[Federal Register Volume 74, Number 163 (Tuesday, August 25, 2009)]
[Notices]
[Pages 42861-42873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20492]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XQ20


Incidental Takes of Marine Mammals During Specified Activities; 
Marine Geophysical Survey in the Northeast Pacific Ocean, August-
October, 2009

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

ACTION:  Notice; issuance of incidental take authorization.

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

DATES:  Effective August 19, 2009 through October 13, 2009.

ADDRESSES:  A copy of the IHA and the application are available by 
writing to P. Michael Payne, Chief, Permits, Conservation and Education 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225 or by 
telephoning the

[[Page 42862]]

contact listed here. A copy of the application containing a list of the 
references used in this document may be obtained by writing to the 
address specified above, telephoning the contact listed below (see FOR 
FURTHER INFORMATION CONTACT), or by visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents 
cited in this notice may be viewed, by appointment, during regular 
business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Jeannine Cody, Office of Protected 
Resources, NMFS, (301) 713-2289 ext 113.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs 
the Secretary of Commerce (Secretary) to allow, upon request, the 
incidental, but not intentional, taking of marine mammals, for periods 
of not more than one year, by United States citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and, if the taking is 
limited to harassment, a notice of a proposed authorization is provided 
to the public for review.
    Authorization for incidental taking of small numbers of marine 
mammals shall be granted if NMFS finds 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. The authorization must set forth the 
permissible methods of taking, other means of effecting the least 
practicable adverse impact on the species or stock and its habitat and 
monitoring and reporting of such takings. NMFS has defined ``negligible 
impact'' in 50 CFR 216.103 as ''...an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Except with respect to certain activities not pertinent here, the MMPA 
defines ``harassment'' as:

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

    Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit 
for NMFS' review of an application followed by a 30-day public notice 
and comment period on any proposed authorizations for the incidental 
harassment of small numbers of marine mammals. Not later than 45 days 
after the close of the public comment period, if the Secretary makes 
the findings set forth in Section 101(a)(5)(D)(i) of the MMPA, the 
Secretary shall issue or deny issuance of the authorization with 
appropriate conditions to meet the requirements of clause 
101(a)(5)(D)(ii) of the MMPA.

Summary of Request

    On February 11, 2009, NMFS received an application from L-DEO for 
the taking by Level B harassment only, of small numbers of 33 species 
of marine mammals incidental to conducting a marine seismic survey 
within the Exclusive Economic Zone (EEZ) of Canada in the northeast 
Pacific Ocean during August through October 2009. L-DEO, with research 
funding from the NSF, is conducting the geophysical data acquisition 
activities. NMFS outlined the purpose of the research program in a 
previous notice for the proposed IHA (74 FR 21631, May 8, 2009).

Description of the Specified Activity

    The planned survey will involve one source vessel, the R/V Marcus 
G. Langseth (Langseth), a seismic research vessel owned by the NSF and 
operated by L-DEO. The proposed project is scheduled to commence on 
August 19, 2009, and scheduled to end on October 13, 2009. The vessel 
will depart Astoria, Oregon on August 19, 2009 for transit to the 
Endeavor MPA, between 47-48[deg] N. and 128-130[deg] W.
    To obtain high-resolution three-dimensional (3D) structures of the 
Lau Basin's magmatic systems and thermal structures, the Langseth will 
deploy a towed array of 36 airguns with a total discharge volume of 
approximately 6,600 cubic inches (in\3\). The array configuration 
consists of four identical linear arrays or strings, with 10 airguns on 
each string. L-DEO will distribute the four airgun strings across an 
approximate area of 24 x 16 meters (m) (79 x 52 feet (ft)) behind the 
Langseth which will tow the array approximately 50-100 m (164-328 ft) 
behind the vessel at a tow-depth of 9-15 m (29.5-49.2 ft). The airgun 
array will fire for a brief (0.1 second (s)) pulse every 180 s. The 
array will remain silent at all other times.
     The seismic study (e.g., equipment testing, startup, line changes, 
repeat coverage of any areas, and equipment recovery) will take place 
in deep (between 1200 and 3000 m, 3,280 feet (ft) and 1.8 miles (mi)) 
water and will require approximately 10 days to complete 12 transects 
of variable lengths totaling 1800 km of survey lines. Data acquisition 
will include approximately 240 hours of airgun operation. Please see L-
DEO's application for more detailed information. The exact dates of the 
activities will depend on logistics, weather conditions, and the need 
to repeat some lines if data quality is substandard.
    L-DEO will conduct all geophysical data acquisition activities with 
on-board assistance by the scientists who have proposed the NSF-funded 
study. The scientific team consists of NSF, is conducting the 
geophysical data acquisition activities with onboard assistance by Drs. 
Toomey and Hooft from the University of Oregon, and Dr. Wilcock from 
the University of Washington. The vessel will be self-contained, and 
the crew will live aboard the vessel for the entire cruise.
    NMFS has provided a more detailed description of the authorized 
action, including vessel and acoustic source specifications, in a 
previous notice for the proposed IHA (74 FR 21631, May 8, 2009).

Safety Radii

    The distance from the sound source at which an animal would be 
exposed to these different received sound levels may be estimated and 
is typically referred to as safety radii. These safety radii are 
specifically used to help NMFS estimate the number of marine mammals 
likely to be harassed by the proposed activity and in deciding how 
close a marine mammal may approach an operating sound source before the 
applicant will be required to power-down or shut down the sound source.
    L-DEO's acoustic models predict received sound levels in relation 
to distance and direction from the 36-airgun array in order to estimate 
the safety radii around their operations. L-DEO's model is based on 
empirical data gathered during the acoustic calibration study of the R/
V Maurice Ewing's (Ewing) array of 20 airguns (total volume 8600 in\3\) 
conducted in the northern Gulf of Mexico in 2003. L-DEO provides a more 
detailed description of the modeling effort and calculations of the 
safety radii in the previous notice for the proposed IHA (74 FR 21631, 
May 8, 2009), Section I of L-DEO's IHA

[[Page 42863]]

application, and in Appendix A of the Environmental Assessment report 
prepared by LGL Limited environmental research associates (LGL) on 
behalf of NSF. NMFS has determined that the foregoing data and studies 
represent the best scientific evidence available a the present time.
    Using the modeled distances and various correction factors, Table 1 
outlines the predicted distances at which three root mean square (rms) 
sound levels (190 decibels (dB), 180 dB, and 160 dB) are expected to be 
received from the 36-airgun array and a single airgun operating in 
water greater than 1000 m (3,820 ft) in depth.

----------------------------------------------------------------------------------------------------------------
                                                                    Predicted RMS Distances (m)
      Source and Volume          Tow Depth (m)    --------------------------------------------------------------
                                                          190 dB               180 dB               160 dB
----------------------------------------------------------------------------------------------------------------
Single Bolt airgun 40 in\3\              6-15\*\                   12                   40                  385
4 strings 36 airguns 6600                      6                  220                  710                 4670
 in\3\
                                               9                  300                  950                 6000
                                              12                  340                 1120                 6850
                                              15                  380                 1220                 7690
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\*\The tow depth has minimal effect on the maximum near-field output and the shape of the frequency spectrum for
  the single 40 in\3\ airgun; thus the predicted safety radii are essentially the same at each tow depth.

Comments and Responses

    NMFS published a notice of receipt of the L-DEO application and 
proposed IHA in the Federal Register on May 8, 2009 (74 FR 21631). 
During the comment period, NMFS received comments from the Marine 
Mammal Commission (Commission), Cetacean Society International (CSI); 
and the Wild at Heart Legal Defense Association (WAHLDA). Following are 
the comments from the Commission, CSI, WAHLDA and NMFS' responses.
    Comment 1: The Commission recommends that NMFS provide additional 
justification for its preliminary determination that the planned 
monitoring program will be sufficient to detect, with a high level of 
confidence, all marine mammals within or entering the identified safety 
zones; as such monitoring is essential for determining whether animals 
are being taken in unanticipated ways and unexpected numbers.
    Response: NMFS believes that the planned monitoring program will be 
sufficient to detect (using visual detection and passive acoustic 
monitoring (PAM)), with reasonable certainty, most marine mammals 
within or entering identified safety radii. This monitoring, along with 
the required mitigation measures (see below), will result in the least 
practicable adverse impact on the affected species or stocks and will 
result in a negligible impact on the affected species or stocks. The 
Langseth is utilizing a team of trained marine mammal observers (MMOs) 
to visually monitor marine mammals and conduct passive acoustic 
monitoring (PAM).
    The Langseth's high observation tower is a suitable platform for 
conducting marine mammal observations. When stationed on the 
observation platform, the MMO's eye level will be approximately 18 m 
(59 ft) above sea level, providing a panoramic view around the entire 
vessel. During the daytime, the MMO(s) will scan the area around the 
vessel systematically using reticle binoculars (e.g., 7 x 50 Fujinon), 
big-eye binoculars (25 x 150), and the naked eye. The platform of the 
Langseth is high enough that, in good weather, MMOs can see out to 8.9 
nm (16.5 km, 10.2 mi). All of the 180-dB safety radii that MMOs will 
monitor during ramp-ups and power-downs are less than 2 km (1.1 nm, 1.2 
mi).
    MMOs will use night vision devices (NVDs) (ITT F500 Series 
Generation 3 binocular-image intensifier or equivalent), during dusk or 
nighttime, when required. Finally, L-DEO will provide laser 
rangefinding binoculars (Leica LRF 1200 laser rangefinder or 
equivalent) to MMOs to assist with distance estimation. MMOs estimate 
that visual detection from the ship is between 150 and 250 m (492 and 
820 ft) using NVDs and about 30 m (98.4 ft) with the naked eye, which 
are affected by ambient lighting conditions, sea state, and thermal 
factors.
    The Langseth will complement visual observations of marine mammals 
with an acoustical monitoring program. L-DEO will use a PAM system to 
improve detection, identification, localization, and tracking of marine 
mammals. The acoustic monitoring will alert visual observers (if on 
duty) when vocalizing cetaceans are detected. When an MMO detects a 
vocalization while visual observations are in progress, the acoustic 
MMO will contact the visual MMO immediately, to alert him/her to the 
presence of cetaceans (if they have not already been seen), and to 
initiate a power down or shut down, if required.
    The theoretical detection distance of this PAM system is tens of 
kilometers and it has reliable detection rates out to 3 km (1.6 nm) and 
more limited ability out to tens of kilometers. During the Ewing's 
cruise in the Gulf of Mexico in 2003, MMOs detected marine mammals at a 
distance of approximately 10 km (5.4 nm) from the vessel and identified 
them to species level at approximately 5 km (2.7 nm) from the vessel, 
though the bridge of that vessel was only 11 m (36 ft) above the water 
(vs. the Langseth, which is 18 m (59 ft) above sea level).
    The likelihood of MMOs visual detecting a marine mammal at night is 
significantly lower than the ability to detect any species during the 
day. However, the PAM operates equally as effective at night as during 
the day, and does not depend on good visibility.
    The Langseth will not start up the airguns unless the MMO can 
visibly detect the safety range for the 30 minutes prior (i.e., not at 
night) to start up. In all cases at night, the Langseth will already be 
operating the airguns. NMFS believes that operating the airguns at 
night will cause many cetaceans to avoid the vessel; thus reducing the 
number of cetaceans likely to come within the safety radii. 
Additionally, all of the safety radii in deep water depths are smaller 
than 2 km (1.1 nm, 1.2 mi) and fall easily within the reliable 
detection capabilities of the PAM.
    Comment 2: The Commission recommends that NMFS clarify the 
qualifier ``when feasible'' with respect to: (1) using two marine 
mammal visual observers to monitor the exclusion zone for marine 
mammals during daytime operations and nighttime start-ups of the 
airguns; and (2) using marine mammal visual observers during daytime 
periods to compare sighting rates and animal behavior during times when 
the seismic airguns are operating and times when they are not.
    Response: NMFS considers whether a particular mitigation is capable 
of being effected, done, or executed (i.e., feasible). For this IHA, 
the qualifier ``feasible'' is only applicable when the seismic system 
is not operating. It does

[[Page 42864]]

not apply during seismic operations (Permit, P.5; Condition 8(a)(i).
    NMFS' consideration of practicability includes (among other 
relevant considerations) economic and technological feasibility (see 50 
CFR 216.104(a)(11)). NMFS believes that the IHA's mitigation and 
monitoring measures are complete to the fullest extent practicable, and 
ensure that the takings will be limited to harassment and will result 
in a negligible impact on the affected species or stocks of marine 
mammals.
    The Langseth is utilizing a team of trained marine mammal observers 
(MMO) to both visually monitor from the high observation tower of the 
Langseth and to conduct PAM. L-DEO will utilize two (except during meal 
times), NMFS-qualified, vessel-based marine mammal visual observers 
(MMVO) to watch for and monitor marine mammals near the seismic source 
vessel during all daytime airgun operations and before and during 
start-ups of airguns day or night.
    MMVOs will have access to reticle binoculars (7x50 Fujinon), big-
eye binoculars (25x150), and night vision devices to scan the area 
around the vessel. MMVOs will alternate between binoculars and the 
naked eye to avoid eye fatigue. During all daytime periods, two MMVOs 
will be on effort from the observation town to monitor greater than 90 
percent of the time. During mealtimes it is sometimes difficult to have 
two MMOs on effort, but at least one MMVO will be on watch during those 
brief scheduled times. Three MMOs are typically on watch at a time, and 
typically observe for one to three hours. Two MMVOs will also be on 
watch during all nighttime start-ups of the seismic airguns. A third 
MMO will be monitoring the PAM equipment 24 hours a day to detect 
vocalizing marine mammals present in the action area.
    Comment 3: The Commission recommends that the monitoring period 
prior to the initiation of seismic activities and prior to the 
resumption of airgun activities after a power-down be extended to one 
hour.
    Response: NMFS believes that 30 minutes is an adequate length of 
time for monitoring prior to the start-up of airguns. The IHA requires 
that the MMOs monitor the area for at least 30 minutes prior to 
starting the airgun array (day or night) to ensure that no marine 
mammals are seen within the safety zone before a seismic survey 
commences. The Langseth's ramp up protocol begins with the smallest gun 
in the array and adds additional airguns in a sequence such that the 
source level of the array will increase in steps not exceeding 
approximately 6 dB per 5-min period over a total duration of 20-30 
minutes. Thus, the total time of monitoring prior to start-up of any 
but the smallest array is effectively longer than 30 minutes. In many 
cases MMOs are making observations during times when sonar is not being 
operated and will actually be observing the area prior to the 30-minute 
observation period.
    Comment 4: The Commission recommends that NMFS require that 
observations be made during all ramp-up procedures to gather the data 
needed to analyze and provide a report on the effectiveness of this 
method as a mitigation measure.
    Response: The IHA requires L-DEO to submit a draft and final report 
on all activities and monitoring results to the NMFS, Office of 
Protected Resources, within 90 days after the expiration of the IHA. 
NMFS will post the report at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    This report: (1) must include an estimate of the number (by 
species) of marine mammals that are known to have been exposed to the 
seismic activity (visual observation) at received levels greater than 
or equal to 160 dB re 1 microPa (rms) and/or 180 dB re 1 microPa (rms) 
with a discussion of any specific behaviors those individuals 
exhibited; and (2) must also include an estimate of the number of 
marine mammals that may have been exposed to the seismic activity at 
received levels greater than or equal to 160 dB re 1 microPa (rms) and/
or 180 dB re 1 microPa (rms) with a discussion of the nature of the 
probable consequences of that exposure on the individuals that have 
been exposed.
    NMFS has asked NSF and L-DEO to gather all data that could 
potentially provide information regarding effectiveness of ramp-ups as 
a mitigation measure. However, considering the low numbers of marine 
mammal sightings and low numbers of ramp-ups, it is unlikely that the 
information will result in any statistically robust conclusions for 
this particular seismic survey. Over the long term, these requirements 
may provide information regarding the effectiveness of ramp-up as a 
mitigation measure, provided animals are detected during ramp-up. 
Comment 5: It is expected that Canada will have consulted and commented 
on this proposal, and CSI respectfully requests a link to those 
documents for review.
    Response: NMFS received no comments from the Canadian government or 
from any Canadian organization during the public comment period. 
However, the terms and conditions of the IHA encourage NSF to 
coordinate with the Canadian government regarding the proposed seismic 
activity.
    Comment 6: While not relevant to the MMPA, it should be noted that 
12 species found nowhere else in the world have been identified at the 
Endeavour Hydrothermal Vents. Given that the potential for deleterious 
acoustic impacts on invertebrates from the L-DEO survey is almost 
totally unknown, CSI specifically requests that NMFS require L-DEO and 
the NSF to support a survey of the site sufficient to document whether 
or not these extremely limited species were impacted by the experiment.
    Response: NMFS' support of a post-seismic survey of invertebrates 
is not germane to this Federal action under the MMPA. NMFS acknowledges 
that at least 12 species are endemic to the Endeavour site. However, 
the area is dynamic, and the natural variability within the 
hydrothermal vents is high. Although OBS placement will disrupt a very 
small area of seafloor habitat and may disturb benthic invertebrates, 
the impacts are expected to be localized and transitory. NMFS does not 
expect that the placement of OBS would have adverse effects beyond 
naturally occurring changes in this environment, and any effects of the 
planned activity on ocean and coastal habitats are expected to be 
negligible.
    NSF's EA (and associated report) analyzed the potential for the 
seismic survey activity to affect ecosystem features and biodiversity 
components, including fish, invertebrates, seabirds, and sea turtles. 
NMFS' evaluation indicates that any direct or indirect effects of the 
action would not result in a substantial impact on biodiversity or 
ecosystem function. In particular, the potential for effects to these 
resources are considered here with regard to the potential effects on 
diversity or functions that may serve as essential components of marine 
mammal habitats. Most effects are considered to be short-term and 
unlikely to affect normal ecosystem function or predatory/prey 
relationships; therefore, NMFS believes that there will not be a 
substantial impact on marine life biodiversity associated with the 
Endeavor hydrothermal vent, the Endeavor MPA, or on the normal function 
of the nearshore or offshore environment.
    Comment 7: The time between NMFS' first awareness of an L-DEO 
application and the start of the scheduled survey does not allow for 
significant changes to the operation without extraordinary economic 
hardship on the applicant, and that creates pressure on NMFS to

[[Page 42865]]

authorize operations based on cost. CSI and others question whether 
this economic and practical pressure might influence NMFS' final 
decision relating to an IHA; might a project be authorized to continue, 
despite a problem, because of the cost of fixing it?
    Response: Section 101(a)(5)(D) of the MMPA establishes a 45-day 
time limit for NMFS' review of an application followed by a 30-day 
public notice and comment period on any proposed authorizations for the 
incidental harassment of small numbers of marine mammals. Not later 
than 45 days after the close of the public comment period, if the 
Secretary makes the findings set forth in Section 101(a)(5)(D)(i) of 
the MMPA, the Secretary shall issue or deny issuance of the 
authorization with appropriate conditions to meet the requirements of 
clause 101(a)(5)(D)(ii) of the MMPA.
    The NMFS, OPR, Permits, Conservation, and Education Division has 
diligently processed L-DEO's application within the statutory timeframe 
(120 days) for an IHA under the MMPA. The Division deemed the 
application complete on May 1, 2009; published a notice of receipt and 
request for comments in the Federal Register on May 8, 2009 (74 FR 
21631); and issued the IHA on August 19, 2009. NMFS received no public 
comments requesting L-DEO to significantly alter the survey's schedule 
or institute major operational changes.
    L-DEO's proposed survey did not require substantial changes to the 
cruise plan or survey tracklines. As stated in this document, NMFS 
shall grant an IHA to L-DEO if NMFS finds that incidental taking of 
marine mammals 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 and if the permissible 
methods of taking and requirements pertaining to the mitigation, 
monitoring and reporting of such taking are set forth.
    NMFS evaluates each IHA application independent of the cost of the 
proposed action, as this is not relevant to NMFS' determination of 
negligible impact or unmitigable adverse impact on the availability of 
the species or stock(s) for subsistence uses.
    For previously authorized IHAs, NMFS has required applicants to 
reschedule cruises; to modify survey tracklines; incorporate new 
temporal and spatial avoidance requirements; and to institute more 
precautionary measures to mitigate against the potential effects of the 
action on marine mammals.
    Comment 8: L-DEO should contract openly with regional authorities 
and experts during the initial planning and scheduling phase, thereby 
building the project around the ``best science'' available. This 
amplifies the importance of the public comment period beyond a mere 
statutory requirement.
    Response: NMFS acknowledges CSI's request and has forwarded your 
comment to NSF and L-DEO. If a CSI representative requests to comment 
on the initial planning and scheduling phases, they should discuss this 
directly with a representative from NSF and L-DEO.
    Comment 9: The Office of Protected Resources (OPR) has not 
processed the application fast enough so that necessary changes brought 
to light through the public comment period might be applied with less 
onerous scheduling and operational changes.
    Response: The NMFS, OPR, Permits, Conservation, and Education 
Division has diligently processed L-DEO's application within the 
statutory timeframe (120 days) for an IHA under the MMPA. The Division 
deemed the application complete on May 1, 2009; published a notice of 
receipt and request for comments in the Federal Register on May 8, 2009 
(74 FR 21631); and issued the IHA on August 19, 2009. NMFS received no 
public comments requesting L-DEO to significantly alter the survey's 
schedule or institute major operational changes.
    Comment 10: CSI recognizes that OPR may be required to supplement 
an Application with an Endangered Species Act of 1973 (ESA; 16 U.S.C. 
1531 et seq.) section 7 consultation, Biological Opinion and 
Environmental Assessment, all of which take time. This ETOMO 
Application was received February 11, 2009, the Federal Register Notice 
was published May 8, 2009, and we doubt there is time between the June 
8, 2009, close of public comments and the start date of August 19, 2009 
for L-DEO to adjust to potentially required changes in an IHA brought 
to light within the comment period. From recent experience the IHA can 
be expected to be issued close to the start date, making changes even 
more onerous. In other words, will an IHA be authorized in spite of 
issues, because of the cost to make it right? CSI is not accusing 
either OPR or L-DEO, but we are asking that even the appearance of the 
potential be removed.
    Response: See NMFS' response to Comment 9. NMFS disagrees with the 
commenter's views on the timeliness of processing of the application. 
The OPR received the application on February 11, 2009. However, the 
Permits, Conservation, and Education Division (PR1) deemed the 
application incomplete under the MMPA and requested additional 
information from L-DEO (See 50 CFR 216.104(b)(1) which states that NMFS 
must determine the adequacy and completeness of an application prior to 
initiating the public review process). PR1 deemed the application 
complete on May 1, 2009. Pursuant to the MMPA, NMFS published a notice 
of receipt and request for comments in the Federal Register on May 8, 
2009 (74 FR 21631), within one week of determining that the application 
was complete. Not later than 45 days after the close of the public 
comment period, if the Secretary makes the findings set forth in 
Section 101(a)(5)(D)(i) of the MMPA, the Secretary shall issue or deny 
issuance of the authorization with appropriate conditions to meet the 
requirements of clause 101(a)(5)(D)(ii). NMFS issued the IHA on 
(August19, 2009) within the required MMPA statutory timeframe of 120 
days.
    Regarding the ESA section 7 consultation, the Office of Protected 
Resources, Endangered Species Division (PR3) determined that the 
information provided by the NSF and L-DEO was sufficient to initiate 
formal consultation under the ESA on April 16, 2009. On August 18, 
2009, NMFS issued a Biological Opinion (BiOp) and concluded that the 
issuance of the IHA was not likely to jeopardize the continued 
existence of the humpback (Megaptera novaeangliae), sei (Balaenoptera 
borealis), fin (Balaenoptera physalus), blue (Balaenoptera musculus), 
and sperm (Physeter macrocephalus) whales. NMFS issued the BiOp within 
the ESA statutory timeframe of 135 days. NMFS included the BiOp's Terms 
and Conditions of the Incidental Take Statement as mitigation measures 
in the IHA.
    Comment 11: The solution CSI respectfully asks both OPR and NMFS 
for is a longer base time between application and start date. It is 
clear that L-DEO will be at this for a long time, and schedules must be 
set for 2010 and beyond.
    Response: See NMFS' responses to Comments 9 and 10.
    Comment 12: L-DEO's current process depends almost entirely upon 
the validity of the assumptions and assessments from L-DEO's in-house 
and contracted analysis, which have been proven to be inadequate. 
Perhaps recognizing this, L-DEO requested consultations with the South 
Pacific Whale Research Consortium (SPWRC) before the Tonga survey, but 
demanded

[[Page 42866]]

confidentiality, which SPWRC refused. L-DEO Tonga went on anyway, 
without that expert assistance.
    Response: NMFS cannot speak to L-DEO's consultations with the SPWRC 
and recommends that CSI should discuss their concerns with a 
representative from L-DEO.
    Comment 13: The L-DEO process failed with the L-DEO TAIGER survey 
in Southeast Asia, as public comments were received from concerned 
regional authorities and experts about several issues. One issue 
required an amended IHA, and the project was delayed accordingly, but 
the literally last minute public process should not have been the 
impetus. L-DEO would have precluded the issues by contracting with the 
well-known experts that were forced to express their concerns only 
during the public comment period. Taiwan's renewed, potentially 
threatening interest in the project only came about because the 
regional experts were seeking ways to have their concerns noted. Why 
not just hire the local experts and start earlier?
    Response: The Canadian ETOMO survey is a separate action from the 
TAIGER survey. NMFS acknowledges CSI's concerns and refers the 
commenter to 74 FR 41260, August 14, 2009, for information on the IHA 
for the L-DEO TAIGER survey.
    Comment 14: The ETOMO Application should not be ``easy'' because 
there are no systematically collected data on cetacean distribution and 
abundance in the proposed survey region.
    Response: NMFS recognizes that absence of evidence is not the same 
as having no effect or impact on the affected marine mammal species or 
stocks. However, NMFS is not relying solely on absence of evidence. All 
parties involved have used the best information currently available to 
analyze the impacts to marine mammals as shown in: (1) the Federal 
Register notice for the receipt of L-DEO's application (74 FR 21631, 
May 8, 2009); (2) the EA; (3) the BiOp and ITS; and (4) numerous and 
salient public comments received by NMFS during the public comment 
period. Based on the evidence cited, NMFS concludes that the proposed 
seismic surveys would have a negligible impact on the affected species 
or stocks of marine mammals and are not likely to jeopardize the 
continued existence of any ESA-listed species.
    Comment 15: The absence of specific data elevates the value of 
Kristin Kaschner's Ph.D. thesis, ``Modelling and mapping resource 
overlap between marine mammals and fisheries on a global scale,'' 
(2004) which maps suitable habitat for marine mammals around the world, 
ranking the Relative Environmental Suitability (RES) for each species. 
Kaschner shows that the Endeavour MPA offers highly suitable habitat 
for several species for which the daylight visual observation 
mitigation measures are inadequate. She predicts that the habitat is 
likely to support sei and sperm whales, which were caught in the region 
historically. She predicts that the habitat is likely to support poorly 
studied beaked whales (especially Cuvier's [Ziphius cavirostris]), 
which are thought to be susceptible to seismic survey impacts. And she 
predicts that the study area offers good quality habitat for species 
known to be recovering from 20th century commercial whaling, namely 
fin, humpback and sperm whales. But this data is not ``real.''
    Response: NMFS thanks the commenter for this information and 
considers all relevant public comments before making a determination on 
the issuance of the IHA. A detailed discussion of the potential effects 
of this action on marine mammal habitat, was included in the notice of 
the proposed IHA (74 FR 21631, May 8, 2009). Based on the discussion in 
the proposed IHA notice, the authorized operations are not expected to 
have any habitat-related effects that could cause significant or long-
term consequences for individual marine mammals or their populations or 
stocks and will not result in any permanent impact on habitats used by 
marine mammals, or to the food sources they use. The main impact issue 
associated with the proposed activity will be temporarily elevated 
noise levels and the associated direct effects on marine mammals.
    Please note that NMFS' Biological Opinion concludes that the 
issuance of the IHA was not likely to jeopardize the continued 
existence of the humpback), sei, fin, blue, and sperm (Physeter 
macrocephalus) whales.
    Comment 16: While science continues to search for ways to get the 
necessary data, L-DEO and NSF will continue to believe that their 
seismic surveys have no significant effect. It is expected that NMFS 
will find ``that the taking will have a negligible impact on the 
species or stock(s)'' despite the lack of real information. The absence 
of proof of harm is not the same as proving that there is no harm.
    Response: See NMFS' response to Comment 14.
    Comment 17: First, it has not been adequately explained in the 
Draft Environmental Assessment why the ``No Action'' alternative might 
be rejected in favor of the project, which, according to the 
proponent's own assessment, has the potential to harass several 
thousand cetaceans, including eight species described in the notice as 
being listed as endangered under the U.S. Endangered Species Act. That 
the acquisition of data concerning one natural phenomenon (e.g. ``the 
sub-seafloor structure of volcanic and hydrothermal features that form 
as a result of movements of the Earth's plates'' (DEA, p2)) should 
increase the threat to the existence of another natural phenomenon 
(e.g. a species of whale) of equally great (if less generously funded) 
academic interest is an illogical and tragic course of action. It 
should be noted that it has not been proven that knowledge of the sub-
seafloor structure is of greater long-term importance for the 
continuation of human life on Earth than the biodiversity upon which we 
are very much dependent.
    Response: The commenter's statements on assessing the value of 
acquiring information on one natural phenomena (geophysical) versus 
another natural phenomena (biodiversity) are not germane to NMFS' 
federal action the issuance of an MMPA authorization to L-DEO. Under 
section 101(a)(5)(D) of the MMPA, NMFS is required to determine whether 
the taking by the applicant's specified activity will have a negligible 
impact on the affected marine mammal species or population stocks. 
Alternatives assessments are NMFS' responsibility under NEPA, not the 
MMPA. In that regard, the NSF's EA and associated EA report contain 
adequate information on the alternatives No Action, Another Time, and 
Preferred Action. The associated EA report provides a step-by-step 
analysis on how the NSF assessed the alternatives, starting with (and 
citing) the best scientific information available on marine mammal 
distribution and abundance and using those data to make conservative 
estimates on levels of take by harassment and reasonable assumptions on 
why no marine mammals are likely to be harassed by this survey.
    Comment 18: The assessment carried out by LGL for this L-DEO 
project must be treated with caution given the very recent experience 
of the L-DEO seismic survey currently underway in the waters of 
southeast Asia, for which LGL prepared an EA that understated the 
numbers of cetaceans of certain species that might be exposed to airgun 
noise and the level of potential harassment, misquoted the status of at 
least one critically endangered population of cetaceans (the Eastern 
Taiwan Strait (ETS) Indo-Pacific humpback dolphins) and resulted in 
transect lines running

[[Page 42867]]

directly through the narrow habitat of the ETS humpback dolphins and 
the scheduling of surveys near the Philippines that coincided 
``spatially and temporally with the northward migration of mothers with 
neonatal and other young calves'' (Anon, 2009), to cite a few of the 
concerns raised by scientists and NGOs during the comment period for 
that project (e.g. http://www.nmfs.noaa.gov/pr/pdfs/permits/taiger_comments.pdf).
    Response: NMFS acknowledges WAHLDA's concerns and refers the 
commenter to 74 FR 41260, August 14, 2009, for information on the L-DEO 
TAIGER survey.
    NMFS closely follows NEPA regulations and NOAA Administrative Order 
216-6 (Environmental Review Procedures for Implementing the National 
Environmental Policy Act, May 20, 1999) before making a determination 
on whether it will adopt another Federal agency's NEPA document, or 
prepare its own. Critical to this determination is the quality of 
another agency's NEPA document, whether it fully addresses the action 
proposed by NMFS the issuance of an MMPA authorization to L-DEO, and 
whether NMFS' proposed action is significant as defined in 40 CFR 
1508.27 and NAO 216-6, section 6.01. As noted in the proposed 
authorization notice (74 FR 21631, May 8, 2009), the DEA contained a 
complete description of the proposed action and identified alternatives 
to that action; a description of the affected environment; an 
assessment of impacts, including unavoidable impacts, indirect impacts 
and cumulative impacts; and the measures proposed to reduce impacts to 
the lowest level practicable. In accordance with NAO 216-6, NMFS has 
reviewed the information contained in NSF's EA, and associated EA 
report, and determined that, while it accurately and completely 
describes the alternatives and the potential impacts, endangered 
species and other marine life could be impacted by the survey 
activities. As a result, NMFS has identified additional mitigation 
measures (e.g., mandatory shut-downs for north Pacific right whales) 
which are reflected in the final IHA and the NMFS' Finding of No 
Significant Impact (FONSI).
    Comment 19: An additional, independent scientific review body is 
urgently needed in order to improve the quality of environmental 
assessment and recommended actions for this and all other seismic 
surveys.
    Response: NMFS acknowledges WAHLDA's request and has forwarded your 
comment to NSF and L-DEO.
    Comment 20: The safety radii for this project are used to decide 
how close a marine mammal may approach an operating sound source before 
a power-down or shut down is required. With detection of marine mammals 
being dependent upon the success of visual and acoustic monitoring, it 
is clearly essential that both forms of monitoring are carried out in 
such a way as to maximize the potential of detection. However, the 
description of the monitoring plans described in the FR notice suggest 
once again that worryingly minimal efforts to detect cetaceans will be 
made.
    Response: See NMFS' response to Comment 1. The Langseth is 
utilizing a team of trained (MMVOs) to both visually monitor from the 
high observation tower of the Langseth and to conduct passive acoustic 
monitoring. When stationed on the observation platform of the Langseth, 
the MMVO's eye level will be approximately 17.8 m (58.4 ft) above sea 
level, so the visible distance (in good weather) to the horizon is 8.9 
nm (16.5 km) (the largest safety radii is 7.7 km (4.2 nm)). Big eyes 
are most effective at scanning the horizon (for blows), while 7 x 50 
reticle binoculars are more effective closer in (MMVOs also scan the 
area with the naked eye). Additionally, MMVOs will have a good view in 
all directions around the entire vessel.
    Under section 101(a)(5)(D) of the MMPA, NMFS is required to 
determine whether the taking by the applicant's specified activity will 
have a negligible impact on the affected marine mammal species or 
population stocks. The monitoring and mitigation measures set forth in 
the IHA ensure that there will be negligible impacts on the marine 
mammals. Cetaceans are expected, at most, to show an avoidance response 
to the seismic pulses. Mitigation measures such as visual marine mammal 
monitoring, and shut-downs when marine mammals are detected within the 
defined ranges should further reduce short-term reactions to 
disturbance, and minimize any effects on hearing sensitivity.
    Comment 21: With a minimum of only one marine mammal visual 
observer (MMVO) being required to be on duty during all daytime airgun 
operations, and only two observers being required to be on duty for 
only thirty minutes before and during ramp-ups (``and when possible at 
other times'' (DEA, p.3)) is clearly not a commitment) the chances of 
detecting cetaceans in the area (including the exclusion zone) within 
which they may be harassed (including level A and level B harassment) 
will be limited. Neither one nor two pairs of eyes will be capable of 
effectively scanning all areas around the Langseth simultaneously for 
cetaceans and turtles that is, if the aim of this measure truly is to 
attempt to minimize impacts on cetaceans and turtles. There should at 
least be a sufficient number of qualified, experienced visual observers 
to simultaneously cover all areas of water within the safety radii on 
duty during all periods of use of noise-generating seismic survey 
equipment (including before and during ramp-ups and at all other times 
of use).
    Response: The IHA requires L-DEO to utilize two (except during meal 
times), NMFS-qualified, vessel-based marine mammal visual observers 
(MMVO) to watch for and monitor marine mammals near the seismic source 
vessel during all daytime airgun operations and before and during 
start-ups of airguns day or night. See NMFS' response to Comments 1 and 
2 for a discussion of visual and acoustic monitoring of the safety 
radii.
    Comment 22: The idea that passive acoustic monitoring (PAM) should 
be used during the day and night ``when practicable'' (DEA, p. 3) again 
suggests a reluctance to commit to applying these measures to their 
greatest capability, and a level of leniency that leaves room for 
almost unlimited exceptions. If L-DEO is serious about carrying out 
this seismic survey at the risk of harassing more than thirty marine 
mammal species and intends to attempt to mitigate potential impacts to 
the (already extremely limited) extent that it can, it should at least 
be committed to use PAM at all times during the survey, with no 
exceptions. (The operators' need for rest, food or other activities can 
be dealt with by increasing the number of (qualified and experienced) 
staff on duty and should not be used as a justification for lower 
effort to detect cetaceans using PAM).
    Response: The IHA requires that L-DEO operates the PAM system both 
during the day and at night. The requirement of PAM for marine mammal 
detection is intended to provide additional monitoring to the standard 
visual monitoring by qualified MMVOs. PAM is not to be solely used for 
marine mammal monitoring and detection for the survey and will not 
replace visual monitoring. NMFS believes that L-DEO will be able to 
effectively monitor out to the 180 dB isopleth.
    Comment 23: More worrying still is the fact that there appears, 
once again, to be no restriction against using the seismic survey 
equipment in the dark or ``at night''. The continuation of seismic 
survey activity outside of daylight hours severely reduces the already 
limited possibility of detecting cetaceans in the

[[Page 42868]]

vicinity, and effectively reduces monitoring efforts to the use of PAM, 
which will obviously not detect cetaceans when they are not vocalizing 
and will at certain times only be used ``when practicable''. It is 
strongly recommended that no seismic survey activity be carried out 
outside of daylight hours during which the entire safety radii are 
visible.
    Response: The IHA requires that L-DEO operates the PAM system both 
during the day and at night. Regarding cessation of seismic activity at 
night, L-DEO has considered this recommendation, and has decided that 
it is not feasible, as limiting the surveys to daytime only would 
either result in the loss of half of the data or would necessitate 
doubling the duration of the project. Doubling the duration of the 
surveys is not possible because the Langseth has other research 
commitments after the Endeavor cruise. For seismic operators in 
general, a daylight-only requirement would be expected to result in one 
or more of the following outcomes: cancellation of potentially valuable 
seismic surveys, reduction in the total number of seismic cruises 
annually due to longer cruise durations, a need for additional vessels 
to conduct the seismic operations, or work conducted by non-U.S. 
operators or non-U.S. vessels when in waters not subject to U.S. law.
    The IHA prohibits the start of the seismic source if the MMVOs 
cannot view the entire safety radius for any reason (darkness, fog, or 
rough seas). Thus, limiting seismic shooting to only daylight hours is 
unnecessary and unlikely to result in less Level B harassment to marine 
mammals than would conducting 24-hour survey operations. MMVOs using 
night vision devices (NVD) will be on watch during periods prior to and 
during a ramp-up at night. At other times during the night MMOs will be 
available, but it is not necessary or very effective for them to be on 
watch constantly. The use of PAM will improve the detection of marine 
mammals by indicating to the MMVOs when an animal is potentially near 
and prompting a power-down or shut-down when necessary. Marine mammals 
are unlikely to be injured, seriously injured or killed by the noise 
from approaching seismic arrays nor is it authorized.
    Because of the need to keep a vessel at-speed in order to 
successfully tow the hydrophone streamers, the vessel would need to be 
underway throughout the night whether or not the airguns are fired at 
night. Additional down-time could be anticipated each day as the vessel 
maneuvers all night to come back to the shut-down location 30 minutes 
after daylight. This is unlikely to be successful very often and will 
likely result in additional time needed for surveys to be completed.
    Taking into consideration the additional costs of prohibiting 
nighttime operations and the likely low impact of the activity (given 
the required monitoring and mitigation measures), NMFS has determined 
that the IHA's requirements will ensure that the activity will have the 
least practicable impact on the affected species or stocks for the 
following reasons. Marine mammals will have sufficient notice of a 
vessel approaching with operating seismic airguns, thereby giving them 
an opportunity to avoid the approaching array.
    Comment 24: The suggestion in the DEA that ``additional research 
studies planned on the vessel for 2009 and beyond'' should be a major 
deciding factor in whether the survey can be rescheduled (which was 
also used as an argument to support night-time surveys for the SE Asia 
seismic survey) is not considered a scientifically sound or otherwise 
reasonable justification for reducing already limited impact mitigation 
measures. Scheduling should be based on the necessary impact mitigation 
measures, not vice versa.
    Response: Under section 101(a)(5)(D) of the MMPA, NMFS is required 
to determine whether the taking by the applicant's specified activity 
will have a negligible impact on the affected marine mammal species or 
population stocks. NMFS believes that L-DEO's revised survey as well as 
the implementation of the required monitoring and mitigation measures 
described in the IHA will have a negligible impact on the affected 
species or stocks of marine mammals in the study area.
    As discussed in the EA report, the scheduling of the Langseth makes 
the best use of the vessel to support NSF's science mission. In the EA, 
NSF concluded that L-DEO rescheduling the survey to an alternative time 
would offer minimal advantages or disadvantages at the Endeavor 
location. Thus, for the reasons stated throughout the text of this 
notice, NMFS believes that the agency is in compliance with both the 
MMPA and NEPA.

Description of Marine Mammals in the Activity Area

    Thirty-three marine mammal species may occur off the coast of 
British Columbia, Canada, including 20 odontocetes (toothed cetaceans), 
7 mysticetes (baleen whales), 5 pinnipeds, and the sea otter (Enhydra 
sp.). In the United States, sea otters are managed by the U.S. Fish and 
Wildlife Service (USFWS) and are unlikely to be encountered in or near 
the Endeavor Marine Protected Area where seismic operations will occur, 
and are, therefore, not addressed further in this document. Eight of 
these species are listed as endangered under the U.S. Endangered 
Species Act of 1973 (ESA), including the Steller sea lion (Eumetopias 
jubatus), the humpback sei, fin, blue, North Pacific right (Eubalena 
japonica), sperm, and Southern Resident killer (Orcinus orca) whales.
    This IHA will only address requested take authorizations for 
cetaceans and pinnipeds. Table 2 below outlines the species, their 
habitat and abundance in the proposed survey area, and the estimated 
exposure levels. Additional information regarding the status and 
distribution of the marine mammals in the area as well as how L-DEO 
calculated the densities were included in a previous notice for the 
proposed IHA (74 FR 21631, May 8, 2009) and in Sections III and IV of 
L-DEO's application.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                  Estimated Number of
                                                                   Abundance in the NE       Occurrence in the    Individuals Exposed   Approx. Percent
              Species                         Habitat                    Pacific                Survey Area         to Sound Levels       of Regional
                                                                                                                     [gteqt]160 dB         Population
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Pacific right whale*          Coastal and shelf waters     100-200                  Rare and unlikely       0                    0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale*                     Coastal waters               >6000                    Uncommon                6                    0.10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke whale                         Coastal and shelf waters     9000                     Uncommon                5                    0.06
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sei whale*                          Pelagic                      7260 - 12,620            Uncommon                1                    0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 42869]]

 
Fin whale*                          Pelagic, shelf and coastal   13,620-18,680            Uncommon                8                    0.05
                                     waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale*                         Pelagic, shelf and inshore   1186                     Uncommon                2                    0.14
                                     waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale*                        Pelagic                      24,000                   Uncommon                10                   0.04
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pygmy sperm whale                   Deep waters off the shelf    Not available            Common                  9                    Not available
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dwarf Sperm whale                   Deep waters off the shelf    Not available            Uncommon                0                    0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baird's beaked whale                Deep waters and cont.        6000                     Common                  13                   0.21
                                     slopes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blainville's beaked whale           Deep waters and cont.        603                      Uncommon                2                    0.28
                                     slopes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cuvier's beaked whale               Pelagic                      20,000                   Uncommon                0                    0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hubb's beaked whale                 Deep waters and cont.        421                      Uncommon                2                    0.40
                                     slopes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stejneger's beaked whale            Deep waters                  421                      Uncommon                2                    0.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                  Coastal and offshore waters  3257                     Rare                    0                    0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Striped dolphin                     Pelagic                      23,883                   Rare                    0                    0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Short-beaked common dolphin         Coastal and offshore waters  487,622                  Common                  104                  0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pacific white-sided dolphin         Pelagic, shelf and slope     931,000                  Common                  181                  0.02
                                     waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Northern right-whale dolphin        Pelagic, shelf and slope     15,305                   Common                  142                  0.93
                                     waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Risso's dolphin                     Pelagic                      12,093                   Common                  95                   0.78
--------------------------------------------------------------------------------------------------------------------------------------------------------
False killer whale                  Pelagic                      Not available            Rare                    0                    NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale                        Widely distributed           8500                     Uncommon                12                   0.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
Short-finned pilot whale            Pelagic                      160,200                  Uncommon                0                    00.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dall's porpoise                     Offshore and nearshore       57,549                   Common                  1081                 1.88
                                     waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Northern fur seal                   Coastal                      721,935                  Common                  73                   0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total                               ...........................  .......................  ......................  1,748                .................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2. Abundance, preferred habitat, and commonness of the marine mammal species that may be encountered during the proposed survey within the ETOMO
  survey area. The far right columns indicate the estimated number and percentage of the population of each species that may be exposed to sound levels
  [gteqt]160 dB based on average density estimates. NMFS believes that, when mitigation measures are taken into consideration, the activity is likely to
  result in take of numbers of animals less than those indicated by the column titled Estimated Number of Individuals Exposed to Sound Levels [gteqt]160
  dB.
* Federally listed endangered species.

Potential Effects of the Proposed Activity on Marine Mammals

    The effects of sounds from airguns might include one or more of the 
following: tolerance, masking of natural sounds, behavioral 
disturbance, temporary or permanent hearing impairment, or non-auditory 
physical or physiological effects (Richardson et al., 1995; Gordon et 
al., 2004; Nowacek et al., 2007; Southall et al., 2007). Permanent 
hearing impairment, in the unlikely event that it occurred, would 
constitute injury, but temporary threshold shift (TTS) is not an injury 
(Southall et al., 2007). Although the possibility cannot be entirely 
excluded, it is unlikely that the project would result in any cases of 
temporary or permanent hearing impairment, or any significant non-
auditory physical or physiological effects. Some behavioral disturbance 
is expected, but is expected to be localized and short-term.

[[Page 42870]]

    The notice of the proposed IHA (74 FR 21631, May 8, 2009) included 
a discussion of the effects of sounds from airguns on mysticetes 
(baleen whales), odontocetes (toothed whales), and pinnipeds including 
tolerance, masking, behavioral disturbance, hearing impairment, and 
other non-auditory physical effects. Additional information on the 
behavioral reactions (or lack thereof) by all types of marine mammals 
to seismic vessels is discussed in Appendix B of L-DEO's application.
    The notice of the proposed IHA also included a discussion of the 
potential effects of the multibeam echosounder (MBES) and the sub-
bottom profiler (SBP). Because of the shape of the beams of these 
sources and their power, NMFS believes it unlikely that marine mammals 
will be exposed to either the MBES or the SBP at levels at or above 
those likely to cause harassment. Further, NMFS believes that the brief 
exposure of cetaceans or pinnipeds to few signals from the multi-beam 
bathymetric sonar system is not likely to result in the harassment of 
marine mammals.

Estimated Take by Incidental Harassment

    The notice of the proposed IHA (74 FR 21631, May 8, 2009) included 
an in-depth discussion of the methods used to calculate the densities 
of the marine mammals in the area of the seismic survey and the take 
estimates. Based on numbers of animals encountered during previous L-
DEO seismic surveys, the likelihood of the successful implementation of 
the required mitigation measures, and the likelihood that some animals 
will avoid the area around the operating airguns, NMFS believes that L-
DEO's airgun seismic testing program may result in the Level B 
harassment of some lower number of individual marine mammals (a few 
times each) than is indicated by the column titled, Estimated Number of 
Individuals Exposed to Sound Levels [gteqt]160 dB, in Table 2. L-DEO 
has asked for authorization for take of their ``best estimate'' of 
numbers for each species. Though NMFS believes that take of the 
requested numbers is unlikely, we still find these numbers small 
relative to the population sizes.
    Estimates of the numbers of marine mammals that might be affected 
are based on consideration of the number of marine mammals that could 
be disturbed appreciably by approximately 1800 km of seismic surveys 
during the proposed seismic program in the ETOMO study area. The 
estimates of exposures to various sound levels assume that the surveys 
will be completed; in fact, the planned number of line-kilometers has 
been increased by 25 percent to accommodate lines that may need to be 
repeated, equipment testing, etc.
    All anticipated ``takes by harassment'' authorized by this IHA are 
Level B harassment only, involving temporary changes in behavior. 
Because of the required implementation of mitigation measures and the 
likelihood that some cetaceans will avoid the area around the operating 
airguns of their own accord, NMFS does not expect any marine mammal to 
approach the sound source close enough to be injured (Level A 
harassment). Given these considerations, the predicted number of marine 
mammals that might be exposed to sounds at or greater than 160 dB may 
be somewhat overestimated. Thus, the following estimates of the numbers 
of marine mammals potentially exposed to sounds equal to or greater 
than 160 dB are precautionary, and probably overestimate the actual 
numbers of marine mammals that might be exposed.

Potential Effects on Habitat

    A detailed discussion of the potential effects of this action on 
marine mammal habitat, was included in the notice of the proposed IHA 
(74 FR 21631, May 8, 2009). Based on the discussion in the proposed IHA 
notice, the authorized operations are not expected to have any habitat-
related effects that could cause significant or long-term consequences 
for individual marine mammals or their populations or stocks and will 
not result in any permanent impact on habitats used by marine mammals, 
or to the food sources they use. The main impact issue associated with 
the proposed activity will be temporarily elevated noise levels and the 
associated direct effects on marine mammals.
    The Langseth will deploy and retrieve approximately 64 OBS. The OBS 
anchors will remain upon equipment recovery. Although OBS placement 
will disrupt a very small area of seafloor habitat and may disturb 
benthic invertebrates, the impacts are expected to be localized and 
transitory. The vessel will deploy the OBS in such a way that creates 
the least disturbance to the area. Thus, it is not expected that the 
placement of OBS would have adverse effects beyond naturally occurring 
changes in this environment, and any effects of the planned activity on 
marine mammal habitats and food resources are expected to be 
negligible.

Monitoring and Mitigation Measures

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

Vessel-based Visual Monitoring

    Vessel-based marine mammal visual observers (MMVOs) will be based 
aboard the seismic source vessel and will watch for marine mammals near 
the vessel during daytime airgun operations and during start-ups of 
airguns at night. MMVOs will also watch for marine mammals near the 
seismic vessel for at least 30 minutes prior to the start of airgun 
operations and after an extended shutdown of the airguns (i.e., 9 
minutes). When feasible, MMVOs will also make observations during 
daytime periods when the seismic system is not operating for comparison 
of animal abundance and behavior. Based on MMVO observations, airguns 
will be powered down, or if necessary, shut down completely (see 
below), when marine mammals are detected within or about to enter a 
designated safety radius corresponding to 180-dB isopleths. The MMVOs 
will continue to maintain watch to determine when the animal(s) are 
outside the safety radius, and airgun operations will not resume until 
the animal has left that zone. The predicted distances for the safety 
radii are listed according to the sound source, water depth, and 
received isopleth in Table 1.
    During seismic operations in the northeast Pacific Ocean, at least 
three visual observers and one bioacoustician will be based aboard the 
Langseth. MMVOs will be appointed by L-DEO with NMFS' concurrence. At 
least two MMVOs (except during meal times) will monitor the safety 
radii for marine mammals during daytime operations and nighttime 
startups of the airguns. The use of two simultaneous MMVOs will 
increase the proportion of the animals present near the source vessel 
that are detected. The MMVO(s) will be on duty in shifts of duration no 
longer

[[Page 42871]]

than 4 hours. The vessel crew will also be instructed to assist in 
detecting marine mammals and implementing mitigation requirements (if 
practical). Before the start of the seismic survey the crew will be 
given additional instruction regarding how to do so.
    The Langseth's high observation tower is a suitable platform for 
conducting marine mammal and turtle observations. When stationed on the 
observation platform, the MMOV's eye level will be approximately 18 m 
(59 ft) above sea level, providing a panoramic view around the entire 
vessel. During the daytime, the MMO(s) will scan the area around the 
vessel systematically using reticle binoculars (e.g., 7 x 50 Fujinon), 
big-eye binoculars (25 x 150), and the naked eye. The platform of the 
Langseth is high enough that, in good weather, MMOs can see out to 8.9 
nm (16.5 km, 10.2 mi). All of the 180-dB safety radii that MMOs will 
monitor during ramp-ups and power-downs are less than 2 km (1.1 nm, 1.2 
mi).
    MMOs will use night vision devices (NVDs) (ITT F500 Series 
Generation 3 binocular-image intensifier or equivalent), during dusk or 
nighttime, when required. Finally, L-DEO will provide laser 
rangefinding binoculars (Leica LRF 1200 laser rangefinder or 
equivalent) to MMOs to assist with distance estimation. MMOs estimate 
that visual detection from the ship is between 150 and 250 m (492 and 
820 ft) using NVDs and about 30 m (98.4 ft) with the naked eye, which 
are affected by ambient lighting conditions, sea state, and thermal 
factors.

Passive Acoustic Monitoring

    PAM will take place to complement the visual monitoring program. 
Acoustic monitoring can be used in addition to visual observations to 
improve detection, identification, localization, and tracking of 
cetaceans. It is only useful when marine mammals call, but it can be 
effective either by day or by night and does not depend on good 
visibility. The acoustic monitoring will serve to alert visual 
observers when vocalizing cetaceans are detected. It will be monitored 
in real time so visual observers can be advised when cetaceans are 
detected. When bearings (primary and mirror-image) to calling 
cetacean(s) are determined, the bearings will be relayed to the visual 
observer to help him/her sight the calling animal(s).
    The PAM system consists of hardware (i.e., hydrophones) and 
software. The ``wet end'' of the system consists of a low-noise, towed 
hydrophone array that is connected to the vessel by a ``hairy'' faired 
cable. The array will be deployed from a winch located on the back 
deck. A deck cable will connect from the winch to the main computer lab 
where the acoustic station and signal condition and processing system 
will be located. The lead-in from the hydrophone array is approximately 
400 m (1,312 ft) long, and the active part of the hydrophone is 
approximately 56 m (184 ft) long. The hydrophone array is typically 
towed at depths of 20 m (65.6 ft).
    The towed hydrophone array will be monitored 24 hours per day while 
at the survey area during airgun operations and also during most 
periods when the Langseth is underway with the airguns not operating. 
One MMO and/or bioacoustician will monitor the acoustic detection 
system at any one time, by listening to the signals from two channels 
via headphones and/or speakers and watching the real time 
spectrographic display for frequency ranges produced by cetaceans. MMOs 
monitoring the acoustical data will be on shift for 1-6 hours. Of the 
three observers required on board, one will have primarily 
responsibility for PAM during the seismic survey. However, all MMOs are 
expected to rotate through the PAM position, although the most 
experienced with acoustics will be on PAM duty more frequently.
    When a vocalization is detected, the acoustic MMO will, if visual 
observations are in progress, contact the MMVO immediately to alert 
him/her to the presence of the vocalizing marine mammal(s) (if they 
have not already been seen), and to allow a power down or shutdown to 
be initiated, if required. The information regarding the call will be 
entered into a database. The data to be entered includes an acoustic 
encounter identification number, whether it was linked with a visual 
sighting, date, time when first and last heard and whenever any 
additional information was recorded, position and water depth when 
first detected, bearing if determinable, species or species group 
(e.g., unidentified dolphin, sperm whale), types and nature of sounds 
heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst 
pulses, strength of signal, etc.), and any other notable information. 
The acoustic detection can also be recorded for further analysis.
    Speed or Course Alteration - If a marine mammal is detected outside 
the safety radius and, based on its position and the relative motion, 
is likely to enter the safety radius or exclusion zone (EZ), the 
vessel's speed and/or direct course may be changed. This would be done 
if practicable while minimizing the effect on the planned science 
objectives. The activities and movements of the marine mammal(s) 
(relative to the seismic vessel) will then be closely monitored to 
determine whether the animals is approaching the applicable EZ. If the 
animal appears likely to enter the EZ, further mitigation actions will 
be taken, i.e., either further course alterations or a power down or 
shut down of the airguns. Typically, during seismic operations, major 
course and speed adjustments are often impractical when towing long 
seismic streamers and large source arrays, thus alternative mitigation 
measures (see below) will need to be implemented.
    Power-down Procedures - A power-down involves reducing the number 
of operating airguns in use to minimize the exclusion zone, so that 
marine mammals are no longer in or about to enter this zone. A power-
down of the airgun array to a reduced number of operating airguns may 
also occur when the vessel is moving from one seismic line to another. 
During a power down for mitigation, one airgun will be operated. The 
continued operation of at least one airgun is intended to alert marine 
mammals to the presence of the seismic vessel in the area. In contrast, 
a shut down occurs when all airgun activity is suspended.
    If a marine mammal is detected outside the safety radii but is 
likely to enter it, and if the vessel's speed and/or course cannot be 
changed to avoid the animal(s) entering the EZ, the airguns will be 
powered down to a single airgun before the animal is within the EZ. 
Likewise, if a mammal is already within the EZ when first detected, the 
airguns will be powered down immediately. During a power down of the 
airgun array, the 40-in\3\ airgun will be operated. If a marine mammal 
is detected within or near the smaller safety radii around that single 
airgun (see Table 1 above), all airguns will be shutdown (see next 
subsection).
    Following a power down, airgun activity will not resume until the 
marine mammal is outside the safety radius for the full array. The 
animal will be considered to have cleared the safety radius if it:
    (1) Is visually observed to have left the safety radius; or
    (2) Has not been seen within the safety radius for 15 minutes in 
the case of small odontocetes or pinnipeds; or
    (3) Has not been seen within the safety radius for 30 minutes in 
the case of mysticetes and large odontocetes, including sperm, pygmy 
sperm, dwarf sperm, and beaked whales; or
    During airgun operations following a power-down (or shut-down) and 
subsequent animal departure as above, the airgun array will resume 
operations following ramp-up procedures described below.

[[Page 42872]]

    Shutdown Procedures - The operating airgun(s) will be shut down if 
a marine mammal is detected within or approaching the safety radius for 
the then-operating single 40 in\3\ airgun while the airgun array is at 
full volume or during a power down. Airgun activity will not resume 
until the marine mammal has cleared the safety radius or until the MMO 
is confident that the animal has left the vicinity of the vessel. 
Criteria for judging that the animal has cleared the safety radius will 
be as described in the preceding subsection.
    Ramp-up Procedures - A ramp-up procedure will be followed when the 
airgun array begins operating after more than nine minutes without 
airgun operations or when a power-down has exceeded nine minutes. This 
period is based on the modeled 180-dB radius for the 36-airgun array 
(see Table 1) in relation to the planned speed of the Langseth while 
shooting. Similar periods (approximately eight to 10 minutes) were used 
during previous L-DEO surveys.
    Ramp-up will begin with the smallest airgun in the array (40 
in\3\). Airguns will be added in a sequence such that the source level 
of the array will increase in steps not exceeding 6 dB per 5-minute 
period over a total duration of approximately 20 to 25 minutes. During 
ramp-up, the MMVOs will monitor the safety radius, and if marine 
mammals are sighted, a course/speed change, power down, or shutdown 
will be implemented as though the full array were operational.
    If the complete safety radius has not been visible for at least 30 
minutes prior to the start of operations in either daylight or 
nighttime, ramp-up will not commence unless at least one airgun (40 
in\3\ or similar) has been operating during the interruption of seismic 
survey operations. Given these provisions, it is likely that the airgun 
array will not be ramped up from a complete shut down at night or in 
thick fog, because the other part of the safety radius for that array 
will not be visible during those conditions. If one airgun has operated 
during a power down period, ramp up to full power will be permissible 
at night or in poor visibility, on the assumption that marine mammals 
will be alerted to the approaching seismic vessel by the sounds from 
the single airgun and have the opportunity to move away. Ramp up of the 
airguns will not be initiated if a marine mammal is sighted within or 
near the applicable safety radius during the day or close to the vessel 
at night.

MMVO Data and Documentation

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

Reporting

    A draft report will be submitted to NMFS within 90 days after 
expiration of the IHA. The report will describe the operations that 
were conducted and sightings of marine mammals near the operations. The 
report will be submitted to NMFS, providing full documentation of 
methods, results, and interpretation pertaining to all monitoring and 
mitigation. The 90-day draft report will summarize the dates and 
locations of seismic operations (dates, times, locations, heading, 
speed, weather, sea state, activities), and all marine mammal sightings 
(dates, times, locations, species, behavior, number of animals, 
associated seismic survey activities).
    The report will also include the estimates of the amount and nature 
of potential ``take'' of marine mammals by harassment or in other ways, 
as well as a description of the implementation and effectiveness of the 
monitoring and mitigation measures of the IHA and Biological Opinion's 
(BiOp) Incidental Take Statement. L-DEO is then required to submit a 
final report within 30 days after receiving comments from NMFS on the 
draft report.

Endangered Species Act (ESA)

    Pursuant to section 7 of the ESA, NSF has consulted with the NMFS, 
Office of Protected Resources, Endangered Species Division on this 
seismic survey. NMFS Headquarters' Office of Protected Resources, 
Permits, Conservation, and Education Division has also consulted 
internally pursuant to section 7 of the ESA on the issuance of an IHA 
under section 101(a)(5)(D) of the MMPA for this activity. On August 18, 
2009, NMFS issued a BiOp and concluded that the issuance of an IHA is 
not likely to jeopardize the continued existence of blue, fin, sei, 
humpback, and sperm whales, leatherback sea turtles, as well as listed 
salmonids. The BiOp also concluded that the proposed activities would 
have no effect on critical habitat, as the Canadian government has no 
such designation within the action area. Finally, NMFS has incorporated 
the Relevant Terms and Conditions of the Incidental Take Statement in 
the BiOp into the IHA.

National Environmental Policy Act (NEPA)

    On September 22, 2005 (70 FR 55630), NSF published a notice of 
intent to prepare a Programmatic Environmental Impact Statement/
Overseas Environmental Impact Statement (EIS/OES) to evaluate the 
potential environmental impacts associated with the use of seismic 
sources in support of

[[Page 42873]]

NSF-funded research by U.S. academic scientists. NMFS agreed to be a 
cooperating agency in the preparation of the EIS/OEIS. This EIS/OEIS 
has not been completed.
    Therefore, in order to meet NSF's and NMFS' NEPA requirements for 
the proposed activity and issuance of an IHA to L-DEO, the NSF has 
prepared an EA that is specific to the marine geophysical survey 
conducted by the R/V Marcus G. Langseth in the northeast Pacific Ocean. 
NSF's EA, titled, Marine Seismic Survey in the Northeast Pacific Ocean, 
August/September, 2009 is based, in part, on an environmental 
assessment report (hereinafter, Report), prepared by LGL Limited 
environmental research associates (LGL) on behalf of NSF, titled, 
``Environmental Assessment of a Marine Geophysical Survey by the R/V 
Marcus G. Langseth in the Northeast Pacific Ocean, August September, 
2009.'' The EA, and Report, specifically analyze the fact that L-DEO 
intends to obtain an IHA from NMFS in order to conduct the seismic 
survey. The EA evaluates the impacts of potential incidental Level B 
harassment resulting from the specified activity in the specified 
geographic region. The NSF has made a Finding of No Significant Impact 
(FONSI) determination based on information contained within its EA and 
Report, that implementation of the proposed action is not a major 
Federal action having significant effects on the environment within the 
meaning of NEPA. NSF determined, therefore, that an environmental 
impact statement would not be prepared.
    On May 8, 2009 (74 FR 2163), NMFS noted that the NSF had prepared 
an EA for the northeast Pacific Ocean surveys and made this EA, and the 
Report, available upon request. NMFS has independently reviewed the 
information contained in NSF's EA and determined that the NSF EA 
describes the proposed action alternative and evaluates and discloses 
the potential impacts on marine mammals, endangered species, and other 
marine life that could be impacted by the preferred alternative and the 
other alternatives. Accordingly, NMFS has adopted the NSF EA, and 
incorporated Report, under 40 CFR 1506.3 and made its own FONSI. The 
NMFS FONSI also takes into consideration additional mitigation measures 
required by the IHA that are not in NSF's EA or Report. Therefore, NMFS 
has determined that it is not necessary to issue a new EA, supplemental 
EA or an EIS for the issuance of an IHA to L-DEO for this activity. A 
copy of the EA and the NMFS FONSI for this activity is available upon 
request (see ADDRESSES).

Determinations

    NMFS has determined that the impact of conducting the seismic 
survey in the northeast Pacific Ocean may result, at worst, in a 
temporary modification in behavior (Level B harassment) of small 
numbers of 33 species of cetaceans. Though NMFS believes that take of 
the requested numbers is unlikely, we still find these numbers small 
relative to the population sizes. Further, this activity is not 
expected to adversely affect any species or stock through affects on 
annual recruitment or survival. Therefore, NMFS has determined that the 
activity will have a negligible impact on the affected species or 
stocks.
    The provision requiring that the activity not have an unmitigable 
adverse impact on the availability of the affected species or stock for 
subsistence uses is not implicated for this proposed action. There is 
no subsistence harvest of marine mammals in the proposed research area; 
therefore, there will be no impact of the activity on the availability 
of the species or stocks of marine mammals for subsistence uses.
    The negligible impact determination is supported by: (1) the 
likelihood that, given sufficient warning through relatively slow ship 
speed, marine mammals are expected to move away from a noise source 
that is annoying prior to it becoming potentially injurious; (2) the 
fact that marine mammals would have to be closer than 40 m (131 ft) in 
deep water, when a single airgun is in use from the vessel to be 
exposed to levels of sound (180 dB) believed to have even a minimal 
chance of causing TTS; (3) the fact that marine mammals would have to 
be closer than 950 m (0.5 nm) in deep water, when the full array is in 
use at a 9-15 m (29.5-49.2 ft) tow depth from the vessel to be exposed 
to levels of sound (180 dB) believed to have even a minimal chance of 
causing TTS; (4) the likelihood that marine mammal detection ability by 
trained observers is good at those distances from the vessel; (5) the 
use of PAM, which is effective out to tens of km, will assist in the 
detection of vocalizing marine mammals at greater distances from the 
vessel; (6) the incorporation of other required mitigation measures 
(i.e., ramp-up, power-down, and shutdown); and (7) the limited duration 
of the seismic survey in the study area (approximately 39 days). As a 
result, no take by injury or death is anticipated, and the potential 
for temporary or permanent hearing impairment is very low and will be 
avoided through the incorporation of the required monitoring and 
mitigation measures.
    While the number of potential incidental harassment takes will 
depend on the distribution and abundance of marine mammals in the 
vicinity of the survey activity, the number of potential harassment 
takings is estimated to be small, relative to the affected species and 
stock sizes, and has been mitigated to the lowest level practicable 
through incorporation of the measures mentioned previously in this 
document.

Authorization

    As a result of these determinations, NMFS has issued an IHA to L-
DEO for conducting a marine geophysical survey in the northeast Pacific 
Ocean in August October, 2009, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: August 19, 2009.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E9-20492 Filed 8-24-09; 8:45 am]
BILLING CODE 3510-22-S