous parties expressed concern regarding L-DEO's IHA 
application under the MMPA to incidentally harass marine mammals during 
a proposed marine geophysical survey in SE Asia from March-July, 2009, 
as published in the Federal Register (73 FR 78294, December 22, 2008). 
Many interested persons and organizations requested an extension of the 
30-day public comment period to allow for the adequate review of 
lengthy documents associated with the proposed IHA and prepare 
responses.
    Response: NMFS considered these requests during the 30-day public 
comment period and published a notice in the Federal Register (74 FR 
2995, January 16, 2009) extending the public comment period for the 
proposed IHA from January 21 to February 5, 2009. The 15-day extension 
is due to the unique circumstances of the timing of the publication of 
the Federal Register notice (74 FR 2995, January 16, 2009) relative to 
several Federal holidays. The Federal Register notice (74 FR 2995, 
January 16, 2009) published three days before the Christmas holiday, 
which fell on Thursday, December 25, 2008. The following day, Friday, 
December 26, 2008 was declared a Federal holiday for executive branch 
departments and agencies. New Year's Day, a Federal holiday, was the 
following Thursday, January 1, 2009. The 15-day extension was given in 
recognition of the fact that the timing of these three holidays led 
many workers to be away for much of the two-week period and some non-
government organizations closed their offices during that period. NMFS 
is also aware that the proposed action was for a new geographical area 
rather than a renewal of a prior action, where the associated documents 
are lengthy and would likely not be familiar to many interested 
parties. NMFS believes that a 30-day comment period with a 15-day 
extension (for a total of 45 days) is more than an adequate time period 
for the public to address concerns and submit comments.

General Comments

    Comment 2: The CRE objects to the statement in the proposed IHA (73 
FR 78303, December 22, 2008) on page 78303, column one, paragraph 
three, that states: ``However, controlled exposure experiments in the 
Gulf of Mexico indicate that foraging behavior

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

[[Page 41264]]

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

[[Page 41265]]

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

[[Page 41266]]

is known about their biology, conservation status and threats in the 
region. This does not imply other marine mammals that are not 
specifically discussed in detail are ``safer'' from the seismic 
surveys, in most cases, too little information is available to 
understand the impacts, which may be as great as or greater than the 
marine mammals discussed in detail in their comments to NMFS.
    Response: NSF's and L-DEO's IHA application, EA, and Supplemental 
EA sufficiently discusses the marine mammals species and the possible 
impacts from seismic surveys in the SE Asia region. After issuance of 
the proposed IHA, L-DEO modified the cruise plan and adopted more 
precautionary monitoring and mitigation measures. NMFS believes that 
the implementation of the required monitoring and mitigation measures 
will result in a negligible impact on affected species and stocks of 
marine mammals in the study area.
    Comment 20: ETSSTAWG states that it should be noted that many 
seismic surveys are conducted in the Taiwan region every year without 
requesting IHAs. The actions of private oil and gas companies within 
the EEZ's of other countries is beyond the jurisdiction of the MMPA, 
thus they need no such U.S. authorizations. However, this means that L-
DEO could become a scapegoat for all survey operation in the region, 
purely because they have to apply for authorization, as they will 
clearly be operating partly on the high seas (and thus fall under MMPA 
jurisdiction) and as they have government funding. This is 
acknowledged, but until such time as NMFS enforcement confirms the 
locations and tracks of every survey undertaken globally this situation 
is unlikely to change.
    Response: NMFS is aware of seismic surveys and other activities 
undertaken worldwide that occur (that may result in incidental takes of 
marine mammals) without requesting IHAs or LOAs. NMFS may grant IHAs 
upon request by U.S. citizens who engage in a specified activity (other 
than commercial fishing) within a specified geographical region. L-DEO 
and NSF are considered U.S. citizens under the MMPA. The MMPA applies 
to U.S. citizens in U.S. waters, and the high seas, but does not apply 
or authorize the incidental take of marine mammals in the territorial 
seas of foreign nations. The MMPA does not apply to non-U.S. citizens, 
unless they are conducting a specified activity (other than commercial 
fishing) that may result in incidental takes of marine mammals in U.S. 
waters. NMFS can refer reports of possible violations of the MMPA and 
this subject IHA issued to L-DEO to NOAA Enforcement for investigation.
    The IHA is valid only for the Langseth's activities associated with 
seismic survey operations that are specified in L-DEO's EA, 
Supplemental EA, and IHA application. L-DEO is required to comply with 
the IHA and the terms and conditions of the Incidental Take Statement 
corresponding to NMFS' Biological Opinion. L-DEO and NSF will be 
required to reinitiate consultation with NMFS if the identified action 
is subsequently modified in a manner that causes an effect that was not 
considered during the analysis for making the necessary determinations 
for the issuance of the IHA. L-DEO is required to submit a draft report 
on all activities and monitoring results to the Office of Protected 
Resources, NMFS, within 90 days of the completion of the Langseth's 
cruise in SE Asia. The report must contain and summarize information 
stated in the IHA issued to L-DEO.
    Comment 21: WaH is aware that this L-DEO survey proposal is one of 
a very small number of requests for authorization for geophysical 
surveys while other user groups, including the oil and gas industry, 
are not carrying out such EAs or are not subjected to public scrutiny 
in this way. Rather than allowing the focus to be limited to geological 
surveys such as L-DEO's, WaH recommends that measures be taken to 
ensure that all future marine seismic surveys (whether of an academic 
or commercial nature) are made subject to the same level of scrutiny 
and transparency, such as by requiring EAs or EISs to be submitted for 
professional and public review and with all relevant documents 
(including post-survey reports and relevant local permits, 
authorizations and licenses) being made publicly available.
    Response: All applications submitted to NMFS are subject to public 
comment periods. During the public comment period, their NEPA documents 
and incidental take authorization applications are available on the 
NMFS Web site (https://www.nmfs.noaa.gov/pr/permits/incidental.htm) and 
are reviewed by the Commission. NMFS does not force an agency or other 
organization to apply for and consult on an incidental take 
authorization under the MMPA.

General Opposition

    Comment 22: A private citizen questioned why this research was 
being conducted in SE Asia. The commenter also believes the U.S. should 
not be doing work in the region.
    Response: Dr. McIntosh and Dr. Wu, the principal investigators on 
the seismic survey, state the primary purpose of the TAIGER project is 
to investigate the fundamental processes of mountain building, which 
plays a major role in shaping the face of the Earth. Oceanic island 
chains, or arcs, along convergent tectonic plate boundaries result from 
a process known as subduction where one of Earth's tectonic plates 
slides beneath another as they move toward each other. As the lower 
plate slides beneath the upper plate, its trajectory usually steepens 
with depth and eventually reaches depths of several hundred (to greater 
than 700) km. The arc is made up of a chain of volcanoes on the upper 
plate, and is typically situated above the point where the lower plate 
is at about 100 km (62 mi) depth. As this process of subduction and 
volcanism continues through time (millions of years) the crust of the 
upper plate becomes thicker, and develops properties more like 
continental crust, which is much thicker and less dense than ocean 
crust and allows for land surface above sea level. The results of many 
studies indicates that much of the crust that forms Earth's continents 
was accumulated through time by island arcs colliding with continents 
leaving remnants of the arcs attached to the edge of the continents. 
Despite this general interpretation, the actual processes of how this 
happens, including growth of collisional mountain belts and deformation 
of arc and continental crust, is poorly understood and poorly 
documented. Ancient collision zones have been studied, but they have 
typically undergone many stages of deformation and erosion, leaving 
them difficult to interpret. Currently active arc-continent collision 
zones include Taiwan, Papua New Guinea, and Timor. Of these active 
collisions, Taiwan is currently the most active. Taiwan is also the 
most favorable of these to examine the full spectrum of processes as a 
plate boundary changes from oceanic subduction to arc-continent 
collision. This transition is a major target of the TAIGER project 
requiring that L-DEO obtain a series of crustal-scale seismic transects 
from south of Taiwan, where subduction is active, to northern Taiwan, 
where the collision has reached mature steady state.
    One of the by-products of the collision in Taiwan is the generation 
of frequent small earthquakes and less frequent, large, destructive 
earthquakes. By using the relatively small signals from the Langseth 
source array

[[Page 41267]]

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

[[Page 41268]]

for future seismic events and may thus mitigate some of the loss of 
life and economic disruptions that will inevitably occur.
    (2) NMFS disagrees with the commenter's characterization of the 
potential risk to the ETS sub-population of Indo-Pacific humpback 
dolphins. After the issuance of the proposed IHA, L-DEO negotiated with 
the project's principal scientists to modify the cruise plan and adopt 
more precautionary mitigation measures. L-DEO will limit seismic survey 
lines to take place at least 20 km from the west coast of Taiwan, 
except for in the passage between the Penghu Islands and the 
Waishanding Jhou sandbar, where the survey will pass through the 
approximately 17.1 km mid-line distance between the two possibly 
sensitive areas, subject to the limitations imposed by other foreign 
nations, to minimize the potential for exposing Indo-Pacific humpback 
dolphins, finless porpoises, and other coastal species to SPLs greater 
than or equal to 160 dB re 1 [mu]Pa (rms). Thus, the precautionary 
buffer recommended by ETSSTAWG in their comments to NMFS will be 
maintained, ``at least 13 km and perhaps a more precautionary 15 km of 
the ETS Sousa population--meaning up to around 20 km from shore.'' L-
DEO will also shut-down the airgun array if an ETS Indo-Pacific 
humpback dolphin is visually sighted regardless of the distance of the 
animal(s) to the sound source. The array will not resume firing until 
15 minutes after the last documented whale visual sighting.
    (3) NMFS disagrees with the commenter's assertion that the 
requested take of ETS Indo-Pacific humpback dolphins by harassment is 
likely to exceed a sustainable level of take for the population. L-
DEO's seismic survey was modified after the issuance of the proposed 
IHA to include more precautionary mitigation measures. The 
incorporation of precautionary measures reduced the estimated number of 
ETS Indo-Pacific humpback dolphins expected to be harassed to zero, 
which is clearly a sustainable level of take for the sub-population.
    (4) and (5) NMFS believes that the mitigation and monitoring 
measures in the IHA are adequate to protect species of concern that may 
be vulnerable to noise impacts. After issuance of the proposed IHA, L-
DEO modified the cruise plan and adopted more precautionary mitigation 
measures, especially for species that are of particular concern and 
have cryptic behaviors that may be vulnerable to noise impacts as well 
as to address concerns on the timing of the surveys and their impacts 
on migration routes. See Monitoring, Mitigation, Species of Particular 
Concern, and Temporal and Spatial Avoidance sections below and L-DEO's 
Supplemental EA for more information. NMFS has included requirements to 
these effects in the IHA issued to L-DEO.
    (6) After issuance of the proposed IHA, L-DEO modified the cruise 
plan and adopted more precautionary mitigation measures to address 
concerns of potential impacts of the seismic survey on affected species 
and stocks of marine mammals in the study area. NMFS believes that L-
DEO's IHA application, EA, and Supplemental EA are not biased as they 
adequately consider alternatives, and provides analysis on the affected 
environment and environmental consequences of the study area.
    (7) The EA adequately addresses the cumulative impacts of a 
relatively short-term seismic airgun survey in relation to long-term 
noise and events, such as vessel traffic, habitat loss, oil and gas 
industry, pollution, fishing, hunting, and other human activities. 
These other activities are long-term activities which are unaffected by 
NMFS' action here. Nor does this action, when considered in light of 
the other activities, become significant.
    For more information, see further relevant discussions in this 
notice, L-DEO's IHA application, EA, and Supplemental EA.
    Comment 26: HSI states that while they appreciate L-DEO's efforts 
to comply with the MMPA and the NEPA, HSI is concerned that this 
request for an incidental harassment authorization is premature and 
that in fact a letter of authorization for incidental take may be 
required. HSUS/HSI strongly urges the NMFS to deny this request as 
submitted and at a minimum to require L-DEO to resubmit its request 
with an updated review of the region's marine mammals, a more complete 
review of relevant litera