Takes of Marine Mammals Incidental To Specified Activities; Marine Geophysical Survey in the Northwest Atlantic Ocean Offshore New Jersey, July to August 2014, 38496-38519 [2014-15842]

Download as PDF 38496 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XD141 Takes of Marine Mammals Incidental To Specified Activities; Marine Geophysical Survey in the Northwest Atlantic Ocean Offshore New Jersey, July to August 2014 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. AGENCY: In accordance with the Marine Mammal Protection Act (MMPA) implementing regulations, we hereby give notice that we have issued an Incidental Harassment Authorization (Authorization) to Lamont-Doherty Earth Observatory (Observatory), a component of Columbia University, in collaboration with the National Science Foundation (Foundation), to take marine mammals, by harassment, incidental to conducting a marine geophysical (seismic) survey in the northwest Atlantic Ocean off the New Jersey coast July through August, 2014. DATES: Effective July 1, 2014, through August 17, 2014. ADDRESSES: A copy of the final Authorization and application are available by writing to Jolie Harrison, Supervisor, Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 20910, by telephoning the contacts listed here, or by visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/ incidental.htm#applications. The Foundation has prepared an Environmental Assessment (EA) and in accordance with the National Environmental Policy Act (NEPA) and the regulations published by the Council on Environmental Quality (CEQ). The EA titled, ‘‘Environmental Assessment of a Marine Geophysical Survey by the R/V Marcus G. Langseth in the Atlantic Ocean off New Jersey, June–July 2014,’’ was prepared by LGL, Ltd. environmental research associates, on behalf of the Foundation and the Observatory. We have also prepared an EA titled, ‘‘Issuance of an Incidental Harassment Authorization to Lamont Doherty Earth Observatory to Take Marine Mammals by Harassment Incidental to a Marine Geophysical Survey in the Northwest Atlantic Ocean, tkelley on DSK3SPTVN1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 June–August, 2014,’’ and FONSI in accordance with NEPA and NOAA Administrative Order 216–6. To obtain an electronic copy of these documents, write to the previously mentioned address, telephone the contact listed here (see FOR FURTHER INFORMATION CONTACT), or download the files at: http://www.nmfs.noaa.gov/pr/permits/ incidental.htm#applications. NMFS also issued a Biological Opinion under section 7 of the Endangered Species Act (ESA) to evaluate the effects of the survey and Authorization on marine species listed as threatened and endangered. The Biological Opinion is available online at: http://www.nmfs.noaa.gov/pr/ consultations/opinions.htm. FOR FURTHER INFORMATION CONTACT: Jeannine Cody, NMFS, Office of Protected Resources, NMFS (301) 427– 8401. SUPPLEMENTARY INFORMATION: Background Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specific geographic region if, after NMFS provides a notice of a proposed authorization to the public for review and comment: (1) NMFS makes certain findings; and (2) the taking is limited to harassment. Through the authority delegated by the Secretary, NMFS (hereinafter we) shall grant an Authorization for the incidental taking of small numbers of marine mammals if we find that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The Authorization must also prescribe, where applicable, the permissible methods of taking by harassment pursuant to such activity; other means of effecting the least practicable adverse impact on the species or stock and its habitat, and on the availability of such species or stock for taking for subsistence uses (where applicable); the measures that we determine are necessary to ensure no unmitigable adverse impact on the availability for the species or stock for taking for subsistence purposes (where applicable); and requirements pertaining to the mitigation, monitoring PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 and reporting of such taking. We have defined ‘‘negligible impact’’ in 50 CFR 216.103 as ‘‘an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.’’ Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Summary of Request On December 17, 2013, we received an application from the Observatory requesting an Authorization for the take of marine mammals, incidental to conducting a seismic survey in the northwest Atlantic Ocean from June through July, 2014. We determined the application complete and adequate on February 3, 2014 and published a notice of proposed Authorization on March 17, 2014 (79 FR 14779). The notice afforded the public a 30-day comment period on our proposed MMPA Authorization. In response to a request by several environmental organizations and others, we extended the comment period for an additional 30 days. (79 FR 19580, April 9, 2014). The Observatory, with research funding from the Foundation, plans to conduct a high-energy, 3-dimensional (3–D) seismic survey using the R/V Marcus G. Langseth (Langseth) in the northwest Atlantic Ocean approximately 25 to 85 kilometers (km) (15.5 to 52.8 miles (mi)) off the New Jersey coast for approximately 30 days during the period between July 1, 2014 through August 17, 2014. The proposed activity will generate increased underwater sound during the operation of the seismic airgun arrays. Thus, we anticipate that take, by Level B harassment only, of 27 species of marine mammals could result from the specified activity. Description of the Specified Activity Overview The Observatory plans to use one source vessel, the Langseth, two pairs of seismic airgun subarrays configured with four or eight airguns as the energy source and four hydrophone streamers E:\FR\FM\08JYN1.SGM 08JYN1 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices to conduct the conventional seismic survey. In addition to the airgun operations, the Observatory intends to operate a multibeam echosounder, a sub-bottom profiler, and acoustic Doppler current profiler continuously throughout the survey. However, they would not operate the multibeam echosounder, sub-bottom profiler, and acoustic Doppler current profiler during transits to and from the survey area. The purpose of the research seismic survey is to collect and analyze data on the arrangement of sediments deposited during times of changing global sea level from roughly 60 million years ago to present. The 3–D survey would investigate features such as river valleys cut into coastal plain sediments now buried under a kilometer of younger sediment and flooded by today’s ocean. Dates and Duration The Observatory proposes to conduct the research seismic survey from the period of end of June through July 2014. The study (e.g., equipment testing, startup, line changes, repeat coverage of any areas, and equipment recovery) would include approximately 720 hours of airgun operations (i.e., 30 days over 24 hours). Some minor deviation from the Observatory’s requested dates is possible, depending on logistics, weather conditions, and the need to repeat some lines if data quality is substandard. Thus, this Authorization will be effective from July 1, 2014 through August 17, 2014. Specified Geographic Area The Observatory proposes to conduct the seismic survey in the Atlantic Ocean, approximately 25 to 85 km (15.5 to 52.8 mi) off the coast of New Jersey between approximately 39.3–39.7° N and approximately 73.2–73.8° W (see Figure 1). Water depths in the survey area are approximately 30 to 75 m (98.4 to 246 feet (ft)). They would conduct the proposed survey outside of New Jersey state waters and within the U.S. Exclusive Economic Zone. Detailed Description of Activities tkelley on DSK3SPTVN1PROD with NOTICES Transit Activities During the effective dates of the Authorization, the Langseth would depart from New York and would transit for approximately eight hours to the survey area. Setup, deployment, and streamer ballasting would occur over approximately three days. At the conclusion of the 30-day survey, the Langseth would take approximately one day to retrieve gear and would return to New Jersey. VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 Vessel Specifications We outlined the vessel’s specifications in the notice of proposed Authorization (79 FR 14779, March 17, 2014). This description is not repeated here as the vessel’s specifications have not changed between the proposed Authorization and our final Authorization. Data Acquisition Activities We outlined the details regarding the Observatory’s data acquisition activities using the airguns, multibeam echosounder, sub-bottom profiler, and acoustic Doppler current profiler in the notice of proposed Authorization (79 FR 14779, March 17, 2014). After the close of the public comment period, the Observatory informed us that they would not operate the multibeam echosounder, sub-bottom profiler, and acoustic Doppler current profiler during transits to and from the survey area. Other than this modification, there has been no change to the Observatory’s data acquisition activities as described in the proposed Authorization. For a more detailed description of the authorized action, including vessel and acoustic source specifications, metrics, characteristics of airgun pulses, predicted sound levels of airguns, etc., we refer the reader to the notice of proposed Authorization (79 FR 14779, March 17, 2014) and associated documents referenced above this section. Comments and Responses We published a notice of receipt of the Observatory’s application and proposed Authorization in the Federal Register on March 17, 2014 (79 FR 14779). During the 60-day public comment period, we received comments from two private citizens and the following organizations: The Marine Mammal Commission (Commission); Clean Ocean Action, Oceana, The Ocean Foundation, Center for Biological Diversity, Hands Across the Sand, Save Barnegat Bay, Clean Water Action, CWA Local 1075, and Paddleout.org— collectively known as COA et al.; U.S. Senator Cory A. Booker; New Jersey Beach Buggy Association; Marine Trades Association of New Jersey; Marcus Langseth Science Oversight Committee (MLSOC); and the State of New Jersey Department of Environmental Protection (NJDEP). In addition, the following organizations submitted a request for a 60-day extension to the public comment period and a public hearing prior to the conclusion of the public comment period. They are: Clean Ocean Action; PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 38497 Oceana, The Ocean Foundation, Natural Resources Defense Council, Center for Biological Diversity, Alaska Inter-Tribal Council, International Game Fish Association, Cetacean Society International, Whale and Dolphin Action League, Surfrider Foundation, League of Women Voters of New Jersey, American Littoral Society, Hands Across the Sand, New Jersey Sierra Club, Fisherman’s Dock Cooperative, Natural Resources Protective Association, Surfer’s Environmental Alliance, WATERSPIRIT, SandyHook SeaLife Foundation, Lenape Nation PA, CWA Local 1075, Paddleout.org, reEarth, Clean Water Action, Association of NJ Environmental Commissions, Asbury Park Fishing Club, Save Barnegat Bay, and concerned citizens. These comments are online at: http://www.nmfs.noaa.gov/pr/pdfs/ permits/nsfldeo_comments2014.pdf. We address any comments specific to the Observatory’s application that address the statutory and regulatory requirements or findings that we must make in order to issue an Authorization. Following is a summary of the public comments and our responses. Effects Analyses Comment 1: The Commission expressed concerns regarding the Observatory’s use of a ray trace-based model to estimate exclusion and buffer zones and the numbers of takes for NSFfunded geophysical research. They stated that the model is not conservative because it assumes spherical spreading, a constant sound speed, and no bottom interactions instead of incorporating site-specific environmental characteristics (e.g., sound speed profiles, refraction, bathymetry/water depth, sediment properties/bottom loss, or absorption coefficients). Response: We acknowledge the Commission’s concerns about the Observatory’s current modeling approach for estimating exclusion and buffer zones and also acknowledge that the Observatory did not incorporate sitespecific sound speed profiles, bathymetry, and sediment characteristics of the research area within the current approach to estimate those zones for this Authorization. However, as described below, empirical data collected at two different sites and compared against model predictions indicate that other facets of the model (besides the site-specific factors cited above) do result in a conservative estimate of exposures in the cases tested. The Observatory’s application (LGL, 2013) and Appendix A in the E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES 38498 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices Foundation’s EA (NSF, 2014) describe the approach to establishing mitigation exclusion and buffer zones. In summary, the Observatory acquired field measurements for several array configurations at shallow- and deepwater depths during acoustic verification studies conducted in the northern Gulf of Mexico in 2003 (Tolstoy et al., 2004) and in 2007 and 2008 (Tolstoy et al., 2009). Based on the empirical data from those studies, the Observatory developed a sound propagation modeling approach that conservatively predicts received sound levels as a function of distance from a particular airgun array configuration in deep water. In 2010, the Observatory assessed the accuracy of their modeling approach by comparing the sound levels of the field measurements in the Gulf of Mexico study to their model predictions (Diebold et al., 2010). They reported that the observed sound levels from the field measurements fell almost entirely below the predicted mitigation radii curve for deep water (Diebold et al., 2010). Based on this information, the Observatory has shown that their model can reliably estimate mitigation radii in deep water. We acknowledge that the Observatory based their modeling approach on the environmental variability present in the Gulf of Mexico, but the model has limited ability to capture the variability resulting from site-specific factors present in the marine environment offshore New Jersey. In light of these limitations, we have recommended a more conservative approach to mitigation specifically tailored to this survey and we describe it later in this section. We note that the Observatory used a similar process to develop mitigation radii (i.e., exclusion and buffer zones) for a shallow-water seismic survey in the northeast Pacific Ocean offshore Washington in 2012. The Observatory conducted the shallow-water survey using an airgun configuration that was approximately 78 or 89 percent larger than the total discharge volumes proposed for this shallow-water survey (i.e., 6,600 cubic inches (in3) compared to 700 in3 or 1,400 in3) and recorded the received sound levels on the shelf and slope off Washington using the Langseth’s 8-km hydrophone streamer. Crone et al. (2013) analyzed those received sound levels from the 2012 survey and reported that the actual distances for the exclusion and buffer zones were two to three times smaller than what the Observatory’s modeling approach predicted. While the results confirm bathymetry’s role in sound VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 propagation, Crone et al. (2013) were able to confirm that the empirical measurements from the Gulf of Mexico calibration survey (the same measurements used to inform the Observatory’s modeling approach for this survey in shallow water) overestimated the size of the exclusion and buffer zones for the shallow-water 2012 survey off Washington and were thus precautionary, in that particular case, for effecting the least practicable impact marine mammals. The Observatory presented these preliminary results in a poster session at the American Geophysical Union fall meeting in December 2013 (Crone et al., 2013; available at: http:// berna.ldeo.columbia.edu/agu2013/ agu2013.pdf) and they anticipate publishing their final analyses in a peerreviewed journal publication later this year. At present, the Observatory cannot adjust their modeling methodology to add the environmental and site-specific parameters as requested by the Commission. We are working with the Foundation to address the issue of requiring site-specific information to further inform the analysis and development of mitigation measures in coastal areas for future surveys with the Observatory and the Foundation, and the Foundation has been exploring different approaches in collaboration with the Observatory and other academic institutions with whom they collaborate. We will continue to work with the Observatory, the Foundation, and the Commission on verifying the accuracy of their modeling approach. When available, we will review and consider the final results from the Observatory’s expected publication (Crone et al., in prep.) and how they reflect on the Observatory’s model. For this survey, the Observatory developed the exclusion and buffer zones based on the conservative deepwater calibration results and empirically-derived shallow water exclusion zones from Diebold et al. (2010). The Observatory’s current modeling approach represents the best available information to reach our determinations for the Authorization. As described above, the comparisons of the Observatory’s model results and the field data collected in the Gulf of Mexico and Washington illustrate a degree of conservativeness built into the Observatory’s model for deep water, which would be expected to offset some of the limited ability of the model to capture the variability resulting from site-specific factors, especially in shallow water. However, in support of effecting the least practicable adverse PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 impact, NMFS explored and included a requirement in this Authorization for the use of an enlarged exclusion zone specifically for this survey, which is expected to further offset the limitations of the model and afford additional protection to marine mammals from potential injury. In our analysis of whether to require additional mitigation, NMFS considers both the expected reduction in impacts to marine mammals that measure(s) are expected to effect, as well as the practicability of the measure for applicant implementation, and in the case of this particular survey, the balance of these factors supported the enlargement of the exclusion zone. For this survey, NMFS will require the Observatory to enlarge the radius of 180-dB and 190-dB exclusion zones for all airgun array configurations by a factor of 50 percent, which results in more than doubling the area within the exclusion zone. Comment 2: The Commission notes that the Foundation and the U.S. Geological Survey (USGS) previously modeled sound propagation under various environmental conditions in their PEIS. They further state that the Observatory and the Foundation (in cooperation with Pacific Gas and Electric Company) used a similar modeling approach in the recent incidental harassment authorization application and associated environmental assessment for a geophysical survey of Diablo Canyon in California (77 FR 58256, September 19, 2012). The Commission states that these examples indicate that these agencies and other organizations are able to implement the recommended modeling approach, if required by NMFS. The Commission recommends that we should hold the Observatory, the Foundation, and other related agencies to the same standard. The Commission also recommends that we require the Observatory to re-estimate the proposed zones and take estimates using sitespecific parameters (including at least sound speed profiles, bathymetry, and sediment characteristics) for the proposed Authorization. They also recommend that we require the same for all future incidental harassment authorization requests submitted by the Observatory, the Foundation, and other related entities. Response: There are many different modeling products and services commercially available that applicants could potentially use in developing their take estimates and analyses for MMPA authorizations. These different models range widely in cost, complexity, and the number of specific factors that can be considered in any E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices particular modeling run. NMFS does not, and does not believe that it is appropriate to, prescribe the use of any particular modeling package. Rather, each applicant’s approach is evaluated independently in the context of their activity. In cases where simpler models are used and there is concern that a model might not capture the variability across a parameter(s) that is not represented in the model, conservative choices are often made at certain decision points in the model to help ensure that modeled estimates are buffered in a manner that would not result in the agency underestimating the number of takes or extent of effects. In this case, results have shown that the Observatory’s model reliably and conservatively estimates mitigation radii in deep water. First, the observed sound levels from the field measurements fell almost entirely below the Observatory’s estimated mitigation radii for deep water (Diebold et al., 2010). These conservative mitigation radii are the foundation for the Observatory’s shallow water radii used in this survey. Second, the Observatory’s analysis of measured shallow water radii during the 2012 survey show that the Observatory’s modeled radii for the Washington survey overestimated the measured 160dB radii by approximately 10 km (6.2 mi) and overestimated the measured 180-dB radii by approximately 500 m (1,640 ft) (Crone et al., 2013). Based on Crone et al.’s (2013) preliminary findings, we find that the Observatory’s shallow-water radii based on the Gulf of Mexico calibration study were larger (i.e., more conservative) for that particular study. Based on these empirical data, which illustrate the model’s conservative exposure estimates across two sites, NMFS finds that the Observatory’s model effectively estimates sound exposures. However, as described in the response above, for this survey we have increased the 180-dB and 190-db exclusion zone radii for this survey by a factor of 50 percent (equivalent to approximately a 3-dB difference in received level at the zone edge) to be additionally precautionary. Comment 3: The Commission questioned the Observatory’s use of a new correction factor (or a scaling approach) to generate exclusion zones for shallow-water for this proposed survey. They noted that for previous applications, the Observatory applied correction factors (based on the ratio of modeled deep-water radii to modeled shallow water radii reported in Tolstoy et al. (2009)) to derive exclusion zones for shallow-water. The Commission was unsure why the Observatory would VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 assume that calculating a ratio of modeled zones in deep water would be appropriate to equate to empirical zones in shallow water, stating that the two quantities were not comparable. Response: The Observatory has improved its methodology for deriving shallow-water mitigation zones based on the approach described in Comment 1. To clarify, the Observatory did not model shallow water exclusion zones proposed for this study, but used a scaling approach based upon the conservative deep-water model to derive appropriate scaling factors for shallow water zones. To clarify part of the Commission’s comment in short, the Observatory did not equate the zones in deep water to the zones in shallow water (which would not be appropriate, as these could vary greatly compared to one another based on the environment). Rather, they used the ratio of the size of safety zones of a large airgun in deep water compared to this airgun array in deep water to determine the size of the safety zone for this airgun in shallow water, given the known zone for the same large airgun in shallow water. We believe that this is a rational method for best using the available information to estimate the safety zones. Following is a brief summary of the Observatory’s process used to predict the mitigation exclusion zones (shown in Table A1 of the Foundation’s EA) for the survey. 1. For an 18-gun, 3,300-in3 array towed at a depth of 6 m (19.6 ft), the model predicted that the 160-, 180-, and 190-dB isopleths would result in radii (i.e., exclusion zones) of 4,500, 450, and 142 m (2.8, 0.3, and 0.1 mi) respectively, in deep water (Figure A3 in Appendix A of the Foundation’s EA). The empirical data for the airgun configurations indicated that, for deep water, the Observatory’s modeling approach overestimated the received sound levels of field measurements at a given distance (Diebold, et al., 2010). 2. Using the direct-arrival modeling approach, the Observatory modeled the exclusion zones for the proposed suite of array configurations for this study in deep water (Figures A4–A8 in Appendix A of the Foundation’s EA). 3. The Gulf of Mexico calibration study did not obtain measurements for the smaller array (i.e., 700 in3 or 1,400 in3) proposed for use in this survey. To account for this difference, the Observatory developed a scaling factor to extrapolate shallow-water exclusion zones for the proposed study (NSF, 2014). 4. The Observatory calculated the ratios (i.e., scaling factors) between the model’s deep-water exclusion zones for PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 38499 the 18-gun, 3,300-in3 array, and the model’s deep-water exclusion zones for the study’s various airgun configurations. This is an appropriate comparison of the sound exposure level outputs between two different types of airgun configurations in deep water. 5. To calculate the exclusion zones for the study’s various array configurations in shallow water, the Observatory multiplied the scaling factors by the empirically-derived shallow water exclusion zones reported for an 18-gun, 3,300-in3 array in the Gulf of Mexico (Diebold, et al., 2010). Comment 4: The Commission stated that the Observatory’s latest modeling approach for predicting the mitigation exclusion zones would reduce the size of the applicable zones used in previous surveys and disagrees with the Observatory’s derivation of scaling factors based on the modeled results in deep water. Response: See our response to Comment 3. The Observatory’s new approach compares the sound exposure level (SEL) outputs between two different types of airgun configurations in deep water. This approach is more rigorous than the Observatory’s previous approach and allows them to derive scaling relationships between the arrays and extrapolate empirical measurements or model outputs to different array sizes and tow depths. For example, if an Airgun Source A produces sound energy that is three times greater than Airgun Source B in deep water, it is reasonable to infer that the shallow-water mitigation zones for Airgun Source A would be three times larger than the shallow-water mitigation zones for Airgun Source B. The Observatory believes that their new approach of deriving scaling factors is a more rigorous approach to extrapolate existing empirical measurements for shallow water. Because their model does not incorporate environmental parameters, this is the best available information to extrapolate the in situ shallow water measurements to array sizes and array tow depths without field verification studies (Crone et al., 2013; Crone et. al., in press; Barton and Diebold, 2006). Also, as noted above and specific to this survey, we have enlarged the exclusion zone. Comment 5: The Commission requests that the Observatory test and verify the use of their model under the specific environmental conditions they would encounter with each survey because the environmental conditions in waters of the continental shelf off New Jersey indicate a surface duct at 50 m (164 ft), in-water refraction, and bathymetry and sediment characteristics that reflect E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES 38500 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices sound (NSF 2011 PEIS, Appendix B, Figure B7). They note that the Observatory did not include these sitespecific parameters in their modeling approach. Response: The Observatory’s modeling approach consists of a freefield model that does not have the capability to incorporate fine-resolution environmental variation. The Foundation’s 2011 Programmatic Environmental Impact Statement/ Overseas Environmental Impact Statement for Marine Seismic Research Funded by the National Science Foundation or Conducted by the U.S. Geological Survey (PEIS) (June, 2011) presented several representative survey locations (i.e., detailed analysis areas or DAAs) for sound propagation modeling that incorporated these fine-scale environmental parameters. They modeled a DAA offshore from New Jersey over the Hudson canyon covering an area with depths varying from less than 328 ft (100 m) to greater than 4,920 ft (1,500 m). Although the PEIS included modeling for the northwest Atlantic DAA, the Foundation’s model was for a different energy source and survey parameters (e.g. survey water depths and source tow depth) than what the Observatory proposed for the current survey. Thus, the Foundation prepared a site-specific EA to account for the different energy source and airgun configurations for the survey and used the Observatory’s model which does not consider other attenuation mechanisms such as low-frequency cutoff and absorption. With respect to the 50-m (164 ft) surface duct identified in the Foundation’s PEIS, the Observatory identified the potential surface duct feature in its modeling effort, but concluded the feature was not applicable for this survey because the activities would occur in waters less than 50 m (164 ft). For the reasons described below, NMFS concurs with the Foundation’s assessment that the presence of such a surface duct would have little effect on the exposure estimates for this survey. In light of this information, we considered that the water column in the survey area is a mixed layer with no surface duct. Although the existence of a surface duct could enhance sound propagation due to acoustic energy trapped within this narrow channel, the condition for such propagation is highly dependent on frequency (or wavelength) of the propagating sound. The acoustic waves moving through the sound channel are typically those with shorter wavelength (i.e., higher frequency) in VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 relation to the depth of the channel or water column. An equation by Jensen et al., (2011) shows that the relationship between the propagating wave and medium thickness of the duct: F0 ≅ 1500/0.008 D3/2, where F0 is the minimum frequency (or cutoff frequency) in Hz of the acoustic wave being able to effectively propagate through the duct or water column, and D is the thickness in meters of the surface duct. As the equation indicates, the surface duct ceases to trap energy when the wavelength of the sound becomes too large or frequency becomes too low. In the case of Observatory’s activity, the majority of the source energy is within the first two lobes below 333 Hz, with only a fraction of acoustic energy that lies within the remaining third and fourth lobes (330–667 Hz). Based on the above equation, thickness of the duct required for effective propagation of the sound wave first two lobes would be 68.6 m (225 ft). Although acoustic energy within the third and fourth lobes would be trapped in the surface duct and propagated to greater distances, they represent only a fraction of the total acoustic energy for this survey. Comment 6: The Commission discussed the outcomes of a March 2013 meeting with the Observatory and the Foundation where Observatory staff indicated the possibility of comparing their model to the hydrophone field measurements collected during previous surveys in environmental conditions other than those in the Gulf of Mexico (i.e., deep and intermediate waters in cold water environments that may have surface ducting conditions, shallowwater environments, etc.). The Commission understands that the Observatory is analyzing hydrophone data with field measurements from waters off Washington to compare to the estimated exclusion and buffer zones, but questioned why they did not use that method for the current proposed authorization. The Commission recommended in a June 24, 2013 letter that the Observatory should make those comparisons prior to the submittal of applications for geophysical surveys conducted in 2014. Response: We refer the Commission to our responses to Comments 1 and 3 discussing their approach to developing mitigation zones and their analyses of hydrophone data collected for the 2012 Washington survey. Results indicated that the Observatory’s shallow-water radii based on the Gulf of Mexico calibration study are larger (i.e., more conservative) compared to the smaller empirical distances measured by Crone PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 et al. (2013) for the Washington survey area. We are currently working with the Foundation to address the issue of including site-specific parameters to account for environmental variation in coastal areas for future surveys. Work is ongoing in exploring approaches for including this information in future surveys conducted in coastal areas and we will consult with the Commission on these activities before the next survey. Comment 7: The Commission acknowledges that the Observatory calculated take for marine mammals by multiplying the total ensonified area of 2,502 km2 (which includes a 25 percent contingency) by the applicable densities for marine mammals in the survey area. However, they state that the Observatory should determine the total ensonified area within a given day and then multiply that factor by the number of survey days (30) and the applicable densities because the survey consists of 4,900 km of tracklines (spaced 150 m [490 ft] apart) in an area of 12 by 50 km (7.4 by 31 miles). They contend that the Observatory’s current method underestimates the number of marine mammals potentially taken and recommend that we require the Observatory to estimate the numbers of marine mammals potentially taken based on the total ensonified area in any given day, multiplied by 30 days, and the applicable densities. Response: The Observatory modeled the number of different individuals that could be exposed to airgun sounds with received levels greater than or equal to 160 dB re: 1 mPa on one or more occasions by multiplying the total marine area that would be within the 160-dB radius around the operating seismic source on at least one occasion (2,502 km2 which includes a 25 percent contingency factor to account for repeated tracklines), along with the expected density of animals in the area. The Observatory acknowledged in their application that this approach does not allow for turnover in the mammal populations in the area during the course of the survey as the actual number of individuals exposed may be underestimated because it does not account for new animals entering or passing through the ensonification area (NSF, 2014), however, the Observatory suggested that the 25 percent contingency factor would cover any potential underestimate of individuals. The Observatory also considered the likelihood of re-exposure during the survey in the Foundation’s EA by estimating the ratio of the ensonified area including overlap (76,645.61 km2) and the ensonified area excluding E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices overlap (2001.91 km2). The area including overlap is 38.3 times greater than the area excluding overlap and 30.6 times greater than the area excluding overlap including the 25 percent contingency (i.e., 2,502.4 km2). Thus, a marine mammal that stayed within the survey area during the entire survey could potentially experience reexposure up to 38 times. However, it is unlikely that a particular animal would remain in the area during the entire survey (Bain and Williams, 2006; MacLeod et al., 2006; McCauley et al., 2000; McDonald et al., 1995). The Observatory references a 25 percent contingency factor added onto its take estimates, however, this buffer is also intended to cover marine mammal takes that could potentially result from the operational adjustments, such as the need to rerun survey lines (though in practice, the Observatory has rarely, if ever, utilized this contingency). However, NMFS finds it more appropriate to incorporate a mechanism to explicitly account for the potential of positive immigration of marine mammals into the survey area that the Commission references, and therefore we have included a generalized species-related turnover estimate for the reported densities to account for the potential of new animals entering or passing through the ensonified area. Use of a turnover factor recognizes some of the limitations of the Observatory using a static density estimate for this survey. Thus we are using a generalized turnover estimate of 1.25 (Wood et al., 2012) as a correction factor for the marine mammal densities presented in Table 4. In some cases, a larger turnover rate might be appropriate for migratory species, however, the likelihood of encountering these species is very low for this area and conservative choices have already been made in the estimate of take for mysticetes and sperm whales. The method recommended by the Commission is a way to help understand the instances of exposure above the Level B threshold, however, that method would far overestimate the number of individual marine mammals exposed above the threshold, as turnover within the project are does not nearly approach 100 percent per day. The new 1.25 turnover rate will help better estimate the number of animals exposed, and the method described earlier in this response helps indicate the likely maximum number of instances per individual (though in many instances there will be fewer exposures). Comment 8: The New Jersey Beach Buggy Association (NJBBA) states that VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 ‘‘Even though surveys have been made off the coasts of Australia (the Northern Carnarvon Bain, Australian Northwest Shelf) and the Gulf of Mexico, no references have been given or found concerning the before and after observations on mammals, fish, and plant life that cannot avoid the repercussions from the impact of the sound waves.’’ Response: We disagree with the commenter’s assertion that no references exist concerning before and after observations on marine life in the vicinity of seismic surveys. We refer the commenter to the Observatory’s application, the Foundation’s EA, and the notice of the proposed Authorization (79 FR 14779, March 17, 2014) which collectively provided information on the anticipated effects of airgun sounds on marine mammals, fish, and invertebrates. Comment 9: The NJBBA commented on the 2006 Sperm Whale Seismic Study in the Gulf of Mexico stating that one of the report’s recommendations called for a delay of the actual seismic testing for a number of years to allow for further data acquisition under controlled conditions of its effect on mammals, fish, and plant life. Response: We considered the results of the Jochens et al. (2008) study in our notice of the proposed Authorization (79 FR 14779, March 17, 2014) and the Foundation considered the same information in their 2011 PEIS. We note that sections 1.4 and 1.5 of the Jochens et al. (2008) report summarize six major conclusions and recommendations, none of which call for delays in seismic testing to allow for further data acquisition under controlled conditions. On the contrary, they recommend the extension of controlled exposure experiment work on marine mammals (Jochens et al., 2008; Recommendation 3, page 15). Comment 10: NJBBA noted that a recent review presented information on the impacts of seismic airgun surveys on fish, marine mammals, and invertebrates (Wielgart, 2014). They expressed concerns on the survey’s impact on the ecological system including bivalves, economic impacts, and the future loss of fisheries. Response: We considered the information provided in Wielgart (2014) in making our final determinations. The review, titled ‘‘A Review of the Impacts of Seismic Airgun Surveys on Marine Life’’ presents a synopsis of impacts on marine mammals, marine turtles, fish, and invertebrates that we considered in the Observatory’s application, the Foundation’s EA, and our notice of the proposed Authorization (79 FR 14779, PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 38501 March 17, 2014). The Foundation’s draft EA at http://www.nsf.gov/geo/oce/ envcomp/mountain-draftea201317dec.pdf also assessed the survey’s impacts on commercial and recreational fisheries. Comment 11: The Marine Trades Association of New Jersey requested the cancellation of the survey citing potential negative impacts to the recreational fishing communities and other industries. Noting concerns for migrating fish stocks and the local fishing industry, they requested that we require the Observatory to conduct the survey at an alternate time, specifically, January and February to minimize impacts to the marine industry, coastal fish, and marine mammals. Similarly, COA et al. also requested that the Observatory not conduct the survey during the summer months and that we consider alternate survey times to avoid times of peak marine mammal activity. Finally, the NJDEP also submitted comments expressing concern for not only to marine mammals’ food source, but also for the potential impacts to New Jersey’s marine mammal boat tour operators and the recreational and commercial fishing industry. Response: Section 101(a)(5)(D) of the MMPA and its implementing regulations establish a framework for us to determine whether and how we can authorize take incidental to the activities described in the Observatory’s application. We do not have the authority to cancel the Observatory’s research seismic activities under Section 101(a)(5)(D) of the MMPA, as that authority lies with the Foundation. However, we may add or modify mitigation to ensure the least practicable adverse impacts on marine mammals, and we have done so here. Regarding the survey’s impacts on commercial and recreational fishing, we refer you to the Foundation’s (sponsor of the research seismic survey) EA for this survey (Sections III and IV) which includes consideration of the effects of sound on marine invertebrates, fish, and fisheries and the effects of the survey on the recreational and commercial fishing sectors in New Jersey. The Foundation also completed an ESA Section 7 consultation to address the effects of the research seismic survey on ESA-listed fish species and designated critical habitat within the proposed area as well as a consultation under the MagnusonStevens Fishery Conservation and Management Act for essential fish habitat. Finally, the Foundation will address the survey’s impacts to the marine mammal boat tour industry in their final EA. E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES 38502 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices We considered, as one potential MMPA measure, that the Observatory modify its survey schedule to January/ February. However, this could result in an increase in the number of takes of North Atlantic right whales due to their increased presence off New Jersey in the fall and winter. Whitt et al. (2013) concluded that right whales were not present in large numbers off New Jersey during the summer months (Jun 22–Sep 27) which corresponds to the effective dates of the seismic survey (Jun 30–Aug 17). In contrast, peak acoustic detections for North Atlantic right whales occurred in the winter (Dec 18–Apr 9) and in the spring (Apr 10–Jun 21) (Whitt, et al., 2013). We also considered the effects of the survey on marine mammal prey (i.e., fish and invertebrates), as a component of marine mammal habitat, in the notice of the proposed Authorization. Studies have shown both decreases and increases in fisheries catch rates and behavioral changes in captive marine fish and squid during exposure to seismic sound (Lokkeborg et al., 2012; Fewtrell and McCauley, 2012). We acknowledge that disturbance of prey species has the potential to adversely affect marine mammals while foraging. However, given the limited spatiotemporal scale of the survey, the survey would ensonify only a small fraction of available habitat at any one time because the vessel is continually moving during data acquisition. We would expect prey species to return to their pre-exposure behavior once seismic firing ceased (Lokkeborg et al., 2012; Fewtrell and McCauley, 2012). Although there is a potential for injury to fish or marine life in close proximity to the vessel, we expect that prey responses would have temporary effects on a marine mammal’s ability to forage in the immediate survey area. However, we don’t expect that temporary reductions in feeding ability would reduce an individual animal’s overall feeding success. Laboratory studies have observed permanent damage to sensory epithelia for captive fish exposed at close range to a sound source (McCauley et al., 2003) and abnormalities in larval scallops after exposure to low frequency noise in tanks (de Soto et al., 2013); however, wild fish are likely to move away from a seismic source (Fewtrell and McCauley, 2012). Finally, other studies provide examples of no fish mortality upon exposure to seismic sources (e.g., Popper et al., 2005; Boeger et al., 2006). In summary, in examining impacts to fish as prey species for marine mammals, we expect fish to exhibit a VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 range of behaviors including no reaction or habituation (Pena et al., 2013) to startle responses and/or avoidance (Fewtrell and McCauley, 2012). We expect that the seismic survey would have no more than a temporary and minimal adverse effect on any fish or invertebrate species that serve as prey species for marine mammals, and therefore consider the potential impacts to marine mammal habitat minimal as well. Comment 12: Both the NJDEP and COA et al. expressed concerns related to the survey’s impact on the local (coastal) bottlenose dolphin population. They include: cumulative adverse impacts of the survey in light of the ongoing Unusual Mortality Event (UME); potential increases in marine mammal strandings due to the use of the multibeam echosounder; the survey’s temporal overlap with the bottlenose dolphin calving period; and the potential heightened sensitivity of bottlenose dolphin calves to anthropogenic noise. Response: In 2013, NMFS declared a UME for elevated bottlenose dolphin strandings along the Atlantic coast (New York through Florida). From July 1, 2013–June 8, 2014, there have been 1,325 strandings from New York to Florida. Of those strandings, 140 dolphins have stranded in New Jersey, which is significantly higher than the average annual bottlenose dolphin stranding rate of 10 strandings (based on 2007–2012 data). In New Jersey, 46 of 50 stranded bottlenose dolphins sampled tested positive for morbillivirus (92 percent) and one grey seal was suspect positive for canine distemper virus (a closely related species). We expect that the survey’s activities would result, at worst, in a temporary modification in behavior, temporary changes in animal distribution, and/or low-level physiological effects (Level B harassment) of bottlenose dolphins. We expect these impacts to be minor because we do not anticipate measurable changes to the population or impacts to rookeries, mating grounds, and other areas of similar significance. The Authorization outlines reporting measures and response protocols with the Northeast Regional Stranding Coordinator intended to minimize the impacts of, and enhance the analysis of, any potential stranding in the survey area. The Observatory’s activities are approximately 20 km (12 mi) away from the habitat in which the coastal bottlenose dolphins the commenter expressed concern are expected to occur (Toth et al., 2011; 2012), which means that the area is not expected to be ensonified above 160 dB and that take PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 of calves of this stock is not anticipated. Additionally, airgun pulses are outside of the range of frequencies in which dolphin hearing is most sensitive, and Schlundt et al.’s (2013) study suggests that the low-frequency content of air gun impulses may have fewer predicted impacts on bottlenose dolphins. Last, we do not have specific information related to how the acoustic stressors may or may not exacerbate the effects of the ongoing UME with bottlenose dolphins. However, based on the fact that the acoustic effects are expected to be limited to behavioral harassment, and the survey is constantly moving (predominantly far offshore and well away from coastal species and the associated calving areas), we do not anticipate any focused adverse effects to animals involved in the UME. Regarding COA et al.’s concerns about increased strandings, we note that the Observatory has not experienced a stranding event associated with previous activities conducted in the same general vicinity. The Foundation’s EA (NSF, 2014) acknowledges that scientists have conducted numerous 2– D seismic surveys in the general vicinity of the proposed survey from 1979 to 2002. The previous surveys used different airgun array configurations (e.g., a 6-airgun, 1,350-in3 array in 1990; a single, 45-in3 GI Gun in 1996 and 1998; and two 45-in3 GI Guns in 2002). The researchers did not observe any seismic sound-related marine mammal related injuries or mortality, or impacts to fish during these past seismic surveys in the proposed survey area (NSF, 2014; G. Mountain, Pers. Comm.). In the past decade of seismic surveys conducted carried out by the Langseth, protected species observers and other crew members have neither observed nor reported any seismic-related marine mammal injuries or mortalities. We have considered the potential for behavioral responses such as stranding and indirect injury or mortality from the Observatory’s use of the multibeam echosounder. In 2013, an International Scientific Review Panel (ISRP) investigated a 2008 mass stranding of approximately 100 melon-headed whales in a Madagascar lagoon system (Southall et al., 2013) associated with the use of a high-frequency mapping system. The report indicated that the use of a 12-kHz multibeam echosounder was the most plausible and likely initial behavioral trigger of the mass stranding event. This was the first time that a relatively high-frequency mapping sonar system had been associated with a stranding event. However, the report also notes that there were several siteand situation-specific secondary factors E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices that may have contributed to the avoidance responses that lead to the eventual entrapment and mortality of the whales within the Loza Lagoon system (e.g., the survey vessel transiting in a north-south direction on the shelf break parallel to the shore may have trapped the animals between the sound source and the shore driving them towards the Loza Lagoon). They concluded that for odontocete cetaceans that hear well in the 10–50 kHz range, where ambient noise is typically quite low, high-power active sonars operating in this range may be more easily audible and have potential effects over larger areas than low frequency systems that have more typically been considered in terms of anthropogenic noise impacts (Southall, et al., 2013). However, the risk may be very low given the extensive use of these systems worldwide on a daily basis and the lack of direct evidence of such responses previously reported (Southall, et al., 2013). Given that the Observatory proposes to conduct the survey offshore and the Langseth is not conducting the survey parallel to any coastline, we do not anticipate that the use of the source during the seismic survey would entrap marine mammals between the vessel’s sound sources and the New Jersey coastline. In addition, the Authorization outlines reporting measures and response protocols intended to minimize the impacts of, and enhance the analysis of, any potential stranding in the survey area. With respect to COA et al.’s concerns about the survey’s temporal overlap with the bottlenose dolphin calving period, we note that the Observatory’s study area is approximately 20 km (12 mi) away from the identified habitats for coastal bottlenose dolphins and their calves in Toth et al. (2011, 2012) thereby reducing further the likelihood of causing an effect on this species or stock. In response to COA et al.’s concerns that dolphin calves may be limited in their ability to flee the ensonified area due to their dependence on their mothers and small size, we considered several studies which note that seismic operators and protected species observers regularly see dolphins and other small toothed whales near operating airgun arrays, but in general there is a tendency for most delphinids to show some avoidance of operating seismic vessels (e.g., Moulton and Miller, 2005; Holst et al., 2006; Stone and Tasker, 2006; Weir, 2008; Richardson et al., 2009; Barkaszi et al., 2009; Moulton and Holst, 2010). Also, some dolphins seem to be attracted to the seismic vessel and floats, and some VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 ride the bow wave of the seismic vessel even when large arrays of airguns are firing (e.g., Moulton and Miller, 2005). Nonetheless, small toothed whales more often tend to head away, or to maintain a somewhat greater distance from the vessel, when a large array of airguns is operating than when it is silent (e.g., Stone and Tasker, 2006; Weir, 2008, Barry et al., 2010; Moulton and Holst, 2010). We note that in most cases, the avoidance radii for delphinids appear to be small, on the order of one km or less, and some individuals show no apparent avoidance. In considering the potential heightened sensitivity of neonate dolphins to noise, Schlundt et al. (2013) suggest that the potential for airguns to cause hearing loss in dolphins is lower than previously predicted, perhaps as a result of the low-frequency content of air gun impulses compared to the highfrequency hearing ability of dolphins. We do not expect marine mammals to experience any repeated exposures at very close distances to the sound source because the Observatory would implement the required shutdown and power down mitigation measures to ensure that marine mammals do not approach the applicable exclusion zones for Level A harassment. In addition, we anticipate that the required ramp-up procedures at the start of the survey or anytime after a shutdown of the entire array would ‘‘warn’’ marine mammals in the vicinity of the airguns, and provide the time for them to leave the area and thus avoid any potential injury or impairment of their hearing abilities. Comment 13: COA et al. states that we did not present species information for North Atlantic right whales in our analyses, including the Whitt et al. (2013) peer-reviewed study demonstrating North Atlantic right whale presence off the New Jersey coast year-round, particularly in the spring and summer months. Response: NMFS disagrees. Table 1 in our notice of proposed authorization (79 FR 14784, March 17, 2014) specifically states that we base the year-round seasonal presence of North Atlantic right whales on the Whitt et al. (2013) paper. Whitt et al. (2013) conducted acoustic and visual surveys for North Atlantic right whales off the coast of New Jersey from January 2008 to December 2009 and observed one sighting of a cow-calf pair in May 2008, but no other sightings of cow-calf pairs throughout the remainder of the study. We considered this information (also presented on page 15 of NSF’s draft EA) and concluded that it was appropriate to increase the Observatory’s original request for incidental take related to North Atlantic right whales from zero to PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 38503 three (3) to be conservative in estimating potential take for cow/calf pairs. This adjustment is based on sighting information from two sources (Palka, 2012 and Whitt et al., 2013) which reported the presence of one North Atlantic right whale and one cow/calf pair in the area, respectively. Monitoring and Reporting Comment 14: The Commission has indicated that monitoring and reporting requirements should provide a reasonably accurate assessment of the types of taking and the numbers of animals taken by the proposed activity. They state that ‘‘. . . the assessments should account for animals at the surface but not detected and for animals present but underwater and not available for sighting, which are accounted for by g(0) and f(0) values.’’ They further state that ‘‘those adjustments are essential for making accurate estimates of the numbers of marine mammals taken during surveys.’’ The Commission recommends that we consult with the funding agency (i.e., the Foundation) and individual applicants (e.g., the Observatory and other related entities) to develop, validate, and implement a monitoring program that provides a scientifically sound, reasonably accurate assessment of the types of marine mammal takes and the actual numbers of marine mammals taken, accounting for applicable g(0) and f(0) values. The Commission recommends that we consult with them prior to finalizing the recommendations. Response: NMFS’ implementing regulations require that applicants include monitoring that will result in ‘‘an increased knowledge of the species, the level of taking or impacts on populations of marine mammals that are expected to be present while conducting activities . . .’’ This increased knowledge of the level of taking could be qualitative or relative in nature, or it could be more directly quantitative. Scientists use g(0) and f(0) values in systematic marine mammal surveys to account for the undetected animals indicated above, however, these values are not simply established and the g(0) value varies across every observer based on their sighting acumen. While we want to be clear that we do not generally believe that post-activity take estimates using f(0) and g(0) are required to meet the monitoring requirement of the MMPA, in the context of the Foundation and Observatory’s monitoring plan, we agree that developing and incorporating a way to better interpret the results of their monitoring (perhaps a simplified or generalized version of g(0) and f(0)) E:\FR\FM\08JYN1.SGM 08JYN1 38504 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices tkelley on DSK3SPTVN1PROD with NOTICES is a good idea. We are continuing to examine this issue with the Foundation to develop ways to improve their postsurvey take estimates. We will consult with the Commission and NMFS scientists prior to finalizing these recommendations. We note that current monitoring measures for past and current Authorizations for research seismic surveys require the collection of visual observation data by protected species observers prior to, during, and after airgun operations. This data collection may contribute to baseline data on marine mammals (presence/absence) and provide some generalized support for estimated take numbers (as well as providing data regarding behavioral responses to seismic operation that are observable at the surface). However, it is unlikely that the information gathered from these cruises alone would result in any statistically robust conclusions for any particular species because of the small number of animals typically observed. MMPA Concerns Comment 15: COA et al. state that NMFS must ensure that the Authorization complies with the MMPA and requests that NMFS deny the Authorization based on their opinion that the potential impacts to marine mammals are incompatible with the prohibitions of the MMPA and that the take would be more than negligible. Response: We disagree with the commenters’ assessment. The MMPA directs us to allow, upon request, the incidental taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity within a specific geographic region if we make certain findings. The legal requirements and underlying analysis for an Authorization per section 101(a)(5)(D) of the MMPA require us to determine that the taking by harassment of marine mammal species or stocks will have a negligible impact on affected species or stocks and will not have an unmitigable adverse impact on the availability of affected species or stocks for taking for subsistence uses. As mentioned in the notice for the proposed authorization (79 FR 14779, March 17, 2014), we expect that the Observatory’s activities would result in take by Level B harassment in the form behavioral modifications during the period of the Observatory’s active seismic operations. We also expect that the required mitigation and monitoring measures (described in the notice for the proposed Authorization (79 FR 14779, March 17, 2014), and included within the final Authorization) would reduce potential disturbance to marine mammals to the lowest level practicable. We do not anticipate that these behavioral effects would have significant impacts to individual fitness or the population and there are no relevant subsistence uses of marine mammals implicated by this action. Based on the analysis of the likely effects of the specified activity on marine mammals and their habitat contained within this document, the Foundation’s EA and our own EA, and taking into consideration the implementation of the mitigation and monitoring measures, we find that the Observatory’s proposed activity would result in the take small numbers of marine mammals relative to the populations of the affected species or stocks, would have a negligible impact on the affected species or stocks, and would not result in an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence uses as no subsistence users would be affected by the proposed action. Acoustic Thresholds Comment 16: COA et al. state that the current NMFS 160-decibel (dB) re: 1 mPa threshold for Level B harassment does not reflect the best available science and is not sufficiently conservative. Response: Our practice has been to apply the 160 dB re: 1 mPa received level threshold for underwater impulse sound levels to determine whether take by Level B harassment occurs. Specifically, we derived the 160 dB threshold data from mother-calf pairs of migrating gray whales (Malme et al., 1983, 1984) and bowhead whales (Richardson et al., 1985, 1986) responding to seismic airguns. We acknowledge there is more recent information bearing on behavioral reactions to seismic airguns, but those data only illustrate how complex and context-dependent the relationship is between the two, and do not, as a whole, invalidate the current threshold. However, we discuss the science on this issue qualitatively in our analysis of potential effects to marine mammals (79 FR 14779, March 17, 2014). Accordingly, it is not a matter of merely replacing the existing threshold with a new one. NMFS is currently developing revised acoustic guidelines for assessing the effects of anthropogenic sound on marine mammals. Until NMFS finalizes these guidelines (a process that includes internal agency review, public notice and comment, and peer review), we will continue to rely on the existing criteria for Level A and Level B harassment shown in Table 4 of the notice for the VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 proposed authorization (79 FR 14779, March 17, 2014). As mentioned in the Federal Register notice for the proposed authorization (79 FR 14779, March 17, 2014), we expect that the onset for behavioral harassment is largely context dependent (e.g., behavioral state of the animals, distance from the sound source, etc.) when evaluating behavioral responses of marine mammals to acoustic sources. Although using a uniform sound pressure level of 160-dB re: 1 mPa for the onset of behavioral harassment for impulse noises may not capture all of the nuances of different marine mammal reactions to sound, it is an appropriate way to manage and regulate anthropogenic noise impacts on marine mammals until NMFS finalizes its acoustic guidelines. Comment 17: COA et al. requested that we use a behavioral threshold below 160 dB for estimating take based on results reported in Clark and Gagnon (2006), MacLeod et al. (2006), Risch et al. (2012), McCauley et al. (1998), McDonald et al. (1995), Bain and Williams (2006), DeRuiter et al. (2013). They also cite comments submitted by Clark et al. (2012) on the Arctic Ocean Draft Environmental Impact Statement regarding NMFS’ current acoustic thresholds. Response: NMFS is constantly evaluating new science and how to best incorporate it into our decisions. This process involves careful consideration of new data and how it is best interpreted within the context of a given management framework. Each of these articles emphasizes the importance of context (e.g., behavioral state of the animals, distance from the sound source, etc.) in evaluating behavioral responses of marine mammals to acoustic sources. These papers and the studies discussed in our notice of proposed authorization (79 FR 14779, March 17, 2014) note that there is variability in the behavioral responses of marine mammals to noise exposure. However, it is important to consider the context in predicting and observing the level and type of behavioral response to anthropogenic signals (Ellison et al., 2012). There are many studies showing that marine mammals do not show behavioral responses when exposed to multiple pulses at received levels at or above 160 dB re: 1 mPa (e.g., Malme et al., 1983; Malme et al., 1984; Richardson et al., 1986; Akamatsu et al., 1993; Madsen and Mohl, 2000; Harris et al., 2001; Miller et al., 2005; and Wier, 2008). And other studies show that whales continue important behaviors in the presence of seismic pulses (e.g., E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices Richardson et al., 1986; McDonald et al., 1995; Greene et al., 1999a, 1999b; Nieukirk et al., 2004; Smultea et al., 2004; Holst et al., 2005, 2006; Dunn and Hernandez, 2009). In a passive acoustic research program that mapped the soundscape in the North Atlantic Ocean, Clark and Gagnon (2006) reported that some fin whales (Balaenoptera physalus) stopped singing for an extended period starting soon after the onset of a seismic survey in the area. The study did not provide information on received levels or distance from the sound source. The authors could not determine whether or not the whales left the area ensonified by the survey, but the evidence suggests that most if not all singers remained in the area (Clark and Gagnon, 2006). Support for this statement comes from the fact that when the survey stopped temporarily, the whales resumed singing within a few hours and the number of singers increased with time (Clark and Gagnon, 2006). Also, they observed that one whale continued to sing while the seismic survey was actively operating (Figure 4; Clark and Gagnon, 2006). The authors conclude that there is not enough scientific knowledge to adequately evaluate whether or not these effects on singing or mating behaviors are significant or would alter survivorship or reproductive success (Clark and Gagnon, 2006). Thus, to address COA et al.’s concerns related to the results of this study, it is important to note that the Observatory’s study area is well away from any known breeding/ calving grounds for low frequency cetaceans and approximately 20 km (12 mi) away from the identified habitats for coastal bottlenose dolphins and their calves in Toth et al. (2011, 2012) thereby reducing further the likelihood of causing an effect on marine mammals. MacLeod et al. (2006) discussed the possible displacement of fin and sei whales related to distribution patterns of the species during a large-scale seismic survey offshore the west coast of Scotland in 1998. The authors hypothesized about the relationship between the whale’s absence and the concurrent seismic activity, but could not rule out other contributing factors (Macleod, et al., 2006; Parsons et al., 2009). We would expect that marine mammals may briefly respond to underwater sound produced by the seismic survey by slightly changing their behavior or relocating a short distance. Based on the best available information, we expect short-term disturbance reactions that are confined to relatively small distances and durations (Thompson et al., 1998; VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 Thompson et al., 2013), with no longterm effects on recruitment or survival. Regarding the suggestion that blue whales ‘‘significantly’’ changed course during the conduct of a seismic survey offshore Oregon, we disagree. We considered the McDonald et al. (1995) paper in the notice for the proposed authorization (79 FR 14779, March 17, 2014). In brief, the study tracked three blue whales relative to a seismic survey with a 1,600 in3 airgun array (slightly higher than the Observatory’s 1,400 in3 airgun array). The whale started its call sequence within 15 km (9.3 mi) from the source, then followed a pursuit track that decreased its distance to the vessel where it stopped calling at a range of 10 km (6.2 mi) (estimated received level at 143 dB re: 1 mPa (peak-to-peak) (McDonald et al., 1995). After that point, the ship increased its distance from the whale which continued a new call sequence after approximately one hour (McDonald et al., 1995) and 10 km (6.2 mi) from the ship. The authors suggested that the whale had taken a track paralleling the ship during the cessation phase but observed the whale moving diagonally away from the ship after approximately 30 minutes continuing to vocalize (McDonald et al., 1995). The authors also suggest that the whale may have approached the ship intentionally or perhaps was unaffected by the airguns. They concluded that there was insufficient data to infer conclusions from their study related to blue whale responses (McDonald et al., 1995). Risch et al. (2012) documented reductions in humpback whale (Megaptera novaeangliae) vocalizations in the Stellwagen Bank National Marine Sanctuary concurrent with transmissions of the Ocean Acoustic Waveguide Remote Sensing (OAWRS) low-frequency fish sensor system at distances of 200 kilometers (km) from the source. The recorded OAWRS produced series of frequency modulated pulses and the signal received levels ranged from 88 to 110 dB re: 1 mPa (Risch et al., 2012). The authors hypothesize that individuals did not leave the area but instead ceased singing and noted that the duration and frequency range of the OAWRS signals (a novel sound to the whales) were similar to those of natural humpback whale song components used during mating (Risch et al., 2012). Thus, the novelty of the sound to humpback whales in the study area provided a compelling contextual probability for the observed effects (Risch et al., 2012). However, the authors did not state or imply that these changes had long-term effects on individual animals or PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 38505 populations (Risch et al., 2012), nor did they necessarily rise to the level of an MMPA take. Thus, to address COA et al.’s concerns related to the results of this study, we again note that the Observatory’s study area is well away from any known breeding/calving grounds for low frequency cetaceans and approximately 20 km (12 mi) away from the identified habitats for bottlenose dolphins and their calves in Toth et al. (2011, 2012) thereby reducing further the likelihood of causing an effect on marine mammals. We considered the McCauley et al. (1998) paper (along with McCauley et al., 2000) in the notice of proposed authorization (79 FR 14779, March 17, 2014). Briefly, McCauley et al. (1998, 2000) studied the responses of migrating humpback whales off western Australia to a full-scale seismic survey with a 16airgun array (2,678 in3) and to playbacks using a single, 20-in3 airgun. Both studies point to a contextual variability in the behavioral responses of marine mammals to sound exposure. The mean received level for initial avoidance of an approaching airgun was 140 dB re: 1 mPa for resting humpback whale pods containing females. In contrast, some individual humpback whales, mainly males, approached within distances of 100 to 400 m (328 to 1,312 ft), where sound levels were 179 dB re: 1 mPa (McCauley et al., 2000). The authors hypothesized that the males gravitated towards the single operating airgun possibly due to its similarity to the sound produced by humpback whales breaching (McCauley et al., 2000). Despite the evidence that some humpback whales exhibited localized avoidance reactions at received levels below 160 dB re: 1 mPa, the authors found no evidence of any gross changes in migration routes, such as inshore/ offshore displacement during seismic operations (McCauley et al., 1998, 2000). With repeated exposure to sound, many marine mammals may habituate to the sound at least partially (Richardson & Wursig, 1997). Bain and Williams (2006) examined the effects of a large airgun array (maximum total discharge volume of 1,100 in3) on six species in shallow waters off British Columbia and Washington: harbor seal, California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), gray whale (Eschrichtius robustus), Dall’s porpoise (Phocoenoides dalli), and the harbor porpoise. Harbor porpoises showed ‘‘apparent avoidance response’’ at received levels less than 145 dB re: 1 mPa at a distance of greater than 70 km (43 miles) from the seismic source (Bain E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES 38506 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices and Williams, 2006). However, the tendency for greater responsiveness by harbor porpoise is consistent with their relative responsiveness to boat traffic and some other acoustic sources (Richardson et al. 1995; Southall et al., 2007). In contrast, the authors reported that gray whales seemed to tolerate exposures to sound up to approximately 170 dB re: 1 mPa (Bain and Williams, 2006) and Dall’s porpoises (Phocoenoides dalli) occupied and tolerated areas receiving exposures of 170–180 dB re: 1 mPa (Bain and Williams, 2006; Parsons et al., 2009). The authors observed several gray whales that moved away from the airguns toward deeper water where sound levels were higher due to propagation effects resulting in higher noise exposures (Bain and Williams, 2006). However, it is unclear whether their movements reflected a response to the sounds (Bain and Williams, 2006). Thus, the authors surmised that the gray whale data (i.e., voluntarily moving to areas where they are exposed to higher sound levels) are ambiguous at best because one expects the species to be the most sensitive to the low-frequency sound emanating from the airguns (Bain and Williams, 2006). DeRuiter et al. (2013) recently observed that beaked whales (considered a particularly sensitive species to sound) exposed to playbacks (i.e., simulated) of U.S. tactical midfrequency sonar from 89 to 127 dB re: 1 mPa at close distances responded notably by altering their dive patterns. In contrast, individuals showed no behavioral responses when exposed to similar received levels from actual U.S. tactical mid-frequency sonar operated at much further distances (DeRuiter et al., 2013). As noted earlier, one must consider the importance of context (for example, the distance of a sound source from the animal) in predicting behavioral responses. Regarding the public comments submitted by Clark et al. (2012) in reference to our use of the current acoustic exposure criteria; please refer to our earlier response to COA et al. None of these studies on the effects of airgun noise on marine mammals point to any associated mortalities, strandings, or permanent abandonment of habitat by marine mammals. Bain and Williams (2006) specifically conclude that ‘‘. . . although behavioral changes were observed, the precautions utilized in the SHIPS survey did not result in any detectable marine mammal mortalities during the survey, nor were any reported subsequently by the regional marine mammal stranding network . . .’’ McCauley et al. (2000) concluded VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 that any risk factors associated with their seismic survey ‘‘. . . lasted for a comparatively short period and resulted in only small range displacement . . .’’ Further, the total discharge volume of the airgun arrays cited in McCauley et al., 1998, 2000; Bain and Williams, 2006 were generally over 40 percent larger than the 1,400 in3 array configurations proposed for use during this survey (e.g., 2,768 in3, McCauley et al., 1998; 6,730 in3, Bain and Williams, 2006). Thus, the Observatory’s 160-dB threshold radius may not reach the threshold distances reported in these studies. Currently NMFS is working on revising its noise exposure criteria based on the best and most recent scientific information. NMFS will use these criteria to develop methodologies to predict behavioral responses of marine mammals exposed to sound associated with seismic surveys (primary source is airguns). Although using a uniform sound pressure level of 160-dB re: 1 mPa for the onset of behavioral harassment for impulse noises may not capture all of the nuances of different marine mammal reactions to sound, it is an appropriate way to manage and regulate anthropogenic noise impacts on marine mammals until NMFS finalizes its acoustic guidelines. Comment 18: COA et al. take issue with our conclusion that Level A take would not occur during the survey. Citing Lucke et al. (2009); Thompson et al. (1998); Kastak et al. (2008); Kujawa and Lieberman (2009); Wood et al. (2012); and Cox et al. (2006), the commenters assert that our preliminary determinations for Level A take and the likelihood of temporary and or permanent threshold shift do not consider the best available science. Response: As explained in Table 3 in the notice of proposed authorization (79 FR 14779, March 17, 2014), the predicted distances at which sound levels could result in Level A harassment are relatively small (585 m; 1,919 ft for cetaceans and 157 m; 515 ft for pinnipeds). As an added measure, we are requiring the Observatory to enlarge the Level A harassment exclusion zones for cetaceans and pinnipeds to further ensure the least practicable effect on marine mammals. We expect that the required vesselbased visual monitoring of the exclusion zones is appropriate to implement mitigation measures to prevent Level A harassment. First, the Observatory will be required to establish larger Level A exclusion zones corresponding to the 177 and 187 dB re: 1 mPa isopleths for cetaceans and pinnipeds respectively, to avoid Level A PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 harassment. If the protected species observers observe marine mammals approaching the exclusion zone, the Observatory must shut down or power down seismic operations to ensure that the marine mammal does not approach the applicable exclusion radius. Second, if the Observatory detects a marine mammal outside the 177- or 187-dB exclusion zones, and the animal—based on its position and the relative motion— is likely to enter the exclusion zone, the Observatory may alter the vessel’s speed and/or course—when practical and safe—in combination with powering down or shutting down the airguns, to minimize the effects of the seismic survey. The avoidance behaviors discussed in the notice of proposed authorization (79 FR 14779, March 17, 2014) supports our expectations that individuals will avoid exposure at higher levels. Also, it is unlikely that animals would encounter repeated exposures at very close distances to the sound source because the Observatory would implement the required shutdown and power down mitigation measures to ensure that marine mammals do not approach the applicable exclusion zones for Level A harassment. Regarding the Lucke et al. (2009) study, the authors found a threshold shift (TS) of a harbor porpoise after exposing it to airgun noise (single pulse) with a received sound pressure level (SPL) at 200.2 dB (peak-to-peak) re: 1 mPa, which corresponds to a sound exposure level of 164.5 dB re: 1 mPa2 s after integrating exposure. We currently use the root-mean-square (rms) of received SPL at 180 dB and 190 dB re: 1 mPa as the threshold above which permanent threshold shift (PTS) could occur for cetaceans and pinnipeds, respectively. Because the airgun noise is a broadband impulse, one cannot directly extrapolate the equivalent of rms SPL from the reported peak-to-peak SPLs reported in Lucke et al. (2009). However, applying a conservative conversion factor of 16 dB for broadband signals from seismic surveys (Harris et al. 2001; McCauley et al. 2000) to correct for the difference between peak-to-peak levels reported in Lucke et al. (2009) and rms SPLs; the rms SPL for TTS would be approximately 184 dB re: 1 mPa, and the received levels associated with PTS (Level A harassment) would be higher. This is still above the current 180 dB rms re: 1 mPa threshold for injury. Yet, we recognize that the temporary threshold shift (TTS) of harbor porpoise is lower than other cetacean species empirically tested (Finneran et al. 2002; E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices Finneran and Schlundt, 2010; Kastelein et al., 2012). We considered this information in the notice of proposed authorization (79 FR 14779, March 17, 2014). The Thompson et al. (1998) telemetry study on harbor (Phoca vitulina) and grey seals (Halichoerus grypus) suggested that avoidance and other behavioral reactions by individual seals to small airgun sources may at times be strong, but short-lived. The researchers conducted 1-hour controlled exposure experiments exposing individual seals fitted with telemetry devices to small airguns with a reported source level of 215–224 dB re: 1 mPa (peak-to-peak) (Thompson et al., 1998; Gordon et al., 2003). The researchers measured dive behavior, swim speed heart rate and stomach temperature (indicator for feeding), but they did not measure hearing threshold shift in the animals. The researchers observed startle responses, decreases in heart rate, and temporary cessation of feeding. In six out of eight trials, harbor seals exhibited strong avoidance behaviors, and swam rapidly away from the source (Thompson et al., 1998; Gordon et al., 2003). One seal showed no detectable response to the airguns, approaching within 300 m (984 ft) of the source (Gordon et al., 2003). However, they note that the behavioral responses were short-lived and the seals’ behavior returned to normal after the trials (Thompson et al., 1998; Gordon et al., 2003). The study does not discuss temporary threshold shift or permanent threshold shift in harbor seals and the estimated rms SPL for this survey is approximately 200 dB re: 1 mPa, well above NMFS’ current 180 dB rms re: 1 mPa threshold for injury for cetaceans and NMFS’ current 190 dB rms re: 1 mPa threshold for injury for pinnipeds (accounting for the fact that the rms sound pressure level (in dB) is typically 16 dB less than the peak-to-peak level). In a study on the effect of nonimpulsive sound sources on marine mammal hearing, Kastak et al. (2008) exposed one harbor seal to an underwater 4.1 kHz pure tone fatiguing stimulus with a maximum received sound pressure of 184 dB re: 1 mPa for 60 seconds (Kastak et al., 2008; Finneran and Branstetter, 2013). A second 60-second exposure resulted in an estimated threshold shift of greater than 50 dB at a test frequency of 5.8 kHz (Kastak et al., 2008). The seal recovered at a rate of ¥10 dB per log(min). However, 2 months post-exposure, the researchers observed incomplete recovery from the initial threshold shift resulting in an apparent permanent threshold shift of 7 to 10 dB in the seal VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 (Kastak et al., 2008). We note that seismic sound is an impulsive source, and the context of the study is related to the effect of non-impulsive sounds on marine mammals. We also considered two other Kastak et al. (1999, 2005) studies. Kastak et al. (1999) reported TTS of approximately 4–5 dB in three species of pinnipeds (harbor seal, California sea lion, and northern elephant seal) after underwater exposure for approximately 20 minutes to sound with frequencies ranging from 100–2,000 Hz at received levels 60–75 dB above hearing threshold. This approach allowed similar effective exposure conditions to each of the subjects, but resulted in variable absolute exposure values depending on subject and test frequency. Recovery to near baseline levels was reported within 24 hours of sound exposure. Kastak et al. (2005) followed up on their previous work, exposing the same test subjects to higher levels of sound for longer durations. The animals were exposed to octave-band sound for up to 50 minutes of net exposure. The study reported that the harbor seal experienced TTS of 6 dB after a 25-minute exposure to 2.5 kHz of octave-band sound at 152 dB (183 dB SEL). The California sea lion demonstrated onset of TTS after exposure to 174 dB (206 dB SEL). We considered that PTS could occur at relatively lower levels, such as at levels that would normally cause TTS, if the animal experiences repeated exposures at very close distances to the sound source. However, an animal would need to stay very close to the sound source for an extended amount of time to incur a serious degree of PTS, which in this case, it would be highly unlikely due to the required mitigation measures in place to avoid Level A harassment and the expectation that a mobile marine mammal would generally avoid an area where received sound pulse levels exceed 160 dB re: 1 mPa (rms) (review in Richardson et al. 1995; Southall et al. 2007). We also considered recent studies by Kujawa and Liberman (2009) and Lin et al. (2011). These studies found that despite completely reversible threshold shifts that leave cochlear sensory cells intact, large threshold shifts could cause synaptic level changes and delayed cochlear nerve degeneration in mice and guinea pigs, respectively. We note that the high level of TTS that led to the synaptic changes shown in these studies is in the range of the high degree of TTS that Southall et al. (2007) used to calculate PTS levels. It is not known whether smaller levels of TTS would lead to similar changes. NMFS, however, acknowledges the complexity PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 38507 of noise exposure on the nervous system, and will re-examine this issue as more data become available. In contrast, a recent study on bottlenose dolphins (Schlundt et al., 2013) measured hearing thresholds at multiple frequencies to determine the amount of TTS induced before and after exposure to a sequence of impulses produced by a seismic air gun. The airgun volume and operating pressure varied from 40–150 in3 and 1000–2000 psi, respectively. After three years and 180 sessions, the authors observed no significant TTS at any test frequency, for any combinations of air gun volume, pressure, or proximity to the dolphin during behavioral tests (Schlundt et al., 2013). Schlundt et al. (2013) suggest that the potential for airguns to cause hearing loss in dolphins is lower than previously predicted, perhaps as a result of the low-frequency content of airgun impulses compared to the highfrequency hearing ability of dolphins. NEPA Concerns Comment 19: COA et al. states that we should prepare an Environmental Impact Statement (EIS), not an EA, to adequately consider the potentially significant impacts of the proposed Authorization, including the cumulative impacts and consideration of a full range of alternatives. Response: We prepared an EA to evaluate whether significant environmental impacts may result from the issuance of an Authorization to the Observatory for the take of marine mammals incidental to conducting their seismic survey in the northwest Atlantic Ocean. After completing the EA, we determined that there would not be significant impacts to the human environment related to our issuance of an Authorization and accordingly issued a Finding of No Significant Impact (FONSI). Therefore, this action does not require an EIS. Comment 20: COA et al. states that our analysis of alternatives in the EA was incomplete because the Foundation’s EA did not sufficiently evaluate the No Action alternative. Response: The NEPA and the implementing CEQ regulations (40 CFR parts 1500–1508) require consideration of alternatives to proposed major federal actions and NAO 216–6 provides agency policy and guidance on the consideration of alternatives to our proposed action. An EA must consider all reasonable alternatives, including the No Action Alternative. This provides a baseline analysis against which we can compare the other alternatives. Our EA titled, ‘‘Issuance of an Incidental Harassment Authorization to E:\FR\FM\08JYN1.SGM 08JYN1 38508 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices Lamont Doherty Earth Observatory to Take Marine Mammals by Harassment Incidental to a Marine Geophysical Survey in the Northwest Atlantic Ocean, June–August, 2014,’’ addresses the potential environmental impacts of three choices available to us under section 101(a)(5)(D) of the MMPA, namely: —Issue the Authorization to the Observatory for take, by Level B harassment, of marine mammals during the seismic survey, taking into account the prescribed means of take, mitigation measures, and monitoring requirements; —Not issue an Authorization to the Observatory in which case, for the purposes of NEPA analysis only, we assume that the activities would proceed and cause incidental take without the mitigation and monitoring measures prescribed in the Authorization; or —Issue the Authorization to the Observatory for take, by Level B harassment, of marine mammals during the seismic survey by incorporating additional required mitigation measures. To warrant detailed evaluation as a reasonable alternative, an alternative must meet our purpose and need. In this case, an alternative meets the purpose and need if it satisfies the requirements under section 101(a)(5)(D) the MMPA. We evaluated each potential alternative against these criteria; identified two action alternatives along with the No Action Alternative; and carried these forward for evaluation in our EA. General Comments Comment 21: Two commenters expressed general opposition or general support for the survey. Response: We acknowledge their comments and thank them for their interest. Comment 22: COA et al. noted incorrect references to locations or project information that was incorrect. Response: As published, the preamble to the notice of proposed Authorization on March 17, 2014 (79 FR 14779) contained minor, non-substantive errors related to locations, equipment, and species which may prove to be misleading but had no overall effect on our preliminary determinations. We have removed those inadvertent errors from this notice. Description of Marine Mammals in the Area of the Specified Activity We provided information on the occurrence of marine mammals with possible or confirmed occurrence in the survey area in the notice of proposed Authorization on March 17, 2014 (79 FR 14779). The marine mammals most likely to be harassed in the action include 6 mysticetes, 18 odontocetes, and 3 pinniped species under our jurisdiction. Table 1 in this notice provides information on those species’ regulatory status under the MMPA and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); abundance; occurrence and seasonality in the activity area. TABLE 1—MARINE MAMMALS MOST LIKELY TO BE HARASSED INCIDENTAL TO THE OBSERVATORY’S SURVEY Regulatory status 1 2 Stock name North Atlantic right whale ... Western Atlantic ................. Humpback whale ................ Gulf of Maine ...................... Common minke whale ........ Canadian East Coast ......... Sei whale ............................ Nova Scotia ........................ Fin whale ............................ Western North Atlantic ....... Blue whale .......................... Western North Atlantic ....... Sperm whale ....................... Nova Scotia ........................ Dwarf sperm whale ............. Western North Atlantic ....... Pygmy sperm whale ........... Western North Atlantic ....... Blainville’s beaked whale ... Western North Atlantic ....... Cuvier’s beaked whale ....... Western North Atlantic ....... Gervais’ beaked whale ....... Western North Atlantic ....... Sowerby’s beaked whale .... Western North Atlantic ....... True’s beaked whale .......... Western North Atlantic ....... Northern bottlenose whale Western North Atlantic ....... Bottlenose dolphin .............. tkelley on DSK3SPTVN1PROD with NOTICES Species Atlantic spotted dolphin ...... Western North Atlantic Offshore. Western North Atlantic Northern Migratory Coastal. Western North Atlantic ....... Striped dolphin .................... Western North Atlantic ....... Bottlenose dolphin .............. VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 PO 00000 Season common coastal/shelf ........ year-round. 4 823 common coastal ................. spring–fall. 20,741 rare coastal/shelf ................ spring–summer. 357 uncommon shelf edge ........ spring. 3,522 common pelagic ................. year-round. uncommon coastal/pelagic occasional. 2,288 common pelagic ................. year-round. 1,783 uncommon shelf ................. year-round. 1,783 uncommon shelf ................. year-round. 7,092 uncommon shelf/pelagic .... spring–summer. 6,532 uncommon shelf/pelagic .... spring–summer. 7,092 uncommon shelf/pelagic .... spring–summer. 7,092 uncommon shelf/pelagic .... spring–summer. 7,092 uncommon shelf/pelagic .... spring–summer. unknown rare pelagic ........................ unknown. 77,532 common pelagic ................. spring–summer. 11,548 common coastal ................. summer. 44,715 common coastal ................. summer–fall. 54,807 uncommon shelf ................. summer. 440 MMPA—NC ESA—NL MMPA—NC ESA—NL Fmt 4703 Occurrence and range 455 MMPA—D ESA—EN MMPA—D ESA—EN MMPA—D ESA—NL MMPA—D ESA—EN MMPA—D ESA—EN MMPA—D ESA—EN MMPA—D ESA—EN MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—D ESA—NL Frm 00027 Abundance 3 Sfmt 4703 E:\FR\FM\08JYN1.SGM 08JYN1 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices 38509 TABLE 1—MARINE MAMMALS MOST LIKELY TO BE HARASSED INCIDENTAL TO THE OBSERVATORY’S SURVEY—Continued Regulatory status 1 2 Species Stock name Short-beaked common dolphin. Atlantic white-sided-dolphin Western North Atlantic ....... Risso’s dolphin ................... Western North Atlantic ....... Long-finned pilot whale ...... Western North Atlantic ....... Short-finned pilot whale ...... Western North Atlantic ....... Harbor porpoise .................. Gulf of Maine/Bay of Fundy Gray seal ............................ Western North Atlantic ....... Harbor seal ......................... Western North Atlantic ....... Harp seal ............................ Western North Atlantic ....... Western North Atlantic ....... MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL MMPA—NC ESA—NL Abundance 3 Occurrence and range Season 173,486 common shelf/pelagic ........ summer–fall. 48,819 uncommon shelf/slope ....... summer–winter. 18,250 common shelf/slope ........... year-round. 26,535 uncommon shelf/pelagic .... summer. 21,515 uncommon shelf/pelagic .... summer. 79,833 common coastal ................. year-round. 331,000 common coastal ................. fall–spring. 70,142 common coastal ................. fall–spring. 7,100,000 rare, pack ice ..................... Jan–May. 1 MMPA: D = Depleted, S = Strategic, NC = Not Classified. EN = Endangered, T = Threatened, DL = Delisted, NL = Not listed. 3 2013 NMFS Stock Assessment Report (Waring et al., 2014). 4 Seasonality based on Whitt et al., 2013. 2 ESA: tkelley on DSK3SPTVN1PROD with NOTICES The Observatory presented species information in Table 2 of their application but excluded information on pinnipeds because they anticipated that these species would have a more northerly distribution during the summer and thus have a low likelihood of occurring in the survey area. Based on the best available information, we expect that certain pinniped species, however, have the potential to occur within the survey area and we have therefore included additional information for these species. For the Authorization, we considered authorizing take for pinnipeds based upon the best available density information (Read et al., 2009; DoN, 2007) and other anecdotal sources (MMSC, 2014). We refer the public to the Observatory’s application, the Foundation’s EA (see ADDRESSES), our EA, and the 2013 NMFS Marine Mammal Stock Assessment Report available online at: http:// www.nmfs.noaa.gov/pr/sars/ species.htm for further information on the biology and local distribution of these species. Potential Effects of the Specified Activities on Marine Mammals We provided a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., seismic airgun operations, vessel movement, and entanglement) impact marine mammals (via observations or scientific studies) in the notice of proposed Authorization on March 17, 2014 (79 FR 14779). VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 The ‘‘Estimated Take by Incidental Harassment’’ section later in this document will include a quantitative discussion of the number of marine mammals anticipated to be taken by this activity. The ‘‘Negligible Impact Analysis’’ section will include a discussion of how this specific activity will impact marine mammals. The Negligible Impact analysis considers the anticipated level of take and the effectiveness of mitigation measures to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks. Operating active acoustic sources, such as airgun arrays, has the potential for adverse effects on marine mammals. The majority of anticipated impacts would be from the use of acoustic sources. The effects of sounds from airgun pulses might include one or more of the following: tolerance, masking of natural sounds, behavioral disturbance, and temporary or permanent hearing impairment or non-auditory effects (Richardson et al., 1995). However, for reasons discussed in the proposed Authorization, it is very unlikely that there would be any cases of temporary or permanent hearing impairment resulting from the Observatory’s activities. As outlined in previous NMFS documents, the effects of noise on marine mammals are highly variable, often depending on species and contextual factors (based on Richardson et al., 1995). PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 In the ‘‘Potential Effects of the Specified Activity on Marine Mammals’’ section of the notice of proposed Authorization on March 17, 2014 (79 FR 14779), we included a qualitative discussion of the different ways that the Observatory’s seismic survey may potentially affect marine mammals. Marine mammals may behaviorally react to sound when exposed to anthropogenic noise. These behavioral reactions are often shown as: changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries). Masking is the obscuring of sounds of interest by other sounds, often at similar frequencies. Marine mammals use acoustic signals for a variety of purposes, which differ among species, but include communication between individuals, navigation, foraging, reproduction, avoiding predators, and learning about their environment (Erbe and Farmer, 2000; Tyack, 2000). Masking, or auditory interference, generally occurs when sounds in the environment are louder than, and of a similar frequency as, auditory signals an animal is trying to receive. Masking is a phenomenon that affects animals that are trying to receive acoustic E:\FR\FM\08JYN1.SGM 08JYN1 38510 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices tkelley on DSK3SPTVN1PROD with NOTICES information about their environment, including sounds from other members of their species, predators, prey, and sounds that allow them to orient in their environment. Masking these acoustic signals can disturb the behavior of individual animals, groups of animals, or entire populations. For the airgun sound generated from the Observatory’s seismic survey, sound will consist of low frequency (under 500 Hz) pulses with extremely short durations (less than one second). Masking from airguns is more likely in low-frequency marine mammals like mysticetes. There is little concern that masking would occur near the sound source due to the brief duration of these pulses and relative silence between air gun shots (approximately 5 to 6 seconds). Masking is less likely for mid- to high-frequency cetaceans and pinnipeds. Hearing impairment (either temporary or permanent) is also unlikely. Given the higher level of sound necessary to cause permanent threshold shift as compared with temporary threshold shift, it is considerably less likely that permanent threshold shift would occur during the seismic survey. Cetaceans generally avoid the immediate area around operating seismic vessels, as do some other marine mammals. Some pinnipeds show avoidance reactions to airguns. The Langseth will operate at a relatively slow speed (typically 4.6 knots (8.5 km/h; 5.3 mph)) when conducting the survey. Protected species observers would implement mitigation measures to ensure the least practicable adverse effect to marine mammals. Therefore, NMFS neither anticipates nor will we authorize takes of marine mammals from ship strikes. We refer the reader to the Observatory’s application, our EA, and the Foundation’s EA for additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to seismic vessels. We have reviewed these data along with new information submitted during the public comment period and determined them to be the best available information for the purposes of the Authorization. Anticipated Effects on Marine Mammal Habitat We included a detailed discussion of the potential effects of this action on marine mammal habitat, including physiological and behavioral effects on marine mammal prey items (e.g., fish and invertebrates) in the notice of proposed Authorization on March 17, 2014 (79 FR 14779) and in our EA. While we anticipate that the specified activity may result in marine mammals VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 avoiding certain areas due to temporary ensonification, the impact to habitat is temporary and reversible. Further, we also considered these impacts to marine mammals in detail in the notice of proposed Authorization as behavioral modification. The main impact associated with the activity would be temporarily elevated noise levels and the associated direct effects on marine mammals. Mitigation In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must prescribe, where applicable, the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant). The Observatory has reviewed the following source documents and has incorporated a suite of proposed mitigation measures into their project description. (1) Protocols used during previous Foundation and Observatory-funded seismic research cruises as approved by us and detailed in the Foundation’s 2011 PEIS and 2013 EA; (2) Previous incidental harassment authorization applications and authorizations that we have approved and authorized; and (3) Recommended best practices in Richardson et al. (1995), Pierson et al. (1998), and Weir and Dolman, (2007). To reduce the potential for disturbance from acoustic stimuli associated with the activities, the Observatory, and/or its designees have proposed to implement the following mitigation measures for marine mammals: (1) Vessel-based visual mitigation monitoring; (2) Proposed exclusion zones; (3) Power down procedures; (4) Shutdown procedures; (5) Ramp-up procedures; and (6) Speed and course alterations. Vessel-Based Visual Mitigation Monitoring The Observatory would position observers aboard the seismic source vessel to watch for marine mammals near the vessel during daytime airgun operations and during any start-ups at night. Observers would also watch for marine mammals near the seismic vessel for at least 30 minutes prior to the PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 start of airgun operations after an extended shutdown (i.e., greater than approximately eight minutes for this proposed cruise). When feasible, the observers would conduct observations during daytime periods when the seismic system is not operating for comparison of sighting rates and behavior with and without airgun operations and between acquisition periods. Based on the observations, the Langseth would power down or shutdown the airguns when marine mammals are observed within or about to enter a designated 177-dB or 187-dB exclusion zone. During seismic operations, at least four protected species observers would be aboard the Langseth. The Observatory would appoint the observers with our concurrence and they would conduct observations during ongoing daytime operations and nighttime ramp-ups of the airgun array. During the majority of seismic operations, two observers would be on duty from the observation tower to monitor marine mammals near the seismic vessel. Using two observers would increase the effectiveness of detecting animals near the source vessel. However, during mealtimes and bathroom breaks, it is sometimes difficult to have two observers on effort, but at least one observer would be on watch during bathroom breaks and mealtimes. Observers would be on duty in shifts of no longer than four hours in duration. Two observers on the Langseth would also be on visual watch during all nighttime ramp-ups of the seismic airguns. A third observer would monitor the passive acoustic monitoring equipment 24 hours a day to detect vocalizing marine mammals present in the action area. In summary, a typical daytime cruise would have scheduled two observers (visual) on duty from the observation tower, and an observer (acoustic) on the passive acoustic monitoring system. Before the start of the seismic survey, the Observatory would instruct the vessel’s crew to assist in detecting marine mammals and implementing mitigation requirements. The Langseth is a suitable platform for marine mammal observations. When stationed on the observation platform, the eye level would be approximately 21.5 m (70.5 ft) above sea level, and the observer would have a good view around the entire vessel. During daytime, the observers would scan the area around the vessel systematically with reticle binoculars (e.g., 7 x 50 Fujinon), Big-eye binoculars (25 x 150), and with the naked eye. During darkness, night vision devices would be E:\FR\FM\08JYN1.SGM 08JYN1 38511 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices available (ITT F500 Series Generation 3 binocular-image intensifier or equivalent), when required. Laser rangefinding binoculars (Leica LRF 1200 laser rangefinder or equivalent) would be available to assist with distance estimation. They are useful in training observers to estimate distances visually, but are generally not useful in measuring distances to animals directly. The user measures distances to animals with the reticles in the binoculars. When the observers see marine mammals within or about to enter the designated exclusion zone, the Langseth would immediately power down or shutdown the airguns. The observer(s) would continue to maintain watch to determine when the animal(s) are outside the exclusion zone by visual confirmation. Airgun operations would not resume until the observer has confirmed that the animal has left the zone, or if not observed after 15 minutes for species with shorter dive durations (small odontocetes and pinnipeds) or 30 minutes for species with longer dive durations (mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales). Exclusion Zones: The Observatory would use safety radii to designate exclusion zones and to estimate take for marine mammals. Table 2 shows the distances at which a marine mammal could potentially receive sound levels (160-, 177-, or 187-dB) from the airgun subarrays and a single airgun. TABLE 2—DISTANCES TO WHICH SOUND LEVELS GREATER THAN OR EQUAL TO 160, 177, AND 187 dB RE: 1 μPa COULD BE RECEIVED DURING THE PROPOSED SURVEY OFFSHORE NEW JERSEY IN THE NORTH ATLANTIC OCEAN, JULY THROUGH AUGUST, 2014 Source and volume (in3) Tow depth (m) Predicted RMS distances (m) Water depth (m) 187 dB tkelley on DSK3SPTVN1PROD with NOTICES Single Bolt airgun (40 in 3) ................................................... 4-Airgun subarray (700 in 3) ................................................. 4-Airgun subarray (700 in 3) ................................................. 8-Airgun subarray (1,400 in 3) .............................................. 8-Airgun subarray (1,400 in 3) .............................................. The 180- or 190-dB level shutdown criteria are applicable to cetaceans and pinnipeds as specified by NMFS (2000). To be conservative, we are requiring the Observatory to establish the exclusion zones based upon the 187-dB and 177dB isopleths which are approximately 3dB lower than NMFS’ existing shutdown criteria. If the protected species visual observer detects marine mammal(s) within or about to enter the appropriate exclusion zone, the Langseth crew would immediately power down the airgun array, or perform a shutdown if necessary (see Shut-down Procedures). Power Down Procedures—A power down involves decreasing the number of airguns in use such that the radius of the 177 or 187-dB zone is smaller to the extent that marine mammals are no longer within or about to enter the exclusion zone. A power down of the airgun array can also occur when the vessel is moving from one seismic line to another. During a power down for mitigation, the Langseth would operate one airgun (40 in3). The continued operation of one airgun would alert marine mammals to the presence of the seismic vessel in the area. A shutdown occurs when the Langseth suspends all airgun activity. If the observer detects a marine mammal outside the exclusion zone and the animal is likely to enter the zone, the crew would power down the airguns to reduce the size of the 177- or 187-dB exclusion zone before the animal enters VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 6 4.5 6 4.5 6 <100 <100 <100 <100 <100 that zone. Likewise, if a mammal is already within the zone after detection, the crew would power-down the airguns immediately. During a power down of the airgun array, the crew would operate a single 40-in3 airgun which has a smaller exclusion zone. If the observer detects a marine mammal within or near the smaller exclusion zone around the airgun (Table 2), the crew would shut down the single airgun (see next section). Resuming Airgun Operations After a Power Down—Following a powerdown, the Langseth crew would not resume full airgun activity until the marine mammal has cleared the 177- or 187-dB exclusion zone (see Table 2). The observers would consider the animal to have cleared the exclusion zone if: • The observer has visually observed the animal leave the exclusion zone; or • An observer has not sighted the animal within the exclusion zone for 15 minutes for species with shorter dive durations (i.e., small odontocetes or pinnipeds), or 30 minutes for species with longer dive durations (i.e., mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked whales); or The Langseth crew would resume operating the airguns at full power after 15 minutes of sighting any species with short dive durations (i.e., small odontocetes or pinnipeds). Likewise, the crew would resume airgun operations at full power after 30 minutes of sighting PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 177 dB 160 dB 31 151 175 190 234 109 561 651 709 886 995 5,240 6,100 6,670 8,150 any species with longer dive durations (i.e., mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked whales). We estimate that the Langseth would transit outside the original 177- or 187dB exclusion zone after an 8-minute wait period. This period is based on the average speed of the Langseth while operating the airguns (8.5 km/h; 5.3 mph). Because the vessel has transited away from the vicinity of the original sighting during the 8-minute period, implementing ramp-up procedures for the full array after an extended power down (i.e., transiting for an additional 35 minutes from the location of initial sighting) would not meaningfully increase the effectiveness of observing marine mammals approaching or entering the exclusion zone for the full source level and would not further minimize the potential for take. The Langseth’s observers are continually monitoring the exclusion zone for the full source level while the mitigation airgun is firing. On average, observers can observe to the horizon (10 km; 6.2 mi) from the height of the Langseth’s observation deck and should be able to say with a reasonable degree of confidence whether a marine mammal would be encountered within this distance before resuming airgun operations at full power. Shutdown Procedures—The Langseth crew would shutdown the operating airgun(s) if they see a marine mammal E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES 38512 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices within or approaching the exclusion zone for the single airgun. The crew would implement a shutdown: (1) If an animal enters the exclusion zone of the single airgun after the crew has initiated a power down; or (2) If an observer sees the animal is initially within the exclusion zone of the single airgun when more than one airgun (typically the full airgun array) is operating. Considering the conservation status for North Atlantic right whales, the Langseth crew would shutdown the airgun(s) immediately in the unlikely event that observers detect this species, regardless of the distance from the vessel. The Langseth would only begin ramp-up if observers have not seen the North Atlantic right whale for 30 minutes. Resuming Airgun Operations After a Shutdown—Following a shutdown in excess of eight minutes, the Langseth crew would initiate a ramp-up with the smallest airgun in the array (40-in3). The crew would turn on additional airguns in a sequence such that the source level of the array would increase in steps not exceeding 6 dB per five-minute period over a total duration of approximately 30 minutes. During ramp-up, the observers would monitor the exclusion zone, and if he/she sees a marine mammal, the Langseth crew would implement a power down or shutdown as though the full airgun array were operational. During periods of active seismic operations, there are occasions when the Langseth crew would need to temporarily shut down the airguns due to equipment failure or for maintenance. In this case, if the airguns are inactive longer than eight minutes, the crew would follow ramp-up procedures for a shutdown described earlier and the observers would monitor the full exclusion zone and would implement a power down or shutdown if necessary. If the full exclusion zone is not visible to the observer for at least 30 minutes prior to the start of operations in either daylight or nighttime, the Langseth crew would not commence ramp-up unless at least one airgun (40-in3 or similar) has been operating during the interruption of seismic survey operations. Given these provisions, it is likely that the vessel’s crew would not ramp up the airgun array from a complete shutdown at night or in thick fog, because the outer part of the zone for that array would not be visible during those conditions. If one airgun has operated during a power down period, ramp-up to full power would be permissible at night or in poor visibility, on the assumption VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 that marine mammals would be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away. The vessel’s crew would not initiate a ramp-up of the airguns if an observer sees the marine mammal within or near the applicable exclusion zones during the day or close to the vessel at night. Ramp-up Procedures—Ramp-up of an airgun array provides a gradual increase in sound levels, and involves a stepwise increase in the number and total volume of airguns firing until the full volume of the airgun array is achieved. The purpose of a ramp-up is to ‘‘warn’’ marine mammals in the vicinity of the airguns, and to provide the time for them to leave the area and thus avoid any potential injury or impairment of their hearing abilities. The Observatory would follow a ramp-up procedure when the airgun array begins operating after an 8 minute period without airgun operations or when shut down has exceeded that period. The Observatory has used similar waiting periods (approximately eight to 10 minutes) during previous seismic surveys. Ramp-up would begin with the smallest airgun in the array (40 in3). The crew would add airguns in a sequence such that the source level of the array would increase in steps not exceeding six dB per five minute period over a total duration of approximately 30 to 35 minutes. During ramp-up, the observers would monitor the exclusion zone, and if marine mammals are sighted, the Observatory would implement a powerdown or shut-down as though the full airgun array were operational. If the complete exclusion zone has not been visible for at least 30 minutes prior to the start of operations in either daylight or nighttime, the Observatory would not commence the ramp-up unless at least one airgun (40 in3 or similar) has been operating during the interruption of seismic survey operations. Given these provisions, it is likely that the crew would not ramp up the airgun array from a complete shutdown at night or in thick fog, because the outer part of the exclusion zone for that array would not be visible during those conditions. If one airgun has operated during a power-down period, ramp-up to full power would be permissible at night or in poor visibility, on the assumption that marine mammals would be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away. The Observatory would not initiate a ramp-up of the airguns if an observer sights a marine mammal within or near the applicable exclusion zones. PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 Speed and Course Alterations If during seismic data collection, the Observatory detects marine mammals outside the exclusion zone and, based on the animal’s position and direction of travel, is likely to enter the exclusion zone, the Langseth would change speed and/or direction if this does not compromise operational safety. Due to the limited maneuverability of the primary survey vessel, altering speed and/or course can result in an extended period of time to realign onto the transect. However, if the animal(s) appear likely to enter the exclusion zone, the Langseth would undertake further mitigation actions, including a power down or shut down of the airguns. Mitigation Conclusions We have carefully evaluated the Observatory’s proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and • The practicability of the measure for applicant implementation. Any mitigation measure(s) prescribed by us should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here: 1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal). 2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only). 3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only). E:\FR\FM\08JYN1.SGM 08JYN1 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices tkelley on DSK3SPTVN1PROD with NOTICES 4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only). 5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/ disturbance of habitat during a biologically important time. 6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation. Based on the evaluation of the Observatory’s proposed measures, as well as other measures considered, we have determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Monitoring In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth ‘‘requirements pertaining to the monitoring and reporting of such taking’’. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for Authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that we expect to be present in the proposed action area. The Observatory submitted a marine mammal monitoring plan in section XIII of the Authorization application. This description is not repeated here as we have not changed the monitoring plan between the proposed Authorization and our final Authorization. Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals: 1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and during other times and locations, in order to generate more data to contribute to the analyses mentioned later; VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 2. An increase in our understanding of how many marine mammals would be affected by seismic airguns and other active acoustic sources and the likelihood of associating those exposures with specific adverse effects, such as behavioral harassment, temporary or permanent threshold shift; 3. An increase in our understanding of how marine mammals respond to stimuli that we expect to result in take and how those anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods: a. Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (i.e., we need to be able to accurately predict received level, distance from source, and other pertinent information); b. Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (i.e., we need to be able to accurately predict received level, distance from source, and other pertinent information); c. Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli; 4. An increased knowledge of the affected species; and 5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures. Monitoring Measures The Observatory proposes to sponsor marine mammal monitoring during the present project to supplement the mitigation measures that require realtime monitoring, and to satisfy the monitoring requirements of the Authorization. We have not changed the monitoring plan between the proposed Authorization and our final Authorization. The Observatory planned the monitoring work as a self-contained project independent of any other related monitoring projects that may occur in the same regions at the same time. Further, the Observatory is prepared to discuss coordination of its monitoring program with any other related work that might be conducted by other groups working insofar as it is practical for the Observatory. Vessel-Based Passive Acoustic Monitoring Passive acoustic monitoring would complement the visual mitigation monitoring program, when practicable. PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 38513 Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range. Passive acoustical monitoring can improve detection, identification, and localization of cetaceans when used in conjunction with visual observations. The passive acoustic monitoring would serve to alert visual observers (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it can be effective either by day or by night, and does not depend on good visibility. The acoustic observer would monitor the system in real time so that he/she can advise the visual observers if they acoustic detect cetaceans. The passive acoustic monitoring system consists of hardware (i.e., hydrophones) and software. The ‘‘wet end’’ of the system consists of a towed hydrophone array connected to the vessel by a tow cable. The tow cable is 250 m (820.2 ft) long and the hydrophones are fitted in the last 10 m (32.8 ft) of cable. A depth gauge, attached to the free end of the cable, which is typically towed at depths less than 20 m (65.6 ft). The Langseth crew would deploy the array from a winch located on the back deck. A deck cable would connect the tow cable to the electronics unit in the main computer lab where the acoustic station, signal conditioning, and processing system would be located. The Pamguard software amplifies, digitizes, and then processes the acoustic signals received by the hydrophones. The system can detect marine mammal vocalizations at frequencies up to 250 kHz. One acoustic observer, an expert bioacoustician with primary responsibility for the passive acoustic monitoring system would be aboard the Langseth in addition to the four visual observers. The acoustic observer would monitor the towed hydrophones 24 hours per day during airgun operations and during most periods when the Langseth is underway while the airguns are not operating. However, passive acoustic monitoring may not be possible if damage occurs to both the primary and back-up hydrophone arrays during operations. The primary passive acoustic monitoring streamer on the Langseth is a digital hydrophone streamer. Should the digital streamer fail, back-up systems should include an analog spare streamer and a hullmounted hydrophone. One acoustic observer would monitor the acoustic detection system by listening to the signals from two E:\FR\FM\08JYN1.SGM 08JYN1 38514 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices tkelley on DSK3SPTVN1PROD with NOTICES channels via headphones and/or speakers and watching the real-time spectrographic display for frequency ranges produced by cetaceans. The observer monitoring the acoustical data would be on shift for one to six hours at a time. The other observers would rotate as an acoustic observer, although the expert acoustician would be on passive acoustic monitoring duty more frequently. When the acoustic observer detects a vocalization while visual observations are in progress, the acoustic observer on duty would contact the visual observer immediately, to alert him/her to the presence of cetaceans (if they have not already been seen), so that the vessel’s crew can initiate a power down or shutdown, if required. During nondaylight hours, when a cetacean is detected by acoustic monitoring and may be close to the source vessel, the Langseth crew would be notified immediately so that the proper mitigation measure may be implemented. The observer would enter the information regarding the call into a database. Data entry would include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position and water depth when first detected, bearing if determinable, species or species group (e.g., unidentified dolphin, sperm whale), types and nature of sounds heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst pulses, strength of signal, etc.), and any other notable information. Acousticians record the acoustic detection for further analysis. Observer Data and Documentation Observers would record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. They would use the data to estimate numbers of animals potentially ‘taken’ by harassment (as defined in the MMPA). They will also provide information needed to order a power down or shut down of the airguns when a marine mammal is within or near the exclusion zone. When an observer makes a sighting, they will record the following information: 1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (e.g., none, avoidance, VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 approach, paralleling, etc.), and behavioral pace. 2. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare. The observer will record the data listed under (2) at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables. Observers will record all observations and power downs or shutdowns in a standardized format and will enter data into an electronic database. The observers will verify the accuracy of the data entry by computerized data validity checks during data entry and by subsequent manual checking of the database. These procedures will allow the preparation of initial summaries of data during and shortly after the field program, and will facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving. Results from the vessel-based observations will provide: 1. The basis for real-time mitigation (airgun power down or shutdown). 2. Information needed to estimate the number of marine mammals potentially taken by harassment, which the Observatory must report to the Office of Protected Resources. 3. Data on the occurrence, distribution, and activities of marine mammals and turtles in the area where the Observatory would conduct the seismic study. 4. Information to compare the distance and distribution of marine mammals and turtles relative to the source vessel at times with and without seismic activity. 5. Data on the behavior and movement patterns of marine mammals detected during non-active and active seismic operations. Reporting The Observatory would submit a report to us and to the Foundation within 90 days after the end of the cruise. The report would describe the operations conducted and sightings of marine mammals and turtles near the operations. The report would provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report would summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report would also include estimates of the number and nature of exposures that could result in ‘‘takes’’ of marine mammals by harassment or in other ways. PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner not permitted by the authorization (if issued), such as an injury, serious injury, or mortality (e.g., ship-strike, gear interaction, and/or entanglement), the Observatory shall immediately cease the specified activities and immediately report the take to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301– 427–8401 and/or by email to Jolie.Harrison@noaa.gov and ITP.Cody@ noaa.gov and the Northeast Regional Stranding Coordinator at (978) 281– 9300. The report must include the following information: • Time, date, and location (latitude/ longitude) of the incident; • Name and type of vessel involved; • Vessel’s speed during and leading up to the incident; • Description of the incident; • Status of all sound source use in the 24 hours preceding the incident; • Water depth; • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); • Description of all marine mammal observations in the 24 hours preceding the incident; • Species identification or description of the animal(s) involved; • Fate of the animal(s); and • Photographs or video footage of the animal(s) (if equipment is available). The Observatory shall not resume its activities until we are able to review the circumstances of the prohibited take. We shall work with the Observatory to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Observatory may not resume their activities until notified by us via letter, email, or telephone. In the event that the Observatory discovers an injured or dead marine mammal, and the lead visual observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), the Observatory will immediately report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301–427–8401 and/or by email to Jolie.Harrison@noaa.gov and ITP.Cody@noaa.gov and the Northeast Regional Stranding Coordinator at (978) 281–9300. The report must include the same information identified in the paragraph above this section. Activities may continue while NMFS reviews the E:\FR\FM\08JYN1.SGM 08JYN1 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices circumstances of the incident. NMFS would work with the Observatory to determine whether modifications in the activities are appropriate. In the event that the Observatory discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Observatory would report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301–427–8401 and/or by email to Jolie.Harrison@noaa.gov and ITP.Cody@ noaa.gov and the Northeast Regional Stranding Coordinator at (978) 281– 9300, within 24 hours of the discovery. Activities may continue while NMFS reviews the circumstances of the incident. The Observatory would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. Estimated Take by Incidental Harassment Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. 38515 Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the airgun sub-arrays have the potential to result in the behavioral disturbance of some marine mammals. Thus, NMFS proposes to authorize take by Level B harassment resulting from the operation of the sound sources for the proposed seismic survey based upon the current acoustic exposure criteria shown in Table 3. Our practice has been to apply the 160 dB re: 1 mPa received level threshold for underwater impulse sound levels to determine whether take by Level B harassment occurs. Southall et al. (2007) provides a severity scale for ranking observed behavioral responses of both free-ranging marine mammals and laboratory subjects to various types of anthropogenic sound (see Table 4 in Southall et al. [2007]). TABLE 3—NMFS’ CURRENT ACOUSTIC EXPOSURE CRITERIA Criterion Criterion definition Threshold Level A Harassment (Injury) Permanent Threshold Shift (PTS) (Any level above that which is known to cause TTS). Behavioral Disruption (for impulse noises) ..................... 180 dB re 1 microPa-m (cetaceans)/190 dB re 1 microPa-m (pinnipeds) root mean square (rms). 160 dB re 1 microPa-m (rms). tkelley on DSK3SPTVN1PROD with NOTICES Level B Harassment ............ The probability of vessel and marine mammal interactions (i.e., ship strike) occurring during the proposed survey is unlikely due to the Langseth’s slow operational speed, which is typically 4.6 kts (8.5 km/h; 5.3 mph). Outside of seismic operations, the Langseth’s cruising speed would be approximately 11.5 mph (18.5 km/h; 10 kts) which is generally below the speed at which studies have noted reported increases of marine mammal injury or death (Laist et al., 2001). In addition, the Langseth has a number of other advantages for avoiding ship strikes as compared to most commercial merchant vessels, including the following: the Langseth’s bridge offers good visibility to visually monitor for marine mammal presence; observers posted during operations scan the ocean for marine mammals and must report visual alerts of marine mammal presence to crew; and the observers receive extensive training that covers the fundamentals of visual observing for marine mammals and information about marine mammals and their identification at sea. Thus, NMFS does not anticipate that take, in the form of vessel strike, would result from the movement of the vessel. The Observatory did not estimate any additional take allowance for animals that could be affected by sound sources other than the airguns. We do not expect that the sound levels produced by the VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 echosounder, sub-bottom profiler, and ADCP would exceed the sound levels produced by the airguns for the majority of the time. Because of the beam pattern and directionality of these sources, combined with their lower source levels, it is not likely that these sources would take marine mammals independently from the takes that the Observatory has estimated to result from airgun operations. Therefore, we do not believe it is necessary to authorize additional takes for these sources for the action at this time. We are currently evaluating the broader use of these types of sources to determine under what specific circumstances coverage for incidental take would or would not be advisable. We are working on guidance that would outline a consistent recommended approach for applicants to address the potential impacts of these types of sources. NMFS considers the probability for entanglement of marine mammals to be low because of the vessel speed and the monitoring efforts onboard the survey vessel. Therefore, NMFS does not believe it is necessary to authorize additional takes for entanglement at this time. There is no evidence that planned activities could result in serious injury or mortality within the specified geographic area for the requested Authorization. The required mitigation PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 and monitoring measures would minimize any potential risk for serious injury or mortality. The following sections describe the Observatory’s methods to estimate take by incidental harassment. The Observatory based their estimates on the number of marine mammals that could be harassed by seismic operations with the airgun sub-array during approximately 4,900 km2 (approximately 1,926.6 square miles (mi2) of transect lines in the northwest Atlantic Ocean as depicted in Figure 1 (Figure 1 of the Observatory’s application). Ensonified Area Calculations: In order to estimate the potential number of marine mammals exposed to airgun sounds, the Observatory considers the total marine area within the 160-dB radius around the operating airguns. This ensonified area includes areas of overlapping transect lines. They determine the ensonified area by entering the planned survey lines into a MapInfo GIS, using the software to identify the relevant areas by ‘‘drawing’’ the applicable 160-dB buffer (see Table 2) around each seismic line, and then calculate the total area within the buffers. Because the Observatory assumes that the Langseth may need to repeat some tracklines, accommodate the turning of the vessel, address equipment E:\FR\FM\08JYN1.SGM 08JYN1 38516 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices malfunctions, or conduct equipment testing to complete the survey, they have increased the proposed number of line-kilometers for the seismic operations from approximately 2,002 km2 (1,244 mi) by 25 percent to 2,502 km2 (1,555 mi) to account for these contingency operations. Exposure Estimates: The Observatory calculates the numbers of different individuals potentially exposed to approximately 160 dB re: 1 mParms by multiplying the expected species density estimates (in number/km2) for that area in the absence of a seismic program times the estimated area of ensonification (i.e., 2,502 km2; 1,555 mi). Table 3 of their application presents their estimates of the number of different individual marine mammals that could potentially experience exposures greater than or equal to 160 dB re: 1 mPa (rms) during the seismic survey if no animals moved away from the survey vessel. The Observatory used the Strategic Environmental Research and Development Program’s (SERDP) spatial decision support system (SDSS) Marine Animal Model Mapper tool (Read et al., 2009) to calculate cetacean densities within the survey area based on the U.S. Navy’s ‘‘OPAREA Density Estimates’’ (NODE) model (DoN, 2007). The NODE model derives density estimates using density surface modeling of the existing line-transect data, which uses sea surface temperature, chlorophyll a, depth, longitude, and latitude to allow extrapolation to areas/seasons where marine mammal survey data collection did not occur. The Observatory used the SERDP SDSS tool to obtain mean densities in a polygon the size of the seismic survey area for cetacean species during summer (June through August). For the Authorization, we reviewed the Observatory’s take estimates presented in Table 3 of their application and have revised the take calculations for several species based upon the best available density information from the SERDP SDSS Marine Animal Model Mapper tool for the spring and summer months, survey information from Palka (2012), species presence from the New Jersey Department of Environmental Protection Baseline Studies Final Report Volume III: Marine Mammal and Sea Turtle Studies, and stranding records from the New Jersey Marine Mammal Stranding Center. These include takes for blue, fin, humpback, minke, North Atlantic right, and sei whales; harbor porpoise; and gray, harbor, and harp seals. For North Atlantic right whales, we used the SERDP SDSS Marine Animal Model Mapper tool NODES spring model to obtain mean densities in a polygon the size of the seismic survey area. To be conservative, we increased the estimated take of 1 individual to 3 to account for a cow/calf pair based on information from Whitt et al. (2013). For blue and humpback whales, we used the SERDP SDSS Duke Habitat Model for baleen and humpback whales, respectively to obtain the summer mean densities in a polygon the size of the seismic survey area for those species. For species where the SERDP SDSS NODES summer model produced a density estimate of zero, we increased the take estimates based on generalized group size data from Palka (2012). Those species include: humpback, fin, sei, and minke whales; striped dolphins, shortbeaked common dolphins, and Atlantic white-sided dolphins. For gray and harp seals, we increased the take estimates based on stranding data from the New Jersey Marine Mammal Stranding Center. For harbor porpoise and harbor seals, we also used the SERDP SDSS Marine Animal Model Mapper tool NODES spring model to obtain mean densities in a polygon the size of the seismic survey area. The Observatory’s approach for estimating take does not allow for turnover in the marine mammal populations in the area during the course of the survey. To correct this potential underestimation, we have increased the proposed take estimates for odontocetes (excluding sperm whales) and pinnipeds by a factor of 25 percent to conservatively account for new animals entering or passing through the ensonified area. Table 4 presents the revised estimates of the possible numbers of marine mammals exposed to sound levels greater than or equal to 160 dB re: 1 mPa during the proposed seismic survey. TABLE 4—DENSITIES AND ESTIMATES OF THE POSSIBLE NUMBERS OF MARINE MAMMALS EXPOSED TO SOUND LEVELS GREATER THAN OR EQUAL TO 160 dB re: 1 μPa DURING THE PROPOSED SEISMIC SURVEY IN THE NORTH ATLANTIC OCEAN, DURING JULY THROUGH AUGUST, 2014 Density estimate 1 tkelley on DSK3SPTVN1PROD with NOTICES Species North Atlantic right whale ............................................................................ Humpback whale ........................................................................................ Common minke whale ................................................................................ Sei whale .................................................................................................... Fin whale ..................................................................................................... Blue whale .................................................................................................. Sperm whale ............................................................................................... Dwarf sperm whale ..................................................................................... Pygmy sperm whale ................................................................................... Cuvier’s beaked whale ................................................................................ Gervais’ beaked whale ............................................................................... Sowerby’s beaked whale ............................................................................ Unidentified Mesoplodon/Ziphid: True’s, Blainville, northern bottlenose whale. Rough-toothed dolphin ................................................................................ Bottlenose dolphin (pelagic) ....................................................................... Bottlenose dolphin (coastal) ....................................................................... Pantropical spotted dolphin ........................................................................ Atlantic spotted dolphin ............................................................................... Spinner dolphin ........................................................................................... VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 PO 00000 Frm 00035 Fmt 4703 4 0.283 5 0.044 0 0.161 0.002 6 6.73 7.06 0.001 0.001 0.124 0.124 0.124 0.124 0 111.3 111.3 0 36.1 0 Sfmt 4703 Modeled number of individuals exposed to sound levels ≥160 dB Proposed take authorization 2 0.66 0.24 0.01 0.56 0.06 3.86 0.79 0.17 0.17 0.06 0.06 0.06 0.06 Increasing. Increasing. No data. No data. No data. No data. No data. No data. No data. No data. No data. No data. No data. 0 349 349 0 113 0 0 0.45 3.02 0 0.25 0 No No No No No No 3 22 22 22 22 0 279 279 0 90 0 E:\FR\FM\08JYN1.SGM Population trend 3 17 18 3 3 4 4 4 4 1 1 0 1 1 17 18 2 2 3 3 3 1 Percent of species or stock 3 08JYN1 data. data. data. data. data. data. 38517 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices TABLE 4—DENSITIES AND ESTIMATES OF THE POSSIBLE NUMBERS OF MARINE MAMMALS EXPOSED TO SOUND LEVELS GREATER THAN OR EQUAL TO 160 dB re: 1 μPa DURING THE PROPOSED SEISMIC SURVEY IN THE NORTH ATLANTIC OCEAN, DURING JULY THROUGH AUGUST, 2014—Continued Density estimate 1 Species Striped dolphin ............................................................................................ Short-beaked common dolphin ................................................................... White-beaked dolphin ................................................................................. Atlantic white-sided dolphin ........................................................................ Risso’s dolphin ............................................................................................ False killer whale ........................................................................................ Pygmy killer whale ...................................................................................... Killer whale .................................................................................................. Long-finned pilot whale ............................................................................... Short-finned pilot whale .............................................................................. Harbor porpoise .......................................................................................... Gray seal ..................................................................................................... Harbor seal ................................................................................................. Harp seal ..................................................................................................... Modeled number of individuals exposed to sound levels ≥160 dB Proposed take authorization 2 Percent of species or stock 3 Population trend 3 0 0 0 0 13.6 0 0 0 0.184 0.184 4 0.008 0 4 44.43 0 0 0 0 0 35 0 0 0 1 1 1 0 112 0 59 23 0 19 44 0 0 0 12 12 3 15 140 5 0.11 0.01 0 0.04 0.24 0 0 0 0.05 0.06 0.0038 0.005 0.20 0.00007 No data. No data. No data. No data. No data. No data. No data. No data. No data. No data. No data. Increasing. No data. Increasing. 1 Except where noted, densities are the mean values for the survey area calculated from the SERDP SDSS NODES summer model (Read et al., 2009) as presented in Table 3 of the Observatory’s application. 2 Proposed take includes increases for mean group size or cow/calf pairs based on Palka, 2012; NJDEP, 2010; or increases for gray and harp seals based on stranding data from the NJ Marine Mammal Stranding Center. We have also increased the proposed take estimates by a factor of 25 percent to conservatively account for new animals entering or passing through the ensonified area. 3 Table 1 in this notice lists the stock species abundance estimates used in calculating the percentage of species/stock. Population trend information from Waring et al., 2013. No data. = Insufficient data to determine population trend. 4 NMFS revised estimate based on the NODES model using the spring mean density estimate for that species in survey area. 5 NMFS revised estimate based on the SERDP SDSS Duke Habitat Model using the summer mean density estimate for humpback whales in survey area. 6 NMFS revised estimate based on the SERDP SDSS Duke Habitat Model using the summer mean density estimate for baleen whales in survey area. Encouraging and Coordinating Research The Observatory would coordinate the planned marine mammal monitoring program associated with the seismic survey in the northwest Atlantic Ocean with applicable U.S. agencies. tkelley on DSK3SPTVN1PROD with NOTICES Analysis and Determinations Negligible Impact Negligible impact’ is ‘‘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’’ (50 CFR 216.103). The lack of likely adverse effects on annual rates of recruitment or survival (i.e., population level effects) forms the basis of a negligible impact finding. Thus, an estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ through behavioral harassment, we must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 number and nature of estimated Level A harassment takes, and the number of estimated mortalities, effects on habitat, and the status of the species. In making a negligible impact determination, we consider: • The number of anticipated injuries, serious injuries, or mortalities; • The number, nature, and intensity, and duration of Level B harassment; and • The context in which the takes occur (e.g., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/ contemporaneous actions when added to baseline data); • The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population); • Impacts on habitat affecting rates of recruitment/survival; and • The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take. For reasons stated previously in this document and based on the following factors, the Observatory’s specified activities are not likely to cause longterm behavioral disturbance, permanent threshold shift, or other non-auditory PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 injury, serious injury, or death. They include: • The anticipated impacts of the Observatory’s survey activities on marine mammals are temporary behavioral changes due to avoidance of the area. • The likelihood that marine mammals approaching the survey area will likely be traveling through the or opportunistically foraging within the vicinity. Marine mammals transiting within the vicinity of survey operations will be transient as no breeding, calving, pupping, or nursing areas, or haul-outs, overlap with the survey area. • The low potential of the survey to cause an effect on coastal bottlenose dolphin populations due to the fact that the Observatory’s study area is approximately 20 km (12 mi) away from the identified habitats for coastal bottlenose dolphins and their calves. • The low likelihood that North Atlantic right whales would be exposed to sound levels greater than or equal to 160 dB re: 1 mPa due to the requirement that the Langseth crew must shutdown the airgun(s) immediately if observers detect this species, at any distance from the vessel. • The anticipated impacts of the Observatory’s survey activities on marine mammals are temporary E:\FR\FM\08JYN1.SGM 08JYN1 tkelley on DSK3SPTVN1PROD with NOTICES 38518 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices behavioral changes due to avoidance of the area. • The likelihood that, given sufficient notice through relatively slow ship speed, we expect marine mammals to move away from a noise source that is annoying prior to its becoming potentially injurious; • The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the operation of the airgun(s) to avoid acoustic harassment; • We also expect that the seismic survey would have no more than a temporary and minimal adverse effect on any fish or invertebrate species that serve as prey species for marine mammals, and therefore consider the potential impacts to marine mammal habitat minimal; • The relatively low potential for temporary or permanent hearing impairment and the likelihood that the Observatory would avoid this impact through the incorporation of the required monitoring and mitigation measures (including the incorporation of larger exclusion zones for Level A Harassment, power-downs, and shutdowns); and • The high likelihood that trained visual protected species observers would detect marine mammals at close proximity to the vessel. NMFS does not anticipate that any injuries, serious injuries, or mortalities would occur as a result of the Observatory’s proposed activities, and NMFS does not propose to authorize injury, serious injury, or mortality at this time. We anticipate only behavioral disturbance to occur primarily in the form of avoidance behavior to the sound source during the conduct of the survey activities. Further, the additional mitigation measure requiring the Observatory to increase the size of the Level A harassment exclusion zones will effect the least practicable impact marine mammals. Table 4 in this document outlines the number of requested Level B harassment takes that we anticipate as a result of these activities. NMFS anticipates that 27 marine mammal species (6 mysticetes, 18 odontocetes, and 3 pinnipeds) under our jurisdiction would likely occur in the proposed action area. Of the marine mammal species under our jurisdiction that are known to occur or likely to occur in the study area, six of these species are listed as endangered under the ESA and depleted under the MMPA, including: the blue, fin, humpback, north Atlantic right, sei, and sperm whales. VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 Due to the nature, degree, and context of Level B (behavioral) harassment anticipated and described (see ‘‘Potential Effects on Marine Mammals’’ section in this notice), we do not expect the activity to impact rates of recruitment or survival for any affected species or stock. In addition, the seismic surveys would not take place in areas of significance for marine mammal feeding, resting, breeding, or calving and would not adversely impact marine mammal habitat, including the identified habitats for coastal bottlenose dolphins and their calves. Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (i.e., 24 hour cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). While we anticipate that the seismic operations would occur on consecutive days, the estimated duration of the survey would last no more than 30 days. Specifically, the airgun array moves continuously over 10s of kilometers daily, as do the animals, making it unlikely that the same animals would be continuously exposed over multiple consecutive days. Additionally, the seismic survey would increase sound levels in the marine environment in a relatively small area surrounding the vessel (compared to the range of the animals), which is constantly travelling over distances, and some animals may only be exposed to and harassed by sound for less than a day. In summary, we expect marine mammals to avoid the survey area, thereby reducing the risk of exposure and impacts. We do not anticipate disruption to reproductive behavior and there is no anticipated effect on annual rates of recruitment or survival of affected marine mammals. Based on this notice’s analysis of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that the Observatory’s proposed seismic survey would have a negligible impact on the affected marine mammal species or stocks. Small Numbers As mentioned previously, NMFS estimates that the Observatory’s activities could potentially affect, by Level B harassment only, 27 species of marine mammals under our jurisdiction. For each species, these estimates PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 constitute small numbers (each, less than or equal to four percent) relative to the population size and we have provided the regional population estimates for the marine mammal species that may be taken by Level B harassment in Table 4 in this notice. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that the Observatory’s proposed activity would take small numbers of marine mammals relative to the populations of the affected species or stocks. Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by this action. Endangered Species Act (ESA) There are six marine mammal species that may occur in the proposed survey area, several are listed as endangered under the Endangered Species Act, including the blue, fin, humpback, north Atlantic right, sei, and sperm whales. Under section 7 of the ESA, the Foundation has initiated formal consultation with NMFS on the proposed seismic survey. NMFS (i.e., National Marine Fisheries Service, Office of Protected Resources, Permits and Conservation Division) also consulted with NMFS on the proposed issuance of an Authorization under section 101(a)(5)(D) of the MMPA. NMFS consolidated those consultations in a single Biological Opinion. On June 30, 2014, the Endangered Species Act Interagency Cooperation Division issued an Opinion to us and the Foundation which concluded that the issuance of the Authorization and the conduct of the seismic survey were not likely to jeopardize the continued existence of blue, fin, humpback, North Atlantic right, sei, and sperm whales. The Opinion also concluded that the issuance of the Authorization and the conduct of the seismic survey would not affect designated critical habitat for these species. National Environmental Policy Act (NEPA) The Foundation has prepared an EA titled, ‘‘Environmental Assessment of a Marine Geophysical Survey by the R/V Marcus G. Langseth in the Atlantic Ocean off New Jersey, June–July 2014,’’ prepared by LGL, Ltd. environmental research associates, on behalf of the E:\FR\FM\08JYN1.SGM 08JYN1 Federal Register / Vol. 79, No. 130 / Tuesday, July 8, 2014 / Notices Foundation and the Observatory. We have also prepared an EA titled, ‘‘Issuance of an Incidental Harassment Authorization to Lamont Doherty Earth Observatory to Take Marine Mammals by Harassment Incidental to a Marine Geophysical Survey in the Northwest Atlantic Ocean, June–August, 2014,’’ and FONSI in accordance with NEPA and NOAA Administrative Order 216–6. We provided relevant environmental information to the public through our notice of proposed Authorization (79 FR 14779, March 17, 2014) and considered public comments received prior to finalizing our EA and deciding whether or not to issue a Finding of No Significant Impact (FONSI). We concluded that issuance of an Incidental Harassment Authorization would not significantly affect the quality of the human environment and have issued a FONSI. Because of this finding, it is not necessary to prepare an environmental impact statement for the issuance of an Authorization to the Observatory for this activity. Our EA and FONSI for this activity are available upon request (see ADDRESSES). Christopher J. Kirkpatrick, 202–418– 5964. Dated: July 2, 2014. Todd A. Stevenson, Secretary. Christopher J. Kirkpatrick, Acting Secretary. UNITED STATES OF AMERICA CONTACT PERSON FOR MORE INFORMATION: [FR Doc. 2014–15934 Filed 7–3–14; 11:15 am] BILLING CODE 6351–01–P CONSUMER PRODUCT SAFETY COMMISSION [CPSC Docket No. 14–C0003] HMI Industries, Inc., Provisional Acceptance of a Settlement Agreement and Order Consumer Product Safety Commission. ACTION: Notice. AGENCY: [FR Doc. 2014–15842 Filed 7–7–14; 8:45 am] It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the Federal Register in accordance with the terms of 16 CFR 1118.20(e). Published below is a provisionally-accepted Settlement Agreement with HMI Industries, Inc., containing a civil penalty of $725,000.00, within twenty (20) days of service of the Commission’s final Order accepting the Settlement Agreement.1 DATES: Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by July 23, 2014. BILLING CODE 3510–22–P ADDRESSES: Authorization We have issued an Incidental Harassment Authorization to the Observatory for the take of marine mammals incidental to conducting a marine seismic survey in the Atlantic Ocean, July 1, 2014 to August 17, 2014. Dated: July 1, 2014. Perry F. Gayaldo, Deputy Director, Office of Protected Resources, National Marine Fisheries Service. COMMODITY FUTURES TRADING COMMISSION Sunshine Act Meetings TIME AND DATE: 10 a.m., Friday, July 11, 2014. 1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room. PLACE: tkelley on DSK3SPTVN1PROD with NOTICES STATUS: Closed. MATTERS TO BE CONSIDERED: Surveillance, Enforcement Matters, and Examinations. In the event that the times, dates, or locations of this or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission’s Web site at http://www.cftc.gov. VerDate Mar<15>2010 16:48 Jul 07, 2014 Jkt 232001 38519 SUMMARY: Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 14–C0003 Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, Maryland 20814– 4408. FOR FURTHER INFORMATION CONTACT: Mary B. Murphy, Assistant General Counsel, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814–4408; telephone (301) 504–7809. SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears below. 1 The Commission voted (2–1) to provisionally accept this Settlement Agreement and Order. Acting Chairman Robert S. Adler and Commissioner Marietta S. Robinson voted to provisionally accept Settlement Agreement and Order. Commissioner Ann Marie Buerkle voted to reject the attached Settlement Agreement and Order. PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 CONSUMER PRODUCT SAFETY COMMISSION In the Matter of: HMI Industries Inc. CPSC Docket No.: 14–C0003 SETTLEMENT AGREEMENT 1. In accordance with the Consumer Product Safety Act (CPSA), 15 U.S.C. §§ 2051–2089 and 16 C.F.R. § 1118.20, HMI Industries Inc. (HMI), and the U.S. Consumer Product Safety Commission (Commission), through its staff (staff), hereby enter into this Settlement Agreement (Agreement). The Agreement and the incorporated attached Order (Order) resolve staff’s charges set forth below. THE PARTIES 2. The Commission is an independent federal regulatory agency established pursuant to, and responsible for, the enforcement of the CPSA. By executing this Agreement, staff is acting on behalf of the Commission, pursuant to 16 C.F.R. § 1118.20(b). The Commission issues the Order under the provisions of the CPSA. 3. HMI is a corporation, organized and existing under the laws of the state of Delaware with its principal corporate office located in Strongsville, Ohio. HMI is a manufacturer of floor cleaners and indoor air purifiers. STAFF CHARGES 4. Between September 2004 and August 2006, HMI manufactured and distributed approximately 44,000 Filter Queen Majestic 360 floor cleaners (Subject Products, or Floor Cleaners). The Floor Cleaners were sold through independent distributors nationwide for approximately $1,800. 5. The Floor cleaners are ‘‘consumer products,’’ and at all relevant times, HMI was a ‘‘manufacturer’’ of these consumer products, which were ‘‘distributed in commerce,’’ as those terms are defined or used in sections 3(a)(5) and (11), of the CPSA, 15 U.S.C. § 2052(a)(5) and (11). 6. The Floor Cleaners are defective because their wiring can overheat, causing electrical arcing and melting. This poses a burn hazard to consumers. 7. HMI received notice of the defect shortly after distribution began in September 2004. Between 2005 and 2008, HMI received hundreds of reports of electrical arcing, sparking, and fire, including reports of property damage E:\FR\FM\08JYN1.SGM 08JYN1

Agencies

[Federal Register Volume 79, Number 130 (Tuesday, July 8, 2014)]
[Notices]
[Pages 38496-38519]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-15842]



[[Page 38496]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD141


Takes of Marine Mammals Incidental To Specified Activities; 
Marine Geophysical Survey in the Northwest Atlantic Ocean Offshore New 
Jersey, July to August 2014

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

ACTION: Notice; issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
implementing regulations, we hereby give notice that we have issued an 
Incidental Harassment Authorization (Authorization) to Lamont-Doherty 
Earth Observatory (Observatory), a component of Columbia University, in 
collaboration with the National Science Foundation (Foundation), to 
take marine mammals, by harassment, incidental to conducting a marine 
geophysical (seismic) survey in the northwest Atlantic Ocean off the 
New Jersey coast July through August, 2014.

DATES: Effective July 1, 2014, through August 17, 2014.

ADDRESSES: A copy of the final Authorization and application are 
available by writing to Jolie Harrison, Supervisor, Incidental Take 
Program, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910, by telephoning the contacts listed here, or by 
visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    The Foundation has prepared an Environmental Assessment (EA) and in 
accordance with the National Environmental Policy Act (NEPA) and the 
regulations published by the Council on Environmental Quality (CEQ). 
The EA titled, ``Environmental Assessment of a Marine Geophysical 
Survey by the R/V Marcus G. Langseth in the Atlantic Ocean off New 
Jersey, June-July 2014,'' was prepared by LGL, Ltd. environmental 
research associates, on behalf of the Foundation and the Observatory. 
We have also prepared an EA titled, ``Issuance of an Incidental 
Harassment Authorization to Lamont Doherty Earth Observatory to Take 
Marine Mammals by Harassment Incidental to a Marine Geophysical Survey 
in the Northwest Atlantic Ocean, June-August, 2014,'' and FONSI in 
accordance with NEPA and NOAA Administrative Order 216-6. To obtain an 
electronic copy of these documents, write to the previously mentioned 
address, telephone the contact listed here (see FOR FURTHER INFORMATION 
CONTACT), or download the files at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    NMFS also issued a Biological Opinion under section 7 of the 
Endangered Species Act (ESA) to evaluate the effects of the survey and 
Authorization on marine species listed as threatened and endangered. 
The Biological Opinion is available online at: http://www.nmfs.noaa.gov/pr/consultations/opinions.htm.

FOR FURTHER INFORMATION CONTACT: Jeannine Cody, NMFS, Office of 
Protected Resources, NMFS (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, 
as amended (MMPA; 16 U.S.C. 1361 et seq.) directs the Secretary of 
Commerce to allow, upon request, the incidental, but not intentional, 
taking of small numbers of marine mammals of a species or population 
stock, by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specific geographic region if, after NMFS 
provides a notice of a proposed authorization to the public for review 
and comment: (1) NMFS makes certain findings; and (2) the taking is 
limited to harassment.
    Through the authority delegated by the Secretary, NMFS (hereinafter 
we) shall grant an Authorization for the incidental taking of small 
numbers of marine mammals if we find that the taking will have a 
negligible impact on the species or stock(s), and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses (where relevant). The Authorization must 
also prescribe, where applicable, the permissible methods of taking by 
harassment pursuant to such activity; other means of effecting the 
least practicable adverse impact on the species or stock and its 
habitat, and on the availability of such species or stock for taking 
for subsistence uses (where applicable); the measures that we determine 
are necessary to ensure no unmitigable adverse impact on the 
availability for the species or stock for taking for subsistence 
purposes (where applicable); and requirements pertaining to the 
mitigation, monitoring and reporting of such taking. We have defined 
``negligible impact'' in 50 CFR 216.103 as ``an impact resulting from 
the specified activity that cannot be reasonably expected to, and is 
not reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.''
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].

Summary of Request

    On December 17, 2013, we received an application from the 
Observatory requesting an Authorization for the take of marine mammals, 
incidental to conducting a seismic survey in the northwest Atlantic 
Ocean from June through July, 2014. We determined the application 
complete and adequate on February 3, 2014 and published a notice of 
proposed Authorization on March 17, 2014 (79 FR 14779). The notice 
afforded the public a 30-day comment period on our proposed MMPA 
Authorization. In response to a request by several environmental 
organizations and others, we extended the comment period for an 
additional 30 days. (79 FR 19580, April 9, 2014).
    The Observatory, with research funding from the Foundation, plans 
to conduct a high-energy, 3-dimensional (3-D) seismic survey using the 
R/V Marcus G. Langseth (Langseth) in the northwest Atlantic Ocean 
approximately 25 to 85 kilometers (km) (15.5 to 52.8 miles (mi)) off 
the New Jersey coast for approximately 30 days during the period 
between July 1, 2014 through August 17, 2014. The proposed activity 
will generate increased underwater sound during the operation of the 
seismic airgun arrays. Thus, we anticipate that take, by Level B 
harassment only, of 27 species of marine mammals could result from the 
specified activity.

Description of the Specified Activity

Overview

    The Observatory plans to use one source vessel, the Langseth, two 
pairs of seismic airgun subarrays configured with four or eight airguns 
as the energy source and four hydrophone streamers

[[Page 38497]]

to conduct the conventional seismic survey. In addition to the airgun 
operations, the Observatory intends to operate a multibeam echosounder, 
a sub-bottom profiler, and acoustic Doppler current profiler 
continuously throughout the survey. However, they would not operate the 
multibeam echosounder, sub-bottom profiler, and acoustic Doppler 
current profiler during transits to and from the survey area.
    The purpose of the research seismic survey is to collect and 
analyze data on the arrangement of sediments deposited during times of 
changing global sea level from roughly 60 million years ago to present. 
The 3-D survey would investigate features such as river valleys cut 
into coastal plain sediments now buried under a kilometer of younger 
sediment and flooded by today's ocean.

Dates and Duration

    The Observatory proposes to conduct the research seismic survey 
from the period of end of June through July 2014. The study (e.g., 
equipment testing, startup, line changes, repeat coverage of any areas, 
and equipment recovery) would include approximately 720 hours of airgun 
operations (i.e., 30 days over 24 hours). Some minor deviation from the 
Observatory's requested dates is possible, depending on logistics, 
weather conditions, and the need to repeat some lines if data quality 
is substandard. Thus, this Authorization will be effective from July 1, 
2014 through August 17, 2014.

Specified Geographic Area

    The Observatory proposes to conduct the seismic survey in the 
Atlantic Ocean, approximately 25 to 85 km (15.5 to 52.8 mi) off the 
coast of New Jersey between approximately 39.3-39.7[deg] N and 
approximately 73.2-73.8[deg] W (see Figure 1). Water depths in the 
survey area are approximately 30 to 75 m (98.4 to 246 feet (ft)). They 
would conduct the proposed survey outside of New Jersey state waters 
and within the U.S. Exclusive Economic Zone.

Detailed Description of Activities

Transit Activities
    During the effective dates of the Authorization, the Langseth would 
depart from New York and would transit for approximately eight hours to 
the survey area. Setup, deployment, and streamer ballasting would occur 
over approximately three days. At the conclusion of the 30-day survey, 
the Langseth would take approximately one day to retrieve gear and 
would return to New Jersey.
Vessel Specifications
    We outlined the vessel's specifications in the notice of proposed 
Authorization (79 FR 14779, March 17, 2014). This description is not 
repeated here as the vessel's specifications have not changed between 
the proposed Authorization and our final Authorization.
Data Acquisition Activities
    We outlined the details regarding the Observatory's data 
acquisition activities using the airguns, multibeam echosounder, sub-
bottom profiler, and acoustic Doppler current profiler in the notice of 
proposed Authorization (79 FR 14779, March 17, 2014). After the close 
of the public comment period, the Observatory informed us that they 
would not operate the multibeam echosounder, sub-bottom profiler, and 
acoustic Doppler current profiler during transits to and from the 
survey area.
    Other than this modification, there has been no change to the 
Observatory's data acquisition activities as described in the proposed 
Authorization. For a more detailed description of the authorized 
action, including vessel and acoustic source specifications, metrics, 
characteristics of airgun pulses, predicted sound levels of airguns, 
etc., we refer the reader to the notice of proposed Authorization (79 
FR 14779, March 17, 2014) and associated documents referenced above 
this section.

Comments and Responses

    We published a notice of receipt of the Observatory's application 
and proposed Authorization in the Federal Register on March 17, 2014 
(79 FR 14779). During the 60-day public comment period, we received 
comments from two private citizens and the following organizations: The 
Marine Mammal Commission (Commission); Clean Ocean Action, Oceana, The 
Ocean Foundation, Center for Biological Diversity, Hands Across the 
Sand, Save Barnegat Bay, Clean Water Action, CWA Local 1075, and 
Paddleout.org--collectively known as COA et al.; U.S. Senator Cory A. 
Booker; New Jersey Beach Buggy Association; Marine Trades Association 
of New Jersey; Marcus Langseth Science Oversight Committee (MLSOC); and 
the State of New Jersey Department of Environmental Protection (NJDEP).
    In addition, the following organizations submitted a request for a 
60-day extension to the public comment period and a public hearing 
prior to the conclusion of the public comment period. They are: Clean 
Ocean Action; Oceana, The Ocean Foundation, Natural Resources Defense 
Council, Center for Biological Diversity, Alaska Inter-Tribal Council, 
International Game Fish Association, Cetacean Society International, 
Whale and Dolphin Action League, Surfrider Foundation, League of Women 
Voters of New Jersey, American Littoral Society, Hands Across the Sand, 
New Jersey Sierra Club, Fisherman's Dock Cooperative, Natural Resources 
Protective Association, Surfer's Environmental Alliance, WATERSPIRIT, 
SandyHook SeaLife Foundation, Lenape Nation PA, CWA Local 1075, 
Paddleout.org, reEarth, Clean Water Action, Association of NJ 
Environmental Commissions, Asbury Park Fishing Club, Save Barnegat Bay, 
and concerned citizens.
    These comments are online at: http://www.nmfs.noaa.gov/pr/pdfs/permits/nsfldeo_comments2014.pdf.
    We address any comments specific to the Observatory's application 
that address the statutory and regulatory requirements or findings that 
we must make in order to issue an Authorization. Following is a summary 
of the public comments and our responses.

Effects Analyses

    Comment 1: The Commission expressed concerns regarding the 
Observatory's use of a ray trace-based model to estimate exclusion and 
buffer zones and the numbers of takes for NSF-funded geophysical 
research. They stated that the model is not conservative because it 
assumes spherical spreading, a constant sound speed, and no bottom 
interactions instead of incorporating site-specific environmental 
characteristics (e.g., sound speed profiles, refraction, bathymetry/
water depth, sediment properties/bottom loss, or absorption 
coefficients).
    Response: We acknowledge the Commission's concerns about the 
Observatory's current modeling approach for estimating exclusion and 
buffer zones and also acknowledge that the Observatory did not 
incorporate site-specific sound speed profiles, bathymetry, and 
sediment characteristics of the research area within the current 
approach to estimate those zones for this Authorization. However, as 
described below, empirical data collected at two different sites and 
compared against model predictions indicate that other facets of the 
model (besides the site-specific factors cited above) do result in a 
conservative estimate of exposures in the cases tested.
    The Observatory's application (LGL, 2013) and Appendix A in the

[[Page 38498]]

Foundation's EA (NSF, 2014) describe the approach to establishing 
mitigation exclusion and buffer zones. In summary, the Observatory 
acquired field measurements for several array configurations at 
shallow- and deep-water depths during acoustic verification studies 
conducted in the northern Gulf of Mexico in 2003 (Tolstoy et al., 2004) 
and in 2007 and 2008 (Tolstoy et al., 2009). Based on the empirical 
data from those studies, the Observatory developed a sound propagation 
modeling approach that conservatively predicts received sound levels as 
a function of distance from a particular airgun array configuration in 
deep water. In 2010, the Observatory assessed the accuracy of their 
modeling approach by comparing the sound levels of the field 
measurements in the Gulf of Mexico study to their model predictions 
(Diebold et al., 2010). They reported that the observed sound levels 
from the field measurements fell almost entirely below the predicted 
mitigation radii curve for deep water (Diebold et al., 2010). Based on 
this information, the Observatory has shown that their model can 
reliably estimate mitigation radii in deep water. We acknowledge that 
the Observatory based their modeling approach on the environmental 
variability present in the Gulf of Mexico, but the model has limited 
ability to capture the variability resulting from site-specific factors 
present in the marine environment offshore New Jersey. In light of 
these limitations, we have recommended a more conservative approach to 
mitigation specifically tailored to this survey and we describe it 
later in this section.
    We note that the Observatory used a similar process to develop 
mitigation radii (i.e., exclusion and buffer zones) for a shallow-water 
seismic survey in the northeast Pacific Ocean offshore Washington in 
2012. The Observatory conducted the shallow-water survey using an 
airgun configuration that was approximately 78 or 89 percent larger 
than the total discharge volumes proposed for this shallow-water survey 
(i.e., 6,600 cubic inches (in\3\) compared to 700 in\3\ or 1,400 in\3\) 
and recorded the received sound levels on the shelf and slope off 
Washington using the Langseth's 8-km hydrophone streamer. Crone et al. 
(2013) analyzed those received sound levels from the 2012 survey and 
reported that the actual distances for the exclusion and buffer zones 
were two to three times smaller than what the Observatory's modeling 
approach predicted. While the results confirm bathymetry's role in 
sound propagation, Crone et al. (2013) were able to confirm that the 
empirical measurements from the Gulf of Mexico calibration survey (the 
same measurements used to inform the Observatory's modeling approach 
for this survey in shallow water) overestimated the size of the 
exclusion and buffer zones for the shallow-water 2012 survey off 
Washington and were thus precautionary, in that particular case, for 
effecting the least practicable impact marine mammals. The Observatory 
presented these preliminary results in a poster session at the American 
Geophysical Union fall meeting in December 2013 (Crone et al., 2013; 
available at: http://berna.ldeo.columbia.edu/agu2013/agu2013.pdf) and 
they anticipate publishing their final analyses in a peer-reviewed 
journal publication later this year.
    At present, the Observatory cannot adjust their modeling 
methodology to add the environmental and site-specific parameters as 
requested by the Commission. We are working with the Foundation to 
address the issue of requiring site-specific information to further 
inform the analysis and development of mitigation measures in coastal 
areas for future surveys with the Observatory and the Foundation, and 
the Foundation has been exploring different approaches in collaboration 
with the Observatory and other academic institutions with whom they 
collaborate. We will continue to work with the Observatory, the 
Foundation, and the Commission on verifying the accuracy of their 
modeling approach. When available, we will review and consider the 
final results from the Observatory's expected publication (Crone et 
al., in prep.) and how they reflect on the Observatory's model.
    For this survey, the Observatory developed the exclusion and buffer 
zones based on the conservative deep-water calibration results and 
empirically-derived shallow water exclusion zones from Diebold et al. 
(2010). The Observatory's current modeling approach represents the best 
available information to reach our determinations for the 
Authorization. As described above, the comparisons of the Observatory's 
model results and the field data collected in the Gulf of Mexico and 
Washington illustrate a degree of conservativeness built into the 
Observatory's model for deep water, which would be expected to offset 
some of the limited ability of the model to capture the variability 
resulting from site-specific factors, especially in shallow water. 
However, in support of effecting the least practicable adverse impact, 
NMFS explored and included a requirement in this Authorization for the 
use of an enlarged exclusion zone specifically for this survey, which 
is expected to further offset the limitations of the model and afford 
additional protection to marine mammals from potential injury. In our 
analysis of whether to require additional mitigation, NMFS considers 
both the expected reduction in impacts to marine mammals that 
measure(s) are expected to effect, as well as the practicability of the 
measure for applicant implementation, and in the case of this 
particular survey, the balance of these factors supported the 
enlargement of the exclusion zone. For this survey, NMFS will require 
the Observatory to enlarge the radius of 180-dB and 190-dB exclusion 
zones for all airgun array configurations by a factor of 50 percent, 
which results in more than doubling the area within the exclusion zone.
    Comment 2: The Commission notes that the Foundation and the U.S. 
Geological Survey (USGS) previously modeled sound propagation under 
various environmental conditions in their PEIS. They further state that 
the Observatory and the Foundation (in cooperation with Pacific Gas and 
Electric Company) used a similar modeling approach in the recent 
incidental harassment authorization application and associated 
environmental assessment for a geophysical survey of Diablo Canyon in 
California (77 FR 58256, September 19, 2012). The Commission states 
that these examples indicate that these agencies and other 
organizations are able to implement the recommended modeling approach, 
if required by NMFS. The Commission recommends that we should hold the 
Observatory, the Foundation, and other related agencies to the same 
standard. The Commission also recommends that we require the 
Observatory to re-estimate the proposed zones and take estimates using 
site-specific parameters (including at least sound speed profiles, 
bathymetry, and sediment characteristics) for the proposed 
Authorization. They also recommend that we require the same for all 
future incidental harassment authorization requests submitted by the 
Observatory, the Foundation, and other related entities.
    Response: There are many different modeling products and services 
commercially available that applicants could potentially use in 
developing their take estimates and analyses for MMPA authorizations. 
These different models range widely in cost, complexity, and the number 
of specific factors that can be considered in any

[[Page 38499]]

particular modeling run. NMFS does not, and does not believe that it is 
appropriate to, prescribe the use of any particular modeling package. 
Rather, each applicant's approach is evaluated independently in the 
context of their activity. In cases where simpler models are used and 
there is concern that a model might not capture the variability across 
a parameter(s) that is not represented in the model, conservative 
choices are often made at certain decision points in the model to help 
ensure that modeled estimates are buffered in a manner that would not 
result in the agency underestimating the number of takes or extent of 
effects. In this case, results have shown that the Observatory's model 
reliably and conservatively estimates mitigation radii in deep water. 
First, the observed sound levels from the field measurements fell 
almost entirely below the Observatory's estimated mitigation radii for 
deep water (Diebold et al., 2010). These conservative mitigation radii 
are the foundation for the Observatory's shallow water radii used in 
this survey. Second, the Observatory's analysis of measured shallow 
water radii during the 2012 survey show that the Observatory's modeled 
radii for the Washington survey overestimated the measured 160-dB radii 
by approximately 10 km (6.2 mi) and overestimated the measured 180-dB 
radii by approximately 500 m (1,640 ft) (Crone et al., 2013). Based on 
Crone et al.'s (2013) preliminary findings, we find that the 
Observatory's shallow-water radii based on the Gulf of Mexico 
calibration study were larger (i.e., more conservative) for that 
particular study. Based on these empirical data, which illustrate the 
model's conservative exposure estimates across two sites, NMFS finds 
that the Observatory's model effectively estimates sound exposures. 
However, as described in the response above, for this survey we have 
increased the 180-dB and 190-db exclusion zone radii for this survey by 
a factor of 50 percent (equivalent to approximately a 3-dB difference 
in received level at the zone edge) to be additionally precautionary.
    Comment 3: The Commission questioned the Observatory's use of a new 
correction factor (or a scaling approach) to generate exclusion zones 
for shallow-water for this proposed survey. They noted that for 
previous applications, the Observatory applied correction factors 
(based on the ratio of modeled deep-water radii to modeled shallow 
water radii reported in Tolstoy et al. (2009)) to derive exclusion 
zones for shallow-water. The Commission was unsure why the Observatory 
would assume that calculating a ratio of modeled zones in deep water 
would be appropriate to equate to empirical zones in shallow water, 
stating that the two quantities were not comparable.
    Response: The Observatory has improved its methodology for deriving 
shallow-water mitigation zones based on the approach described in 
Comment 1. To clarify, the Observatory did not model shallow water 
exclusion zones proposed for this study, but used a scaling approach 
based upon the conservative deep-water model to derive appropriate 
scaling factors for shallow water zones. To clarify part of the 
Commission's comment in short, the Observatory did not equate the zones 
in deep water to the zones in shallow water (which would not be 
appropriate, as these could vary greatly compared to one another based 
on the environment). Rather, they used the ratio of the size of safety 
zones of a large airgun in deep water compared to this airgun array in 
deep water to determine the size of the safety zone for this airgun in 
shallow water, given the known zone for the same large airgun in 
shallow water. We believe that this is a rational method for best using 
the available information to estimate the safety zones.
    Following is a brief summary of the Observatory's process used to 
predict the mitigation exclusion zones (shown in Table A1 of the 
Foundation's EA) for the survey.
    1. For an 18-gun, 3,300-in\3\ array towed at a depth of 6 m (19.6 
ft), the model predicted that the 160-, 180-, and 190-dB isopleths 
would result in radii (i.e., exclusion zones) of 4,500, 450, and 142 m 
(2.8, 0.3, and 0.1 mi) respectively, in deep water (Figure A3 in 
Appendix A of the Foundation's EA). The empirical data for the airgun 
configurations indicated that, for deep water, the Observatory's 
modeling approach overestimated the received sound levels of field 
measurements at a given distance (Diebold, et al., 2010).
    2. Using the direct-arrival modeling approach, the Observatory 
modeled the exclusion zones for the proposed suite of array 
configurations for this study in deep water (Figures A4-A8 in Appendix 
A of the Foundation's EA).
    3. The Gulf of Mexico calibration study did not obtain measurements 
for the smaller array (i.e., 700 in\3\ or 1,400 in\3\) proposed for use 
in this survey. To account for this difference, the Observatory 
developed a scaling factor to extrapolate shallow-water exclusion zones 
for the proposed study (NSF, 2014).
    4. The Observatory calculated the ratios (i.e., scaling factors) 
between the model's deep-water exclusion zones for the 18-gun, 3,300-
in\3\ array, and the model's deep-water exclusion zones for the study's 
various airgun configurations. This is an appropriate comparison of the 
sound exposure level outputs between two different types of airgun 
configurations in deep water.
    5. To calculate the exclusion zones for the study's various array 
configurations in shallow water, the Observatory multiplied the scaling 
factors by the empirically-derived shallow water exclusion zones 
reported for an 18-gun, 3,300-in\3\ array in the Gulf of Mexico 
(Diebold, et al., 2010).
    Comment 4: The Commission stated that the Observatory's latest 
modeling approach for predicting the mitigation exclusion zones would 
reduce the size of the applicable zones used in previous surveys and 
disagrees with the Observatory's derivation of scaling factors based on 
the modeled results in deep water.
    Response: See our response to Comment 3. The Observatory's new 
approach compares the sound exposure level (SEL) outputs between two 
different types of airgun configurations in deep water. This approach 
is more rigorous than the Observatory's previous approach and allows 
them to derive scaling relationships between the arrays and extrapolate 
empirical measurements or model outputs to different array sizes and 
tow depths. For example, if an Airgun Source A produces sound energy 
that is three times greater than Airgun Source B in deep water, it is 
reasonable to infer that the shallow-water mitigation zones for Airgun 
Source A would be three times larger than the shallow-water mitigation 
zones for Airgun Source B. The Observatory believes that their new 
approach of deriving scaling factors is a more rigorous approach to 
extrapolate existing empirical measurements for shallow water. Because 
their model does not incorporate environmental parameters, this is the 
best available information to extrapolate the in situ shallow water 
measurements to array sizes and array tow depths without field 
verification studies (Crone et al., 2013; Crone et. al., in press; 
Barton and Diebold, 2006). Also, as noted above and specific to this 
survey, we have enlarged the exclusion zone.
    Comment 5: The Commission requests that the Observatory test and 
verify the use of their model under the specific environmental 
conditions they would encounter with each survey because the 
environmental conditions in waters of the continental shelf off New 
Jersey indicate a surface duct at 50 m (164 ft), in-water refraction, 
and bathymetry and sediment characteristics that reflect

[[Page 38500]]

sound (NSF 2011 PEIS, Appendix B, Figure B7). They note that the 
Observatory did not include these site-specific parameters in their 
modeling approach.
    Response: The Observatory's modeling approach consists of a free-
field model that does not have the capability to incorporate fine-
resolution environmental variation. The Foundation's 2011 Programmatic 
Environmental Impact Statement/Overseas Environmental Impact Statement 
for Marine Seismic Research Funded by the National Science Foundation 
or Conducted by the U.S. Geological Survey (PEIS) (June, 2011) 
presented several representative survey locations (i.e., detailed 
analysis areas or DAAs) for sound propagation modeling that 
incorporated these fine-scale environmental parameters. They modeled a 
DAA offshore from New Jersey over the Hudson canyon covering an area 
with depths varying from less than 328 ft (100 m) to greater than 4,920 
ft (1,500 m). Although the PEIS included modeling for the northwest 
Atlantic DAA, the Foundation's model was for a different energy source 
and survey parameters (e.g. survey water depths and source tow depth) 
than what the Observatory proposed for the current survey. Thus, the 
Foundation prepared a site-specific EA to account for the different 
energy source and airgun configurations for the survey and used the 
Observatory's model which does not consider other attenuation 
mechanisms such as low-frequency cutoff and absorption.
    With respect to the 50-m (164 ft) surface duct identified in the 
Foundation's PEIS, the Observatory identified the potential surface 
duct feature in its modeling effort, but concluded the feature was not 
applicable for this survey because the activities would occur in waters 
less than 50 m (164 ft). For the reasons described below, NMFS concurs 
with the Foundation's assessment that the presence of such a surface 
duct would have little effect on the exposure estimates for this 
survey.
    In light of this information, we considered that the water column 
in the survey area is a mixed layer with no surface duct. Although the 
existence of a surface duct could enhance sound propagation due to 
acoustic energy trapped within this narrow channel, the condition for 
such propagation is highly dependent on frequency (or wavelength) of 
the propagating sound. The acoustic waves moving through the sound 
channel are typically those with shorter wavelength (i.e., higher 
frequency) in relation to the depth of the channel or water column.
    An equation by Jensen et al., (2011) shows that the relationship 
between the propagating wave and medium thickness of the duct: 
F0 [cong] 1500/0.008 D3/2, where F0 is 
the minimum frequency (or cutoff frequency) in Hz of the acoustic wave 
being able to effectively propagate through the duct or water column, 
and D is the thickness in meters of the surface duct. As the equation 
indicates, the surface duct ceases to trap energy when the wavelength 
of the sound becomes too large or frequency becomes too low.
    In the case of Observatory's activity, the majority of the source 
energy is within the first two lobes below 333 Hz, with only a fraction 
of acoustic energy that lies within the remaining third and fourth 
lobes (330-667 Hz). Based on the above equation, thickness of the duct 
required for effective propagation of the sound wave first two lobes 
would be 68.6 m (225 ft). Although acoustic energy within the third and 
fourth lobes would be trapped in the surface duct and propagated to 
greater distances, they represent only a fraction of the total acoustic 
energy for this survey.
    Comment 6: The Commission discussed the outcomes of a March 2013 
meeting with the Observatory and the Foundation where Observatory staff 
indicated the possibility of comparing their model to the hydrophone 
field measurements collected during previous surveys in environmental 
conditions other than those in the Gulf of Mexico (i.e., deep and 
intermediate waters in cold water environments that may have surface 
ducting conditions, shallow-water environments, etc.). The Commission 
understands that the Observatory is analyzing hydrophone data with 
field measurements from waters off Washington to compare to the 
estimated exclusion and buffer zones, but questioned why they did not 
use that method for the current proposed authorization. The Commission 
recommended in a June 24, 2013 letter that the Observatory should make 
those comparisons prior to the submittal of applications for 
geophysical surveys conducted in 2014.
    Response: We refer the Commission to our responses to Comments 1 
and 3 discussing their approach to developing mitigation zones and 
their analyses of hydrophone data collected for the 2012 Washington 
survey. Results indicated that the Observatory's shallow-water radii 
based on the Gulf of Mexico calibration study are larger (i.e., more 
conservative) compared to the smaller empirical distances measured by 
Crone et al. (2013) for the Washington survey area.
    We are currently working with the Foundation to address the issue 
of including site-specific parameters to account for environmental 
variation in coastal areas for future surveys. Work is ongoing in 
exploring approaches for including this information in future surveys 
conducted in coastal areas and we will consult with the Commission on 
these activities before the next survey.
    Comment 7: The Commission acknowledges that the Observatory 
calculated take for marine mammals by multiplying the total ensonified 
area of 2,502 km\2\ (which includes a 25 percent contingency) by the 
applicable densities for marine mammals in the survey area. However, 
they state that the Observatory should determine the total ensonified 
area within a given day and then multiply that factor by the number of 
survey days (30) and the applicable densities because the survey 
consists of 4,900 km of tracklines (spaced 150 m [490 ft] apart) in an 
area of 12 by 50 km (7.4 by 31 miles). They contend that the 
Observatory's current method underestimates the number of marine 
mammals potentially taken and recommend that we require the Observatory 
to estimate the numbers of marine mammals potentially taken based on 
the total ensonified area in any given day, multiplied by 30 days, and 
the applicable densities.
    Response: The Observatory modeled the number of different 
individuals that could be exposed to airgun sounds with received levels 
greater than or equal to 160 dB re: 1 [micro]Pa on one or more 
occasions by multiplying the total marine area that would be within the 
160-dB radius around the operating seismic source on at least one 
occasion (2,502 km\2\ which includes a 25 percent contingency factor to 
account for repeated tracklines), along with the expected density of 
animals in the area. The Observatory acknowledged in their application 
that this approach does not allow for turnover in the mammal 
populations in the area during the course of the survey as the actual 
number of individuals exposed may be underestimated because it does not 
account for new animals entering or passing through the ensonification 
area (NSF, 2014), however, the Observatory suggested that the 25 
percent contingency factor would cover any potential underestimate of 
individuals.
    The Observatory also considered the likelihood of re-exposure 
during the survey in the Foundation's EA by estimating the ratio of the 
ensonified area including overlap (76,645.61 km\2\) and the ensonified 
area excluding

[[Page 38501]]

overlap (2001.91 km\2\). The area including overlap is 38.3 times 
greater than the area excluding overlap and 30.6 times greater than the 
area excluding overlap including the 25 percent contingency (i.e., 
2,502.4 km\2\). Thus, a marine mammal that stayed within the survey 
area during the entire survey could potentially experience re-exposure 
up to 38 times. However, it is unlikely that a particular animal would 
remain in the area during the entire survey (Bain and Williams, 2006; 
MacLeod et al., 2006; McCauley et al., 2000; McDonald et al., 1995).
    The Observatory references a 25 percent contingency factor added 
onto its take estimates, however, this buffer is also intended to cover 
marine mammal takes that could potentially result from the operational 
adjustments, such as the need to rerun survey lines (though in 
practice, the Observatory has rarely, if ever, utilized this 
contingency). However, NMFS finds it more appropriate to incorporate a 
mechanism to explicitly account for the potential of positive 
immigration of marine mammals into the survey area that the Commission 
references, and therefore we have included a generalized species-
related turnover estimate for the reported densities to account for the 
potential of new animals entering or passing through the ensonified 
area. Use of a turnover factor recognizes some of the limitations of 
the Observatory using a static density estimate for this survey. Thus 
we are using a generalized turnover estimate of 1.25 (Wood et al., 
2012) as a correction factor for the marine mammal densities presented 
in Table 4. In some cases, a larger turnover rate might be appropriate 
for migratory species, however, the likelihood of encountering these 
species is very low for this area and conservative choices have already 
been made in the estimate of take for mysticetes and sperm whales.
    The method recommended by the Commission is a way to help 
understand the instances of exposure above the Level B threshold, 
however, that method would far overestimate the number of individual 
marine mammals exposed above the threshold, as turnover within the 
project are does not nearly approach 100 percent per day. The new 1.25 
turnover rate will help better estimate the number of animals exposed, 
and the method described earlier in this response helps indicate the 
likely maximum number of instances per individual (though in many 
instances there will be fewer exposures).
    Comment 8: The New Jersey Beach Buggy Association (NJBBA) states 
that ``Even though surveys have been made off the coasts of Australia 
(the Northern Carnarvon Bain, Australian Northwest Shelf) and the Gulf 
of Mexico, no references have been given or found concerning the before 
and after observations on mammals, fish, and plant life that cannot 
avoid the repercussions from the impact of the sound waves.''
    Response: We disagree with the commenter's assertion that no 
references exist concerning before and after observations on marine 
life in the vicinity of seismic surveys. We refer the commenter to the 
Observatory's application, the Foundation's EA, and the notice of the 
proposed Authorization (79 FR 14779, March 17, 2014) which collectively 
provided information on the anticipated effects of airgun sounds on 
marine mammals, fish, and invertebrates.
    Comment 9: The NJBBA commented on the 2006 Sperm Whale Seismic 
Study in the Gulf of Mexico stating that one of the report's 
recommendations called for a delay of the actual seismic testing for a 
number of years to allow for further data acquisition under controlled 
conditions of its effect on mammals, fish, and plant life.
    Response: We considered the results of the Jochens et al. (2008) 
study in our notice of the proposed Authorization (79 FR 14779, March 
17, 2014) and the Foundation considered the same information in their 
2011 PEIS. We note that sections 1.4 and 1.5 of the Jochens et al. 
(2008) report summarize six major conclusions and recommendations, none 
of which call for delays in seismic testing to allow for further data 
acquisition under controlled conditions. On the contrary, they 
recommend the extension of controlled exposure experiment work on 
marine mammals (Jochens et al., 2008; Recommendation 3, page 15).
    Comment 10: NJBBA noted that a recent review presented information 
on the impacts of seismic airgun surveys on fish, marine mammals, and 
invertebrates (Wielgart, 2014). They expressed concerns on the survey's 
impact on the ecological system including bivalves, economic impacts, 
and the future loss of fisheries.
    Response: We considered the information provided in Wielgart (2014) 
in making our final determinations. The review, titled ``A Review of 
the Impacts of Seismic Airgun Surveys on Marine Life'' presents a 
synopsis of impacts on marine mammals, marine turtles, fish, and 
invertebrates that we considered in the Observatory's application, the 
Foundation's EA, and our notice of the proposed Authorization (79 FR 
14779, March 17, 2014). The Foundation's draft EA at http://www.nsf.gov/geo/oce/envcomp/mountain-draftea-201317dec.pdf also 
assessed the survey's impacts on commercial and recreational fisheries.
    Comment 11: The Marine Trades Association of New Jersey requested 
the cancellation of the survey citing potential negative impacts to the 
recreational fishing communities and other industries. Noting concerns 
for migrating fish stocks and the local fishing industry, they 
requested that we require the Observatory to conduct the survey at an 
alternate time, specifically, January and February to minimize impacts 
to the marine industry, coastal fish, and marine mammals. Similarly, 
COA et al. also requested that the Observatory not conduct the survey 
during the summer months and that we consider alternate survey times to 
avoid times of peak marine mammal activity.
    Finally, the NJDEP also submitted comments expressing concern for 
not only to marine mammals' food source, but also for the potential 
impacts to New Jersey's marine mammal boat tour operators and the 
recreational and commercial fishing industry.
    Response: Section 101(a)(5)(D) of the MMPA and its implementing 
regulations establish a framework for us to determine whether and how 
we can authorize take incidental to the activities described in the 
Observatory's application. We do not have the authority to cancel the 
Observatory's research seismic activities under Section 101(a)(5)(D) of 
the MMPA, as that authority lies with the Foundation. However, we may 
add or modify mitigation to ensure the least practicable adverse 
impacts on marine mammals, and we have done so here.
    Regarding the survey's impacts on commercial and recreational 
fishing, we refer you to the Foundation's (sponsor of the research 
seismic survey) EA for this survey (Sections III and IV) which includes 
consideration of the effects of sound on marine invertebrates, fish, 
and fisheries and the effects of the survey on the recreational and 
commercial fishing sectors in New Jersey. The Foundation also completed 
an ESA Section 7 consultation to address the effects of the research 
seismic survey on ESA-listed fish species and designated critical 
habitat within the proposed area as well as a consultation under the 
Magnuson-Stevens Fishery Conservation and Management Act for essential 
fish habitat. Finally, the Foundation will address the survey's impacts 
to the marine mammal boat tour industry in their final EA.

[[Page 38502]]

    We considered, as one potential MMPA measure, that the Observatory 
modify its survey schedule to January/February. However, this could 
result in an increase in the number of takes of North Atlantic right 
whales due to their increased presence off New Jersey in the fall and 
winter. Whitt et al. (2013) concluded that right whales were not 
present in large numbers off New Jersey during the summer months (Jun 
22-Sep 27) which corresponds to the effective dates of the seismic 
survey (Jun 30-Aug 17). In contrast, peak acoustic detections for North 
Atlantic right whales occurred in the winter (Dec 18-Apr 9) and in the 
spring (Apr 10-Jun 21) (Whitt, et al., 2013).
    We also considered the effects of the survey on marine mammal prey 
(i.e., fish and invertebrates), as a component of marine mammal 
habitat, in the notice of the proposed Authorization. Studies have 
shown both decreases and increases in fisheries catch rates and 
behavioral changes in captive marine fish and squid during exposure to 
seismic sound (Lokkeborg et al., 2012; Fewtrell and McCauley, 2012). We 
acknowledge that disturbance of prey species has the potential to 
adversely affect marine mammals while foraging. However, given the 
limited spatio-temporal scale of the survey, the survey would ensonify 
only a small fraction of available habitat at any one time because the 
vessel is continually moving during data acquisition. We would expect 
prey species to return to their pre-exposure behavior once seismic 
firing ceased (Lokkeborg et al., 2012; Fewtrell and McCauley, 2012). 
Although there is a potential for injury to fish or marine life in 
close proximity to the vessel, we expect that prey responses would have 
temporary effects on a marine mammal's ability to forage in the 
immediate survey area. However, we don't expect that temporary 
reductions in feeding ability would reduce an individual animal's 
overall feeding success.
    Laboratory studies have observed permanent damage to sensory 
epithelia for captive fish exposed at close range to a sound source 
(McCauley et al., 2003) and abnormalities in larval scallops after 
exposure to low frequency noise in tanks (de Soto et al., 2013); 
however, wild fish are likely to move away from a seismic source 
(Fewtrell and McCauley, 2012). Finally, other studies provide examples 
of no fish mortality upon exposure to seismic sources (e.g., Popper et 
al., 2005; Boeger et al., 2006).
    In summary, in examining impacts to fish as prey species for marine 
mammals, we expect fish to exhibit a range of behaviors including no 
reaction or habituation (Pena et al., 2013) to startle responses and/or 
avoidance (Fewtrell and McCauley, 2012). We expect that the seismic 
survey would have no more than a temporary and minimal adverse effect 
on any fish or invertebrate species that serve as prey species for 
marine mammals, and therefore consider the potential impacts to marine 
mammal habitat minimal as well.
    Comment 12: Both the NJDEP and COA et al. expressed concerns 
related to the survey's impact on the local (coastal) bottlenose 
dolphin population. They include: cumulative adverse impacts of the 
survey in light of the ongoing Unusual Mortality Event (UME); potential 
increases in marine mammal strandings due to the use of the multibeam 
echosounder; the survey's temporal overlap with the bottlenose dolphin 
calving period; and the potential heightened sensitivity of bottlenose 
dolphin calves to anthropogenic noise.
    Response: In 2013, NMFS declared a UME for elevated bottlenose 
dolphin strandings along the Atlantic coast (New York through Florida). 
From July 1, 2013-June 8, 2014, there have been 1,325 strandings from 
New York to Florida. Of those strandings, 140 dolphins have stranded in 
New Jersey, which is significantly higher than the average annual 
bottlenose dolphin stranding rate of 10 strandings (based on 2007-2012 
data). In New Jersey, 46 of 50 stranded bottlenose dolphins sampled 
tested positive for morbillivirus (92 percent) and one grey seal was 
suspect positive for canine distemper virus (a closely related 
species).
    We expect that the survey's activities would result, at worst, in a 
temporary modification in behavior, temporary changes in animal 
distribution, and/or low-level physiological effects (Level B 
harassment) of bottlenose dolphins. We expect these impacts to be minor 
because we do not anticipate measurable changes to the population or 
impacts to rookeries, mating grounds, and other areas of similar 
significance.
    The Authorization outlines reporting measures and response 
protocols with the Northeast Regional Stranding Coordinator intended to 
minimize the impacts of, and enhance the analysis of, any potential 
stranding in the survey area. The Observatory's activities are 
approximately 20 km (12 mi) away from the habitat in which the coastal 
bottlenose dolphins the commenter expressed concern are expected to 
occur (Toth et al., 2011; 2012), which means that the area is not 
expected to be ensonified above 160 dB and that take of calves of this 
stock is not anticipated. Additionally, airgun pulses are outside of 
the range of frequencies in which dolphin hearing is most sensitive, 
and Schlundt et al.'s (2013) study suggests that the low-frequency 
content of air gun impulses may have fewer predicted impacts on 
bottlenose dolphins. Last, we do not have specific information related 
to how the acoustic stressors may or may not exacerbate the effects of 
the ongoing UME with bottlenose dolphins. However, based on the fact 
that the acoustic effects are expected to be limited to behavioral 
harassment, and the survey is constantly moving (predominantly far 
offshore and well away from coastal species and the associated calving 
areas), we do not anticipate any focused adverse effects to animals 
involved in the UME.
    Regarding COA et al.'s concerns about increased strandings, we note 
that the Observatory has not experienced a stranding event associated 
with previous activities conducted in the same general vicinity. The 
Foundation's EA (NSF, 2014) acknowledges that scientists have conducted 
numerous 2-D seismic surveys in the general vicinity of the proposed 
survey from 1979 to 2002. The previous surveys used different airgun 
array configurations (e.g., a 6-airgun, 1,350-in\3\ array in 1990; a 
single, 45-in\3\ GI Gun in 1996 and 1998; and two 45-in\3\ GI Guns in 
2002). The researchers did not observe any seismic sound-related marine 
mammal related injuries or mortality, or impacts to fish during these 
past seismic surveys in the proposed survey area (NSF, 2014; G. 
Mountain, Pers. Comm.). In the past decade of seismic surveys conducted 
carried out by the Langseth, protected species observers and other crew 
members have neither observed nor reported any seismic-related marine 
mammal injuries or mortalities.
    We have considered the potential for behavioral responses such as 
stranding and indirect injury or mortality from the Observatory's use 
of the multibeam echosounder. In 2013, an International Scientific 
Review Panel (ISRP) investigated a 2008 mass stranding of approximately 
100 melon-headed whales in a Madagascar lagoon system (Southall et al., 
2013) associated with the use of a high-frequency mapping system. The 
report indicated that the use of a 12-kHz multibeam echosounder was the 
most plausible and likely initial behavioral trigger of the mass 
stranding event. This was the first time that a relatively high-
frequency mapping sonar system had been associated with a stranding 
event. However, the report also notes that there were several site- and 
situation-specific secondary factors

[[Page 38503]]

that may have contributed to the avoidance responses that lead to the 
eventual entrapment and mortality of the whales within the Loza Lagoon 
system (e.g., the survey vessel transiting in a north-south direction 
on the shelf break parallel to the shore may have trapped the animals 
between the sound source and the shore driving them towards the Loza 
Lagoon). They concluded that for odontocete cetaceans that hear well in 
the 10-50 kHz range, where ambient noise is typically quite low, high-
power active sonars operating in this range may be more easily audible 
and have potential effects over larger areas than low frequency systems 
that have more typically been considered in terms of anthropogenic 
noise impacts (Southall, et al., 2013). However, the risk may be very 
low given the extensive use of these systems worldwide on a daily basis 
and the lack of direct evidence of such responses previously reported 
(Southall, et al., 2013).
    Given that the Observatory proposes to conduct the survey offshore 
and the Langseth is not conducting the survey parallel to any 
coastline, we do not anticipate that the use of the source during the 
seismic survey would entrap marine mammals between the vessel's sound 
sources and the New Jersey coastline. In addition, the Authorization 
outlines reporting measures and response protocols intended to minimize 
the impacts of, and enhance the analysis of, any potential stranding in 
the survey area.
    With respect to COA et al.'s concerns about the survey's temporal 
overlap with the bottlenose dolphin calving period, we note that the 
Observatory's study area is approximately 20 km (12 mi) away from the 
identified habitats for coastal bottlenose dolphins and their calves in 
Toth et al. (2011, 2012) thereby reducing further the likelihood of 
causing an effect on this species or stock.
    In response to COA et al.'s concerns that dolphin calves may be 
limited in their ability to flee the ensonified area due to their 
dependence on their mothers and small size, we considered several 
studies which note that seismic operators and protected species 
observers regularly see dolphins and other small toothed whales near 
operating airgun arrays, but in general there is a tendency for most 
delphinids to show some avoidance of operating seismic vessels (e.g., 
Moulton and Miller, 2005; Holst et al., 2006; Stone and Tasker, 2006; 
Weir, 2008; Richardson et al., 2009; Barkaszi et al., 2009; Moulton and 
Holst, 2010). Also, some dolphins seem to be attracted to the seismic 
vessel and floats, and some ride the bow wave of the seismic vessel 
even when large arrays of airguns are firing (e.g., Moulton and Miller, 
2005). Nonetheless, small toothed whales more often tend to head away, 
or to maintain a somewhat greater distance from the vessel, when a 
large array of airguns is operating than when it is silent (e.g., Stone 
and Tasker, 2006; Weir, 2008, Barry et al., 2010; Moulton and Holst, 
2010). We note that in most cases, the avoidance radii for delphinids 
appear to be small, on the order of one km or less, and some 
individuals show no apparent avoidance. In considering the potential 
heightened sensitivity of neonate dolphins to noise, Schlundt et al. 
(2013) suggest that the potential for airguns to cause hearing loss in 
dolphins is lower than previously predicted, perhaps as a result of the 
low-frequency content of air gun impulses compared to the high-
frequency hearing ability of dolphins.
    We do not expect marine mammals to experience any repeated 
exposures at very close distances to the sound source because the 
Observatory would implement the required shutdown and power down 
mitigation measures to ensure that marine mammals do not approach the 
applicable exclusion zones for Level A harassment. In addition, we 
anticipate that the required ramp-up procedures at the start of the 
survey or anytime after a shutdown of the entire array would ``warn'' 
marine mammals in the vicinity of the airguns, and provide the time for 
them to leave the area and thus avoid any potential injury or 
impairment of their hearing abilities.
    Comment 13: COA et al. states that we did not present species 
information for North Atlantic right whales in our analyses, including 
the Whitt et al. (2013) peer[hyphen]reviewed study demonstrating North 
Atlantic right whale presence off the New Jersey coast year-round, 
particularly in the spring and summer months.
    Response: NMFS disagrees. Table 1 in our notice of proposed 
authorization (79 FR 14784, March 17, 2014) specifically states that we 
base the year-round seasonal presence of North Atlantic right whales on 
the Whitt et al. (2013) paper. Whitt et al. (2013) conducted acoustic 
and visual surveys for North Atlantic right whales off the coast of New 
Jersey from January 2008 to December 2009 and observed one sighting of 
a cow-calf pair in May 2008, but no other sightings of cow-calf pairs 
throughout the remainder of the study. We considered this information 
(also presented on page 15 of NSF's draft EA) and concluded that it was 
appropriate to increase the Observatory's original request for 
incidental take related to North Atlantic right whales from zero to 
three (3) to be conservative in estimating potential take for cow/calf 
pairs. This adjustment is based on sighting information from two 
sources (Palka, 2012 and Whitt et al., 2013) which reported the 
presence of one North Atlantic right whale and one cow/calf pair in the 
area, respectively.

Monitoring and Reporting

    Comment 14: The Commission has indicated that monitoring and 
reporting requirements should provide a reasonably accurate assessment 
of the types of taking and the numbers of animals taken by the proposed 
activity. They state that ``. . . the assessments should account for 
animals at the surface but not detected and for animals present but 
underwater and not available for sighting, which are accounted for by 
g(0) and f(0) values.'' They further state that ``those adjustments are 
essential for making accurate estimates of the numbers of marine 
mammals taken during surveys.'' The Commission recommends that we 
consult with the funding agency (i.e., the Foundation) and individual 
applicants (e.g., the Observatory and other related entities) to 
develop, validate, and implement a monitoring program that provides a 
scientifically sound, reasonably accurate assessment of the types of 
marine mammal takes and the actual numbers of marine mammals taken, 
accounting for applicable g(0) and f(0) values. The Commission 
recommends that we consult with them prior to finalizing the 
recommendations.
    Response: NMFS' implementing regulations require that applicants 
include monitoring that will result in ``an increased knowledge of the 
species, the level of taking or impacts on populations of marine 
mammals that are expected to be present while conducting activities . . 
.'' This increased knowledge of the level of taking could be 
qualitative or relative in nature, or it could be more directly 
quantitative. Scientists use g(0) and f(0) values in systematic marine 
mammal surveys to account for the undetected animals indicated above, 
however, these values are not simply established and the g(0) value 
varies across every observer based on their sighting acumen. While we 
want to be clear that we do not generally believe that post-activity 
take estimates using f(0) and g(0) are required to meet the monitoring 
requirement of the MMPA, in the context of the Foundation and 
Observatory's monitoring plan, we agree that developing and 
incorporating a way to better interpret the results of their monitoring 
(perhaps a simplified or generalized version of g(0) and f(0))

[[Page 38504]]

is a good idea. We are continuing to examine this issue with the 
Foundation to develop ways to improve their post-survey take estimates. 
We will consult with the Commission and NMFS scientists prior to 
finalizing these recommendations.
    We note that current monitoring measures for past and current 
Authorizations for research seismic surveys require the collection of 
visual observation data by protected species observers prior to, 
during, and after airgun operations. This data collection may 
contribute to baseline data on marine mammals (presence/absence) and 
provide some generalized support for estimated take numbers (as well as 
providing data regarding behavioral responses to seismic operation that 
are observable at the surface). However, it is unlikely that the 
information gathered from these cruises alone would result in any 
statistically robust conclusions for any particular species because of 
the small number of animals typically observed.

MMPA Concerns

    Comment 15: COA et al. state that NMFS must ensure that the 
Authorization complies with the MMPA and requests that NMFS deny the 
Authorization based on their opinion that the potential impacts to 
marine mammals are incompatible with the prohibitions of the MMPA and 
that the take would be more than negligible.
    Response: We disagree with the commenters' assessment. The MMPA 
directs us to allow, upon request, the incidental taking of small 
numbers of marine mammals by U.S. citizens who engage in a specified 
activity within a specific geographic region if we make certain 
findings. The legal requirements and underlying analysis for an 
Authorization per section 101(a)(5)(D) of the MMPA require us to 
determine that the taking by harassment of marine mammal species or 
stocks will have a negligible impact on affected species or stocks and 
will not have an unmitigable adverse impact on the availability of 
affected species or stocks for taking for subsistence uses. As 
mentioned in the notice for the proposed authorization (79 FR 14779, 
March 17, 2014), we expect that the Observatory's activities would 
result in take by Level B harassment in the form behavioral 
modifications during the period of the Observatory's active seismic 
operations. We also expect that the required mitigation and monitoring 
measures (described in the notice for the proposed Authorization (79 FR 
14779, March 17, 2014), and included within the final Authorization) 
would reduce potential disturbance to marine mammals to the lowest 
level practicable. We do not anticipate that these behavioral effects 
would have significant impacts to individual fitness or the population 
and there are no relevant subsistence uses of marine mammals implicated 
by this action.
    Based on the analysis of the likely effects of the specified 
activity on marine mammals and their habitat contained within this 
document, the Foundation's EA and our own EA, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, we find that the Observatory's proposed activity would result 
in the take small numbers of marine mammals relative to the populations 
of the affected species or stocks, would have a negligible impact on 
the affected species or stocks, and would not result in an unmitigable 
adverse impact on the availability of such species or stocks for taking 
for subsistence uses as no subsistence users would be affected by the 
proposed action.

Acoustic Thresholds

    Comment 16: COA et al. state that the current NMFS 160-decibel (dB) 
re: 1 [mu]Pa threshold for Level B harassment does not reflect the best 
available science and is not sufficiently conservative.
    Response: Our practice has been to apply the 160 dB re: 1 [micro]Pa 
received level threshold for underwater impulse sound levels to 
determine whether take by Level B harassment occurs. Specifically, we 
derived the 160 dB threshold data from mother-calf pairs of migrating 
gray whales (Malme et al., 1983, 1984) and bowhead whales (Richardson 
et al., 1985, 1986) responding to seismic airguns. We acknowledge there 
is more recent information bearing on behavioral reactions to seismic 
airguns, but those data only illustrate how complex and context-
dependent the relationship is between the two, and do not, as a whole, 
invalidate the current threshold.
    However, we discuss the science on this issue qualitatively in our 
analysis of potential effects to marine mammals (79 FR 14779, March 17, 
2014). Accordingly, it is not a matter of merely replacing the existing 
threshold with a new one. NMFS is currently developing revised acoustic 
guidelines for assessing the effects of anthropogenic sound on marine 
mammals. Until NMFS finalizes these guidelines (a process that includes 
internal agency review, public notice and comment, and peer review), we 
will continue to rely on the existing criteria for Level A and Level B 
harassment shown in Table 4 of the notice for the proposed 
authorization (79 FR 14779, March 17, 2014).
    As mentioned in the Federal Register notice for the proposed 
authorization (79 FR 14779, March 17, 2014), we expect that the onset 
for behavioral harassment is largely context dependent (e.g., 
behavioral state of the animals, distance from the sound source, etc.) 
when evaluating behavioral responses of marine mammals to acoustic 
sources. Although using a uniform sound pressure level of 160-dB re: 1 
[mu]Pa for the onset of behavioral harassment for impulse noises may 
not capture all of the nuances of different marine mammal reactions to 
sound, it is an appropriate way to manage and regulate anthropogenic 
noise impacts on marine mammals until NMFS finalizes its acoustic 
guidelines.
    Comment 17: COA et al. requested that we use a behavioral threshold 
below 160 dB for estimating take based on results reported in Clark and 
Gagnon (2006), MacLeod et al. (2006), Risch et al. (2012), McCauley et 
al. (1998), McDonald et al. (1995), Bain and Williams (2006), DeRuiter 
et al. (2013). They also cite comments submitted by Clark et al. (2012) 
on the Arctic Ocean Draft Environmental Impact Statement regarding 
NMFS' current acoustic thresholds.
    Response: NMFS is constantly evaluating new science and how to best 
incorporate it into our decisions. This process involves careful 
consideration of new data and how it is best interpreted within the 
context of a given management framework. Each of these articles 
emphasizes the importance of context (e.g., behavioral state of the 
animals, distance from the sound source, etc.) in evaluating behavioral 
responses of marine mammals to acoustic sources.
    These papers and the studies discussed in our notice of proposed 
authorization (79 FR 14779, March 17, 2014) note that there is 
variability in the behavioral responses of marine mammals to noise 
exposure. However, it is important to consider the context in 
predicting and observing the level and type of behavioral response to 
anthropogenic signals (Ellison et al., 2012). There are many studies 
showing that marine mammals do not show behavioral responses when 
exposed to multiple pulses at received levels at or above 160 dB re: 1 
[micro]Pa (e.g., Malme et al., 1983; Malme et al., 1984; Richardson et 
al., 1986; Akamatsu et al., 1993; Madsen and Mohl, 2000; Harris et al., 
2001; Miller et al., 2005; and Wier, 2008). And other studies show that 
whales continue important behaviors in the presence of seismic pulses 
(e.g.,

[[Page 38505]]

Richardson et al., 1986; McDonald et al., 1995; Greene et al., 1999a, 
1999b; Nieukirk et al., 2004; Smultea et al., 2004; Holst et al., 2005, 
2006; Dunn and Hernandez, 2009).
    In a passive acoustic research program that mapped the soundscape 
in the North Atlantic Ocean, Clark and Gagnon (2006) reported that some 
fin whales (Balaenoptera physalus) stopped singing for an extended 
period starting soon after the onset of a seismic survey in the area. 
The study did not provide information on received levels or distance 
from the sound source. The authors could not determine whether or not 
the whales left the area ensonified by the survey, but the evidence 
suggests that most if not all singers remained in the area (Clark and 
Gagnon, 2006). Support for this statement comes from the fact that when 
the survey stopped temporarily, the whales resumed singing within a few 
hours and the number of singers increased with time (Clark and Gagnon, 
2006). Also, they observed that one whale continued to sing while the 
seismic survey was actively operating (Figure 4; Clark and Gagnon, 
2006).
    The authors conclude that there is not enough scientific knowledge 
to adequately evaluate whether or not these effects on singing or 
mating behaviors are significant or would alter survivorship or 
reproductive success (Clark and Gagnon, 2006). Thus, to address COA et 
al.'s concerns related to the results of this study, it is important to 
note that the Observatory's study area is well away from any known 
breeding/calving grounds for low frequency cetaceans and approximately 
20 km (12 mi) away from the identified habitats for coastal bottlenose 
dolphins and their calves in Toth et al. (2011, 2012) thereby reducing 
further the likelihood of causing an effect on marine mammals.
    MacLeod et al. (2006) discussed the possible displacement of fin 
and sei whales related to distribution patterns of the species during a 
large-scale seismic survey offshore the west coast of Scotland in 1998. 
The authors hypothesized about the relationship between the whale's 
absence and the concurrent seismic activity, but could not rule out 
other contributing factors (Macleod, et al., 2006; Parsons et al., 
2009). We would expect that marine mammals may briefly respond to 
underwater sound produced by the seismic survey by slightly changing 
their behavior or relocating a short distance. Based on the best 
available information, we expect short-term disturbance reactions that 
are confined to relatively small distances and durations (Thompson et 
al., 1998; Thompson et al., 2013), with no long-term effects on 
recruitment or survival.
    Regarding the suggestion that blue whales ``significantly'' changed 
course during the conduct of a seismic survey offshore Oregon, we 
disagree. We considered the McDonald et al. (1995) paper in the notice 
for the proposed authorization (79 FR 14779, March 17, 2014). In brief, 
the study tracked three blue whales relative to a seismic survey with a 
1,600 in\3\ airgun array (slightly higher than the Observatory's 1,400 
in\3\ airgun array). The whale started its call sequence within 15 km 
(9.3 mi) from the source, then followed a pursuit track that decreased 
its distance to the vessel where it stopped calling at a range of 10 km 
(6.2 mi) (estimated received level at 143 dB re: 1 [mu]Pa (peak-to-
peak) (McDonald et al., 1995). After that point, the ship increased its 
distance from the whale which continued a new call sequence after 
approximately one hour (McDonald et al., 1995) and 10 km (6.2 mi) from 
the ship. The authors suggested that the whale had taken a track 
paralleling the ship during the cessation phase but observed the whale 
moving diagonally away from the ship after approximately 30 minutes 
continuing to vocalize (McDonald et al., 1995). The authors also 
suggest that the whale may have approached the ship intentionally or 
perhaps was unaffected by the airguns. They concluded that there was 
insufficient data to infer conclusions from their study related to blue 
whale responses (McDonald et al., 1995).
    Risch et al. (2012) documented reductions in humpback whale 
(Megaptera novaeangliae) vocalizations in the Stellwagen Bank National 
Marine Sanctuary concurrent with transmissions of the Ocean Acoustic 
Waveguide Remote Sensing (OAWRS) low-frequency fish sensor system at 
distances of 200 kilometers (km) from the source. The recorded OAWRS 
produced series of frequency modulated pulses and the signal received 
levels ranged from 88 to 110 dB re: 1 [mu]Pa (Risch et al., 2012). The 
authors hypothesize that individuals did not leave the area but instead 
ceased singing and noted that the duration and frequency range of the 
OAWRS signals (a novel sound to the whales) were similar to those of 
natural humpback whale song components used during mating (Risch et 
al., 2012). Thus, the novelty of the sound to humpback whales in the 
study area provided a compelling contextual probability for the 
observed effects (Risch et al., 2012). However, the authors did not 
state or imply that these changes had long-term effects on individual 
animals or populations (Risch et al., 2012), nor did they necessarily 
rise to the level of an MMPA take. Thus, to address COA et al.'s 
concerns related to the results of this study, we again note that the 
Observatory's study area is well away from any known breeding/calving 
grounds for low frequency cetaceans and approximately 20 km (12 mi) 
away from the identified habitats for bottlenose dolphins and their 
calves in Toth et al. (2011, 2012) thereby reducing further the 
likelihood of causing an effect on marine mammals.
    We considered the McCauley et al. (1998) paper (along with McCauley 
et al., 2000) in the notice of proposed authorization (79 FR 14779, 
March 17, 2014). Briefly, McCauley et al. (1998, 2000) studied the 
responses of migrating humpback whales off western Australia to a full-
scale seismic survey with a 16-airgun array (2,678 in\3\) and to 
playbacks using a single, 20-in\3\ airgun. Both studies point to a 
contextual variability in the behavioral responses of marine mammals to 
sound exposure. The mean received level for initial avoidance of an 
approaching airgun was 140 dB re: 1 [mu]Pa for resting humpback whale 
pods containing females. In contrast, some individual humpback whales, 
mainly males, approached within distances of 100 to 400 m (328 to 1,312 
ft), where sound levels were 179 dB re: 1 [mu]Pa (McCauley et al., 
2000). The authors hypothesized that the males gravitated towards the 
single operating airgun possibly due to its similarity to the sound 
produced by humpback whales breaching (McCauley et al., 2000). Despite 
the evidence that some humpback whales exhibited localized avoidance 
reactions at received levels below 160 dB re: 1 [mu]Pa, the authors 
found no evidence of any gross changes in migration routes, such as 
inshore/offshore displacement during seismic operations (McCauley et 
al., 1998, 2000).
    With repeated exposure to sound, many marine mammals may habituate 
to the sound at least partially (Richardson & Wursig, 1997). Bain and 
Williams (2006) examined the effects of a large airgun array (maximum 
total discharge volume of 1,100 in\3\) on six species in shallow waters 
off British Columbia and Washington: harbor seal, California sea lion 
(Zalophus californianus), Steller sea lion (Eumetopias jubatus), gray 
whale (Eschrichtius robustus), Dall's porpoise (Phocoenoides dalli), 
and the harbor porpoise. Harbor porpoises showed ``apparent avoidance 
response'' at received levels less than 145 dB re: 1 [mu]Pa at a 
distance of greater than 70 km (43 miles) from the seismic source (Bain

[[Page 38506]]

and Williams, 2006). However, the tendency for greater responsiveness 
by harbor porpoise is consistent with their relative responsiveness to 
boat traffic and some other acoustic sources (Richardson et al. 1995; 
Southall et al., 2007). In contrast, the authors reported that gray 
whales seemed to tolerate exposures to sound up to approximately 170 dB 
re: 1 [mu]Pa (Bain and Williams, 2006) and Dall's porpoises 
(Phocoenoides dalli) occupied and tolerated areas receiving exposures 
of 170-180 dB re: 1 [mu]Pa (Bain and Williams, 2006; Parsons et al., 
2009). The authors observed several gray whales that moved away from 
the airguns toward deeper water where sound levels were higher due to 
propagation effects resulting in higher noise exposures (Bain and 
Williams, 2006). However, it is unclear whether their movements 
reflected a response to the sounds (Bain and Williams, 2006). Thus, the 
authors surmised that the gray whale data (i.e., voluntarily moving to 
areas where they are exposed to higher sound levels) are ambiguous at 
best because one expects the species to be the most sensitive to the 
low-frequency sound emanating from the airguns (Bain and Williams, 
2006).
    DeRuiter et al. (2013) recently observed that beaked whales 
(considered a particularly sensitive species to sound) exposed to 
playbacks (i.e., simulated) of U.S. tactical mid-frequency sonar from 
89 to 127 dB re: 1 [mu]Pa at close distances responded notably by 
altering their dive patterns. In contrast, individuals showed no 
behavioral responses when exposed to similar received levels from 
actual U.S. tactical mid-frequency sonar operated at much further 
distances (DeRuiter et al., 2013). As noted earlier, one must consider 
the importance of context (for example, the distance of a sound source 
from the animal) in predicting behavioral responses.
    Regarding the public comments submitted by Clark et al. (2012) in 
reference to our use of the current acoustic exposure criteria; please 
refer to our earlier response to COA et al.
    None of these studies on the effects of airgun noise on marine 
mammals point to any associated mortalities, strandings, or permanent 
abandonment of habitat by marine mammals. Bain and Williams (2006) 
specifically conclude that ``. . . although behavioral changes were 
observed, the precautions utilized in the SHIPS survey did not result 
in any detectable marine mammal mortalities during the survey, nor were 
any reported subsequently by the regional marine mammal stranding 
network . . .'' McCauley et al. (2000) concluded that any risk factors 
associated with their seismic survey ``. . . lasted for a comparatively 
short period and resulted in only small range displacement . . .'' 
Further, the total discharge volume of the airgun arrays cited in 
McCauley et al., 1998, 2000; Bain and Williams, 2006 were generally 
over 40 percent larger than the 1,400 in\3\ array configurations 
proposed for use during this survey (e.g., 2,768 in\3\, McCauley et 
al., 1998; 6,730 in\3\, Bain and Williams, 2006). Thus, the 
Observatory's 160-dB threshold radius may not reach the threshold 
distances reported in these studies.
    Currently NMFS is working on revising its noise exposure criteria 
based on the best and most recent scientific information. NMFS will use 
these criteria to develop methodologies to predict behavioral responses 
of marine mammals exposed to sound associated with seismic surveys 
(primary source is airguns). Although using a uniform sound pressure 
level of 160-dB re: 1 [mu]Pa for the onset of behavioral harassment for 
impulse noises may not capture all of the nuances of different marine 
mammal reactions to sound, it is an appropriate way to manage and 
regulate anthropogenic noise impacts on marine mammals until NMFS 
finalizes its acoustic guidelines.
    Comment 18: COA et al. take issue with our conclusion that Level A 
take would not occur during the survey. Citing Lucke et al. (2009); 
Thompson et al. (1998); Kastak et al. (2008); Kujawa and Lieberman 
(2009); Wood et al. (2012); and Cox et al. (2006), the commenters 
assert that our preliminary determinations for Level A take and the 
likelihood of temporary and or permanent threshold shift do not 
consider the best available science.
    Response: As explained in Table 3 in the notice of proposed 
authorization (79 FR 14779, March 17, 2014), the predicted distances at 
which sound levels could result in Level A harassment are relatively 
small (585 m; 1,919 ft for cetaceans and 157 m; 515 ft for pinnipeds). 
As an added measure, we are requiring the Observatory to enlarge the 
Level A harassment exclusion zones for cetaceans and pinnipeds to 
further ensure the least practicable effect on marine mammals. We 
expect that the required vessel-based visual monitoring of the 
exclusion zones is appropriate to implement mitigation measures to 
prevent Level A harassment.
    First, the Observatory will be required to establish larger Level A 
exclusion zones corresponding to the 177 and 187 dB re: 1 [mu]Pa 
isopleths for cetaceans and pinnipeds respectively, to avoid Level A 
harassment. If the protected species observers observe marine mammals 
approaching the exclusion zone, the Observatory must shut down or power 
down seismic operations to ensure that the marine mammal does not 
approach the applicable exclusion radius. Second, if the Observatory 
detects a marine mammal outside the 177- or 187-dB exclusion zones, and 
the animal--based on its position and the relative motion--is likely to 
enter the exclusion zone, the Observatory may alter the vessel's speed 
and/or course--when practical and safe--in combination with powering 
down or shutting down the airguns, to minimize the effects of the 
seismic survey. The avoidance behaviors discussed in the notice of 
proposed authorization (79 FR 14779, March 17, 2014) supports our 
expectations that individuals will avoid exposure at higher levels. 
Also, it is unlikely that animals would encounter repeated exposures at 
very close distances to the sound source because the Observatory would 
implement the required shutdown and power down mitigation measures to 
ensure that marine mammals do not approach the applicable exclusion 
zones for Level A harassment.
    Regarding the Lucke et al. (2009) study, the authors found a 
threshold shift (TS) of a harbor porpoise after exposing it to airgun 
noise (single pulse) with a received sound pressure level (SPL) at 
200.2 dB (peak-to-peak) re: 1 [mu]Pa, which corresponds to a sound 
exposure level of 164.5 dB re: 1 [mu]Pa2 s after integrating exposure. 
We currently use the root-mean-square (rms) of received SPL at 180 dB 
and 190 dB re: 1 [mu]Pa as the threshold above which permanent 
threshold shift (PTS) could occur for cetaceans and pinnipeds, 
respectively. Because the airgun noise is a broadband impulse, one 
cannot directly extrapolate the equivalent of rms SPL from the reported 
peak-to-peak SPLs reported in Lucke et al. (2009). However, applying a 
conservative conversion factor of 16 dB for broadband signals from 
seismic surveys (Harris et al. 2001; McCauley et al. 2000) to correct 
for the difference between peak-to-peak levels reported in Lucke et al. 
(2009) and rms SPLs; the rms SPL for TTS would be approximately 184 dB 
re: 1 [mu]Pa, and the received levels associated with PTS (Level A 
harassment) would be higher. This is still above the current 180 dB rms 
re: 1 [mu]Pa threshold for injury. Yet, we recognize that the temporary 
threshold shift (TTS) of harbor porpoise is lower than other cetacean 
species empirically tested (Finneran et al. 2002;

[[Page 38507]]

Finneran and Schlundt, 2010; Kastelein et al., 2012). We considered 
this information in the notice of proposed authorization (79 FR 14779, 
March 17, 2014).
    The Thompson et al. (1998) telemetry study on harbor (Phoca 
vitulina) and grey seals (Halichoerus grypus) suggested that avoidance 
and other behavioral reactions by individual seals to small airgun 
sources may at times be strong, but short-lived. The researchers 
conducted 1-hour controlled exposure experiments exposing individual 
seals fitted with telemetry devices to small airguns with a reported 
source level of 215-224 dB re: 1 [mu]Pa (peak-to-peak) (Thompson et 
al., 1998; Gordon et al., 2003). The researchers measured dive 
behavior, swim speed heart rate and stomach temperature (indicator for 
feeding), but they did not measure hearing threshold shift in the 
animals. The researchers observed startle responses, decreases in heart 
rate, and temporary cessation of feeding. In six out of eight trials, 
harbor seals exhibited strong avoidance behaviors, and swam rapidly 
away from the source (Thompson et al., 1998; Gordon et al., 2003). One 
seal showed no detectable response to the airguns, approaching within 
300 m (984 ft) of the source (Gordon et al., 2003). However, they note 
that the behavioral responses were short-lived and the seals' behavior 
returned to normal after the trials (Thompson et al., 1998; Gordon et 
al., 2003). The study does not discuss temporary threshold shift or 
permanent threshold shift in harbor seals and the estimated rms SPL for 
this survey is approximately 200 dB re: 1 [mu]Pa, well above NMFS' 
current 180 dB rms re: 1 [mu]Pa threshold for injury for cetaceans and 
NMFS' current 190 dB rms re: 1 [mu]Pa threshold for injury for 
pinnipeds (accounting for the fact that the rms sound pressure level 
(in dB) is typically 16 dB less than the peak-to-peak level).
    In a study on the effect of non-impulsive sound sources on marine 
mammal hearing, Kastak et al. (2008) exposed one harbor seal to an 
underwater 4.1 kHz pure tone fatiguing stimulus with a maximum received 
sound pressure of 184 dB re: 1 [mu]Pa for 60 seconds (Kastak et al., 
2008; Finneran and Branstetter, 2013). A second 60-second exposure 
resulted in an estimated threshold shift of greater than 50 dB at a 
test frequency of 5.8 kHz (Kastak et al., 2008). The seal recovered at 
a rate of -10 dB per log(min). However, 2 months post-exposure, the 
researchers observed incomplete recovery from the initial threshold 
shift resulting in an apparent permanent threshold shift of 7 to 10 dB 
in the seal (Kastak et al., 2008). We note that seismic sound is an 
impulsive source, and the context of the study is related to the effect 
of non-impulsive sounds on marine mammals.
    We also considered two other Kastak et al. (1999, 2005) studies. 
Kastak et al. (1999) reported TTS of approximately 4-5 dB in three 
species of pinnipeds (harbor seal, California sea lion, and northern 
elephant seal) after underwater exposure for approximately 20 minutes 
to sound with frequencies ranging from 100-2,000 Hz at received levels 
60-75 dB above hearing threshold. This approach allowed similar 
effective exposure conditions to each of the subjects, but resulted in 
variable absolute exposure values depending on subject and test 
frequency. Recovery to near baseline levels was reported within 24 
hours of sound exposure. Kastak et al. (2005) followed up on their 
previous work, exposing the same test subjects to higher levels of 
sound for longer durations. The animals were exposed to octave-band 
sound for up to 50 minutes of net exposure. The study reported that the 
harbor seal experienced TTS of 6 dB after a 25-minute exposure to 2.5 
kHz of octave-band sound at 152 dB (183 dB SEL). The California sea 
lion demonstrated onset of TTS after exposure to 174 dB (206 dB SEL).
    We considered that PTS could occur at relatively lower levels, such 
as at levels that would normally cause TTS, if the animal experiences 
repeated exposures at very close distances to the sound source. 
However, an animal would need to stay very close to the sound source 
for an extended amount of time to incur a serious degree of PTS, which 
in this case, it would be highly unlikely due to the required 
mitigation measures in place to avoid Level A harassment and the 
expectation that a mobile marine mammal would generally avoid an area 
where received sound pulse levels exceed 160 dB re: 1 [mu]Pa (rms) 
(review in Richardson et al. 1995; Southall et al. 2007).
    We also considered recent studies by Kujawa and Liberman (2009) and 
Lin et al. (2011). These studies found that despite completely 
reversible threshold shifts that leave cochlear sensory cells intact, 
large threshold shifts could cause synaptic level changes and delayed 
cochlear nerve degeneration in mice and guinea pigs, respectively. We 
note that the high level of TTS that led to the synaptic changes shown 
in these studies is in the range of the high degree of TTS that 
Southall et al. (2007) used to calculate PTS levels. It is not known 
whether smaller levels of TTS would lead to similar changes. NMFS, 
however, acknowledges the complexity of noise exposure on the nervous 
system, and will re-examine this issue as more data become available.
    In contrast, a recent study on bottlenose dolphins (Schlundt et 
al., 2013) measured hearing thresholds at multiple frequencies to 
determine the amount of TTS induced before and after exposure to a 
sequence of impulses produced by a seismic air gun. The airgun volume 
and operating pressure varied from 40-150 in\3\ and 1000-2000 psi, 
respectively. After three years and 180 sessions, the authors observed 
no significant TTS at any test frequency, for any combinations of air 
gun volume, pressure, or proximity to the dolphin during behavioral 
tests (Schlundt et al., 2013). Schlundt et al. (2013) suggest that the 
potential for airguns to cause hearing loss in dolphins is lower than 
previously predicted, perhaps as a result of the low-frequency content 
of airgun impulses compared to the high-frequency hearing ability of 
dolphins.

NEPA Concerns

    Comment 19: COA et al. states that we should prepare an 
Environmental Impact Statement (EIS), not an EA, to adequately consider 
the potentially significant impacts of the proposed Authorization, 
including the cumulative impacts and consideration of a full range of 
alternatives.
    Response: We prepared an EA to evaluate whether significant 
environmental impacts may result from the issuance of an Authorization 
to the Observatory for the take of marine mammals incidental to 
conducting their seismic survey in the northwest Atlantic Ocean. After 
completing the EA, we determined that there would not be significant 
impacts to the human environment related to our issuance of an 
Authorization and accordingly issued a Finding of No Significant Impact 
(FONSI). Therefore, this action does not require an EIS.
    Comment 20: COA et al. states that our analysis of alternatives in 
the EA was incomplete because the Foundation's EA did not sufficiently 
evaluate the No Action alternative.
    Response: The NEPA and the implementing CEQ regulations (40 CFR 
parts 1500-1508) require consideration of alternatives to proposed 
major federal actions and NAO 216-6 provides agency policy and guidance 
on the consideration of alternatives to our proposed action. An EA must 
consider all reasonable alternatives, including the No Action 
Alternative. This provides a baseline analysis against which we can 
compare the other alternatives.
    Our EA titled, ``Issuance of an Incidental Harassment Authorization 
to

[[Page 38508]]

Lamont Doherty Earth Observatory to Take Marine Mammals by Harassment 
Incidental to a Marine Geophysical Survey in the Northwest Atlantic 
Ocean, June-August, 2014,'' addresses the potential environmental 
impacts of three choices available to us under section 101(a)(5)(D) of 
the MMPA, namely:

--Issue the Authorization to the Observatory for take, by Level B 
harassment, of marine mammals during the seismic survey, taking into 
account the prescribed means of take, mitigation measures, and 
monitoring requirements;
--Not issue an Authorization to the Observatory in which case, for the 
purposes of NEPA analysis only, we assume that the activities would 
proceed and cause incidental take without the mitigation and monitoring 
measures prescribed in the Authorization; or
--Issue the Authorization to the Observatory for take, by Level B 
harassment, of marine mammals during the seismic survey by 
incorporating additional required mitigation measures.

    To warrant detailed evaluation as a reasonable alternative, an 
alternative must meet our purpose and need. In this case, an 
alternative meets the purpose and need if it satisfies the requirements 
under section 101(a)(5)(D) the MMPA. We evaluated each potential 
alternative against these criteria; identified two action alternatives 
along with the No Action Alternative; and carried these forward for 
evaluation in our EA.

General Comments

    Comment 21: Two commenters expressed general opposition or general 
support for the survey.
    Response: We acknowledge their comments and thank them for their 
interest.
    Comment 22: COA et al. noted incorrect references to locations or 
project information that was incorrect.
    Response: As published, the preamble to the notice of proposed 
Authorization on March 17, 2014 (79 FR 14779) contained minor, non-
substantive errors related to locations, equipment, and species which 
may prove to be misleading but had no overall effect on our preliminary 
determinations. We have removed those inadvertent errors from this 
notice.

Description of Marine Mammals in the Area of the Specified Activity

    We provided information on the occurrence of marine mammals with 
possible or confirmed occurrence in the survey area in the notice of 
proposed Authorization on March 17, 2014 (79 FR 14779). The marine 
mammals most likely to be harassed in the action include 6 mysticetes, 
18 odontocetes, and 3 pinniped species under our jurisdiction. Table 1 
in this notice provides information on those species' regulatory status 
under the MMPA and the Endangered Species Act of 1973 (16 U.S.C. 1531 
et seq.); abundance; occurrence and seasonality in the activity area.

                                Table 1--Marine Mammals Most Likely To Be Harassed Incidental to the Observatory's Survey
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Abundance
              Species                     Stock name          Regulatory status \1\ \2\        \3\       Occurrence and range            Season
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale........  Western Atlantic.....  MMPA--D                                 455  common coastal/shelf.  year-round. \4\
                                                           ESA--EN
Humpback whale....................  Gulf of Maine........  MMPA--D                                 823  common coastal.......  spring-fall.
                                                           ESA--EN
Common minke whale................  Canadian East Coast..  MMPA--D                              20,741  rare coastal/shelf...  spring-summer.
                                                           ESA--NL
Sei whale.........................  Nova Scotia..........  MMPA--D                                 357  uncommon shelf edge..  spring.
                                                           ESA--EN
Fin whale.........................  Western North          MMPA--D                               3,522  common pelagic.......  year-round.
                                     Atlantic.             ESA--EN
Blue whale........................  Western North          MMPA--D                                 440  uncommon coastal/      occasional.
                                     Atlantic.             ESA--EN                                       pelagic.
Sperm whale.......................  Nova Scotia..........  MMPA--D                               2,288  common pelagic.......  year-round.
                                                           ESA--EN
Dwarf sperm whale.................  Western North          MMPA--NC                              1,783  uncommon shelf.......  year-round.
                                     Atlantic.             ESA--NL
Pygmy sperm whale.................  Western North          MMPA--NC                              1,783  uncommon shelf.......  year-round.
                                     Atlantic.             ESA--NL
Blainville's beaked whale.........  Western North          MMPA--NC                              7,092  uncommon shelf/        spring-summer.
                                     Atlantic.             ESA--NL                                       pelagic.
Cuvier's beaked whale.............  Western North          MMPA--NC                              6,532  uncommon shelf/        spring-summer.
                                     Atlantic.             ESA--NL                                       pelagic.
Gervais' beaked whale.............  Western North          MMPA--NC                              7,092  uncommon shelf/        spring-summer.
                                     Atlantic.             ESA--NL                                       pelagic.
Sowerby's beaked whale............  Western North          MMPA--NC                              7,092  uncommon shelf/        spring-summer.
                                     Atlantic.             ESA--NL                                       pelagic.
True's beaked whale...............  Western North          MMPA--NC                              7,092  uncommon shelf/        spring-summer.
                                     Atlantic.             ESA--NL                                       pelagic.
Northern bottlenose whale.........  Western North          MMPA--NC                            unknown  rare pelagic.........  unknown.
                                     Atlantic.             ESA--NL
Bottlenose dolphin................  Western North          MMPA--NC                             77,532  common pelagic.......  spring-summer.
                                     Atlantic Offshore.    ESA--NL
Bottlenose dolphin................  Western North          MMPA--D                              11,548  common coastal.......  summer.
                                     Atlantic Northern     ESA--NL
                                     Migratory Coastal.
Atlantic spotted dolphin..........  Western North          MMPA--NC                             44,715  common coastal.......  summer-fall.
                                     Atlantic.             ESA--NL
Striped dolphin...................  Western North          MMPA--NC                             54,807  uncommon shelf.......  summer.
                                     Atlantic.             ESA--NL

[[Page 38509]]

 
Short-beaked common dolphin.......  Western North          MMPA--NC                            173,486  common shelf/pelagic.  summer-fall.
                                     Atlantic.             ESA--NL
Atlantic white-sided-dolphin......  Western North          MMPA--NC                             48,819  uncommon shelf/slope.  summer-winter.
                                     Atlantic.             ESA--NL
Risso's dolphin...................  Western North          MMPA--NC                             18,250  common shelf/slope...  year-round.
                                     Atlantic.             ESA--NL
Long-finned pilot whale...........  Western North          MMPA--NC                             26,535  uncommon shelf/        summer.
                                     Atlantic.             ESA--NL                                       pelagic.
Short-finned pilot whale..........  Western North          MMPA--NC                             21,515  uncommon shelf/        summer.
                                     Atlantic.             ESA--NL                                       pelagic.
Harbor porpoise...................  Gulf of Maine/Bay of   MMPA--NC                             79,833  common coastal.......  year-round.
                                     Fundy.                ESA--NL
Gray seal.........................  Western North          MMPA--NC                            331,000  common coastal.......  fall-spring.
                                     Atlantic.             ESA--NL
Harbor seal.......................  Western North          MMPA--NC                             70,142  common coastal.......  fall-spring.
                                     Atlantic.             ESA--NL
Harp seal.........................  Western North          MMPA--NC                          7,100,000  rare, pack ice.......  Jan-May.
                                     Atlantic.             ESA--NL
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ MMPA: D = Depleted, S = Strategic, NC = Not Classified.
\2\ ESA: EN = Endangered, T = Threatened, DL = Delisted, NL = Not listed.
\3\ 2013 NMFS Stock Assessment Report (Waring et al., 2014).
\4\ Seasonality based on Whitt et al., 2013.

    The Observatory presented species information in Table 2 of their 
application but excluded information on pinnipeds because they 
anticipated that these species would have a more northerly distribution 
during the summer and thus have a low likelihood of occurring in the 
survey area. Based on the best available information, we expect that 
certain pinniped species, however, have the potential to occur within 
the survey area and we have therefore included additional information 
for these species. For the Authorization, we considered authorizing 
take for pinnipeds based upon the best available density information 
(Read et al., 2009; DoN, 2007) and other anecdotal sources (MMSC, 
2014).
    We refer the public to the Observatory's application, the 
Foundation's EA (see ADDRESSES), our EA, and the 2013 NMFS Marine 
Mammal Stock Assessment Report available online at: http://www.nmfs.noaa.gov/pr/sars/species.htm for further information on the 
biology and local distribution of these species.

Potential Effects of the Specified Activities on Marine Mammals

    We provided a summary and discussion of the ways that the types of 
stressors associated with the specified activity (e.g., seismic airgun 
operations, vessel movement, and entanglement) impact marine mammals 
(via observations or scientific studies) in the notice of proposed 
Authorization on March 17, 2014 (79 FR 14779).
    The ``Estimated Take by Incidental Harassment'' section later in 
this document will include a quantitative discussion of the number of 
marine mammals anticipated to be taken by this activity. The 
``Negligible Impact Analysis'' section will include a discussion of how 
this specific activity will impact marine mammals. The Negligible 
Impact analysis considers the anticipated level of take and the 
effectiveness of mitigation measures to draw conclusions regarding the 
likely impacts of this activity on the reproductive success or 
survivorship of individuals and from that on the affected marine mammal 
populations or stocks.
    Operating active acoustic sources, such as airgun arrays, has the 
potential for adverse effects on marine mammals. The majority of 
anticipated impacts would be from the use of acoustic sources. The 
effects of sounds from airgun pulses might include one or more of the 
following: tolerance, masking of natural sounds, behavioral 
disturbance, and temporary or permanent hearing impairment or non-
auditory effects (Richardson et al., 1995). However, for reasons 
discussed in the proposed Authorization, it is very unlikely that there 
would be any cases of temporary or permanent hearing impairment 
resulting from the Observatory's activities. As outlined in previous 
NMFS documents, the effects of noise on marine mammals are highly 
variable, often depending on species and contextual factors (based on 
Richardson et al., 1995).
    In the ``Potential Effects of the Specified Activity on Marine 
Mammals'' section of the notice of proposed Authorization on March 17, 
2014 (79 FR 14779), we included a qualitative discussion of the 
different ways that the Observatory's seismic survey may potentially 
affect marine mammals. Marine mammals may behaviorally react to sound 
when exposed to anthropogenic noise. These behavioral reactions are 
often shown as: changing durations of surfacing and dives, number of 
blows per surfacing, or moving direction and/or speed; reduced/
increased vocal activities; changing/cessation of certain behavioral 
activities (such as socializing or feeding); visible startle response 
or aggressive behavior (such as tail/fluke slapping or jaw clapping); 
avoidance of areas where noise sources are located; and/or flight 
responses (e.g., pinnipeds flushing into water from haulouts or 
rookeries).
    Masking is the obscuring of sounds of interest by other sounds, 
often at similar frequencies. Marine mammals use acoustic signals for a 
variety of purposes, which differ among species, but include 
communication between individuals, navigation, foraging, reproduction, 
avoiding predators, and learning about their environment (Erbe and 
Farmer, 2000; Tyack, 2000). Masking, or auditory interference, 
generally occurs when sounds in the environment are louder than, and of 
a similar frequency as, auditory signals an animal is trying to 
receive. Masking is a phenomenon that affects animals that are trying 
to receive acoustic

[[Page 38510]]

information about their environment, including sounds from other 
members of their species, predators, prey, and sounds that allow them 
to orient in their environment. Masking these acoustic signals can 
disturb the behavior of individual animals, groups of animals, or 
entire populations. For the airgun sound generated from the 
Observatory's seismic survey, sound will consist of low frequency 
(under 500 Hz) pulses with extremely short durations (less than one 
second). Masking from airguns is more likely in low-frequency marine 
mammals like mysticetes. There is little concern that masking would 
occur near the sound source due to the brief duration of these pulses 
and relative silence between air gun shots (approximately 5 to 6 
seconds). Masking is less likely for mid- to high-frequency cetaceans 
and pinnipeds.
    Hearing impairment (either temporary or permanent) is also 
unlikely. Given the higher level of sound necessary to cause permanent 
threshold shift as compared with temporary threshold shift, it is 
considerably less likely that permanent threshold shift would occur 
during the seismic survey. Cetaceans generally avoid the immediate area 
around operating seismic vessels, as do some other marine mammals. Some 
pinnipeds show avoidance reactions to airguns.
    The Langseth will operate at a relatively slow speed (typically 4.6 
knots (8.5 km/h; 5.3 mph)) when conducting the survey. Protected 
species observers would implement mitigation measures to ensure the 
least practicable adverse effect to marine mammals. Therefore, NMFS 
neither anticipates nor will we authorize takes of marine mammals from 
ship strikes.
    We refer the reader to the Observatory's application, our EA, and 
the Foundation's EA for additional information on the behavioral 
reactions (or lack thereof) by all types of marine mammals to seismic 
vessels. We have reviewed these data along with new information 
submitted during the public comment period and determined them to be 
the best available information for the purposes of the Authorization.

Anticipated Effects on Marine Mammal Habitat

    We included a detailed discussion of the potential effects of this 
action on marine mammal habitat, including physiological and behavioral 
effects on marine mammal prey items (e.g., fish and invertebrates) in 
the notice of proposed Authorization on March 17, 2014 (79 FR 14779) 
and in our EA. While we anticipate that the specified activity may 
result in marine mammals avoiding certain areas due to temporary 
ensonification, the impact to habitat is temporary and reversible. 
Further, we also considered these impacts to marine mammals in detail 
in the notice of proposed Authorization as behavioral modification. The 
main impact associated with the activity would be temporarily elevated 
noise levels and the associated direct effects on marine mammals.

Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, NMFS must prescribe, where applicable, the 
permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable adverse impact on such species 
or stock and its habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for taking for certain 
subsistence uses (where relevant).
    The Observatory has reviewed the following source documents and has 
incorporated a suite of proposed mitigation measures into their project 
description.
    (1) Protocols used during previous Foundation and Observatory-
funded seismic research cruises as approved by us and detailed in the 
Foundation's 2011 PEIS and 2013 EA;
    (2) Previous incidental harassment authorization applications and 
authorizations that we have approved and authorized; and
    (3) Recommended best practices in Richardson et al. (1995), Pierson 
et al. (1998), and Weir and Dolman, (2007).
    To reduce the potential for disturbance from acoustic stimuli 
associated with the activities, the Observatory, and/or its designees 
have proposed to implement the following mitigation measures for marine 
mammals:
    (1) Vessel-based visual mitigation monitoring;
    (2) Proposed exclusion zones;
    (3) Power down procedures;
    (4) Shutdown procedures;
    (5) Ramp-up procedures; and
    (6) Speed and course alterations.

Vessel-Based Visual Mitigation Monitoring

    The Observatory would position observers aboard the seismic source 
vessel to watch for marine mammals near the vessel during daytime 
airgun operations and during any start-ups at night. Observers would 
also watch for marine mammals near the seismic vessel for at least 30 
minutes prior to the start of airgun operations after an extended 
shutdown (i.e., greater than approximately eight minutes for this 
proposed cruise). When feasible, the observers would conduct 
observations during daytime periods when the seismic system is not 
operating for comparison of sighting rates and behavior with and 
without airgun operations and between acquisition periods. Based on the 
observations, the Langseth would power down or shutdown the airguns 
when marine mammals are observed within or about to enter a designated 
177-dB or 187-dB exclusion zone.
    During seismic operations, at least four protected species 
observers would be aboard the Langseth. The Observatory would appoint 
the observers with our concurrence and they would conduct observations 
during ongoing daytime operations and nighttime ramp-ups of the airgun 
array. During the majority of seismic operations, two observers would 
be on duty from the observation tower to monitor marine mammals near 
the seismic vessel. Using two observers would increase the 
effectiveness of detecting animals near the source vessel. However, 
during mealtimes and bathroom breaks, it is sometimes difficult to have 
two observers on effort, but at least one observer would be on watch 
during bathroom breaks and mealtimes. Observers would be on duty in 
shifts of no longer than four hours in duration.
    Two observers on the Langseth would also be on visual watch during 
all nighttime ramp-ups of the seismic airguns. A third observer would 
monitor the passive acoustic monitoring equipment 24 hours a day to 
detect vocalizing marine mammals present in the action area. In 
summary, a typical daytime cruise would have scheduled two observers 
(visual) on duty from the observation tower, and an observer (acoustic) 
on the passive acoustic monitoring system. Before the start of the 
seismic survey, the Observatory would instruct the vessel's crew to 
assist in detecting marine mammals and implementing mitigation 
requirements.
    The Langseth is a suitable platform for marine mammal observations. 
When stationed on the observation platform, the eye level would be 
approximately 21.5 m (70.5 ft) above sea level, and the observer would 
have a good view around the entire vessel. During daytime, the 
observers would scan the area around the vessel systematically with 
reticle binoculars (e.g., 7 x 50 Fujinon), Big-eye binoculars (25 x 
150), and with the naked eye. During darkness, night vision devices 
would be

[[Page 38511]]

available (ITT F500 Series Generation 3 binocular-image intensifier or 
equivalent), when required. Laser range-finding binoculars (Leica LRF 
1200 laser rangefinder or equivalent) would be available to assist with 
distance estimation. They are useful in training observers to estimate 
distances visually, but are generally not useful in measuring distances 
to animals directly. The user measures distances to animals with the 
reticles in the binoculars.
    When the observers see marine mammals within or about to enter the 
designated exclusion zone, the Langseth would immediately power down or 
shutdown the airguns. The observer(s) would continue to maintain watch 
to determine when the animal(s) are outside the exclusion zone by 
visual confirmation. Airgun operations would not resume until the 
observer has confirmed that the animal has left the zone, or if not 
observed after 15 minutes for species with shorter dive durations 
(small odontocetes and pinnipeds) or 30 minutes for species with longer 
dive durations (mysticetes and large odontocetes, including sperm, 
pygmy sperm, dwarf sperm, killer, and beaked whales).
    Exclusion Zones: The Observatory would use safety radii to 
designate exclusion zones and to estimate take for marine mammals. 
Table 2 shows the distances at which a marine mammal could potentially 
receive sound levels (160-, 177-, or 187-dB) from the airgun subarrays 
and a single airgun.

    Table 2--Distances to Which Sound Levels Greater Than or Equal to 160, 177, and 187 dB re: 1 [mu]Pa Could Be Received During the Proposed Survey
                                       Offshore New Jersey in the North Atlantic Ocean, July Through August, 2014
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                  Predicted RMS distances  (m)
                     Source and volume (in\3\)                        Tow depth  (m)    Water depth   --------------------------------------------------
                                                                                            (m)             187 dB           177 dB           160 dB
--------------------------------------------------------------------------------------------------------------------------------------------------------
Single Bolt airgun (40 in \3\).....................................               6             <100               31              109              995
4-Airgun subarray (700 in \3\).....................................             4.5             <100              151              561            5,240
4-Airgun subarray (700 in \3\).....................................               6             <100              175              651            6,100
8-Airgun subarray (1,400 in \3\)...................................             4.5             <100              190              709            6,670
8-Airgun subarray (1,400 in \3\)...................................               6             <100              234              886            8,150
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The 180- or 190-dB level shutdown criteria are applicable to 
cetaceans and pinnipeds as specified by NMFS (2000). To be 
conservative, we are requiring the Observatory to establish the 
exclusion zones based upon the 187-dB and 177-dB isopleths which are 
approximately 3-dB lower than NMFS' existing shutdown criteria.
    If the protected species visual observer detects marine mammal(s) 
within or about to enter the appropriate exclusion zone, the Langseth 
crew would immediately power down the airgun array, or perform a 
shutdown if necessary (see Shut-down Procedures).
    Power Down Procedures--A power down involves decreasing the number 
of airguns in use such that the radius of the 177 or 187-dB zone is 
smaller to the extent that marine mammals are no longer within or about 
to enter the exclusion zone. A power down of the airgun array can also 
occur when the vessel is moving from one seismic line to another. 
During a power down for mitigation, the Langseth would operate one 
airgun (40 in\3\). The continued operation of one airgun would alert 
marine mammals to the presence of the seismic vessel in the area. A 
shutdown occurs when the Langseth suspends all airgun activity.
    If the observer detects a marine mammal outside the exclusion zone 
and the animal is likely to enter the zone, the crew would power down 
the airguns to reduce the size of the 177- or 187-dB exclusion zone 
before the animal enters that zone. Likewise, if a mammal is already 
within the zone after detection, the crew would power-down the airguns 
immediately. During a power down of the airgun array, the crew would 
operate a single 40-in\3\ airgun which has a smaller exclusion zone. If 
the observer detects a marine mammal within or near the smaller 
exclusion zone around the airgun (Table 2), the crew would shut down 
the single airgun (see next section).
    Resuming Airgun Operations After a Power Down--Following a power-
down, the Langseth crew would not resume full airgun activity until the 
marine mammal has cleared the 177- or 187-dB exclusion zone (see Table 
2). The observers would consider the animal to have cleared the 
exclusion zone if:
     The observer has visually observed the animal leave the 
exclusion zone; or
     An observer has not sighted the animal within the 
exclusion zone for 15 minutes for species with shorter dive durations 
(i.e., small odontocetes or pinnipeds), or 30 minutes for species with 
longer dive durations (i.e., mysticetes and large odontocetes, 
including sperm, pygmy sperm, dwarf sperm, and beaked whales); or
    The Langseth crew would resume operating the airguns at full power 
after 15 minutes of sighting any species with short dive durations 
(i.e., small odontocetes or pinnipeds). Likewise, the crew would resume 
airgun operations at full power after 30 minutes of sighting any 
species with longer dive durations (i.e., mysticetes and large 
odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked 
whales).
    We estimate that the Langseth would transit outside the original 
177- or 187-dB exclusion zone after an 8-minute wait period. This 
period is based on the average speed of the Langseth while operating 
the airguns (8.5 km/h; 5.3 mph). Because the vessel has transited away 
from the vicinity of the original sighting during the 8-minute period, 
implementing ramp-up procedures for the full array after an extended 
power down (i.e., transiting for an additional 35 minutes from the 
location of initial sighting) would not meaningfully increase the 
effectiveness of observing marine mammals approaching or entering the 
exclusion zone for the full source level and would not further minimize 
the potential for take. The Langseth's observers are continually 
monitoring the exclusion zone for the full source level while the 
mitigation airgun is firing. On average, observers can observe to the 
horizon (10 km; 6.2 mi) from the height of the Langseth's observation 
deck and should be able to say with a reasonable degree of confidence 
whether a marine mammal would be encountered within this distance 
before resuming airgun operations at full power.
    Shutdown Procedures--The Langseth crew would shutdown the operating 
airgun(s) if they see a marine mammal

[[Page 38512]]

within or approaching the exclusion zone for the single airgun. The 
crew would implement a shutdown:
    (1) If an animal enters the exclusion zone of the single airgun 
after the crew has initiated a power down; or
    (2) If an observer sees the animal is initially within the 
exclusion zone of the single airgun when more than one airgun 
(typically the full airgun array) is operating.
    Considering the conservation status for North Atlantic right 
whales, the Langseth crew would shutdown the airgun(s) immediately in 
the unlikely event that observers detect this species, regardless of 
the distance from the vessel. The Langseth would only begin ramp-up if 
observers have not seen the North Atlantic right whale for 30 minutes.
    Resuming Airgun Operations After a Shutdown--Following a shutdown 
in excess of eight minutes, the Langseth crew would initiate a ramp-up 
with the smallest airgun in the array (40-in\3\). The crew would turn 
on additional airguns in a sequence such that the source level of the 
array would increase in steps not exceeding 6 dB per five-minute period 
over a total duration of approximately 30 minutes. During ramp-up, the 
observers would monitor the exclusion zone, and if he/she sees a marine 
mammal, the Langseth crew would implement a power down or shutdown as 
though the full airgun array were operational.
    During periods of active seismic operations, there are occasions 
when the Langseth crew would need to temporarily shut down the airguns 
due to equipment failure or for maintenance. In this case, if the 
airguns are inactive longer than eight minutes, the crew would follow 
ramp-up procedures for a shutdown described earlier and the observers 
would monitor the full exclusion zone and would implement a power down 
or shutdown if necessary.
    If the full exclusion zone is not visible to the observer for at 
least 30 minutes prior to the start of operations in either daylight or 
nighttime, the Langseth crew would not commence ramp-up unless at least 
one airgun (40-in\3\ or similar) has been operating during the 
interruption of seismic survey operations. Given these provisions, it 
is likely that the vessel's crew would not ramp up the airgun array 
from a complete shutdown at night or in thick fog, because the outer 
part of the zone for that array would not be visible during those 
conditions.
    If one airgun has operated during a power down period, ramp-up to 
full power would be permissible at night or in poor visibility, on the 
assumption that marine mammals would be alerted to the approaching 
seismic vessel by the sounds from the single airgun and could move 
away. The vessel's crew would not initiate a ramp-up of the airguns if 
an observer sees the marine mammal within or near the applicable 
exclusion zones during the day or close to the vessel at night.
    Ramp-up Procedures--Ramp-up of an airgun array provides a gradual 
increase in sound levels, and involves a step-wise increase in the 
number and total volume of airguns firing until the full volume of the 
airgun array is achieved. The purpose of a ramp-up is to ``warn'' 
marine mammals in the vicinity of the airguns, and to provide the time 
for them to leave the area and thus avoid any potential injury or 
impairment of their hearing abilities. The Observatory would follow a 
ramp-up procedure when the airgun array begins operating after an 8 
minute period without airgun operations or when shut down has exceeded 
that period. The Observatory has used similar waiting periods 
(approximately eight to 10 minutes) during previous seismic surveys.
    Ramp-up would begin with the smallest airgun in the array (40 
in\3\). The crew would add airguns in a sequence such that the source 
level of the array would increase in steps not exceeding six dB per 
five minute period over a total duration of approximately 30 to 35 
minutes. During ramp-up, the observers would monitor the exclusion 
zone, and if marine mammals are sighted, the Observatory would 
implement a power-down or shut-down as though the full airgun array 
were operational.
    If the complete exclusion zone has not been visible for at least 30 
minutes prior to the start of operations in either daylight or 
nighttime, the Observatory would not commence the ramp-up unless at 
least one airgun (40 in\3\ or similar) has been operating during the 
interruption of seismic survey operations. Given these provisions, it 
is likely that the crew would not ramp up the airgun array from a 
complete shut-down at night or in thick fog, because the outer part of 
the exclusion zone for that array would not be visible during those 
conditions. If one airgun has operated during a power-down period, 
ramp-up to full power would be permissible at night or in poor 
visibility, on the assumption that marine mammals would be alerted to 
the approaching seismic vessel by the sounds from the single airgun and 
could move away. The Observatory would not initiate a ramp-up of the 
airguns if an observer sights a marine mammal within or near the 
applicable exclusion zones.

Speed and Course Alterations

    If during seismic data collection, the Observatory detects marine 
mammals outside the exclusion zone and, based on the animal's position 
and direction of travel, is likely to enter the exclusion zone, the 
Langseth would change speed and/or direction if this does not 
compromise operational safety. Due to the limited maneuverability of 
the primary survey vessel, altering speed and/or course can result in 
an extended period of time to realign onto the transect. However, if 
the animal(s) appear likely to enter the exclusion zone, the Langseth 
would undertake further mitigation actions, including a power down or 
shut down of the airguns.

Mitigation Conclusions

    We have carefully evaluated the Observatory's proposed mitigation 
measures in the context of ensuring that we prescribe the means of 
effecting the least practicable impact on the affected marine mammal 
species and stocks and their habitat. Our evaluation of potential 
measures included consideration of the following factors in relation to 
one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by us should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed here:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to airgun 
operations that we expect to result in the take of marine mammals (this 
goal may contribute to 1, above, or to reducing harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to airgun operations that we expect to result in the take of marine 
mammals (this goal may contribute to 1, above, or to reducing 
harassment takes only).

[[Page 38513]]

    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to airgun 
operations that we expect to result in the take of marine mammals (this 
goal may contribute to a, above, or to reducing the severity of 
harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on the evaluation of the Observatory's proposed measures, as 
well as other measures considered, we have determined that the proposed 
mitigation measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
Authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that we expect to be present in the 
proposed action area.
    The Observatory submitted a marine mammal monitoring plan in 
section XIII of the Authorization application. This description is not 
repeated here as we have not changed the monitoring plan between the 
proposed Authorization and our final Authorization.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in the probability of detecting marine mammals, both 
within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and during other times and locations, 
in order to generate more data to contribute to the analyses mentioned 
later;
    2. An increase in our understanding of how many marine mammals 
would be affected by seismic airguns and other active acoustic sources 
and the likelihood of associating those exposures with specific adverse 
effects, such as behavioral harassment, temporary or permanent 
threshold shift;
    3. An increase in our understanding of how marine mammals respond 
to stimuli that we expect to result in take and how those anticipated 
adverse effects on individuals (in different ways and to varying 
degrees) may impact the population, species, or stock (specifically 
through effects on annual rates of recruitment or survival) through any 
of the following methods:
    a. Behavioral observations in the presence of stimuli compared to 
observations in the absence of stimuli (i.e., we need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    b. Physiological measurements in the presence of stimuli compared 
to observations in the absence of stimuli (i.e., we need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    c. Distribution and/or abundance comparisons in times or areas with 
concentrated stimuli versus times or areas without stimuli;
    4. An increased knowledge of the affected species; and
    5. An increase in our understanding of the effectiveness of certain 
mitigation and monitoring measures.

Monitoring Measures

    The Observatory proposes to sponsor marine mammal monitoring during 
the present project to supplement the mitigation measures that require 
real-time monitoring, and to satisfy the monitoring requirements of the 
Authorization. We have not changed the monitoring plan between the 
proposed Authorization and our final Authorization. The Observatory 
planned the monitoring work as a self-contained project independent of 
any other related monitoring projects that may occur in the same 
regions at the same time. Further, the Observatory is prepared to 
discuss coordination of its monitoring program with any other related 
work that might be conducted by other groups working insofar as it is 
practical for the Observatory.

Vessel-Based Passive Acoustic Monitoring

    Passive acoustic monitoring would complement the visual mitigation 
monitoring program, when practicable. Visual monitoring typically is 
not effective during periods of poor visibility or at night, and even 
with good visibility, is unable to detect marine mammals when they are 
below the surface or beyond visual range. Passive acoustical monitoring 
can improve detection, identification, and localization of cetaceans 
when used in conjunction with visual observations. The passive acoustic 
monitoring would serve to alert visual observers (if on duty) when 
vocalizing cetaceans are detected. It is only useful when marine 
mammals call, but it can be effective either by day or by night, and 
does not depend on good visibility. The acoustic observer would monitor 
the system in real time so that he/she can advise the visual observers 
if they acoustic detect cetaceans.
    The passive acoustic monitoring system consists of hardware (i.e., 
hydrophones) and software. The ``wet end'' of the system consists of a 
towed hydrophone array connected to the vessel by a tow cable. The tow 
cable is 250 m (820.2 ft) long and the hydrophones are fitted in the 
last 10 m (32.8 ft) of cable. A depth gauge, attached to the free end 
of the cable, which is typically towed at depths less than 20 m (65.6 
ft). The Langseth crew would deploy the array from a winch located on 
the back deck. A deck cable would connect the tow cable to the 
electronics unit in the main computer lab where the acoustic station, 
signal conditioning, and processing system would be located. The 
Pamguard software amplifies, digitizes, and then processes the acoustic 
signals received by the hydrophones. The system can detect marine 
mammal vocalizations at frequencies up to 250 kHz.
    One acoustic observer, an expert bioacoustician with primary 
responsibility for the passive acoustic monitoring system would be 
aboard the Langseth in addition to the four visual observers. The 
acoustic observer would monitor the towed hydrophones 24 hours per day 
during airgun operations and during most periods when the Langseth is 
underway while the airguns are not operating. However, passive acoustic 
monitoring may not be possible if damage occurs to both the primary and 
back-up hydrophone arrays during operations. The primary passive 
acoustic monitoring streamer on the Langseth is a digital hydrophone 
streamer. Should the digital streamer fail, back-up systems should 
include an analog spare streamer and a hull-mounted hydrophone.
    One acoustic observer would monitor the acoustic detection system 
by listening to the signals from two

[[Page 38514]]

channels via headphones and/or speakers and watching the real-time 
spectrographic display for frequency ranges produced by cetaceans. The 
observer monitoring the acoustical data would be on shift for one to 
six hours at a time. The other observers would rotate as an acoustic 
observer, although the expert acoustician would be on passive acoustic 
monitoring duty more frequently.
    When the acoustic observer detects a vocalization while visual 
observations are in progress, the acoustic observer on duty would 
contact the visual observer immediately, to alert him/her to the 
presence of cetaceans (if they have not already been seen), so that the 
vessel's crew can initiate a power down or shutdown, if required. 
During non-daylight hours, when a cetacean is detected by acoustic 
monitoring and may be close to the source vessel, the Langseth crew 
would be notified immediately so that the proper mitigation measure may 
be implemented. The observer would enter the information regarding the 
call into a database. Data entry would include an acoustic encounter 
identification number, whether it was linked with a visual sighting, 
date, time when first and last heard and whenever any additional 
information was recorded, position and water depth when first detected, 
bearing if determinable, species or species group (e.g., unidentified 
dolphin, sperm whale), types and nature of sounds heard (e.g., clicks, 
continuous, sporadic, whistles, creaks, burst pulses, strength of 
signal, etc.), and any other notable information. Acousticians record 
the acoustic detection for further analysis.

Observer Data and Documentation

    Observers would record data to estimate the numbers of marine 
mammals exposed to various received sound levels and to document 
apparent disturbance reactions or lack thereof. They would use the data 
to estimate numbers of animals potentially `taken' by harassment (as 
defined in the MMPA). They will also provide information needed to 
order a power down or shut down of the airguns when a marine mammal is 
within or near the exclusion zone.
    When an observer makes a sighting, they will record the following 
information:
    1. Species, group size, age/size/sex categories (if determinable), 
behavior when first sighted and after initial sighting, heading (if 
consistent), bearing and distance from seismic vessel, sighting cue, 
apparent reaction to the airguns or vessel (e.g., none, avoidance, 
approach, paralleling, etc.), and behavioral pace.
    2. Time, location, heading, speed, activity of the vessel, sea 
state, visibility, and sun glare.
    The observer will record the data listed under (2) at the start and 
end of each observation watch, and during a watch whenever there is a 
change in one or more of the variables.
    Observers will record all observations and power downs or shutdowns 
in a standardized format and will enter data into an electronic 
database. The observers will verify the accuracy of the data entry by 
computerized data validity checks during data entry and by subsequent 
manual checking of the database. These procedures will allow the 
preparation of initial summaries of data during and shortly after the 
field program, and will facilitate transfer of the data to statistical, 
graphical, and other programs for further processing and archiving.
    Results from the vessel-based observations will provide:
    1. The basis for real-time mitigation (airgun power down or 
shutdown).
    2. Information needed to estimate the number of marine mammals 
potentially taken by harassment, which the Observatory must report to 
the Office of Protected Resources.
    3. Data on the occurrence, distribution, and activities of marine 
mammals and turtles in the area where the Observatory would conduct the 
seismic study.
    4. Information to compare the distance and distribution of marine 
mammals and turtles relative to the source vessel at times with and 
without seismic activity.
    5. Data on the behavior and movement patterns of marine mammals 
detected during non-active and active seismic operations.

Reporting

    The Observatory would submit a report to us and to the Foundation 
within 90 days after the end of the cruise. The report would describe 
the operations conducted and sightings of marine mammals and turtles 
near the operations. The report would provide full documentation of 
methods, results, and interpretation pertaining to all monitoring. The 
90-day report would summarize the dates and locations of seismic 
operations, and all marine mammal sightings (dates, times, locations, 
activities, associated seismic survey activities). The report would 
also include estimates of the number and nature of exposures that could 
result in ``takes'' of marine mammals by harassment or in other ways.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner not permitted by the 
authorization (if issued), such as an injury, serious injury, or 
mortality (e.g., ship-strike, gear interaction, and/or entanglement), 
the Observatory shall immediately cease the specified activities and 
immediately report the take to the Incidental Take Program Supervisor, 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
at 301-427-8401 and/or by email to Jolie.Harrison@noaa.gov and 
ITP.Cody@noaa.gov and the Northeast Regional Stranding Coordinator at 
(978) 281-9300. The report must include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    The Observatory shall not resume its activities until we are able 
to review the circumstances of the prohibited take. We shall work with 
the Observatory to determine what is necessary to minimize the 
likelihood of further prohibited take and ensure MMPA compliance. The 
Observatory may not resume their activities until notified by us via 
letter, email, or telephone.
    In the event that the Observatory discovers an injured or dead 
marine mammal, and the lead visual observer determines that the cause 
of the injury or death is unknown and the death is relatively recent 
(i.e., in less than a moderate state of decomposition as we describe in 
the next paragraph), the Observatory will immediately report the 
incident to the Incidental Take Program Supervisor, Permits and 
Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401 and/or by email to Jolie.Harrison@noaa.gov and ITP.Cody@noaa.gov 
and the Northeast Regional Stranding Coordinator at (978) 281-9300. The 
report must include the same information identified in the paragraph 
above this section. Activities may continue while NMFS reviews the

[[Page 38515]]

circumstances of the incident. NMFS would work with the Observatory to 
determine whether modifications in the activities are appropriate.
    In the event that the Observatory discovers an injured or dead 
marine mammal, and the lead visual observer determines that the injury 
or death is not associated with or related to the authorized activities 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Observatory would report the 
incident to the Incidental Take Program Supervisor, Permits and 
Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401 and/or by email to Jolie.Harrison@noaa.gov and ITP.Cody@noaa.gov 
and the Northeast Regional Stranding Coordinator at (978) 281-9300, 
within 24 hours of the discovery. Activities may continue while NMFS 
reviews the circumstances of the incident. The Observatory would 
provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].
    Acoustic stimuli (i.e., increased underwater sound) generated 
during the operation of the airgun sub-arrays have the potential to 
result in the behavioral disturbance of some marine mammals. Thus, NMFS 
proposes to authorize take by Level B harassment resulting from the 
operation of the sound sources for the proposed seismic survey based 
upon the current acoustic exposure criteria shown in Table 3. Our 
practice has been to apply the 160 dB re: 1 [mu]Pa received level 
threshold for underwater impulse sound levels to determine whether take 
by Level B harassment occurs. Southall et al. (2007) provides a 
severity scale for ranking observed behavioral responses of both free-
ranging marine mammals and laboratory subjects to various types of 
anthropogenic sound (see Table 4 in Southall et al. [2007]).

            Table 3--NMFS' Current Acoustic Exposure Criteria
------------------------------------------------------------------------
          Criterion           Criterion definition        Threshold
------------------------------------------------------------------------
Level A Harassment (Injury).  Permanent Threshold   180 dB re 1 microPa-
                               Shift (PTS) (Any      m (cetaceans)/190
                               level above that      dB re 1 microPa-m
                               which is known to     (pinnipeds) root
                               cause TTS).           mean square (rms).
Level B Harassment..........  Behavioral            160 dB re 1 microPa-
                               Disruption (for       m (rms).
                               impulse noises).
------------------------------------------------------------------------

    The probability of vessel and marine mammal interactions (i.e., 
ship strike) occurring during the proposed survey is unlikely due to 
the Langseth's slow operational speed, which is typically 4.6 kts (8.5 
km/h; 5.3 mph). Outside of seismic operations, the Langseth's cruising 
speed would be approximately 11.5 mph (18.5 km/h; 10 kts) which is 
generally below the speed at which studies have noted reported 
increases of marine mammal injury or death (Laist et al., 2001). In 
addition, the Langseth has a number of other advantages for avoiding 
ship strikes as compared to most commercial merchant vessels, including 
the following: the Langseth's bridge offers good visibility to visually 
monitor for marine mammal presence; observers posted during operations 
scan the ocean for marine mammals and must report visual alerts of 
marine mammal presence to crew; and the observers receive extensive 
training that covers the fundamentals of visual observing for marine 
mammals and information about marine mammals and their identification 
at sea. Thus, NMFS does not anticipate that take, in the form of vessel 
strike, would result from the movement of the vessel.
    The Observatory did not estimate any additional take allowance for 
animals that could be affected by sound sources other than the airguns. 
We do not expect that the sound levels produced by the echosounder, 
sub-bottom profiler, and ADCP would exceed the sound levels produced by 
the airguns for the majority of the time. Because of the beam pattern 
and directionality of these sources, combined with their lower source 
levels, it is not likely that these sources would take marine mammals 
independently from the takes that the Observatory has estimated to 
result from airgun operations. Therefore, we do not believe it is 
necessary to authorize additional takes for these sources for the 
action at this time. We are currently evaluating the broader use of 
these types of sources to determine under what specific circumstances 
coverage for incidental take would or would not be advisable. We are 
working on guidance that would outline a consistent recommended 
approach for applicants to address the potential impacts of these types 
of sources.
    NMFS considers the probability for entanglement of marine mammals 
to be low because of the vessel speed and the monitoring efforts 
onboard the survey vessel. Therefore, NMFS does not believe it is 
necessary to authorize additional takes for entanglement at this time.
    There is no evidence that planned activities could result in 
serious injury or mortality within the specified geographic area for 
the requested Authorization. The required mitigation and monitoring 
measures would minimize any potential risk for serious injury or 
mortality.
    The following sections describe the Observatory's methods to 
estimate take by incidental harassment. The Observatory based their 
estimates on the number of marine mammals that could be harassed by 
seismic operations with the airgun sub-array during approximately 4,900 
km\2\ (approximately 1,926.6 square miles (mi\2\) of transect lines in 
the northwest Atlantic Ocean as depicted in Figure 1 (Figure 1 of the 
Observatory's application).
    Ensonified Area Calculations: In order to estimate the potential 
number of marine mammals exposed to airgun sounds, the Observatory 
considers the total marine area within the 160-dB radius around the 
operating airguns. This ensonified area includes areas of overlapping 
transect lines. They determine the ensonified area by entering the 
planned survey lines into a MapInfo GIS, using the software to identify 
the relevant areas by ``drawing'' the applicable 160-dB buffer (see 
Table 2) around each seismic line, and then calculate the total area 
within the buffers.
    Because the Observatory assumes that the Langseth may need to 
repeat some tracklines, accommodate the turning of the vessel, address 
equipment

[[Page 38516]]

malfunctions, or conduct equipment testing to complete the survey, they 
have increased the proposed number of line-kilometers for the seismic 
operations from approximately 2,002 km\2\ (1,244 mi) by 25 percent to 
2,502 km\2\ (1,555 mi) to account for these contingency operations.
    Exposure Estimates: The Observatory calculates the numbers of 
different individuals potentially exposed to approximately 160 dB re: 1 
[mu]Parms by multiplying the expected species density 
estimates (in number/km\2\) for that area in the absence of a seismic 
program times the estimated area of ensonification (i.e., 2,502 km\2\; 
1,555 mi).
    Table 3 of their application presents their estimates of the number 
of different individual marine mammals that could potentially 
experience exposures greater than or equal to 160 dB re: 1 [mu]Pa (rms) 
during the seismic survey if no animals moved away from the survey 
vessel. The Observatory used the Strategic Environmental Research and 
Development Program's (SERDP) spatial decision support system (SDSS) 
Marine Animal Model Mapper tool (Read et al., 2009) to calculate 
cetacean densities within the survey area based on the U.S. Navy's 
``OPAREA Density Estimates'' (NODE) model (DoN, 2007). The NODE model 
derives density estimates using density surface modeling of the 
existing line-transect data, which uses sea surface temperature, 
chlorophyll a, depth, longitude, and latitude to allow extrapolation to 
areas/seasons where marine mammal survey data collection did not occur. 
The Observatory used the SERDP SDSS tool to obtain mean densities in a 
polygon the size of the seismic survey area for cetacean species during 
summer (June through August).
    For the Authorization, we reviewed the Observatory's take estimates 
presented in Table 3 of their application and have revised the take 
calculations for several species based upon the best available density 
information from the SERDP SDSS Marine Animal Model Mapper tool for the 
spring and summer months, survey information from Palka (2012), species 
presence from the New Jersey Department of Environmental Protection 
Baseline Studies Final Report Volume III: Marine Mammal and Sea Turtle 
Studies, and stranding records from the New Jersey Marine Mammal 
Stranding Center. These include takes for blue, fin, humpback, minke, 
North Atlantic right, and sei whales; harbor porpoise; and gray, 
harbor, and harp seals.
    For North Atlantic right whales, we used the SERDP SDSS Marine 
Animal Model Mapper tool NODES spring model to obtain mean densities in 
a polygon the size of the seismic survey area. To be conservative, we 
increased the estimated take of 1 individual to 3 to account for a cow/
calf pair based on information from Whitt et al. (2013).
    For blue and humpback whales, we used the SERDP SDSS Duke Habitat 
Model for baleen and humpback whales, respectively to obtain the summer 
mean densities in a polygon the size of the seismic survey area for 
those species.
    For species where the SERDP SDSS NODES summer model produced a 
density estimate of zero, we increased the take estimates based on 
generalized group size data from Palka (2012). Those species include: 
humpback, fin, sei, and minke whales; striped dolphins, short-beaked 
common dolphins, and Atlantic white-sided dolphins. For gray and harp 
seals, we increased the take estimates based on stranding data from the 
New Jersey Marine Mammal Stranding Center.
    For harbor porpoise and harbor seals, we also used the SERDP SDSS 
Marine Animal Model Mapper tool NODES spring model to obtain mean 
densities in a polygon the size of the seismic survey area.
    The Observatory's approach for estimating take does not allow for 
turnover in the marine mammal populations in the area during the course 
of the survey. To correct this potential underestimation, we have 
increased the proposed take estimates for odontocetes (excluding sperm 
whales) and pinnipeds by a factor of 25 percent to conservatively 
account for new animals entering or passing through the ensonified 
area.
    Table 4 presents the revised estimates of the possible numbers of 
marine mammals exposed to sound levels greater than or equal to 160 dB 
re: 1 [mu]Pa during the proposed seismic survey.

 Table 4--Densities and Estimates of the Possible Numbers of Marine Mammals Exposed to Sound Levels Greater Than
   or Equal to 160 dB re: 1 [mu]Pa During the Proposed Seismic Survey in the North Atlantic Ocean, During July
                                              Through August, 2014
----------------------------------------------------------------------------------------------------------------
                                                   Modeled
                                                  number of
                                       Density   individuals   Proposed take  Percent of
               Species                 estimate   exposed to   authorization    species    Population  trend \3\
                                         \1\        sound           \2\        or stock
                                                    levels                        \3\
                                                   >=160 dB
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale..........  \4\ 0.283            1               3     0.66     Increasing.
Humpback whale......................  \5\ 0.044            1           \2\ 2     0.24     Increasing.
Common minke whale..................      0                0           \2\ 2     0.01     No data.
Sei whale...........................      0.161            1           \2\ 2     0.56     No data.
Fin whale...........................      0.002            1           \2\ 2     0.06     No data.
Blue whale..........................  \6\ 6.73            17              17     3.86     No data.
Sperm whale.........................      7.06            18              18     0.79     No data.
Dwarf sperm whale...................      0.001            2               3     0.17     No data.
Pygmy sperm whale...................      0.001            2               3     0.17     No data.
Cuvier's beaked whale...............      0.124            3               4     0.06     No data.
Gervais' beaked whale...............      0.124            3               4     0.06     No data.
Sowerby's beaked whale..............      0.124            3               4     0.06     No data.
Unidentified Mesoplodon/Ziphid:           0.124            1               4     0.06     No data.
 True's, Blainville, northern
 bottlenose whale.
Rough-toothed dolphin...............      0                0               0     0        No data.
Bottlenose dolphin (pelagic)........    111.3            279             349     0.45     No data.
Bottlenose dolphin (coastal)........    111.3            279             349     3.02     No data.
Pantropical spotted dolphin.........      0                0               0     0        No data.
Atlantic spotted dolphin............     36.1             90             113     0.25     No data.
Spinner dolphin.....................      0                0               0     0        No data.

[[Page 38517]]

 
Striped dolphin.....................      0                0              59     0.11     No data.
Short-beaked common dolphin.........      0                0              23     0.01     No data.
White-beaked dolphin................      0                0               0     0        No data.
Atlantic white-sided dolphin........      0                0              19     0.04     No data.
Risso's dolphin.....................     13.6             35              44     0.24     No data.
False killer whale..................      0                0               0     0        No data.
Pygmy killer whale..................      0                0               0     0        No data.
Killer whale........................      0                0               0     0        No data.
Long-finned pilot whale.............      0.184            1              12     0.05     No data.
Short-finned pilot whale............      0.184            1              12     0.06     No data.
Harbor porpoise.....................  \4\ 0.008            1               3     0.0038   No data.
Gray seal...........................      0                0              15     0.005    Increasing.
Harbor seal.........................  \4\ 44.43          112             140     0.20     No data.
Harp seal...........................      0                0               5     0.00007  Increasing.
----------------------------------------------------------------------------------------------------------------
\1\ Except where noted, densities are the mean values for the survey area calculated from the SERDP SDSS NODES
  summer model (Read et al., 2009) as presented in Table 3 of the Observatory's application.
\2\ Proposed take includes increases for mean group size or cow/calf pairs based on Palka, 2012; NJDEP, 2010; or
  increases for gray and harp seals based on stranding data from the NJ Marine Mammal Stranding Center. We have
  also increased the proposed take estimates by a factor of 25 percent to conservatively account for new animals
  entering or passing through the ensonified area.
\3\ Table 1 in this notice lists the stock species abundance estimates used in calculating the percentage of
  species/stock. Population trend information from Waring et al., 2013. No data. = Insufficient data to
  determine population trend.
\4\ NMFS revised estimate based on the NODES model using the spring mean density estimate for that species in
  survey area.
\5\ NMFS revised estimate based on the SERDP SDSS Duke Habitat Model using the summer mean density estimate for
  humpback whales in survey area.
\6\ NMFS revised estimate based on the SERDP SDSS Duke Habitat Model using the summer mean density estimate for
  baleen whales in survey area.

Encouraging and Coordinating Research

    The Observatory would coordinate the planned marine mammal 
monitoring program associated with the seismic survey in the northwest 
Atlantic Ocean with applicable U.S. agencies.

Analysis and Determinations

Negligible Impact

    Negligible impact' is ``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'' (50 CFR 216.103). The lack of 
likely adverse effects on annual rates of recruitment or survival 
(i.e., population level effects) forms the basis of a negligible impact 
finding. Thus, an estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
we must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
and the number of estimated mortalities, effects on habitat, and the 
status of the species.
    In making a negligible impact determination, we consider:
     The number of anticipated injuries, serious injuries, or 
mortalities;
     The number, nature, and intensity, and duration of Level B 
harassment; and
     The context in which the takes occur (e.g., impacts to 
areas of significance, impacts to local populations, and cumulative 
impacts when taking into account successive/contemporaneous actions 
when added to baseline data);
     The status of stock or species of marine mammals (i.e., 
depleted, not depleted, decreasing, increasing, stable, impact relative 
to the size of the population);
     Impacts on habitat affecting rates of recruitment/
survival; and
     The effectiveness of monitoring and mitigation measures to 
reduce the number or severity of incidental take.
    For reasons stated previously in this document and based on the 
following factors, the Observatory's specified activities are not 
likely to cause long-term behavioral disturbance, permanent threshold 
shift, or other non-auditory injury, serious injury, or death. They 
include:
     The anticipated impacts of the Observatory's survey 
activities on marine mammals are temporary behavioral changes due to 
avoidance of the area.
     The likelihood that marine mammals approaching the survey 
area will likely be traveling through the or opportunistically foraging 
within the vicinity. Marine mammals transiting within the vicinity of 
survey operations will be transient as no breeding, calving, pupping, 
or nursing areas, or haul-outs, overlap with the survey area.
     The low potential of the survey to cause an effect on 
coastal bottlenose dolphin populations due to the fact that the 
Observatory's study area is approximately 20 km (12 mi) away from the 
identified habitats for coastal bottlenose dolphins and their calves.
     The low likelihood that North Atlantic right whales would 
be exposed to sound levels greater than or equal to 160 dB re: 1 [mu]Pa 
due to the requirement that the Langseth crew must shutdown the 
airgun(s) immediately if observers detect this species, at any distance 
from the vessel.
     The anticipated impacts of the Observatory's survey 
activities on marine mammals are temporary

[[Page 38518]]

behavioral changes due to avoidance of the area.
     The likelihood that, given sufficient notice through 
relatively slow ship speed, we expect marine mammals to move away from 
a noise source that is annoying prior to its becoming potentially 
injurious;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the operation of the airgun(s) to avoid acoustic harassment;
     We also expect that the seismic survey would have no more 
than a temporary and minimal adverse effect on any fish or invertebrate 
species that serve as prey species for marine mammals, and therefore 
consider the potential impacts to marine mammal habitat minimal;
     The relatively low potential for temporary or permanent 
hearing impairment and the likelihood that the Observatory would avoid 
this impact through the incorporation of the required monitoring and 
mitigation measures (including the incorporation of larger exclusion 
zones for Level A Harassment, power-downs, and shutdowns); and
     The high likelihood that trained visual protected species 
observers would detect marine mammals at close proximity to the vessel.
    NMFS does not anticipate that any injuries, serious injuries, or 
mortalities would occur as a result of the Observatory's proposed 
activities, and NMFS does not propose to authorize injury, serious 
injury, or mortality at this time.
    We anticipate only behavioral disturbance to occur primarily in the 
form of avoidance behavior to the sound source during the conduct of 
the survey activities. Further, the additional mitigation measure 
requiring the Observatory to increase the size of the Level A 
harassment exclusion zones will effect the least practicable impact 
marine mammals.
    Table 4 in this document outlines the number of requested Level B 
harassment takes that we anticipate as a result of these activities. 
NMFS anticipates that 27 marine mammal species (6 mysticetes, 18 
odontocetes, and 3 pinnipeds) under our jurisdiction would likely occur 
in the proposed action area. Of the marine mammal species under our 
jurisdiction that are known to occur or likely to occur in the study 
area, six of these species are listed as endangered under the ESA and 
depleted under the MMPA, including: the blue, fin, humpback, north 
Atlantic right, sei, and sperm whales.
    Due to the nature, degree, and context of Level B (behavioral) 
harassment anticipated and described (see ``Potential Effects on Marine 
Mammals'' section in this notice), we do not expect the activity to 
impact rates of recruitment or survival for any affected species or 
stock. In addition, the seismic surveys would not take place in areas 
of significance for marine mammal feeding, resting, breeding, or 
calving and would not adversely impact marine mammal habitat, including 
the identified habitats for coastal bottlenose dolphins and their 
calves.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (i.e., 24 hour cycle). 
Behavioral reactions to noise exposure (such as disruption of critical 
life functions, displacement, or avoidance of important habitat) are 
more likely to be significant if they last more than one diel cycle or 
recur on subsequent days (Southall et al., 2007). While we anticipate 
that the seismic operations would occur on consecutive days, the 
estimated duration of the survey would last no more than 30 days. 
Specifically, the airgun array moves continuously over 10s of 
kilometers daily, as do the animals, making it unlikely that the same 
animals would be continuously exposed over multiple consecutive days. 
Additionally, the seismic survey would increase sound levels in the 
marine environment in a relatively small area surrounding the vessel 
(compared to the range of the animals), which is constantly travelling 
over distances, and some animals may only be exposed to and harassed by 
sound for less than a day.
    In summary, we expect marine mammals to avoid the survey area, 
thereby reducing the risk of exposure and impacts. We do not anticipate 
disruption to reproductive behavior and there is no anticipated effect 
on annual rates of recruitment or survival of affected marine mammals.
    Based on this notice's analysis of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS finds that the Observatory's proposed seismic 
survey would have a negligible impact on the affected marine mammal 
species or stocks.

Small Numbers

    As mentioned previously, NMFS estimates that the Observatory's 
activities could potentially affect, by Level B harassment only, 27 
species of marine mammals under our jurisdiction. For each species, 
these estimates constitute small numbers (each, less than or equal to 
four percent) relative to the population size and we have provided the 
regional population estimates for the marine mammal species that may be 
taken by Level B harassment in Table 4 in this notice.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS finds that the Observatory's proposed activity would 
take small numbers of marine mammals relative to the populations of the 
affected species or stocks.

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

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    There are six marine mammal species that may occur in the proposed 
survey area, several are listed as endangered under the Endangered 
Species Act, including the blue, fin, humpback, north Atlantic right, 
sei, and sperm whales. Under section 7 of the ESA, the Foundation has 
initiated formal consultation with NMFS on the proposed seismic survey. 
NMFS (i.e., National Marine Fisheries Service, Office of Protected 
Resources, Permits and Conservation Division) also consulted with NMFS 
on the proposed issuance of an Authorization under section 101(a)(5)(D) 
of the MMPA. NMFS consolidated those consultations in a single 
Biological Opinion.
    On June 30, 2014, the Endangered Species Act Interagency 
Cooperation Division issued an Opinion to us and the Foundation which 
concluded that the issuance of the Authorization and the conduct of the 
seismic survey were not likely to jeopardize the continued existence of 
blue, fin, humpback, North Atlantic right, sei, and sperm whales. The 
Opinion also concluded that the issuance of the Authorization and the 
conduct of the seismic survey would not affect designated critical 
habitat for these species.

National Environmental Policy Act (NEPA)

    The Foundation has prepared an EA titled, ``Environmental 
Assessment of a Marine Geophysical Survey by the R/V Marcus G. Langseth 
in the Atlantic Ocean off New Jersey, June-July 2014,'' prepared by 
LGL, Ltd. environmental research associates, on behalf of the

[[Page 38519]]

Foundation and the Observatory. We have also prepared an EA titled, 
``Issuance of an Incidental Harassment Authorization to Lamont Doherty 
Earth Observatory to Take Marine Mammals by Harassment Incidental to a 
Marine Geophysical Survey in the Northwest Atlantic Ocean, June-August, 
2014,'' and FONSI in accordance with NEPA and NOAA Administrative Order 
216-6. We provided relevant environmental information to the public 
through our notice of proposed Authorization (79 FR 14779, March 17, 
2014) and considered public comments received prior to finalizing our 
EA and deciding whether or not to issue a Finding of No Significant 
Impact (FONSI). We concluded that issuance of an Incidental Harassment 
Authorization would not significantly affect the quality of the human 
environment and have issued a FONSI. Because of this finding, it is not 
necessary to prepare an environmental impact statement for the issuance 
of an Authorization to the Observatory for this activity. Our EA and 
FONSI for this activity are available upon request (see ADDRESSES).

Authorization

    We have issued an Incidental Harassment Authorization to the 
Observatory for the take of marine mammals incidental to conducting a 
marine seismic survey in the Atlantic Ocean, July 1, 2014 to August 17, 
2014.

     Dated: July 1, 2014.
Perry F. Gayaldo,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2014-15842 Filed 7-7-14; 8:45 am]
BILLING CODE 3510-22-P