[Federal Register Volume 77, Number 142 (Tuesday, July 24, 2012)]
[Notices]
[Pages 43259-43270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18087]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC018


Takes of Marine Mammals Incidental to Specified Activities; Pile 
Driving for Honolulu Seawater Air Conditioning Project

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS has received a complete and adequate application from 
Honolulu Seawater Air Conditioning, LLC (HSWAC) for an Incidental 
Harassment Authorization (IHA) to take marine mammals, by harassment, 
incidental to pile driving offshore Honolulu, Hawaii. Pursuant to the 
Marine Mammal Protection Act (MMPA), NMFS is proposing to issue an IHA 
to incidentally harass, by Level B harassment, 17 species of marine 
mammals during the specified activity within a specific geographic 
region and is requesting comments on its proposal.

DATES: Comments and information must be received no later than August 
23, 2012.

ADDRESSES: Comments on the application and this proposal should be 
addressed to Michael Payne, Chief, Permits and Conservation Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910. The mailbox address for 
providing email comments is [email protected]. NMFS is not 
responsible for email comments sent to addresses other than the one 
provided here. Comments sent via email, including all attachments, must 
not exceed a 10-megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    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 visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
notice may also be viewed, by appointment, during regular business 
hours, at the aforementioned address.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specific geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' 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. 
Section 101(a)(5)(D) further established 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 marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny the authorization.
    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

[[Page 43260]]

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 April 16, 2012, NMFS received an application from HSWAC 
requesting an IHA for the take, by Level B harassment, of small numbers 
of 17 marine mammal species incidental to pile driving activities 
offshore Honolulu, Hawaii. Upon receipt of additional information and a 
revised application, NMFS determined the application complete and 
adequate on April 27, 2012. HSWAC plans to install piles during 
construction of a seawater air conditioning project. Once constructed, 
an offshore pipe would pump cold, deep seawater to a pump station 
onshore. Pile driving operations would include installation of test 
piles, installation of sheet piles for construction of a temporary 
receiving pit, and installation of pipe piles to help support the 
intake and discharge pipes. Because elevated sound levels from pile 
driving have the potential to result in marine mammal harassment, NMFS 
is proposing to issue an IHA for take incidental to pile driving 
activities.

Description of the Specified Activity

    The purpose of HSWAC's project is to construct a district cooling 
system for commercial and residential properties in Honolulu. In 
summary, the system would consist of a seawater intake pipe extending 
about 7.6 kilometers (km) offshore, a seawater discharge pipe extending 
about 1.6 km offshore, a land-based pump station, and a land-based 
chilled water distribution system. HSWAC proposes to drive steel sheet 
piles and cylindrical steel piles as part of the construction. The 
piles would be used to construct a temporary ``receiving pit,'' 
implement a test pile program, and stabilize concrete collars 
supporting the intake and discharge pipes. Only pile driving activities 
are expected to result in incidental harassment of marine mammals and 
will be the focus of this notice. The depth and water flow velocity of 
the 1.6-meter (m) seawater intake pipe would be such that entrapment of 
a marine mammal is considered discountable. HSWAC considered placing a 
screen across the intake pipe (acting as an excluder device), but NMFS 
Pacific Islands Region and NFMS Pacific Islands Fisheries Science 
Center determined that such a device may actually increase the water 
flow velocity, and therefore, the potential for impingement. A summary 
of the pile driving activities are provided in Table 1 below. Further 
details regarding installation of the pipelines are provided in HSWAC's 
IHA application here: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    HSWAC would begin offshore work by installing 10-12 51-cm diameter 
steel pipe piles using a hydraulic impact hammer (Junttan Model HHK9 or 
similar). These ``test piles'' would be located along the pipe 
alignment from the receiving pit to a depth of about 46 m. The distance 
from the piles to shore would vary from about 488 m to 1,128 m. Each 
test pile should take about 15 minutes to drive and pile driving would 
be complete in 1-2 weeks with about one pile installed per day. Each 
test pile would be removed by cable pull immediately after installation 
and resistance testing.
    After installation of the test piles, HSWAC would prepare a 12-m by 
12-m by 6-m deep receiving pit to remove a micro-tunnel boring machine 
from the nearshore micro-tunnel. The receiving pit would be about 488 m 
offshore in about 9 m of water. HSWAC would use a barge-mounted 
vibratory pile driver (J&M Model 44-50 or similar) to install 80 61-
centimeter (cm) steel sheet piles around the perimeter of the receiving 
pit. Pile installation is expected to take 10 hours of driving per day 
for about 16 days. After sheet piles are installed, the pit would be 
excavated.
    Next, HSWAC would drive 113 51-cm diameter steel pipe piles, or 
``production'' piles. HSWAC would use the same type of hydraulic impact 
hammer to install piles through concrete collars that hold the intake 
and discharge pipes in place on the seafloor. Fifty-two concrete 
collars would have two piles each and nine more collars would have a 
single pile. Each pile would take about 15 minutes to drive and HSWAC 
estimates that three or four piles would be installed per day. 
Installation of the 113 steel pipe piles should take about 4-6 weeks.

Table 1--Summary of Pile Driving Activities To Occur During Construction of the Seawater Air Conditioning System
----------------------------------------------------------------------------------------------------------------
                                                                                          51-cm Production pipe
               Activity                 51-cm Test pipe piles      61-cm Sheet piles              piles
----------------------------------------------------------------------------------------------------------------
Location.............................  488-1,128 m offshore...  488 m offshore.........  488-1,128 m offshore.
Number of piles......................  10-12..................  80.....................  113.
Pile driving duration................  1-2 weeks..............  16 days................  4-6 weeks.
Dates of activity....................  October 2012...........  November 2012 or April   March/April 2013.
                                                                 2013.
Hammer type..........................  Impact.................  Vibratory..............  Impact.
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Date and Duration of Proposed Activity

    HSWAC plans to begin pile driving in October 2012. The test piles 
would be driven in 1-2 weeks in October 2012. Sheet pile installation 
would last for about 16 days either in November 2012 or April 2013 in 
order to avoid the peak humpback whale season. The production piles 
would be installed out to about 46 m depth once the intake and 
discharge pipes are deployed. If construction proceeds quickly enough, 
the production piles would be installed around March/April 2013. If 
production piles cannot be installed during the 1-year IHA period, 
HSWAC would apply for another IHA and install the production piles 
sometime after September 2013. NMFS would issue the IHA for a 1-year 
period to allow for construction and weather delays. Pile driving would 
only occur in weather that provides adequate visibility for marine 
mammal monitoring activities.

Region of Proposed Activity

    The proposed area for installation of the HSWAC intake and 
discharge pipes lies between Diamond Head and the Reef Runway of the 
Honolulu International Airport and is just offshore from the entrances 
of Honolulu Harbor and Kewalo Basin. Honolulu Harbor has historically 
been, and continues to be, an industrial area. Honolulu Harbor is the 
largest and most important of Oahu's three commercial harbors as the 
state's port-of-entry for nearly all imported goods. Kewalo Basin, 
Oahu's smallest commercial harbor, was constructed in the 1920s to ease 
the congestion in Honolulu Harbor and provide docking for lumber 
schooners.

[[Page 43261]]

Over the years, the surrounding waters have been repeatedly polluted by 
wastewater treatment plant outfalls, sewage pumps, and stream 
discharges. The basin is now also used by tour boats, commercial 
fishing vessels, and charter fishing boats. Recreational activities in 
the area include fishing, swimming, surfing, snorkeling, diving, and 
paddling. However, fishery resources in the proposed project area are 
considered depleted as a result of habitat degradation and overfishing. 
An underwater survey was performed around the area proposed for 
pipeline installation. The seafloor slopes with varying degrees and 
consists mostly of medium to coarse sands and coral rubble.

Sound Propagation

    For background, sound is a mechanical disturbance consisting of 
minute vibrations that travel through a medium, such as air or water, 
and is generally characterized by several variables. Frequency 
describes the sound's pitch and is measured in hertz (Hz) or kilohertz 
(kHz), while sound level describes the sound's loudness and is measured 
in decibels (dB). Sound level increases or decreases exponentially with 
each dB of change. For example, 10 dB yields a sound level 10 times 
more intense than 1 dB, while a 20 dB level equates to 100 times more 
intense, and a 30 dB level is 1,000 times more intense. Sound levels 
are compared to a reference sound pressure (micro-Pascal) to identify 
the medium. For air and water, these reference pressures are ``re: 20 
[mu]Pa'' and ``re: 1 [mu]Pa,'' respectively. Root mean square (RMS) is 
the quadratic mean sound pressure over the duration of an impulse. RMS 
is calculated by squaring all of the sound amplitudes, averaging the 
squares, and then taking the square root of the average (Urick, 1975). 
RMS accounts for both positive and negative values; squaring the 
pressures makes all values positive so that they may be accounted for 
in the summation of pressure levels (Hastings and Popper, 2005). This 
measurement is often used in the context of discussing behavioral 
effects, in part because behavioral effects, which often result from 
auditory cues, may be better expressed through averaged units rather 
than by peak pressures.
    Source levels for the vibratory and impact hammer are expected to 
be 175 dB and 205 dB, respectively. These source levels are based on 
near-source, unattenuated sound pressures from the California 
Department of Transportation's Compendium of Pile Driving Sound. 
Assuming a practical spreading loss of 15 log R, HSWAC estimated 
distances from the sound source to sound thresholds at which point NMFS 
considers marine mammals to be harassed (CALTRANS, 2007). The distances 
to each threshold for each pile driving activity are summarized in 
Table 2 below.

            Table 2--Distances to NMFS' Harassment Thresholds for Each Proposed Pile Driving Activity
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      Harassment threshold           51-cm test pipe piles       61-cm Sheet piles   51-cm production pipe piles
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Level A--180 dB................  47 m.........................  n/a...............  47 m.
Level B--160 dB (impulsive       1,000 m......................  n/a...............  1,000 m.
 sound).
Level B--120 dB (continuous      n/a..........................  4,700 m...........  n/a.
 sound).
----------------------------------------------------------------------------------------------------------------

Description of Marine Mammals in the Area of the Specified Activity

    There are 24 marine mammal species with possible or known 
occurrence around the Main Hawaiian Islands (Table 3). However, not all 
of these species occur within HSWAC's proposed project area or during 
the same time as proposed pile driving activities.

                                  Table 3--Marine Mammal Species Around Hawaii
----------------------------------------------------------------------------------------------------------------
                                       Abundance in
               Species                    Hawaii               Season                      ESA status
----------------------------------------------------------------------------------------------------------------
Blainville's beaked whale                      2,872  Year round.............  .................................
 (Mesoplodon densirostris).
Blue whale (Balaenoptera musculus)..             n/a  Winter/Summer..........  Endangered.
Bryde's whale (Balaenoptera edeni)..             469  Year round.............  .................................
Cuvier's beaked whale (Ziphius                15,242  Year round.............  .................................
 cavirostris).
Dwarf sperm whale (Kogia sima)......          17,519  n/a....................  .................................
False killer whale (Pseudorca                    484  Year round.............  Proposed.
 crassidens).
Humpback whale (Megaptera                     10,103  Winter.................  Endangered.
 novaeangliae).
Killer whale (Orcinus orca).........             349  n/a....................  .................................
Longman's beaked whale (Indopacetus            1,007  n/a....................  .................................
 pacificus).
Melon-headed whale (Peponocephala              2,950  n/a....................  .................................
 electra).
Minke whale (Balaenoptera                        n/a  Winter.................  .................................
 acutorostrata).
Pilot whale, short finned                      8,846  Year round.............  .................................
 (Globicephala macrorhynchus).
Pygmy killer whale (Feresa                       956  Year round.............  .................................
 attenuate).
Pygmy sperm whale (Kogia breviceps).           7,138  n/a....................  .................................
Sei whale (Balaenoptera borealis)...              77  Year round.............  Endangered.
Sperm whale (Physeter macrocephalus)           6,919  Year round.............  Endangered.
Bottlenose dolphin (Tursiops                   3,178  Year round.............  .................................
 truncatus).
Fraser's dolphin (Lagenodelphis               10,226  Year round.............  .................................
 hosei).
Risso's dolphin (Grampus griseus)...           2,372  Year round.............  .................................
Rough-toothed dolphin (Steno                   8,709  Year round.............  .................................
 bredanensis).
Spinner dolphin (Stenella                      3,351  Year round.............  .................................
 longirostris).
Pantropical spotted dolphin                    8,978  Year round.............  .................................
 (Stenella attenuata).
Striped dolphin (Stenella                     13,148  Year round.............  .................................
 coeruleoalba).
Monk seal (Monachus schauinslandi)..           1,161  Year round.............  Endangered.
----------------------------------------------------------------------------------------------------------------


[[Page 43262]]

    Blue whales and killer whales are considered rare around Hawaii and 
would be highly unlikely to occur within HSWAC's proposed project area. 
Sei whales, sperm whales, and striped dolphins are all found in deeper, 
offshore waters and are highly unlikely to occur within HSWAC's 
proposed project due to habitat preference. Therefore, these five 
marine mammal species will not be further considered. The remaining 19 
species are discussed in further detail below.

Blainville's Beaked Whale

    Blainville's beaked whales occur in tropical and temperate waters 
worldwide. They typically prefer deep, offshore waters of the 
continental shelf and are often associated with bathymetric structures 
such as seamounts or submarine canyons. Blainville's beaked whales are 
often observed individually or in pods of three to seven animals. For 
management purposes, this species is divided into three U.S. stocks: 
the Hawaiian stock, the Northern Gulf of Mexico stock, and the Western 
North Atlantic stock. The Hawaiian stock includes animals found both 
within the Hawaiian Islands Exclusive Economic Zone (EEZ) and in 
surrounding international waters; however most abundance and 
distribution data comes from within the EEZ. The best available 
abundance estimate for the Hawaiian stock is 2,872 animals, but there 
is insufficient data to determine the population trend. Blainville's 
beaked whales are not listed under the Endangered Species Act (ESA) nor 
depleted under the MMPA.

Bryde's Whale

    Bryde's whales prefer highly productive tropical, subtropical, and 
warm temperate waters around the world. They are typically found in 
deep, offshore waters, but may occur near the coast and continental 
shelf. This species is usually seen individually or in pairs, but loose 
aggregations may form around feeding areas. Bryde's whales within the 
Pacific U.S. EEZ are divided into two groups for stock assessment 
purposes: the Hawaiian stock and the eastern Pacific stock. The 
Hawaiian stock includes animals found both within the Hawaiian Islands 
EEZ and in surrounding international waters; however most abundance and 
distribution data comes from within the EEZ. The best available 
abundance estimate for the Hawaiian stock is 469 animals, but there are 
insufficient data to determine the population trend. Bryde's whales are 
not listed under the ESA nor depleted under the MMPA.

Cuvier's Beaked Whale

    Cuvier's beaked whales are found in temperate, subtropical, and 
tropical waters around the world. Of all the beaked whale species, they 
likely have the most extensive range and distribution. Cuvier's beaked 
whales prefer deep, pelagic waters and are often associated with steep 
underwater bathymetry. They are typically seen alone or in groups of 
two to 12 animals, but are considered shy and tend to avoid vessels. 
Cuvier's beaked whales within the Pacific U.S. EEZ are divided into 
three discrete areas: Hawaiian waters, Alaskan waters, and waters off 
California, Oregon, and Washington. The Hawaiian stock includes animals 
found both within the Hawaiian Islands EEZ and in surrounding 
international waters; however most abundance and distribution data 
comes from within the EEZ. The best available abundance estimate for 
the Hawaiian stock is 15,242 animals, but there are insufficient data 
to determine the population trend. Cuvier's beaked whales are not 
listed under the ESA nor depleted under the MMPA.

Dwarf Sperm Whale

    Dwarf sperm whales are found in tropical, subtropical, and 
temperate waters worldwide. They are most common along the continental 
shelf edge and slope and considered the sixth most commonly seen 
toothed whale around the Hawaiian Islands. They are typically seen 
alone or in groups of six to 10 animals, but are considered quite 
timid. Dwarf sperm whales within the Pacific U.S. EEZ are divided into 
two discrete areas: Hawaiian waters and waters off California, Oregon, 
and Washington. The Hawaiian stock includes animals found both within 
the Hawaiian Islands EEZ and in surrounding international waters; 
however most abundance and distribution data comes from within the EEZ. 
The best available abundance estimate for the Hawaiian stock is 17,519 
animals, but there are insufficient data to determine the population 
trend. Dwarf sperm whales are not listed under the ESA nor depleted 
under the MMPA.

False Killer Whale

    False killer whales are found in tropical and temperate oceans 
worldwide. In the U.S., their distribution ranges from Hawaii, along 
the entire West Coast, and from the mid-Atlantic coastal states south. 
They prefer deep waters of at least 1,000 m and are typically found in 
groups of 10-20 animals. Two stocks exist within Hawaiian Islands EEZ 
and adjacent international waters with overlapping ranges: the insular 
stock and the pelagic stock. False killer whales within HSWAC's 
proposed project area would be part of the insular stock. The best 
available abundance estimate for Hawaii insular stock is 123 animals. 
Sighting data from 1994-2003 suggest a statistically significant 
decline. False killer whales are not currently listed under the ESA nor 
depleted under the MMPA. However, in 2010, NMFS proposed to list the 
Hawaii insular stock as endangered under the ESA. A final listing 
decision has not been made.

Humpback Whale

    Humpback whales live in all major oceans from the equator to the 
sub-polar latitudes. These large, baleen whales rely on warmer waters 
for calving, but feed on krill, plankton, and small fish in cold, 
productive coastal waters. In the North Pacific, there are at least 
three separate humpback populations: the California/Oregon/Washington 
stock, the Central North Pacific stock, and the Western North Pacific 
stock. Any humpbacks around the Hawaiian Islands are part of the 
Central North Pacific stock, which winters in the Hawaiian Islands and 
migrates to waters off Canada and Alaska each spring. The Hawaiian 
Islands Humpback Whale National Marine Sanctuary was established in 
1992 to protect humpback whales and their habitat off the shores of 
Maui, Kauai, Oahu, Molokai, and the Big Island. Point estimates of 
abundance for Hawaii from recent SPLASH data range from 7,469 to 
10,103. The estimate of humpback whales from the best model was 10,103, 
but no associated CV has been calculated. The minimum population 
estimate for the central North Pacific humpback whale stock is 5,833. 
Data from multiple studies suggest that the current population trend 
for the central North Pacific stock is increasing (Mobley et al., 2001; 
Mizroch et al., 2004; Calambokidis et al., 2008). Humpback whales are 
considered endangered under the ESA and depleted under the MMPA.

Longman's Beaked Whale

    Longman's beaked whales are found in warm, deep waters of tropical 
and subtropical regions of the Pacific and Indian Oceans. However, 
little is known about this species and they are considered one of the 
rarest whales. They are typically seen in groups of 10-20 animals, and 
sometimes in association with pilot whales, spinner dolphins, and 
bottlenose dolphins. There is one Pacific stock of Longman's beaked 
whales, found within waters of

[[Page 43263]]

the Hawaiian Islands EEZ. The best available abundance estimate for the 
Hawaii stock is 1,007 animals and there are no data available on 
current population trend. Longman's beaked whales are not listed under 
the ESA nor depleted under the MMPA.

Melon-headed Whale

    Melon-headed whales are found primarily in deep, tropical waters 
worldwide. They often travel in groups of hundreds to over 1,000 
animals. There are three recognized stocks in the U.S.: Hawaii, 
Northern Gulf of Mexico, and Western North Atlantic. The best available 
abundance estimate for the Hawaii stock is 2,950 animals, but the 
current population trend is unknown due to lack of data. Melon-headed 
whales are not listed under the ESA nor depleted under the MMPA.

Minke Whale

    Minke whales prefer temperate to boreal waters, but are also found 
in tropical and subtropical areas. They are the smallest baleen whale 
in North American waters and there are at least two recognized species: 
northern or common minke whale and Antarctic minke whale. Minke whales 
are often active at the surface and found in both coastal and offshore 
waters individually or in small groups of 2-3. For management purposes, 
minke whales in U.S. waters are divided into four stocks: Alaska, 
Canadian Eastern Coastal, California/Oregon/Washington, and Hawaii. Any 
minke whales in the proposed action area would be part of the Hawaii 
stock and would only be present during winter months. There is 
currently no abundance estimate for this stock of minke whales and no 
data are available on the current population trend. Minke whales are 
not listed under the ESA nor depleted under the MMPA.

Short-Finned Pilot Whale

    Short-finned pilot whales are found in tropical and temperate 
waters worldwide. They can be found closer to shore, but typically 
prefer deeper waters of at least 305 m. Short-finned pilot whales are 
often traveling and foraging in groups of 25-50 animals. For stock 
assessment purposes, short-finned pilot whales within the Pacific U.S. 
EEZ are divided into two discrete areas: Hawaii and waters off 
California, Oregon, and Washington. The best available abundance 
estimate for the Hawaii stock is 8,846 animals, but the current 
population trend is unknown due to lack of data. Short-finned pilot 
whales are not listed under the ESA nor depleted under the MMPA.

Pygmy Killer Whale

    Pygmy killer whales are found primarily in tropical and subtropical 
waters worldwide. They prefer deep waters where their prey is 
concentrated and usually occur in groups of 50 or less. Pygmy killer 
whales are relatively rare around Hawaii, but have been sighted around 
numerous islands. Three U.S. stocks exist for this species: Hawaii, 
Western North Atlantic, and Northern Gulf of Mexico. The best available 
abundance estimate for the Hawaii stock is 956 animals and there are no 
data available on current population trend. Pygmy killer whales are not 
listed under the ESA nor depleted under the MMPA.

Pygmy Sperm Whale

    Pygmy sperm whales are found in tropical, subtropical, and 
temperate waters worldwide. They are most common along the continental 
shelf edge and slope. Pygmy sperm whales are often seen alone or in 
groups of 6-7 animals, but are considered quite timid. For management 
purposes, this species has been divided into four stocks within U.S. 
waters: Hawaii, California/Oregon/Washington, Northern Gulf of Mexico, 
and the Western North Atlantic stock. The best available abundance 
estimate for the Hawaii stock is 7,138 animals and there is no data 
available on current population trend. Pygmy sperm whales are not 
listed under the ESA nor depleted under the MMPA.

Bottlenose Dolphin

    Bottlenose dolphins are found in temperate and tropical waters 
worldwide. Some populations migrate into bays, estuaries, and rivers, 
while others inhabit pelagic waters near the continental shelf. 
Bottlenose dolphins are often seen in groups of two to 15 animals, but 
offshore herds sometimes reach several hundred. There are 11 stocks of 
bottlenose dolphins in U.S waters, and animals within HSWAC's proposed 
project area would be part of the Hawaiian Islands stock complex. 
Recent data suggests that there may be distinct resident populations of 
bottlenose dolphins at each of the four main Hawaiian Island groups--
Kauai and Niihau, Oahu, the Four-Islands region, and Hawaii. Limited 
surveys have been done for the Oahu stock and there is no precise 
population estimate for this area. Group sizes of bottlenose sightings 
around Oahu range from three to 24. The best available abundance 
estimate for the Hawaiian pelagic stock (between the 1,000 m isobaths 
and the EEZ boundary) is 3,178 animals. Population trends for all U.S. 
stocks are currently unknown. Bottlenose dolphins are not listed under 
the ESA and only the Western North Atlantic coastal stock is depleted 
under the MMPA.

Fraser's Dolphin

    Fraser's dolphins are found in warm temperate, subtropical, and 
tropical waters worldwide. They usually occur in deep waters associated 
with areas of upwelling. Fraser's dolphins are usually found in tight 
groups averaging 10-100 animals and may be seen in mixed schools with 
false killer whales, melon-headed whales, Risso's dolphins, and short-
finned pilot whales. For stock assessment purposes, there is a single 
Pacific management stock including animals found within the Hawaiian 
Islands EEZ and in surrounding international waters. The best available 
abundance estimate for this stock is 10,266 animals. There are no data 
available on current population trend. Fraser's dolphins are not listed 
under the ESA nor depleted under the MMPA.

Risso's Dolphin

    Risso's dolphins are found in temperate, subtropical, and tropical 
waters worldwide that are generally deeper than 1,000 m. Their group 
size averages 10-30 animals, but they are also seen alone, in pairs, 
and in much larger aggregations. There are two stocks within the 
Pacific U.S. EEZ: Hawaii and waters off California, Oregon, and 
Washington. The best available abundance estimate for the Hawaii stock 
is 2,372 animals and no data are available on current population trend. 
Risso's dolphins are not listed under the ESA nor depleted under the 
MMPA.

Rough-Toothed Dolphin

    Rough-toothed dolphins prefer deeper areas of tropical and warm 
temperate waters worldwide. This species usually occurs in tight groups 
of 10-20 animals and is often associated with short-finned pilot 
whales, bottlenose dolphins, pantropical spotted dolphins, and spinner 
dolphins. There are two Pacific management stocks of rough-toothed 
dolphins: Hawaii and American Samoa. The best available abundance 
estimate for the Hawaii stock is 8,709 animals, but there are no data 
available on current population trend. Rough-toothed dolphins are not 
listed under the ESA nor depleted under the MMPA.

Spinner Dolphin

    Spinner dolphins are found in all tropical and subtropical oceans. 
They are most common in deep ocean waters, but the Hawaii population 
has a more coastal distribution. Around Hawaii,

[[Page 43264]]

spinner dolphins often rest in bays and protected areas during the day 
and feed offshore at night. Spinner dolphins groups can reach up to 
several thousand animals and they often school with other dolphin 
species. Spinner dolphins living around Hawaiian Islands are part of 
the Hawaii stock complex, which is divided into six stocks: Hawaii 
Island, Oahu/Four-Islands, Kauai/Niihau, Pearl and Hermes Reef, Kure/
Midway, and Hawaii pelagic. No data on current population sizes for any 
of the Hawaiian Island stocks are available. In 2002, a vessel survey 
estimated an abundance of 3,351 animals for the entire Hawaii stock 
complex. Spinner dolphins around Oahu typically remain within 8 km from 
shore and the average group size is 24 animals. There are no data 
available on the current population trend. Spinner dolphins are not 
listed under the ESA and only the eastern stock in the Eastern Tropical 
Pacific Ocean is depleted under the MMPA.

Pantropical Spotted Dolphin

    Pantropical spotted dolphins are found in tropical and subtropical 
waters worldwide. Similar to the Hawaii stock complex of spinner 
dolphins, spotted dolphins spend the day in relatively shallow water 
and move offshore at night to search for prey. They often occur in 
groups of several hundred to 1,000 animals and school with other 
dolphin species. Pantropical spotted dolphins are common and abundant 
throughout the Hawaiian Islands. The best available abundance estimate 
for pantropical spotted dolphins within the Hawaiian Islands EEZ is 
8,978 animals. No data are available on current population trend. 
Pantropical spotted dolphins are not listed under the ESA and only the 
Pacific Northeastern offshore stock is depleted under the MMPA.

Hawaiian Monk Seal

    Monk seals live in warm subtropical waters and spend most of their 
time at sea. They prefer waters surrounding atolls, islands, and areas 
farther offshore on reefs and submerged banks. When on land, monk seals 
breed and haul out on sandy beaches and volcanic rock. The majority of 
monk seals live in six main breeding subpopulations in the Northwestern 
Hawaiian Islands. The best estimate of the total Hawaiian monk seal 
population is 1,161 animals. The total number of individually 
identifiable seals in the Main Hawaiian Islands (based on sightings in 
2008) is 113. The Main Hawaiian Islands monk seal population appears to 
be increasing by about 5.6 percent per year. Hawaiian monk seals are 
listed as endangered under the ESA and depleted under the MMPA.

Potential Effects of the Specified Activity on Marine Mammals

    Elevated in-water sound levels from pile driving in the proposed 
project area may temporarily impact marine mammal behavior. (Elevated 
in-air sound levels are not a concern because the distance to the Level 
B harassment threshold for in-air sound (100 dB) does not reach the 
nearest monk seal haul out at Magic Island in Waikiki.) Marine mammals 
are continually exposed to many sources of sound. For example, 
lightning, rain, sub-sea earthquakes, and animals are natural sound 
sources throughout the marine environment. Marine mammals produce 
sounds in various contexts and use sound for various biological 
functions including: (1) Social interactions; (2) foraging; (3) 
orientation; and (4) predator detection. Interference with producing or 
receiving these sounds may result in adverse impacts. Audible distance 
or received levels depend on the sound source, ambient noise, and the 
sensitivity of the receptor (Richardson et al., 1995). Marine mammal 
reactions to sound may depend on sound frequency, ambient sound, what 
the animal is doing, and the animal's distance from the sound source 
(Southall et al., 2007).
    Cetaceans are divided into three functional hearing groups: low-
frequency, mid-frequency, and high-frequency. Bryde's whale, humpback 
whale, and minke whale are considered low-frequency cetaceans and the 
estimated auditory bandwidth (lower to upper frequency cut-off) ranges 
from 7 Hertz (Hz) to 22 kilohertz (kHz). Blainville's beaked whale, 
Cuvier's beaked whale, false killer whale, Longman's beaked whale, 
melon-headed whale, short-finned pilot whale, pygmy killer whale, and 
all dolphin species are considered mid-frequency cetaceans and their 
estimated auditory bandwidth ranges from 150 Hz to 160 kHz. Dwarf sperm 
whale and pygmy sperm whale are considered high-frequency cetaceans and 
their estimated auditory bandwidth ranges from 200 Hz to 180 kHz 
(Southall et al., 2007).
    Pinnipeds produce a wide range of social signals, most occurring at 
relatively low frequencies (Southall et al., 2007), suggesting that 
hearing is keenest at these frequencies. Pinnipeds communicate 
acoustically both on land and underwater, but have different hearing 
capabilities dependent upon the medium (air or water). Based on 
numerous studies, as summarized in Southall et al. (2007), pinnipeds 
are more sensitive to a broader range of sound frequencies underwater 
than in air. Underwater, pinnipeds can hear frequencies from 75 Hz to 
75 kHz. In air, pinnipeds can hear frequencies from 75 Hz to 30 kHz 
(Southall et al., 2007). However, based on underwater audiograms for a 
single animal, the in-water hearing range of Hawaiian monk seals may be 
narrower than other pinnipeds. Thomas et al., (1990) showed that one 
Hawaiian monk seal's in-water hearing ranged from 2 kHz to 48 kHz with 
the most sensitivity between 12 kHz and 28 kHz.

Hearing Impairment

    Marine mammals may experience temporary or permanent hearing 
impairment when exposed to loud sounds. Hearing impairment is 
classified by temporary threshold shift (TTS) and permanent threshold 
shift (PTS). There are no empirical data for when PTS first occurs in 
marine mammals; therefore, it must be estimated from when TTS first 
occurs and from the rate of TTS growth with increasing exposure levels. 
PTS is likely if the animal's hearing threshold is reduced by >=40 dB 
of TTS. PTS is considered auditory injury (Southall et al., 2007) and 
occurs in a specific frequency range and amount. Irreparable damage to 
the inner or outer cochlear hair cells may cause PTS; however, other 
mechanisms are also involved, such as exceeding the elastic limits of 
certain tissues and membranes in the middle and inner ears and 
resultant changes in the chemical composition of the inner ear fluids 
(Southall et al., 2007). Due to proposed mitigation measures and source 
levels in the proposed project area, NMFS does not expect marine 
mammals to be exposed to PTS levels.
    To avoid the potential for injury, NMFS (1995, 2000) concluded that 
cetaceans should not be exposed to pulsed underwater noise at received 
levels exceeding 180 dB re: 1 [mu]Pa. The 180 dB re: 1 [mu]Pa (rms) 
criterion is the received level which NMFS first applied before 
additional TTS measurements for marine mammals became available, when 
one could not be certain that there would be no injurious effects, 
auditory or otherwise, to marine mammals at higher sound levels. The 
180 dB level is often used to establish a shutdown zone to protect 
cetaceans from potential for injury. NMFS also assumes that cetaceans 
exposed to levels exceeding 160 dB re: 1 [mu]Pa (rms) may experience 
Level B harassment.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during

[[Page 43265]]

exposure to a loud sound (Kryter, 1985). While experiencing TTS, the 
hearing threshold rises and a sound must be louder in order to be 
heard. TTS can last from minutes or hours to days, occurs in specific 
frequency ranges (i.e., an animal might only have a temporary loss of 
hearing sensitivity between the frequencies of 1 and 10 kHz), and can 
occur to varying degrees (e.g., an animal's hearing sensitivity might 
be reduced by 6 dB or by 30 dB). For sound exposures at or somewhat 
above the TTS-onset threshold, hearing sensitivity recovers rapidly 
after exposure to the sound ends.
    Few data on sound levels and durations necessary to elicit mild TTS 
have been obtained for marine mammals. Southall et al. (2007) considers 
a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) sufficient 
to be recognized as an unequivocal deviation and thus a sufficient 
definition of TTS-onset. Because it is non-injurious, NMFS considers 
TTS as Level B harassment that is mediated by physiological effects on 
the auditory system; however, NMFS does not consider onset TTS to be 
the lowest level at which Level B harassment may occur.
    Researchers have derived TTS information for odontocetes (toothed 
whales) from studies on the bottlenose dolphin and beluga. For the one 
harbor porpoise tested, the received level of airgun sound that 
elicited onset of TTS was lower (Lucke et al., 2009). If these results 
from a single animal are representative, it is inappropriate to assume 
that onset of TTS occurs at similar received levels in all odontocetes 
(cf. Southall et al., 2007). Some cetaceans apparently can incur TTS at 
considerably lower sound exposures than are necessary to elicit TTS in 
the beluga or bottlenose dolphin.
    For baleen whales, there are no data, direct or indirect, on levels 
or properties of sound that are required to induce TTS. The frequencies 
to which baleen whales are most sensitive are assumed to be lower than 
those to which odontocetes are most sensitive, and natural background 
noise levels at those low frequencies tend to be higher. As a result, 
auditory thresholds of baleen whales within their frequency band of 
best hearing are believed to be higher (less sensitive) than are those 
of odontocetes at their best frequencies (Clark and Ellison, 2004). 
From this, it is suspected that received levels causing TTS onset may 
also be higher in baleen whales (Southall et al., 2007).
    For pinnipeds, sound exposures that elicit TTS underwater have been 
measured in harbor seals, California sea lions, and northern elephant 
seals. Exposures to nonpulse sound over different periods of time 
showed a difference in TTS-onset between species (Kastak et al., 2005). 
Data suggest that harbor seals experience TTS-onset at a lower sound 
exposure level than other pinnipeds. Only one study has been done on 
underwater TTS-onset in pinnipeds exposed to pulse sounds. Finneran et 
al. (2003) showed no measureable TTS in two California sea lions 
following exposures to a transducer.
    Marine mammal hearing plays a critical role in communication with 
conspecifics and in interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to 
serious. For example, a marine mammal may be able to readily compensate 
for a brief, relatively small amount of TTS in a non-critical frequency 
range that takes place during a time when the animal is traveling 
through the open ocean, where ambient noise is lower and there are not 
as many competing sounds present. Alternatively, a larger amount and 
longer duration of TTS sustained during a time when communication is 
critical for successful mother/calf interactions could have more 
serious impacts if it were in the same frequency band as the necessary 
vocalizations and of a severity that it impeded communication. The fact 
that animals exposed to levels and durations of sound that would be 
expected to result in this physiological response would also be 
expected to have behavioral responses of a comparatively more severe or 
sustained nature is also notable and potentially of more importance 
than the simple existence of a TTS. For HSWAC's proposed project, NMFS 
expects cases of TTS to be improbable given: (1) The limited amount of 
pile driving over a 1-year period; (2) the motility of free-ranging 
marine mammals in the water column; and (3) the propensity for marine 
mammals to avoid obtrusive sounds.

Behavioral Effects

    Behavioral disturbance includes a variety of effects, including 
subtle to conspicuous changes in behavior, movement, and displacement. 
Marine mammal reactions to sound, if any, depend on species, state of 
maturity, experience, current activity, reproductive state, time of 
day, and many other factors (Richardson et al., 1995; Wartzok et al., 
2004; Southall et al., 2007; Weilgart, 2007). If a marine mammal does 
react briefly to an underwater sound by changing its behavior or moving 
a small distance, the impacts of the change are unlikely to be 
significant to the individual, let alone the stock or population. 
However, if a sound source displaces marine mammals from an important 
feeding or breeding area for a prolonged period, impacts on individuals 
and populations could be significant (e.g., Lusseau and Bejder, 2007; 
Weilgart, 2007). Given the many uncertainties in predicting the 
quantity and types of impacts of noise on marine mammals, it is common 
practice to estimate how many mammals would be present within a 
particular proximity to activities and/or exposed to a particular level 
of sound. In most cases, this approach likely overestimates the numbers 
of marine mammals that would be affected in some biologically-important 
manner.

Continuous Sound

    Southall et al. (2007) summarizes numerous behavioral observations 
made of low-frequency cetaceans to a range of nonpulse sound sources, 
such as vibratory pile driving. Generally, the data suggest no or 
limited responses to received levels of 90-120 dB (rms) and an 
increasing probability of behavioral effects in the 120-160 dB (rms) 
range. However, differences in source proximity, novelty of the sound, 
operational features, etc., seem to be at least as important as 
exposure level when predicting behavioral response. Southall et al. 
(2007) also summarizes numerous mid-frequency cetaceans have also been 
observed responding to nonpulse sounds such as pingers, vessel noise, 
sonar, and playbacks of drilling sounds. Again, contextual variables 
seem to play a large role in behavioral response. In some studies, 
animals responded with high severity scores while others did not 
respond even at higher exposure levels. There are also notable 
differences in results from field versus laboratory conditions. While 
multiple controlled studies of high-frequency cetaceans to nonpulse 
sound have been conducted, only one species (harbor porpoise) has been 
extensively studied. The data suggest that harbor porpoises may be 
sensitive to lower received levels than some other taxa. Wild harbor 
porpoises avoided all recorded exposures above 140 dB (rms), but it is 
unknown whether this type of behavioral response translates to other 
high-frequency cetaceans (Southall et al., 2007).
    There are limited data available on the behavioral effects of 
continuous

[[Page 43266]]

sound (e.g., vibratory pile driving) on pinnipeds while underwater; 
however, field and captive studies to date collectively suggest that 
pinnipeds do not react strongly to exposures between 90 and 140 dB re: 
1 microPa; no data exist from exposures at higher levels. Jacobs and 
Terhune (2002) observed wild harbor seal reactions to high-frequency 
acoustic harassment devices around nine sites. Seals came within 44 m 
of the active acoustic harassment devices and failed to demonstrate any 
behavioral response when received SPLs were estimated at 120-130 dB. In 
a captive study (Kastelein, 2006), scientists subjected a group of 
seals to non-pulse sounds between 8 and 16 kHz. Exposures between 80 
and 107 dB did not induce strong behavioral responses; however, a 
single observation from 100 to 110 dB indicated an avoidance response. 
The seals returned to baseline conditions shortly following exposure. 
Southall et al. (2007) notes contextual differences between these two 
studies; the captive animals were not reinforced with food for 
remaining in the noise fields, whereas free-ranging animals may have 
been more tolerant of exposures because of motivation to return to a 
safe location or approach enclosures holding prey items.

Impulse Sounds

    Southall et al. (2007) addresses behavioral responses of marine 
mammals to impulse sounds (like impact pile driving). The studies that 
address the responses of mid-frequency cetaceans to impulse sounds 
include data gathered both in the field and the laboratory and related 
to several different sound sources, including: Small explosives, airgun 
arrays, pulse sequences, and natural and artificial pulses. The data 
show no clear indication of increasing probability and severity of 
response with increasing received level. Behavioral responses seem to 
vary depending on species and stimuli. Data on behavioral responses of 
high-frequency cetaceans to multiple pulses are not available.
    The studies that address the responses of pinnipeds in water to 
impulse sounds include data gathered in the field and related to 
several different sources, including: Small explosives, impact pile 
driving, and airgun arrays. Quantitative data on reactions of pinnipeds 
to impulse sounds are limited, but a general finding is that exposures 
in the 150 to 180 dB range generally have limited potential to induce 
avoidance behavior (Southall et al., 2007).

Anticipated Effects on Habitat

    No permanent detrimental impacts to marine mammal habitat are 
expected to result from the proposed project. Pile driving (resulting 
in temporary ensonification) may impact prey species and marine mammals 
by resulting in avoidance or abandonment of the area and increased 
turbidity; however, these impacts are expected to be localized and 
temporary. The receiving pit would be backfilled after construction and 
while the intake and discharge pipes would take up a limited amount of 
space on the seafloor, there are no expected adverse impacts to marine 
mammal habitat. The pipelines would actually create additional benthic 
habitat for coral recruitment and growth of fish communities by 
increasing surface area. The discharge pipe would return slightly 
cooler, nutrient-rich water to the ocean. However, the discharge water 
would be within one degree of ambient seawater temperature and is not 
expected to affect marine mammal habitat.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth 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. HSWAC proposed the following 
mitigation measures to minimize adverse impacts to marine mammals:

Temporal Restrictions

    Based on NMFS' recommendation, HSWAC would not conduct any 
vibratory pile driving from December 1 through March 31. This is the 
peak humpback whale season for Hawaii and there is a possibility that 
humpback whales may occur within the proposed HSWAC project site. HSWAC 
agreed to restrict vibratory pile driving because elevated sound levels 
(120 dB or higher) from this activity could extend out 4,700 m from the 
source and monitoring such a large area in order to prevent Level B 
harassment is not feasible.
    HSWAC may still conduct impact pile driving during the humpback 
whale season (with an additional mitigation measure). The distance to 
the Level B harassment zone for impact pile driving is much smaller 
(1,000 m) and HSWAC would monitor this area and stop pile driving in 
order to prevent Level B harassment of humpback whales (see next 
section). Further temporal restrictions are not practicable for HSWAC 
because pile driving cannot be conducted during summer months due to 
swells on the south shore of Oahu.

Establishment of an Exclusion Zone

    The purpose of HSWAC's proposed exclusion zone is to prevent Level 
A harassment (injury) of any marine mammal species and Level B 
harassment of humpback whales. During all in-water impact pile driving, 
HSWAC would establish a radius around each pile driving site that would 
be continuously monitored for marine mammals. If a marine mammal is 
observed nearing or entering this perimeter, HSWAC would stop pile 
driving operations to prevent marine mammals from being exposed to 
sounds at or above 180 dB. More specifically, HSWAC would monitor a 91-
m distance around each pile driving site. This area would encompass the 
estimated 180-dB isopleth of 47 m, within which injury could occur, 
plus an additional 44-m buffer. The exclusion zone would be monitored 
30 minutes before and during all impact pile driving to ensure that no 
marine mammals enter the 91-m radius. One protected species observer 
would be located on the pile driver barge to perform monitoring.
    Based on NMFS' recommendation, HSWAC would extend the exclusion 
zone to 1,000 m for all large whales from December 1 through March 31. 
The purpose would be to prevent Level B harassment of humpback whales 
during Hawaii's peak humpback whale season.
    Once in-situ underwater sound measurements are taken, the exclusion 
zone may be adjusted accordingly so that marine mammals are not exposed 
to Level A harassment sound pressure levels. An exclusion zone does not 
need to be established during vibratory pile driving because source 
levels would not exceed the Level A harassment threshold.

Pile Driving Shut Down and Delay Procedures

    If a protected species observer sees a marine mammal approaching or 
entering the 91-m exclusion zone (or a large whale approaching or 
entering the 1,000-m exclusion zone from December 1 through March 31) 
prior to start of impact pile driving, the observer would notify the 
on-site project lead (or other authorized individual) who would then be 
required to delay pile driving until the marine mammal has moved away 
or if the animal has not been resighted within NMFS' recommended 15 
minutes for pinnipeds or 60 minutes for

[[Page 43267]]

cetaceans. If a marine mammal is sighted entering or on a path toward 
the 91-m exclusion zone (or a large whale approaching or entering the 
1,000-m exclusion zone from December 1 through March 31) during pile 
driving, pile driving would cease until that animal is on a path away 
from the exclusion zone or NMFS' recommended 15/60 minutes has lapsed 
since the last sighting.

Soft-Start Procedures

    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the pile driver reaches full power. HSWAC would 
implement this technique by initiating pile driving at an energy level 
of about 40-60 percent. This level would be maintained for at least 5 
minutes before gradually increasing the energy to full power. Soft-
start procedures would be conducted prior to driving each pile if 
hammering ceases for more than 15 minutes.

Proposed Monitoring and Reporting

    In order to issue an IHA 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 IHAs 
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 are expected to be present.
    HSWAC would perform in-situ underwater sound monitoring during 
sheet pile and test pile driving operations to verify source levels and 
ensure that the harassment isopleths are not extending past the 
calculated distances described in this notice. If necessary, the 91-m 
exclusion zone would be expanded to include sound levels reaching 180 
dB.
    In addition to monitoring the 91-m exclusion zone, HSWAC would 
designate an observer to monitor the 160-dB zone around the sound 
source during all pipe pile driving (impact pile driving) operations. 
This observer would also be stationed on the pile driving rig and would 
be responsible for monitoring from the 91-m exclusion zone out to the 
Level B harassment zone at 1,000 m. The purpose of this observer would 
be to: (1) Conduct behavioral monitoring of marine mammals and record 
any Level B takes of marine mammals that occur during pipe pile driving 
operations; and (2) notify the onsite project lead (or other authorized 
individual) if a large whale is seen approaching or entering the 1,000-
m exclusion zone from December 1 through March 31.
    During at least 5 of the 16 days of sheet (i.e., vibratory) pile 
driving operations, HSWAC would designate two additional observers to 
monitor the 120-dB zone around the sound source. These observers would 
be stationed on a small power boat with an operator and would travel in 
a semi-circular route about 3.1 km from the sound source in order to 
observe and record any marine mammals that could be exposed to sound 
levels between 120-180 dB. Maximum travel speed would be 10 nautical 
miles per hour. Monitoring would begin 40 minutes prior to the start of 
sheet pile driving operations in order to observe whether any marine 
mammals in the area remained once pile driving operations started. 
Monitoring would continue during sheet pile driving operations and the 
observer would record all marine mammal sightings and behavior. At a 
minimum, monitoring of the 120-dB zone would occur on the first and 
second day of pile driving operations, followed by the fifth day, the 
tenth day, and fifteenth day. Observer data from the 120-180 dB area 
(for both pipe and sheet pile driving) would be used to validate take 
estimates and evaluate the behavioral impacts that pile driving has on 
marine mammals.
    Protected species observers would be provided with the equipment 
necessary to effectively monitor for marine mammals (for example, high-
quality binoculars, spotting scopes, compass, and range-finder) in 
order to determine if animals have entered into the exclusion zone or 
Level B harassment isopleth and to record species, behaviors, and 
responses to pile driving. If in-situ underwater sound monitoring 
indicates that threshold isopleths are greater than originally 
calculated, HSWAC would contact NMFS within 48 hours and make the 
necessary adjustments. Protected species observers would be required to 
submit a report to NMFS within 90 days of completion of pile driving. 
The report would include data from marine mammal sightings (such as 
species, group size, and behavior), any observed reactions to 
construction, distance to operating pile hammer, and construction 
activities occurring at time of sighting.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA, 
such as an injury (Level A harassment), serious injury, or mortality 
(e.g., ship-strike or gear interaction), HSWAC would immediately cease 
the specified activities and report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
at 301-427-8401 and/or by email to [email protected] and 
[email protected] and the Pacific Islands Regional Stranding 
Coordinator at 808-944-2269 ([email protected]). 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).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with HSWAC to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. HSWAC would not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that HSWAC discovers an injured or dead marine mammal, 
and the lead 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 described in the next paragraph), 
HSWAC would immediately report the incident to the Chief of the Permits 
and Conservation Division, Office of Protected Resources, NMFS, at 301-
427-8401 and/or by email to [email protected] and 
[email protected] and the Pacific Islands Regional Stranding 
Coordinator at 808-973-2941 ([email protected]). The report 
would include the same information identified in the paragraph above. 
Activities could continue while NMFS reviews the circumstances of the 
incident. NMFS would work with HSWAC to determine whether modifications 
in the activities are appropriate.
    In the event that HSWAC discovers an injured or dead marine mammal, 
and the lead observer determines that the

[[Page 43268]]

injury or death is not associated with or related to the activities 
authorized in the IHA (e.g., previously wounded animal, carcass with 
moderate to advanced decomposition, or scavenger damage), HSWAC would 
report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or 
by email to [email protected] and [email protected] and 
the Pacific Islands Regional Stranding Coordinator at 808-944-2269 
([email protected]), within 24 hours of the discovery. HSWAC 
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].
    Based on the application and subsequent analysis, the impact of the 
described pile driving operations (taking into account proposed 
mitigation and monitoring measures) may result in, at most, short-term 
modification of behavior by small numbers of marine mammals. Marine 
mammals may avoid the area or temporarily change their behavior at time 
of exposure.
    Current NMFS practice regarding exposure of marine mammals to 
anthropogenic noise is that in order to avoid the potential for injury 
(PTS), cetaceans and pinnipeds should not be exposed to impulsive 
sounds of 180 and 190 dB or above, respectively. This level is 
considered precautionary as it is likely that more intense sounds would 
be required before injury would actually occur (Southall et al., 2007). 
Potential for behavioral harassment (Level B) is considered to have 
occurred when marine mammals are exposed to sounds at or above 160 dB 
for impulse sound (such as impact pile driving) and 120 dB for 
continuous sound (such as vibratory pile driving). Table 2 summarized 
the distances to NMFS' harassment thresholds from each type of pile 
driving activity. Based on this information, and considering the 
proposed mitigation measures, marine mammals would not likely be 
exposed to sound levels reaching 180 dB (Level A harassment) or higher.
    HSWAC initially requested marine mammal takes for all species that 
could potentially be around Hawaii at any point during the year. 
However, as noted in the Description of Marine Mammals in the Area of 
the Specified Activity section of this document, some species only 
occur during winter months or are considered rare around Hawaii. Based 
on further consultation with the NMFS Pacific Islands Region and 
Pacific Islands Fisheries Science Center, NMFS is proposing to 
authorize the amount of take detailed in Table 4. These numbers are 
based on species density around Hawaii, taking habitat preference, 
seasonality, average group size, and number of pile driving days into 
consideration.
    Where applicable, the density of each species was applied to the 
largest Level B harassment isopleth (4,700 m) and multiplied by the 
maximum number of pile driving days. For example, the density estimate 
for dwarf sperm whales is 0.31 animals within the 120 dB isopleth. This 
number was rounded to one and multiplied by the number of total pile 
driving days (72). For some species, only vibratory pile driving 
duration (16 days) was used to calculate take due to the following: (1) 
The Level B harassment zone for impact pile driving is relatively small 
(1,000 m); (2) impact pile driving would occur in relatively shallow 
water; and (3) some species prefer deep water and are unlikely to occur 
within the 1,000-m radius. Beaked whales were lumped together due to 
the difficulty in identifying them to the species level. Although 
vibratory pile driving would be prohibited from December through March, 
there is still a possibility of some large whales (humpbacks and 
minkes) being in the area during November or April. Therefore, based on 
the number of pile driving days, NMFS estimated that 16 humpbacks and 
16 minke whales may be exposed to Level B harassment from vibratory 
pile driving during this time. The proposed take numbers in Table 4 are 
conservative in that they indicate the maximum number of animals 
expected to occur within the largest Level B harassment isopleth (4,700 
m).

                    Table 4--Proposed Takes for Marine Mammals During Pile Driving Operations
----------------------------------------------------------------------------------------------------------------
                                                                   Expected take   Expected take
                                                                  from vibratory    from impact
                                                  Density within   pile driving    pile driving
                     Species                        the project     (density x      (density x     Proposed take
                                                       area       number of pile  number of pile
                                                                   driving days)   driving days)
----------------------------------------------------------------------------------------------------------------
Beaked whales (Blainville's, Cuvier's,                      0.08              16               0              16
 Longman's).....................................
Bryde's whale...................................            0.01              16               0              16
Dwarf sperm whale...............................            0.31              16              56              72
False killer whale..............................            0.05              16               0              16
Humpback whale..................................             n/a              16               0              16
Melon-headed whale..............................            0.10              16               0              16
Minke whale.....................................             n/a              16               0              16
Short-finned pilot whale........................            0.65              16              56              72
Pygmy killer whale..............................            0.02              16               0              16
Pygmy sperm whale...............................            0.13              16               0              16
Bottlenose dolphin..............................             n/a  ..............  ..............         \1\ 216
Fraser's dolphin................................            0.02              16               0              16
Risso's dolphin.................................            0.11              16               0              16
Rough-toothed dolphin...........................            0.35              16               0              16
Spinner dolphin.................................             n/a  ..............  ..............         \2\ 384
Pantropical spotted dolphin.....................            0.87              16               0              16

[[Page 43269]]

 
Monk seal.......................................             n/a  ..............  ..............        \3\ 128
----------------------------------------------------------------------------------------------------------------
\1\ There is no density estimate for bottlenose dolphins around Hawaii, so the minimum group size (3) was
  multiplied by the total number of pile driving days (72).
\2\ There is no density estimate for spinner dolphins around Hawaii, so the average group size (24) was
  multiplied by the number of vibratory pile driving days (16). Spinner dolphins are seen more frequently than
  bottlenose dolphins, but are unlikely to occur within the Level B harassment zone during impact pile driving
  due to their preference for deeper waters.
\3\ A maximum of four different monk seals have been seen hauled out around the south shore of Oahu, with one or
  two hauled out at any given time. NMFS Pacific Islands Fisheries Science Center estimates the population by
  multiplying beach counts by three. Therefore, we assume that 12 monk seals may reside around the south shore
  of Oahu with about four of them hauled out at any given time and others offshore traveling or foraging. The
  estimate of monk seals that may be in the water (8) was multiplied by the number of vibratory pile driving
  days (16). Impact pile driving was discounted because of the relatively small harassment zone and limited
  hours of activity (15-60 minutes/day).

Negligible Impact and Small Numbers Analysis and Determination

    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.'' In making a negligible impact determination, 
NMFS considers a number of factors which include, but are not limited 
to, number of anticipated injuries or mortalities (none of which would 
be authorized here), number, nature, intensity, and duration of Level B 
harassment, and the context in which takes occur.
    As described above, marine mammals would not be exposed to 
activities or sound levels which would result in injury (PTS), serious 
injury, or mortality. Rather, NMFS expects that some marine mammals may 
be exposed to elevated sound levels which would result in Level B 
behavioral harassment. No impacts to marine mammal reproduction are 
expected because the closest known monk seal haul out is outside of the 
Level B harassment zone for in-air sound and proposed mitigation and 
monitoring measures would prevent harassment of humpback whales during 
the peak humpback whale season. During winter months, humpback whales 
migrate to Hawaii. Some level of socializing, breeding, and/or calving 
is thought to take place along the south of Oahu. The highest estimates 
of humpback whale surface density occur around Maui, Molokai, and 
Lanai; however, there are estimated areas of high humpback whale 
surface density around the other islands and humpbacks may be present 
around Oahu's south shore during winter months (Mobley et al., 2001). 
While the Hawaiian Islands Humpback Whale National Marine Sanctuary 
includes part of Oahu's south shore, NMFS does not expect sound levels 
at or above 120 dB from pile driving to reach the sanctuary boundary. 
Otherwise, the proposed project area is not considered significant 
habitat for marine mammals.
    Proposed mitigation and monitoring measures are expected to prevent 
impacts to cetacean reproduction. Marine mammals may avoid the area 
around the hammer, thereby reducing their exposure to elevated sound 
levels. NMFS expects any impacts to marine mammal behavior to be 
temporary, Level B harassment (e.g., avoidance or alteration of 
behavior). HSWAC expects that a maximum of 72 pile driving days may 
occur over a 1-year period. Marine mammal injury or mortality is not 
likely, as the 180-dB isopleth (NMFS' Level A harassment threshold for 
cetaceans) for the impact hammer is expected to be no more than 47 m 
from the sound source. The 190 dB isopleth (NMFS' Level A harassment 
threshold for pinnipeds) would be even smaller. Considering HSWAC's 
proposed mitigation measures, NMFS expects any changes to marine mammal 
behavior from pile driving noise to be temporary. The amount of take 
NMFS proposes to authorize is considered small (less than 12 percent of 
each species) relative to the estimated population sizes detailed in 
Table 3 (less than 12 percent for two species and less than seven 
percent for all others). There is no anticipated effect on annual rates 
of recruitment or survival of affected marine mammals.
    Based on the analysis of the likely effects of pile driving on 
marine mammals and their habitat, and considering the proposed 
mitigation and monitoring measures, NMFS preliminarily determines that 
HSWAC's proposed pile driving activities would result in the incidental 
take of small numbers of marine mammals, by Level B harassment only, 
and that the total taking from will have a negligible impact on the 
affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

Endangered Species Act (ESA)

    The humpback whale and Hawaiian monk seal are the only marine 
mammals listed as endangered under the ESA with confirmed or possible 
occurrence in the proposed project area during pile driving. Currently, 
no critical habitat has been designated for either species on or around 
Oahu. However, in June 2011, NMFS proposed revising the Hawaiian monk 
seal critical habitat by extending the current area around the 
Northwestern Hawaiian Islands and designating six new areas in the main 
Hawaiian Islands. This would include terrestrial and marine habitat 
from 5 m inland from the shoreline extending seaward to the 500-m depth 
contour around Oahu. The Hawaii insular stock of false killer whales is 
also currently proposed for listing under the ESA. Under section 7 of 
the ESA, the U.S. Army Corps of Engineers (as the federal permitting 
agency for HSWAC's proposed project) has begun consultation with NMFS 
Pacific Islands Region on the proposed seawater air conditioning 
project. NMFS is also consulting internally on the issuance of an IHA 
under section 101(a)(5)(D) of the MMPA for this activity. Consultation 
will be concluded prior to a determination on the issuance of an IHA.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the

[[Page 43270]]

Council on Environmental Quality (40 CFR parts 1500-1508), and NOAA 
Administrative Order 216-6, NMFS is preparing an Environmental 
Assessment (EA) to consider the direct, indirect, and cumulative 
effects to marine mammals and other applicable environmental resources 
resulting from issuance of a 1-year IHA and the potential issuance of 
future authorizations for incidental harassment for the ongoing 
project. Upon completion, this EA will be available on the NMFS Web 
site listed in the beginning of this document (see ADDRESSES). The U.S. 
Army Corps of Engineers also prepared an Environmental Impact Statement 
(EIS) to consider the environmental effects from the seawater air 
conditioning project.

    Dated: July 18, 2012.
Wanda Cain,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-18087 Filed 7-23-12; 8:45 am]
BILLING CODE 3510-22-P