61806 Federal Register / Vol. 88, No. 172 / Thursday, September 7, 2023 / Notices 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XD121] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Port of 

Nome Modification Project in Nome, 

Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of an incidental 

harassment authorization. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA) as 

amended, notification is hereby given 

that NMFS has issued an incidental 

harassment authorization (IHA) to the 

U.S. Army Corps of Engineers (USACE) 

to incidentally harass, by Level B 

harassment only, marine mammals 

during construction activities associated 

with the Port of Nome Modification 

Project in Nome, Alaska. 

DATES: This Authorization is effective 

from May 1, 2024 through April 30, 

2025. 

FOR FURTHER INFORMATION CONTACT: 

Leah Davis, Office of Protected 

Resources, NMFS, (301) 427–8401. 

Electronic copies of the application and 

supporting documents, as well as a list 

of the references cited in this document, 

may be obtained online at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-constructionactivities. In case of problems accessing 

these documents, please call the contact 

listed above. 

SUPPLEMENTARY INFORMATION: 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) 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 specified 

geographical region if certain findings 

are made and either regulations are 

proposed or, if the taking is limited to 

harassment, a notice of a proposed IHA 

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) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to in shorthand as 

‘‘mitigation’’); and requirements 

pertaining to the mitigation, monitoring 

and reporting of the takings are set forth. 

The definitions of all applicable MMPA 

statutory terms cited above are included 

in the relevant sections below. 

Summary of Request 

On October 31, 2022, NMFS received 

a request from USACE for an IHA to 

take marine mammals incidental to 

construction activities in Nome, Alaska. 

Following NMFS’ review of the 

application, USACE submitted a revised 

version on February 21, 2023 and a final 

version on February 23, 2023 that 

clarified a few minor errors. The 

application was deemed adequate and 

complete on March 30, 2023. USACE’s 

request is for take of 10 species of 

marine mammals by Level B harassment 

only. Neither USACE nor NMFS expect 

serious injury or mortality to result from 

this activity and, therefore, an IHA is 

appropriate. 

This IHA covers 1 year of a larger 

project for which USACE intends to 

request take authorization for 

subsequent facets of the project. The 

larger 7-year project involves expansion 

of the Port of Nome. 

Description of the Specified Activity 

Overview 

USACE is planning to modify the Port 

of Nome in Nome, Alaska to increase 

capacity and alleviate congestion at 

existing port facilities. Vibratory and 

impact pile driving would introduce 

underwater sounds that may result in 

take, by Level B harassment, of marine 

mammals. 

A detailed description of the planned 

construction project is provided in the 

Federal Register notice for the proposed 

IHA (88 FR 27464, May 2, 2023). Since 

that time, no changes have been made 

to the planned construction activities. 

Therefore, a detailed description is not 

provided here. Please refer to that 

Federal Register notice for the 

description of the specific activity. 

Comments and Responses 

A notice of NMFS’ proposal to issue 

an IHA to USACE was published in the 

Federal Register on May 2, 2023 (88 FR 

27464). That notice described, in detail, 

USACE’s activity, the marine mammal 

species that may be affected by the 

activity, and the anticipated effects on 

marine mammals. During the 30-day 

public comment period, NMFS received 

comments from Kawerak, Inc. (the 

Alaska Native non-profit Tribal 

consortium for the 20 federally 

recognized Tribes of the Bering Strait 

region) and eight members of the 

general public. Additionally, after the 

public comment period ended, we 

received an additional comment from a 

member of the public. Further, the 

Arctic Peer Review Panel (PRP), 

convened by NMFS as required to 

review the Monitoring Plan (please see 

the Monitoring Plan Peer Review 

section, below), submitted several 

recommendations that were beyond the 

scope of the peer review process and 

are, therefore, addressed in this public 

comment section. All relevant, 

substantive recommendations are 

responded to here, including the 

comment submitted after the public 

comment period ended, and are 

organized by topic. The comments and 

recommendations have been posted 

online at: https://www.fisheries.

noaa.gov/national/marine-mammalprotection/incidental-takeauthorizations-construction-activities. 

Please see the full comment 

submissions and the PRP report for full 

details regarding the recommendations 

and supporting rationale. 

Effects Analysis 

Comment 1: A commenter stated that 

according to the 2018 Revision to the 

Technical Guidance for Assessing the 

Effects of Anthropogenic Sound on 

Marine Mammal Hearing, it is highly 

possible that permanent threshold shift 

(PTS) will occur for all marine 

mammals except otariid pinnipeds in 

water, but there are no site-specific data 

to make that assumption. The 

commenter further stated that the 2018 

guidance seems to suggest that NMFS 

should have that investigated in order to 

comply with law. 

Response: NMFS used the 2018 

guidance in determining the potential 

effects of the Port of Nome construction 

activities on marine mammals, 

including the potential for PTS (i.e., 

take by Level A harassment) to occur; 

the 2018 guidance directly supports 

NMFS analysis and conclusions 

presented here and in the notice of 

proposed IHA. We note that USACE is 


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required to implement shutdown zones 

that extend to or exceed the Level A 

harassment isopleth for all activities and 

species, and therefore, take by Level A 

harassment is not anticipated. Please 

refer to NMFS’ response to Comment 2 

regarding site-specific data. 

Comment 2: A commenter stated that 

NMFS’ proposed method of determining 

Level A harassment and Level B 

harassment is not appropriate. The 

commenter stated that, unfortunately, 

NMFS is not requiring site-specific 

acoustical monitoring and has used a 

practical spreading value of 15 as the 

transmission loss coefficient to estimate 

distances to the Level A harassment and 

Level B harassment isopleths. The 

commenter stated that it is not clear if 

NMFS is correct that a default 

coefficient of 15 applies to the Port of 

Nome, and that NMFS notes there are 

no site-specific transmission loss data 

for the Port of Nome. The commenter 

stated that NMFS must develop sitespecific measurements and calculate 

Port of Nome-specific data in order to 

assess distances to Level A harassment 

and Level B harassment isopleths. The 

commenter stated that it is possible 

sound propagation during construction 

will be directional in ways that are not 

predicted, as the water depths are 

shallow at the Port of Nome, and piles 

may allow sound to propagate 

horizontally in ways we do not know. 

The commenter stated that NMFS 

should assess whether the sounds from 

sheet pile construction will be 

attenuated by absorption or if they will 

be reflected and how sound propagates. 

Further, the commenter stated that it 

should be determined if sound 

propagation will emanate spherically or 

more linearly and the extent to which 

sound may harm marine mammals. 

The commenter stated that NMFS 

may be incorrect that the resulting 

isopleth estimates are typically going to 

be overestimates. It is not possible for 

NMFS to assume sound forces will 

result in an overestimate of potential 

take by Level A harassment. The 

commenter stated that assuming sound 

data parameters is not the best tool to 

estimate isopleth distances, a more 

sophisticated modeling method should 

be used. 

The commenter also stated that 

because NMFS’ proposed monitoring 

and reporting requirements are not sitespecific, the proposed monitoring and 

reporting requirement will not 

contribute to improved understanding 

of one or more of the topics listed in the 

introduction to the Proposed Monitoring 

and Reporting section of the notice of 

proposed IHA (88 FR 27464, May 2, 

2023). 

Response: NMFS disagrees with the 

commenter that its methods for 

estimating take are not appropriate. As 

stated in the notice of the proposed IHA 

(88 FR 27464, May 2, 2023) and 

reiterated by the commenter, sitespecific data for the Port of Nome is not 

available, given that the project has not 

yet occurred, and data is not available 

from previous pile driving at the project 

site. While the commenter states that 

NMFS must develop site-specific 

measurements and calculate Port of 

Nome-specific data in order to assess 

distances to Level A harassment and 

Level B harassment isopleths, NMFS 

does not find such methods necessary to 

conduct appropriately accurate and 

conservative modeling for construction 

projects, and NMFS does not find such 

modeling warranted here. However, as 

recommended by the PRP, the USACE 

plans to conduct sound field 

verification (SFV) on a portion of its 

sheet pile driving activities to gain sitespecific information on sound source 

levels and propagation loss. This final 

IHA requires USACE to conduct SFV on 

sheet piles, which comprise the bulk of 

the pile driving activity. (Please refer to 

the Monitoring Plan Peer Review section 

of this notice for additional information 

about incorporation of the PRP’s 

recommendations.) If USACE provides 

data early in the construction season, 

NMFS may adjust the shutdown zones 

and revise the Level A and Level B 

harassment zones per the provisions of 

this IHA, as appropriate, and pending 

review and approval of the results of 

SFV. 

The commenter specifically questions 

whether the transmission loss 

coefficient of 15 (practical spreading) is 

appropriate. Transmission loss is the 

decrease in acoustic intensity as an 

acoustic pressure wave propagates out 

from a source. TL parameters vary with 

frequency, temperature, sea conditions, 

current, source and receiver depth, 

water depth, water chemistry, and 

bottom composition and topography. 

The general formula for underwater TL 

is: 

TL = B * Log10 (R 1/R 2), 

where 

TL = transmission loss in dB 

B = transmission loss coefficient; for practical 

spreading equals 15 

R 1= the distance of the modeled SPL from 

the driven pile, and 

R 2= the distance from the driven pile of the 

initial measurement 

This formula does not consider loss 

due to scattering and absorption, which 

are conservatively assumed to be zero. 

The degree to which underwater sound 

propagates away from a sound source is 

dependent on a variety of factors, most 

notably the water bathymetry and 

presence or absence of reflective or 

absorptive conditions including inwater structures and sediments. 

Spherical spreading occurs in a 

perfectly unobstructed (free-field) 

environment not limited by depth or 

water surface, resulting in a 6 dB 

reduction in sound level for each 

doubling of distance from the source 

(20*log[range]). Cylindrical spreading 

occurs in an environment in which 

sound propagation is bounded by the 

water surface and sea bottom, resulting 

in a reduction of 3 dB in sound level for 

each doubling of distance from the 

source (10*log[range]). A practical 

spreading value of 15 is often used for 

near-shore conditions, such as the 

project site, where the expected 

propagation environment lies between 

spherical and cylindrical spreading loss 

conditions. NMFS agrees with the 

commenter that, when site-specific data 

exists, and that data is of a reliable 

quality, it is generally preferable to use 

the site-specific data to estimate Level A 

and Level B harassment zones 

associated with a project at the same 

location. However, neither NMFS nor 

the USACE are aware of site-specific 

data for the location and pile types that 

the USACE plans to use for this project, 

and therefore, NMFS continues to find 

that practical spreading is an 

appropriate assumption for this project. 

NMFS recognizes that the Level A and 

Level B harassment zone isopleths 

included in the proposed IHA are 

estimates. The proposed monitoring and 

reporting requirements are projectspecific, and will contribute to 

improved understanding of one or more 

of the topics listed in the introduction 

to the Proposed Monitoring and 

Reporting section of the notice of 

proposed IHA (88 FR 27464, May 2, 

2023). In addition, as stated previously 

in this response, this final IHA requires 

USACE to conduct SFV for sheet piles. 

Comment 3: A commenter stated that 

while the size of the ensonified area is 

proposed, the shape of that area is not. 

The commenter stated that it is possible 

that because of absorption or other 

factors, sound shadows may exist that 

alter marine mammal behavior. The 

presence of sound shadows may 

complicate how marine mammals are 

exposed to sound and could lead to 

sound exposures that harm marine 

mammals in ways not intended. The 

commenter asserted that there may be 

phenomena at play at the Port of Nome 

that contribute to unique sound 

localizations, and the extent and shape 


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of the ensonified area should be 

examined before any IHA is approved. 

Response: NMFS acknowledges that 

the Level A harassment and Level B 

harassment zones portrayed in the 

notice of the proposed IHA (88 FR 

27464, May 2, 2023) and updated in this 

notice represent our estimates based on 

the best available science. They are 

generated using proxy data that NMFS 

expects to be representative of the 

sound that will occur as a result of 

USACE’s construction activities. 

However, as stated in response to 

Comment 2, site-specific data for this 

project is not available, and more 

sophisticated modeling was not 

conducted, nor required to estimate the 

impacts to marine mammals. 

While NMFS does not explicitly state 

what the shape of the Level A 

harassment and Level B harassment 

zones will be, NMFS expects that the 

sound will extend approximately to the 

calculated isopleth to the south and 

southeast of the project location, with 

an approximate 10-degree buffer 

extending from the pile driving site to 

the north/northwest beyond the 

causeway, except where the sound hits 

a hard structure (e.g., shoreline, in-water 

pier, etc.). Regarding the commenter’s 

concern about sound shadows, a 

phenomenon in which sound fails to 

propagate in a certain area, such an 

effect would be expected to reduce 

impacts to marine mammals, if it 

changed impacts at all, as it would 

ultimately mean that there is an area 

where sound is unexpectedly lower 

than anticipated in NMFS’ analysis. 

Comment 4: A commenter stated that 

NMFS concluded that marine mammals 

could be exposed to a range of 

underwater noises ranging from 144.0 

dB to 203.0 dB as a result of Port of 

Nome modifications. The commenter 

further stated that USACE intends to 

expose marine mammals to continuous 

and impulsive noise sources within a 

range of 120 dB to 160 dB. The 

commenter stated that those two 

expected ranges are not the same, and 

that it appears NMFS is expecting 

marine mammals to be exposed to 

sound sources that are well above the 

minimum ranges of Level B harassment 

and beyond the upper the levels that the 

USACE is proposing. The commenter 

speculated that either USACE may be 

underestimating sound levels within the 

ensonified area, or NMFS is ‘‘turning its 

cheek’’ on sound sources that may 

exceed 160 dB and not expressly 

mandating mitigation for sounds 

sources above 160 dB. The commenter 

stated that either situation is frustrating 

and must be reconciled before any IHA 

is approved. 

Response: NMFS has attempted to 

clarify herein what appears to be a 

misunderstanding about information 

presented in the notice of the proposed 

IHA (88 FR 27464, May 2, 2023). Table 

5 of the notice of proposed IHA lists 

sound source levels for the pile driving 

activities that USACE proposes to 

conduct. These sound source levels 

represent the sound associated with a 

given source at a distance of 10 m from 

the source. Sound source levels are 

likely to be different from the received 

level (i.e., the sound level that an animal 

actually experiences) given that it is 

unlikely that an animal would be 

exactly 10 m from the sound source, 

particularly given that the IHA requires 

USACE to shut down during all in-water 

activities if a marine mammal enters the 

relevant shut down zone, which in all 

cases are at least 10 m. 

The 120 dB and 160 dB that the 

commenter references are not intended 

to represent a range within which 

USACE would expose marine mammals 

to noise. Rather, 120 dB represents the 

sound level above which, for 

continuous sounds such as vibratory 

pile driving, NMFS anticipates that 

exposed marine mammals would be 

taken by Level B harassment; 160 dB 

represents the sound level above which, 

for impulsive sounds such as impact 

pile driving, NMFS anticipates that 

exposed marine mammals would be 

taken by Level B harassment. However, 

NMFS requires mitigation for both 

impact and vibratory pile driving, 

regardless of the sound source level, as 

described in the Mitigation Measures 

section herein. 

Comment 5: The PRP stated that 

projects that are going to take multiple 

years should pursue Incidental Take 

Regulations (ITR) instead of an IHA. 

Relatedly, commenters stated that 

because the activity at issue here is 

likely to last at least 7 years, any 

potential takes must be authorized 

through 5-year ITRs rather than a 1-year 

IHA. The commenters referenced the 

related recommendation in the PRP 

report. The commenters stated that 

breaking the activities into 1-year IHAs 

masks the magnitude of the impacts and 

makes it impossible to assess any 

cumulative impacts that may occur over 

multiple years of activities. A 

commenter also stated that ITRs can 

help bolster public confidence in the 

management of the species, since they 

are developed through a collaborative 

and transparent rulemaking process 

involving stakeholders and input from 

experts. 

Response: There are two types of 

incidental take authorizations (ITAs): 

IHAs and Letters of Authorization 

(LOA). An IHA is appropriate for 

activities that will result in harassment 

only (i.e., injury or disturbance) and is 

effective for up to 1 year. An LOA 

(which requires promulgation of ITRs) is 

required for activities that could result 

in serious injury or mortality and 

recommended for activities that are 

planned for multiple years, even if they 

will result in harassment only. When a 

project is planned for multiple years 

and NMFS learns of the activity in 

advance of submission of an application 

for an ITA, NMFS recommends to 

applicants that they pursue ITRs and an 

LOA, however, NMFS cannot require an 

applicant to do so. It is important to 

note that NMFS invites input from the 

public, and experts when needed, on 

both ITRs and IHAs. 

Estimated Take 

Comment 6: A commenter stated that 

bowhead whales are a very important 

subsistence species that occur in the 

area, and NMFS should consider 

authorizing one or more takes of 

bowhead whales. The commenter stated 

that it has seen bowhead whales 

numerous times near the Port of Nome 

during their 50 years of living in Nome, 

and NMFS should consider the 

commenter’s traditional knowledge on 

the matter of bowhead whale presence 

as a matter of fact. The commenter 

noted that NMFS relied upon USACE 

personal communication with Charlie 

Lean in 2019 as a matter of fact 

regarding spotted seal occurrence. The 

commenter stated that Mr. Lean is not 

a traditional knowledge holder with 

traditional knowledge expertise in 

marine mammals, and that NMFS 

should make a similar appeal to the 

commenter’s knowledge as it did for Mr. 

Lean. The commenter further stated that 

incorporating the commenter’s 

traditional knowledge is mandated by 

E.O. 13175 as well as other presidential 

mandates to include traditional 

knowledge in decision making, such as 

the E.O. to establish the Northern Bering 

Sea Climate Resilience Area and many 

others. 

In a related comment, a commenter 

stated that bowhead whales are 

occasionally seen off the coast of Nome 

by local residents and by subsistence 

hunters, and recommended that NMFS 

add bowhead whales to the list on Table 

2 of the Federal Register notice titled 

‘‘Marine Mammal Species Likely To 

Occur Near The Project Area that Might 

be Taken by USACE’s Activities.’’ 

Response: NMFS thanks the 

commenter for the traditional ecological 

knowledge that it has provided 

regarding bowhead whale presence near 

the Port of Nome. In consideration of 


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this information, NMFS has added two 

takes by Level B harassment of bowhead 

whale to the final IHA and has added 

bowhead whale to Table 1 titled 

‘‘Marine Mammal Species Likely To 

Occur Near The Project Area that Might 

be Taken by USACE’s Activities’’ 

(equivalent to Table 2 in the notice of 

proposed IHA (88 FR 27464, May 2, 

2023)). In an effort to continue to 

minimize effects of the project on 

bowhead whales, even though take is 

authorized, USACE must shut down the 

project activity if protected species 

observers (PSOs) observe a bowhead 

whale within the Level B harassment 

zone. 

Comment 7: A commenter stated that 

NMFS must propose at least one 

incidental take each of Cuvier’s beaked 

whale, Central North Pacific humpback 

whale, Dall’s porpoise, harbor seal, 

Pacific white-sided dolphin, sperm 

whale, Stejneger’s beaked whale, blue 

whale, Western North Pacific gray 

whale, North Pacific right whale, sei 

whale, Northern fur seal because they 

may occur in the project area especially 

regarding climate change-related species 

distribution. 

Response: NMFS agrees with the 

commenter that there is evidence of 

changes in species distribution as a 

result of climate change. In the notice of 

the proposed IHA (88 FR 27464, May 2, 

2023), NMFS described its 

consideration of potential occurrence of 

each of these species and stocks, 

including their known ranges and lack 

of occurrence in the project area, and 

described why it does not anticipate 

that take of these species and stocks 

would occur as a result of the Port of 

Nome Modification Project. NMFS is 

not aware of, nor has the commenter 

provided, evidence that the species 

listed above would be taken by the 

project. However, NMFS notes that in 

consideration of traditional ecological 

knowledge provided by the commenter 

regarding bowhead whales and the fact 

that they have been seen many times 

near the Port of Nome, it has added take 

of bowhead whale to this final IHA. 

Please refer to Comment 6 for a full 

discussion of the commenter’s 

recommendation regarding bowhead 

whale. 

Comment 8: A commenter submitted 

a photo of a minke whale that the 

commenter said was taken west of the 

Port of Nome relatively recently. The 

commenter, a traditional ecological 

knowledge holder, stated that minke 

whales occur regularly near the Port of 

Nome. The commenter stated that it 

hopes NMFS revokes or denies the IHA 

for failure to account for marine 

mammals in the area. 

Response: NMFS thanks the 

commenter for the photo documenting 

minke whale occurrence in the IHA. 

NMFS concurs with the commenter that 

minke whales could occur in the area 

during the Port of Nome Modification 

Project, and USACE requested 

authorization to take minke whales in 

its IHA application. Therefore, as 

included in the proposed IHA, this final 

IHA authorizes USACE to take 12 minke 

whales by Level B harassment. Please 

see NMFS’ response to Comment 58 

regarding denial of the IHA. 

Comment 9: A commenter stated that 

consideration of practicability of the 

measures for applicant implementation, 

which may consider such things as cost 

and impact on operations, is the wrong 

consideration for this project because 

the Port of Nome has received national 

backing including a tremendous amount 

of financial support. The commenter 

further stated that practicability should 

not be considered because the USACE 

has done a relatively poor job of 

community engagement and increased 

their cost share despite decades of 

public disclosure that the cost share 

would be 75 percent/25 percent. The 

commenter further stated that the 

USACE’s lack of regard must be put in 

relation to the impact of this project on 

our community, as well as marine 

mammals that are increasingly 

becoming impacted by climate change. 

Response: As stated in the notice of 

the proposed IHA (88 FR 27464, May 2, 

2023), 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 the 

activity, and other means of effecting 

the least practicable impact on the 

species or stock and its habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance, and on the availability of 

the species or stock for taking for certain 

subsistence uses. NMFS regulations 

require applicants for ITAs to include 

information about the availability and 

feasibility (economic and technological) 

of equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks, and their habitat (50 CFR 

216.104(a)(11)). NMFS must consider 

these factors in determining mitigation 

measures that will be required in an 

IHA. 

NMFS agrees with the commenter that 

community engagement, particularly for 

projects that occur in areas where 

subsistence uses of marine mammals 

also occur, is of particular importance. 

Please see NMFS’ response to Comment 

24, 32, 42, 43, 44, 46, and 49 regarding 

the commenter’s concerns about 

community engagement, Comment 46 

regarding concerns about community 

impacts, and Comment 60 about the 

Federal cost share for the project. 

Regarding the impacts of climate 

change on marine mammals, inasmuch 

as they are known for the impacted 

species, these impacts are considered 

both in the environmental baseline and 

the marine mammal impact assessment. 

Mitigation 

Comment 10: The PRP stated that 

since the Level B harassments zones 

associated with the installation of sheet 

and fender piles are so large, it suggests 

that the applicant consider the use of 

sound attenuation devices by which to 

decrease the effective size of the zones. 

Examples of sound attenuation devices 

to consider include single or double 

bubble curtains, noise mitigation 

screens, and hydro sound dampers (nets 

with air-filled or foam-filled elastic 

balloons; Bellman 2014; Elmer and 

Savery 2014). These sound attenuation 

devices, when properly applied, have 

been successful at substantially 

reducing the required monitoring 

distances. A commenter also noted that 

the PRP suggested that the applicant 

consider the use of sound attenuation 

devices to decrease the effective size of 

the zones. The commenter stated that no 

hydro sound dampers, bubble curtains, 

or noise mitigation screens that could be 

effective solutions for managing ambient 

noise levels while promoting 

sustainable use of aquatic resources are 

included in the draft IHA. 

Response: USACE asserts that adding 

a sound attenuation device is not 

practicable as it would be costly and 

logistically challenging and could cause 

project delays. The construction 

sequence for the project will likely 

involve work on multiple sheet pile 

cells at a time. Construction crews will 

work on the early construction 

components at one cell and then move 

to the next cell while crews continue 

the next construction stages at the initial 

cell. Therefore, any delays due to bubble 

curtain setup or potential malfunction at 

a cell during pile driving could delay 

the ability for construction to progress at 

the cell where the bubble curtain is 

being deployed and also at multiple 

cells behind it. Project delays are of 

particular concern for this project given 

the limited in-water work window. 

NMFS concurs, and this final IHA does 

not require USACE to use bubble 

curtains or another sound attenuation 

device. 

Comment 11: The PRP noted that it 

may be instructive to look at the use of 

remote cameras either currently 


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installed at the Port of Nome and/or 

installed at other project-specific 

locations to evaluate their effectiveness 

at detection of marine mammals. The 

PRP states that this could be 

accomplished by comparing detections 

reported from the analysis of web 

cameras’ footage with detections from 

visual PSOs for the same field of view. 

Artificial Intelligence (AI) methods 

already exist for this type of image 

processing (e.g., Araujo et al. 2022) and 

the PRP recommends exploring this 

approach to enable semi-automatic 

analysis of video. The PRP also stated 

that the applicant may also consider 

tethered balloons as a test for 

deployment of higher elevation—longrange remote cameras (for initial Arctic 

examples, see Bouffaut et al. 2022 and 

Landr< et al. 2022). 

In a related comment, a commenter 

stated that the cameras noted by the PRP 

for image processing are not sufficient to 

accurately detect the presence of marine 

mammals at the Port of Nome or other 

project-specific locations. The 

commenter asserts that they are likely to 

fail at accurately detecting marine 

mammals, making it difficult to 

distinguish between marine mammals, 

debris, other wildlife, and other objects 

in the footage. Remote cameras are only 

able to capture a limited field of view 

and cannot provide continuous coverage 

of large areas that may need to be 

monitored for marine mammal 

populations and their activities. Further, 

both cameras referenced in the PRP’s 

report are presently not feeding live 

images and thus are obsolete for 

monitoring. The commenter stated that 

from its experience as a marine mammal 

observer, relying on images captured 

through cameras can lead to gaps of the 

areas that are supposed to be observed 

if PSOs switch their attention back and 

forth between cameras or their own 

observations. 

Response: USACE, with the City of 

Nome, reviewed the camera systems 

currently in place at the existing Port. 

With the exception of the NOAA 

Weather Camera (https://

www.nomealaska.org/port-nome/page/ 

noaa-weather-camera), which is fixed 

and faces the outer harbor entrance, the 

cameras are on a closed system and are 

not publicly available. USACE stated 

that it could provide data downloaded 

from the NOAA Weather Camera to 

NMFS to analyze using artificial 

intelligence to augment the marine 

mammal observations during Year 1 of 

construction. However, given that the 

camera produces fixed images on a 5 

minute loop rather than continuous 

feed, the quality of the camera images, 

and the fact that the camera is fixed in 

a location that PSOs would likely 

already be able to observe, NMFS does 

not anticipate that this camera would 

meaningfully contribute to the detection 

of marine mammals in the project area. 

Therefore, and in summary, NMFS is 

not requiring USACE to utilize the 

cameras at the Port of Nome to assist in 

detecting marine mammals, including 

providing NMFS with downloaded data 

from the NOAA Weather Camera at the 

Port. 

Regarding tethered balloons, USACE 

asserted that their use would be 

impracticable as they are limited in 

winds >15 knots (kn; 27.8 kilometers/ 

hour (km/h)) as well as in the rain due 

to reduced visibility and risk of damage 

to electrical equipment. Further, USACE 

asserts that they are best suited to clear/ 

shallow water. Given the practicability 

concerns raised by USACE and that 

USACE plans to implement passive 

acoustic monitoring (PAM) for marine 

mammals (see the Acoustic Monitoring 

section of this notice), NMFS is not 

requiring use of tethered balloons for 

deployment of higher elevation- longrange remote cameras. 

Comment 12: A commenter stated that 

it concurs with NMFS that shutdowns 

should occur when marine mammals 

will be exposed to Level B harassment 

or Level A harassment. The commenter 

further stated that Table 10 in the notice 

of proposed IHA (88 FR 27464, May 2, 

2023) does not incorporate site-specific 

measurements and consequently may be 

in error. The commenter stated that 

because construction is not set to begin 

until at least the year 2024, or perhaps 

longer with a revised timeline of comanagement body establishment, NMFS 

and the USACE will have time to 

develop site-specific data to determine 

appropriate shutdown zones and 

overcome the challenge of determining 

the distances to Level A harassment. 

The commenter stated that until sitespecific data can be developed, it is not 

appropriate to propose shutdown zones. 

Response: It is important to first 

clarify that for species for which take by 

Level B harassment is authorized, 

NMFS is not requiring USACE to shut 

down to avoid take by Level B 

harassment, with the exception of 

bowhead whale. However, USACE is 

required to shut down to avoid take by 

Level B harassment of all species for 

which take is not authorized and to 

avoid Level A harassment for all 

species. All required shutdown zones 

are equal to or larger than the calculated 

Level A harassment zones. Regarding 

site-specific data, please refer to NMFS’ 

response to Comment 2. Please refer to 

NMFS’ response to Comment 45 

regarding co-management. 

Comment 13: A commenter stated that 

the USACE has proposed to implement 

a 300 m shutdown zone for dredging, 

and the commenter strongly urges 

NMFS to memorialize the shutdown in 

its IHA, if authorized. 

Response: NMFS concurs with the 

commenter and has included a 

requirement for USACE to shut down 

dredging operations if a marine 

mammals comes within 300 m of the 

operations. This requirement is 

consistent with that proposed by NMFS 

in its proposed IHA (88 FR 27464, May 

2, 2023). 

Comment 14: A commenter stated that 

it concurs that PSOs should monitor the 

shutdown zones. However, the 

commenter stated that there are 

significant problems with the area 

NMFS has proposed beyond the extent 

that PSOs can see. Monitoring beyond 

the shutdown zones should be 

rethought, re-examined and revised so 

that PSOs are aware of and 

communicate the presence of marine 

mammals in the project areas outside 

the shutdown zones and thus prepare 

for a potential cessation of activity 

should an animal enter the shutdown 

zone. 

Response: It is unclear what the 

commenter means when it stated that 

there are significant problems with the 

area NMFS has proposed beyond the 

extent that PSOs can see. As stated in 

the Proposed Mitigation section of the 

notice of the proposed IHA (88 FR 

27464, May 2, 2023) and in the 

Mitigation section of this final IHA, 

monitoring beyond the shutdown zones 

enables observers to be aware of and 

communicate the presence of marine 

mammals in the project areas outside 

the shutdown zones and thus prepare 

for a potential cessation of activity 

should the animal enter the shutdown 

zone. NMFS considers this consistent 

with the commenter’s suggestions. 

Comment 15: A commenter stated that 

the PSOs must be given the absolute 

authority to halt construction when it is 

possible marine mammals could be 

subject to Level A harassment or if 

subsistence uses will be threatened. The 

commenter stated that if PSOs are not 

given meaningful authority and 

meaningful involvement in mitigating 

harassments it is easy to envision a 

scenario where Level A harassment 

could occur. The commenter further 

stated that PSOs must in no way be 

intimidated in the performance of their 

duties. In a related comment, a 

commenter stated that NMFS’ PSO 

requirements are not stringent enough 

and will allow for harm beyond Level B 

harassment unless changed. A 

commenter also recommended that the 


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USACE shares its plan for how the PSOs 

will be protected from the pressure to 

allow continued construction operations 

amid the presence of marine mammals. 

In a related comment, a commenter 

stated that PSOs must be Alaska Native 

and must be highly trained. Another 

commenter stated that employing 

regional PSOs will help provide 

confidence in the marine mammal 

disturbance reports issued by the port 

construction project, and it will offer 

confidence in the conduct of the port 

construction overall in reducing impacts 

to marine mammals. The commenter 

recommended that regional residents 

with marine mammal subsistence 

hunting backgrounds be given hiring 

preference when employing PSOs and 

that regional residents be actively 

recruited for these PSO positions. 

Response: NMFS agrees that Alaska 

Native residents with marine mammal 

subsistence hunting backgrounds hold 

valuable knowledge and skills that are 

critical to the effectiveness of a PSO. In 

the final IHA, NMFS requires at least 

one PSO to have at least 1 year of prior 

experience performing the duties of a 

PSO during construction activity 

pursuant to a NMFS-issued ITA. Other 

PSOs may substitute other relevant 

experience, education (degree in 

biological science or related field), or 

training for prior experience performing 

the duties of a PSO during construction 

activity pursuant to a NMFS-issued ITA. 

In the Arctic, in consideration of 

valuable traditional ecological 

knowledge that many community 

members hold, PSOs may also substitute 

Alaska native traditional knowledge for 

experience. Regarding hiring preference 

for regional residents with subsistence 

hunting backgrounds, NMFS cannot 

require an IHA-holder to employ certain 

individuals, though it does require that 

an applicant request NMFS approval for 

all PSOs so that NMFS can confirm that 

they meet the requirements outlined in 

the IHA. NMFS has passed this 

recommendation on to the USACE for 

its consideration, though PSO hiring 

will not be done by USACE directly; it 

will be contracted out. 

NMFS concurs that PSOs must not be 

intimidated in the performance of their 

duties and must have authority to halt 

construction when a marine mammal is 

observed entering or within the required 

shutdown zones (which, for this project, 

are designed to avoid take by Level A 

harassment). The IHA includes a 

requirement that PSOs must be 

independent of the activity contractor. 

The intent of this measure is to avoid 

scenarios similar to what the commenter 

described in which a PSO could 

potentially receive pressure to not 

implement the requirements of the IHA. 

While the commenter stated that NMFS’ 

PSO requirements are not stringent 

enough, it did not provide additional 

recommendations for making them more 

stringent beyond those discussed in this 

comment and response. 

Comment 16: A commenter stated that 

NMFS is considering allowing 

construction to occur 24-hours-per-day. 

The commenter stated that allowing 

such would go beyond minimal 

disturbance to marine mammals and 

ventures into intentional takings. 

Despite the long summer day length at 

Nome’s latitude, 24-hour, multi-shift 

operations must not occur because of 

the extraordinary impact to Alaska 

Native people. The commenter further 

stated that allowing 24 hour-per-day 

construction will be a significant impact 

to the human environment. The 

commenter states that if the IHAs are 

approved, they must only allow for 

daylight construction during 12-hour 

periods. 

Response: NMFS has issued one IHA 

for the Port of Nome project. In the 

commenter’s reference to ‘‘IHAs’’, 

NMFS assumes that the commenter is 

referring to this IHA and the potential 

for a renewal IHA, which NMFS 

discussed in the notice of the proposed 

IHA (88 FR 27464, May 2, 2023), though 

such a renewal has not yet been 

proposed or authorized. In subsequent 

comments from the commenter that 

referred to ‘‘IHAs’’, NMFS has clarified 

the term in the comment summary to 

refer to one ‘‘IHA’’. 

NMFS disagrees with the 

commenter’s assertion that take that 

may result from 24-hour-per-day 

construction activities would constitute 

intentional take, rather than incidental. 

However, as stated in the notice of 

proposed IHA (88 FR 27464, May 2, 

2023), USACE plans to conduct its 

activity during daylight hours only, and 

typically over a 12-hour workday. When 

needed and due to the long summer day 

length at Nome’s latitude, 24-hour, 

multi-shift operations may occur. NMFS 

does not find it appropriate to limit 

construction to a 12-hour work day, as 

USACE would still be able to adequately 

conduct the requirements under the IHA 

even if 24-hour-per-day work were to 

occur, as such work would still occur 

during daylight. 

Regarding the commenter’s concerns 

that 24-hour construction would result 

in significant impacts to the human 

environment, the commenter did not 

provide information regarding what 

such impacts would be. NMFS’ MMPA 

action is limited to the authorization of 

take of marine mammals and requires 

that we consider impacts to marine 

mammals and their habitat and 

subsistence uses of marine mammals. 

NMFS does not have the authority to 

consider impacts to the human 

environment beyond these that may 

result in impacts to marine mammals, 

their habitat, and subsistence uses. 

However, USACE’s Integrated 

Feasibility Report and Final 

Environmental Assessment, available at: 

https://www.poa.usace.army.mil/ 

Library/Reports-and-Studies/Port-ofNome-Modification-Project/, assess the 

impact of the construction on the 

human environment. NMFS has 

responded to the commenter’s concerns 

that are specific to subsistence uses of 

marine mammals and engagement with 

subsistence users in responses in the 

Impacts to Subsistence Uses of Marine 

Mammals section. 

Comment 17: The commenter stated 

that while it is opposed to the Port of 

Nome project, it generally concurs with 

NMFS that monitoring must take place 

from 30 minutes prior to initiation of 

pile driving activity (i.e., pre-start 

clearance monitoring) through 30 

minutes post-completion of pile driving 

activity. The commenter stated that 

because Table 10 [of the proposed IHA 

(88 FR 27464, May 2, 2023)] was not 

created using site-specific data, it 

disagrees that pre-start clearance 

monitoring must be conducted 

according to Table 10 [of the proposed 

IHA] because those distances may be 

incorrect. The commenter stated that if 

Table 10 [of the proposed IHA] is 

revised with site-specific data, the 

commenter concurs with NMFS that 

pile driving may commence following 

30 minutes of observation when the 

determination is made that the 

shutdown zones are clear of marine 

mammals. The commenter stated that it 

concurs with NMFS that if a marine 

mammal is observed entering or within 

the shutdown zones, pile driving 

activity must be halted. The commenter 

stated that it does not concur that a 

delay should be considered, but 

suggested that if NMFS were to explain 

how a delay would be enacted, it might 

settle confusion. The commenter stated 

that it does not concur that if pile 

driving is halted due to the presence of 

a marine mammal, the activity may not 

commence or resume until either the 

animal has voluntarily exited and been 

visually confirmed beyond the 

shutdown zone or 15 minutes have 

passed without re-detection of the 

animal; the commenter recommended 

that 30 minutes should pass without redetection of the animal. 

Response: NMFS thanks the 

commenter for its support of the 

requirement for USACE to conduct 


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monitoring 30 minutes prior to 

initiation of pile driving activity 

through 30 minutes post-completion of 

pile driving activity and for the 

requirement for USACE to halt pile 

driving activity if a marine mammal is 

observed entering or within the 

shutdown zone. Please see NMFS’ 

response to Comment 2 regarding the 

use of site-specific data. 

Regarding the commenter’s concern 

about how a delay of pile driving 

activity would be enacted, NMFS has 

further explained that process here. In 

the event that pile driving is underway 

when a marine mammal is observed 

entering or within the shutdown zone, 

pile driving must be halted. In the event 

that pile driving is not currently 

underway (e.g., at the beginning of a 

work day, when a pile is being 

positioned for driving, etc.) when a 

marine mammal is observed entering or 

within the shutdown zone, pile driving 

must be delayed (i.e., not begin). For 

both scenarios, pile driving cannot 

begin (in the case of a delay) or resume 

(in the case of a halt) until either the 

animal has voluntarily exited and been 

visually confirmed beyond the 

shutdown zone or the required amount 

of time has passed without re-detection 

of the animal. NMFS expects that in 

coastal environments where the water is 

relatively shallow and therefore, marine 

mammal dives are generally shorter, 15 

minutes is sufficient to conclude that an 

animal is no longer within the 

shutdown zone. However, in 

consideration of the commenter’s 

suggestion, the required amount of time 

has been conservatively increased from 

15 minutes to 30 minutes for all 

cetaceans. Given the potential for 

pinnipeds to frequently occur at the site, 

and the practicability issues that would 

raise with frequent activity shutdowns, 

the final IHA requires USACE to wait 

until 15 minutes have passed without 

re-detection of the pinnipeds, rather 

than 30 minutes (unless the animal has 

voluntarily exited and been visually 

confirmed beyond the shutdown zone 

sooner), consistent with the proposed 

IHA. 

Comment 18: A commenter stated that 

it anticipates injury or mortality will 

occur from anthropogenic sources as a 

result of construction, as without strong 

oversight of the IHA through meaningful 

PSO involvement there is no way to 

mitigate harassments. The commenter 

further stated that temporary template 

piles (Pipe piles ≤24-inch (in)), 

Alternate Temporary template piles (Hpiles 14-in), Anchor piles (14-in 

HP14x89 or similar), Sheet piles (20-in 

PS31 or similar), and Fender piles (Pipe 

piles 36-in) will cause a range of 

potential noises that could lead to 

temporary threshold shift (TTS) or PTS 

injuries. A marine mammal that 

experiences TTS or PTS injuries may 

suffer enough or permanent hearing loss 

that may not allow them to avoid 

vessels. Consequently, vessel speed 

restrictions are not a trivial matter and 

do require consideration in order to 

avoid killing marine mammals from 

vessel strikes that may result from TTS 

or PTS injuries. The commenter further 

stated that the potential takes are 

comparable to subsistence harvests, 

making the potential takes from the 

proposed IHA not necessarily small if 

considered from an additive measure of 

mortality. 

Response: NMFS disagrees that, and 

there is no evidence that, injury or 

mortality could result from the Corps 

activities. The proposed and final IHA 

requires USACE to shut down activities 

if a marine mammal comes within 10 m 

of the activities in order to avoid direct, 

physical interaction with a marine 

mammal. This measure is anticipated to 

prevent any non-auditory injury or 

mortality of marine mammals. 

Regarding auditory injury (PTS (i.e., 

Level A harassment)), USACE will 

implement required shutdown zones for 

all marine mammals, and in all cases, 

the shutdown zones extend to or exceed 

the Level A harassment zones. 

Therefore, mitigation is anticipated to 

avoid auditory injury as well. (To 

clarify, TTS is not considered an injury, 

as it is temporary in nature and an 

animal’s hearing returns to its full 

ability.) However, NMFS concurs that 

mitigation for vessel transit is warranted 

in areas of particular habitat 

importance, and has added the 

following measures to this final IHA: 

• Vessels must remain at least 460 m 

(500 yds) from North Pacific right 

whales and avoid transiting through 

designated North Pacific right whale 

critical habitat if practicable (50 CFR 

226.215). If traveling through North 

Pacific right whale critical habitat 

cannot be avoided, vessels must travel 

through North Pacific right whale 

critical habitat at 5 kn (9.3 km/h) or less 

or at 10 kn (18.5 km/h) or less while 

PSOs maintain a constant watch for 

marine mammals from the bridge. 

Vessel personnel must maintain a log 

indicating the time and geographic 

coordinates at which vessels enter and 

exit North Pacific right whale critical 

habitat. 

• Vessels must not approach within 

5.5 km (3 nm) of Steller sea lion rookery 

sites listed in (50 CFR 224.103(d)). 

• Vessels must not approach within 

914 m (3,000 ft) of any Steller sea lion 

haulout or rookery. 

• Project vessels operating in Cook 

Inlet must maintain a distance of at least 

1.5 miles (2.4 km) south of the mean 

lower low water line between the Little 

Susitna River and Beluga River. 

• USACE must time Port of Alaska 

departures or recalls aligned with the 

tide periods to avoid navigating at 

through-water speeds exceeding 4 kn 

(7.4 km/h), as practicable and as safety 

allows. 

Please see NMFS’ response to 

Comment 15 regarding PSO authority. 

Comment 19: A commenter stated that 

NMFS believes without evidence or 

permit stipulation that there will be 

pauses in construction. The commenter 

stated that NMFS believes the pauses 

will reduce the potential for threshold 

shift declines. No reduction in the 

potential for threshold shift declines can 

occur if NMFS does not require 

meaningful PSO involvement, mandated 

pauses, review of pauses for threshold 

shift declines, and review of the IHA in 

consultation with subsistence users not 

subsistence leaders. 

Response: The inherent nature of pile 

driving activities includes pauses in 

sound-producing activities each day. 

While the actual installation and 

removal of piles produces sound, 

contractors must first relocate and 

position a pile, position equipment, etc., 

which does not produce meaningful 

amounts of underwater noise. Therefore, 

it is reasonable to conclude that 

construction at the Port of Nome will 

not produce in-water sound 24 hours 

per day, and mandating pauses in 

construction is not warranted. Further, 

USACE will implement required 

shutdown zones for all marine 

mammals, and in all cases, the 

shutdown zones extend to or exceed the 

Level A harassment zones, which were 

calculated using the maximum amount 

of sound expected to be produced 

during a 24-hour period. Please see 

NMFS’ response to Comment 15 

regarding meaningful PSO involvement. 

It is unclear what the commenter means 

when it stated that NMFS should 

require review of pauses for threshold 

shift declines. However, of note, it is not 

possible to determine whether an 

animal has experienced a threshold shift 

without measuring the individual 

animal’s hearing before and after 

exposure to a sound, which is typically 

done in a laboratory setting. Therefore, 

determining whether pauses in 

construction activities have minimized 

threshold shift in animals exposed to 

the construction sound is not possible 

for this project. Please see NMFS’ 

response to Comment 45 regarding 

review of the IHA in consultation with 


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subsistence users rather than 

subsistence leaders. 

Comment 20: A commenter stated that 

while it does not support the Port of 

Nome modifications, it generally 

concurs with the soft-start procedure 

required in the IHA. However, the 

commenter does not agree that a 30- 

second waiting period, then two 

subsequent reduced-energy strike sets is 

appropriate. The commenter stated that 

30 seconds is a miniscule time frame 

and that marine mammals can stay 

underwater for significantly longer time 

intervals. The commenter stated that it 

is possible PSOs would allow a soft start 

to result in a marine mammal entering 

the shutdown zone. The commenter 

stated that it generally concurs that a 

soft start must be implemented at the 

start of each day’s impact pile driving 

and at any time following cessation of 

impact pile driving for a period of 30 

minutes or longer. 

The commenter stated that PSOs 

should confirm a suite of marine 

mammal behaviors to ensure that 

marine mammals have taken the cue 

that harmful noise is present and are 

attempting to flee the area. The 

commenter further stated that behaviors 

that will convey that a marine mammal 

will avoid harmful noise is that if the 

marine mammal has (1) detected the 

noise, (2) evaded the noise, which 

should be documented with position of 

marine mammal and direction of travel, 

and (3) lack of presence for at least 

several minutes. The Port of Nome may 

exhibit noise characteristics such as 

attenuation or reflection that may 

confuse marine mammals and this can 

only be determined with site-specific 

data. If an IHA is approved it will be 

important to take site-specific data into 

consideration and to ensure that PSOs 

are sufficiently trained to implement a 

site-specific procedure. 

Response: NMFS thanks the 

commenter for its support of the soft 

start measure and its implementation at 

the start of impact pile driving on each 

day and at any time following cessation 

of impact pile driving for a period of 30 

minutes or longer. Soft-start procedures 

are used to provide additional 

protection to marine mammals by 

providing warning and/or giving marine 

mammals a chance to leave the area 

prior to the hammer operating at full 

capacity. During a soft start for 

construction activities, NMFS requires a 

30-second waiting period between 

reduced-energy strike sets. In the past, 

NMFS required a 1-minute waiting 

period between reduced-energy strike 

sets. PSOs reported that, in some cases, 

the 1-minute interval was too long, and 

marine mammals would leave the area 

but would return during the 1-minute 

quiet period. Therefore, the soft start 

measure was not accomplishing its 

intended effect, as marine mammals 

would not have left the area prior to the 

hammers operating at full capacity. 

Therefore, in this final IHA, NMFS 

continues to require a 30-second waiting 

period between reduced-energy strike 

sets during soft starts. 

Pile driving may only commence 

following 30 minutes of observation 

when the determination is made that the 

shutdown zones are clear of marine 

mammals, as stated in measure 4(c) of 

the IHA. Pile driving may commence 

when a marine mammal is present 

beyond the shutdown zones, regardless 

of whether it has shown the behaviors 

that the commenter asserts conveys that 

it will avoid harmful noise. In all cases, 

the shutdown zones extend to or exceed 

the Level A harassment zones, so 

marine mammals are not expected to be 

exposed to noise that would be 

considered physically harmful (i.e., 

cause auditory injury). 

Please see NMFS’ response to 

Comment 2 regarding site-specific data. 

Please see Comment 15, Comment 21, 

and the Visual Monitoring section of 

this notice regarding PSO training and 

qualifications. 

Monitoring 

Comment 21: A commenter stated that 

NMFS is proposing that ‘‘other’’ PSOs 

may substitute other relevant 

experience, education (degree in 

biological science or related field), or 

training for prior experience performing 

the duties of a PSO during construction 

activity pursuant to a NMFS-issued ITA. 

The commenter opposes this 

substitution, as the monitoring tasks are 

complex, the Plan of Cooperation (POC) 

may become redrafted as it evolves, and 

so PSOs must be highly trained and 

have direct experience. If a PSO can 

demonstrate a high degree of Alaska 

Native traditional knowledge and 

observational experience, it may 

substitute that as other relevant 

experience. The proposed IHA does not 

provide for a comprehensive evaluation 

process to ensure that personnel 

substituting other relevant experience, 

education, or training are completely 

prepared to adequately perform the 

duties of a PSO. Substituting other 

relevant experience, education, or 

training could lead to confusion among 

personnel about their roles and 

responsibilities while performing 

construction activities pursuant to a 

NMFS-issued ITA. 

Response: NMFS continues to find 

that it is appropriate to allow PSOs to 

substitute other relevant experience, 

education (degree in biological science 

or related field) or training for 

experience performing the duties of a 

PSO during construction activities 

pursuant to a NMFS-issued ITA. PSOs 

may also substitute Alaska Native 

traditional knowledge for experience. 

(NMFS recognizes that PSOs with 

traditional knowledge may also have 

prior experience, and therefore be 

eligible to serve as the lead PSO.) 

Allowing substitution of prior 

experience allows new PSOs to gain 

experience. The substitution criteria 

outlined ensure that a PSO is still 

qualified, despite not having direct 

experience as a PSO. NMFS agrees that 

the monitoring tasks can be complex, 

which is part of the reason that it 

requires employment of a lead PSO that 

has prior experience performing the 

duties of a PSO during construction 

activities pursuant to a NMFS-issued 

ITA. Regarding the comment that the 

proposed IHA does not provide for a 

comprehensive evaluation process to 

ensure that personnel substituting other 

relevant experience, education, or 

training are completely prepared to 

adequately perform the duties of a PSO, 

NMFS ensures that PSOs meet these 

criteria by requiring advance NMFS 

approval of every PSO. Substituting 

other relevant experience, education, or 

training is not anticipated to result in 

confusion among personnel about their 

roles and responsibilities, as the PSO 

team would have one established lead 

PSO who or monitoring coordinator 

when a team of three or more PSOs is 

required. That lead PSO or monitoring 

coordinator would be responsible for 

ensuring that all PSOs understand their 

roles and responsibilities. 

Comment 22: A commenter stated that 

NMFS proposes to require the USACE to 

employ three PSOs for vibratory driving 

of temporary template pipe piles, sheet 

piles, and fender pipe piles, and for all 

other activities, the USACE will employ 

one PSO. The commenter stated that it 

is not convinced reducing PSOs for 

other activities is appropriate. PSOs will 

develop information that is vital to 

community engagement and subsistence 

users and stationing PSOs away from 

the Port could cause issues with 

sightings. The commenter stated that 

gold dredges operate within the 3.5 km 

zone and stationing the second and 

third PSOs 3.5 km to the east and west 

of the Port of Nome means PSOs will 

have to differentiate marine mammals 

with some reduced visibility. 3.5 km is 

also a significant distance to observe 

marine mammals without high training 

requirements, and it is possible PSOs 


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may miss observations of marine 

mammals. 

Response: NMFS generally requires 

PSO coverage that is commensurate 

with the impacts of an activity. Of the 

USACE’s planned activities, vibratory 

pile driving is expected to result in the 

largest Level B harassment zones. 

Therefore, given the large zones for that 

activity, NMFS proposed to require 

USACE to employ three PSOs during 

vibratory pile driving of temporary 

template piles, sheet piles, and fender 

pipe piles. However, as noted in the 

Changes from the Proposed IHA to Final 

IHA section of this notice, given the 

updated analysis, USACE is not 

required to have a PSO stationed to the 

west of the project as initially proposed 

for vibratory pile driving (i.e., two PSOs 

are required, rather than three). For 

impact pile driving and other in-water 

activities, the Level B harassment zones 

are much smaller, and therefore, the use 

of multiple PSOs is not required for 

adequate monitoring during those 

activities. NMFS continues to find that 

one PSO during those activities is 

appropriate and has required such in 

the final IHA. For all activities, one PSO 

will have an unobstructed view of all 

water within the shutdown zone and 

will be stationed at or near the project 

activity. When two PSOs are required, 

the second PSO will monitor from the 

shoreline. The monitoring location will 

be approximately 3.5 km to the east of 

the Port of Nome. The 3.5 km is solely 

intended to identify the approximate 

PSO locations and is not intended to 

represent the distance that PSOs would 

be expected to observe marine 

mammals. NMFS agrees that 3.5 km is 

generally farther than a PSO would be 

expected to be able to reliably observe 

all marine mammals regardless of the 

PSO’s training or experience. 

Comment 23: A commenter stated that 

NMFS noted the PRP’s full report would 

be posted on NMFS’ website, but it was 

not. The commenter stated that if NMFS 

made the peer review report available 

before the comment deadline it will be 

possible to make hasty critiques before 

June 1, 2023 but those comments will 

not be fully informed. The commenter 

asserted that the public will still be left 

with an incredible burden to review 

reference materials and still face an 

incredible burden to provide 

meaningful public comment on 

extremely complex documents. The 

comment period for the IHA application 

began on May 2, 2023, but the PRP 

report was not made available to the 

public through the IHA website until 

May 22, 2023, a little over a week before 

the end of the public comment period 

and after some public comments had 

already been submitted. The omission of 

the PRP report for most of the public 

comment period and error comprise a 

significant justice barrier for the public 

and Alaska Native people that are to be 

impacted by the Port of Nome 

modifications. 

Response: NMFS thanks the 

commenter for the time that it devoted 

to reviewing and providing comments 

on the proposed authorization and 

associated documents. While NMFS is 

not legally required to post the PRP 

report for public review, NMFS’ intent 

is to facilitate public comment on the 

PRP report when possible in the context 

of the project schedule in order to 

further enhance public participation in 

the IHA process. However, doing so is 

not required and is not always possible. 

In this instance, NMFS indicated in the 

notice of the proposed IHA (88 FR 

27464, May 2, 2023) that it would post 

the PRP report on its website and had 

intended to do so for the full duration 

of the public comment period. However, 

as noted by the commenter, NMFS 

inadvertently left the PRP report off of 

the website at the start of the public 

comment period for the proposed IHA. 

NMFS regrets the error, and it posted 

the report the same business day that 

this comment was received (after a 

weekend submission). Further, NMFS 

notified the commenter immediately 

after the report was posted. 

Comment 24: Commenters asked that 

the public comment period for the IHA 

be extended (one suggesting a 6-month 

extension), to allow Nome-based experts 

to provide input on the 2023 NMFS 

Arctic PRP report and for other reasons. 

The commenter stated that without 

these Nome-based experts, the PRP 

lacks legitimacy for failing to include 

those who have direct local knowledge 

of the Nome port and its interaction 

with Norton Sound marine mammals. A 

commenter specifically recommended 

that NMFS expand the Arctic PRP to 

include representatives from Kawerak, 

Native Village of Solomon, King Island 

Native Community, Nome Eskimo 

Community, and Native Village of 

Council. The commenter further asked 

that the PRP include Nome-based 

members of the Ice Seal Committee, 

Alaska Beluga Whale Committee, and 

Eskimo Walrus Commission. The 

commenter also recommended that Gay 

Sheffield with the University of Alaska 

Fairbanks Alaska Sea Grant Marine 

Advisory Program be invited to join the 

PRP. The commenter stated that without 

their input, the PRP is basing its review 

on general knowledge of marine 

mammals’ interactions with 

construction noise. These Nome-based 

experts will add legitimacy to the 

review through their place-based 

experience and Traditional Knowledge 

that is specific to the project’s proposed 

location and subsistence use. The 

commenter recommended that after 

these Nome-based experts have 

contributed to the PRP report, NMFS 

should re-initiate the public comment 

process for the IHA. In a related 

comment, a commenter stated that 

specialists from Norton Sound, and/or 

Bering Strait communities should have 

been represented on the PRP in order to 

comply with the 2018 technical 

guidance that recommends such 

specialists. In another related comment, 

a commenter stated that not having a 

traditional knowledge holder on the 

PRP from Nome impacts equity and 

fairness considerations for the proposed 

IHA. In another related comment, a 

commenter stated that the public was 

not invited to participate in peer review. 

Response: The MMPA requires that 

monitoring plans be independently peer 

reviewed where the proposed activity 

may affect the availability of a species 

or stock for taking for subsistence uses 

(16 U.S.C. 1371(a)(5)(D)(ii)(III)). 

Regarding this requirement, NMFS’ 

implementing regulations state that 

upon receipt of a complete monitoring 

plan, and at its discretion, NMFS will 

either submit the plan to members of a 

PRP for review or within 60 days of 

receipt of the proposed monitoring plan, 

schedule a workshop to review the plan 

(50 CFR 216.108(d)). The scope of the 

PRP review is limited to review of an 

applicant’s proposed marine mammal 

monitoring. 

NMFS thanks the commenters for the 

recommendations on individuals from 

Nome to serve on the PRP. NMFS is 

unable to extend the public comment 

period due to the date that USACE has 

requested the IHA which is based upon 

its contracting timeline for the project. 

However, NMFS will consider this 

input for future project years. USACE 

anticipates that the Port of Nome project 

will occur over a period of 

approximately 7 years and has indicated 

that they intend to seek additional ITAs 

from NMFS, and that peer review of the 

associated monitoring reports will be 

required in subsequent years. NMFS 

will ensure that a member of the Nome 

community is engaged in the peer 

review process for subsequent years and 

will solicit input from Kawerak, Inc. 

regarding recommended individual(s). 

Regarding the 2018 technical 

guidance referenced by the commenter, 

that document (available at: https://

www.fisheries.noaa.gov/s3/2023-05/

TECHMEMOGuidance508.pdf) provides 

thresholds for onset of PTS and TTS in 

marine mammal hearing for all 


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underwater sound sources. It is 

intended to be used by NOAA analysts 

and managers, other federal agencies, 

and other relevant user groups/ 

stakeholders to better predict how a 

marine mammal’s hearing will respond 

to sound exposure. The 2018 technical 

guidance discusses the peer review, and 

other types of review, that were required 

and conducted for that guidance 

document. As a separate matter, NMFS’ 

MMPA implementing regulations 

describe the peer review requirements 

(216.108(d)) for monitoring plans 

developed in support of ITAs where the 

activity may affect subsistence uses. As 

described in the notice of the proposed 

IHA for the Port of Nome Modification 

Project (May 2, 2023, 88 FR 27464), 

NMFS has conducted the required peer 

review for the USACE’s monitoring 

plan. 

Comment 25: The PRP stated that 

when operating within the Susitna Delta 

Exclusion Zone in Cook Inlet, the 

Monitoring Plan states vessels will 

travel less than 4 kn (7.4 km/h) for 

proper monitoring. This PRP stated that 

this is unrealistic since tidal currents in 

this area of Cook Inlet can exceed 11 kn. 

Therefore, a through-water speed limit 

of 4 kn (7.4 km/h) could mean the vessel 

is actually moving over ground in a 

range of –7 (¥13 km/h) to +15 kn (27.8 

km/h). The PRP recommended the 

alternative approach of timing the Port 

of Alaska departures or recalls aligned 

with the tide periods to avoid navigating 

at through-water speeds exceeding 4 kn 

(7.4 km/h). 

Response: USACE will consider the 

tide cycles when transiting through 

Cook Inlet, as long as safe and feasible, 

in attempt to meet the speed 

recommendations in the Susitna Delta 

Exclusion Zone. Therefore, in this final 

IHA, NMFS has included a requirement 

for the USACE to time Port of Alaska 

departures or recalls aligned with the 

tide periods to avoid navigating at 

through-water speeds exceeding 4 kn 

(7.4 km/h), as practicability and safety 

allow. 

Comment 26: Commenters stated that 

the current PRP report does not appear 

properly vetted. The commenters note 

that report includes recommendations 

specific to the Susitna Delta Exclusion 

Zone in Cook Inlet. The commenters 

assert that this information in section 

1.2.8 is irrelevant to a project proposed 

for the Port of Nome, and that the 

inclusion of this section raises questions 

about the thoroughness and accuracy of 

the other sections of the document. 

Further, a commenter stated that the 

public is made to believe the peer 

review of the IHA was conducted in 

accordance with NOAA’s Information 

Quality Guidelines (IQG), which are 

designed for ‘‘ensuring and maximizing 

the quality, objectivity, utility, and 

integrity of information disseminated by 

the agency’’. Recommendation 1.2.8 

fails all tests for quality, objectivity, 

utility, and integrity except perhaps for 

the Susitna River. 

Response: The commenters are correct 

that the PRP report includes a 

recommendation regarding Vessel 

Speed Reduction in the Susitna Delta 

Exclusion Zone in Cook Inlet. This 

recommendation is relevant to the 

proposed project and demonstrates the 

PRP’s thorough review of the full 

monitoring report, not just the 

components of the project that will 

occur in Nome. As noted in the Detailed 

Description of the Specified Activity 

section of the notice of the proposed 

IHA (May 2, 2023, 88 FR 27464), 

USACE anticipates approximately 20 

round trip vessel trips (i.e., barge, 

support tugs, fuel, etc.) to occur between 

Nome and Anchorage during Year 1. 

However, as explained in that section of 

the notice of proposed IHA (May 2, 

2023, 88 FR 27464), vessel transit is 

unlikely to disrupt behavioral patterns 

in a manner that would qualify as take, 

and therefore was not discussed in the 

remainder of the notice of proposed 

IHA. USACE intends to conduct 

mitigation during vessel transit, 

including in the Susitna Delta, as 

outlined in its monitoring plan. 

Therefore, in review of USACE’s 

monitoring plan, the PRP found it 

appropriate, and NMFS agrees, for it to 

make a recommendation regarding 

vessel transit in the Susitna Delta 

Exclusion Zone. Please see NMFS’ 

response to Comment 25 regarding 

incorporation of the PRP’s 

recommendation. 

Comment 27: The PRP recommended 

that because fender pile installation 

would result in a Level B harassment 

zone occurring beyond distances visible 

to the PSOs, this activity should take 

place during the time of year that has 

the lowest density of marine mammals, 

which likely is mid-summer. A 

commenter expressed support for this 

PRP recommendation. 

Response: As the PRP suggested, 

summer is generally when marine 

mammal densities are expected to be 

lowest in the project area (Oceana and 

Kawerak, 2014), though it is reasonable 

to expect that the densities in a given 

month would vary from year to year 

depending on when ice breakup and 

freeze-up occurs. The planned work will 

need to occur during the short openwater season, which mostly overlaps the 

summer season. USACE asserts that 

fender-pile installation must occur 

when necessary and appropriate to meet 

the construction timeline, given that the 

planned work will need to occur during 

the short open-water season, and 

USACE is attempting to conduct 

activities which could take the entire 

duration of the open-water season. The 

construction timeline is dependent on 

the contractor’s means and methods. 

Therefore, the recommended 

requirement to ensure fender piles are 

installed during a particular time is not 

practicable. NMFS has not included this 

as a requirement in the final IHA. 

Comment 28: A commenter expressed 

support for the PRP recommendation 

that USACE consider developing a 

marine mammal and environmental 

reporting app or other reporting method 

that can be accessed directly by 

community members. 

Response: As also stated in the 

Monitoring Plan Peer Review section of 

this notice, while USACE does not have 

the capability to develop a reporting 

app, USACE will recommend that the 

PSO contractor collect data using a 

reporting app. Regardless of whether the 

contractor uses a reporting app, the 

USACE is required to provide the 

monitoring data in a digital format, and 

at the latest, USACE must submit this 

data to NMFS along with the draft 

report, as required by the IHA. NMFS 

will post a final version of the report to 

its website at: https://www.fisheries.

noaa.gov/action/incidental-takeauthorization-us-army-corps-engineersport-nome-modification-project-nome. 

Comment 29: A commenter stated that 

the PRP noted that at the presentation 

given to the PRP, the USACE included 

a pre-construction monitoring period of 

approximately 1 week, but this was not 

included in the Monitoring Plan. 

Removing the monitoring period from 

the monitoring plan could have resulted 

in a better understanding of marine 

mammals near the Port and an 

opportunity to test the potential 

ensonified area for site-specific data that 

could inform isopleth distances. 

Response: The monitoring period that 

the commenter appears to be referencing 

was not included in the Monitoring 

Plan, as noted by the PRP. However, as 

indicated in the Monitoring Plan Peer 

Review section of this notice, as 

recommended by the PRP, NMFS is 

requiring one PSO to monitor for 8 

hours per day 1 week before and 1 week 

after pile driving activities (weather and 

ice permitting). The PSO that conducts 

this monitoring is required to meet the 

same standards as all other project 

PSOs, as outlined in the Visual 

Monitoring section of this notice. 

USACE has updated its monitoring plan 

to reflect this. Please see NMFS’ 


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response to Comment 2 regarding sitespecific data. 

Comment 30: A commenter stated that 

it seems reasonable that NMFS must 

incorporate the recommendations in the 

PRP report when considering the 

USACE’s proposed IHA. The commenter 

stated that the following comments from 

the PRP demonstrate that, in its current 

form, the IHA is inadequate to protect 

marine mammals: 

• Inadequate number of PSOs to 

monitor the Level A harassment and 

Level B harassment zones. The PRP 

report recommended that the lead PSO 

be deployed at the pile driving site to 

monitor the shutdown zone and at least 

one (preferably two) PSOs on each side 

of the construction zone near the 

boundary of the Level B harassment 

zone. This is particularly important for 

vibratory pile driving activities, where 

deployment of a PSO on a remote vessel 

or anchored barge would be necessary to 

adequately monitor the Level B 

harassment zones (5.17 km for the 1600 

20-in sheet piles, expected to occur over 

57 days, and 21.54 km for the 21 36-in 

fender piles, expected to occur over 2 

days). If visual monitoring is not 

expanded by deployment of additional 

PSOs, the PRP report recommended 

high-quality PAM in the far field (to 

maximize the detection range). 

• Inaccurate basis for extrapolation of 

Level B harassment takes. If the density 

of marine mammals is different (i.e., 

higher) in the far field, but the 

extrapolations are based on what is seen 

in the near field, the take estimates will 

be biased. 

• Inadequate density data to estimate 

takes. There is almost no data for this 

area, especially the near-shore, except 

for a few days of monitoring conducted 

by the applicant and summarized in the 

Federal Register notice. The PRP report 

recommended additional pre- and postactivity monitoring, either directly at 

the construction site if possible and/or 

before, during, and after construction 

activities at a similar ‘‘control site’’ 

(away from construction activities). 

• Verification of the size of 

harassment zones. Due to the size of the 

harassment zones, especially during 

vibratory pile driving, the PRP report 

recommended in situ measurements of 

sound produced by pile driving 

activities instead of relying solely on 

using the NMFS multi-species pile 

driving calculator. It also suggested the 

use of a bubble curtain or other sound 

attenuation device to reduce the size of 

the harassment zones. 

• Use of the data collected in Year 1 

to inform future year applications. 

Response: NMFS thanks the 

commenter for its review of the PRP 

report. NMFS has incorporated a 

number of the PRP recommendations 

included in the report, including several 

of those recommended by the 

commenter. Please see the Monitoring 

Plan Peer Review section of the notice 

of final IHA for a full description of 

which recommendations have and have 

not been incorporated, and why. Please 

see NMFS’ response to Comment 10 

regarding bubble curtains and other 

sound attenuation devices. 

Comment 31: In relation to a PRP 

recommendation, a commenter stated 

that to detect marine mammals 2 km or 

greater away requires considerable skill 

and adequate visual tools. Weather and 

sea state are among other variables that 

could hamper detection beyond 2 km. 

The commenter recommended that, in 

order to detect marine mammals, a PSO 

should be deployed on an offshore static 

platform (e.g., an anchored barge or 

vessel) during sheet pile installation 

activities each day they occur. 

Response: NMFS concurs that 

detecting marine mammals requires 

adequate skills and visual tools and 

requires that PSOs meet certain 

qualifications, as described in the Visual 

Monitoring section of this notice. NMFS 

is not requiring USACE to station PSOs 

on a static offshore platform given 

concerns raised by USACE regarding 

safety and logistics of doing so. 

However, if, and when, USACE drives 

fender piles, it must conduct a 

minimum of one aerial overflight to 

assist in estimating species presence in 

the far field during fender pile 

installation. USACE will conduct two 

aerial overflights if it determines that it 

is practicable to do so. 

Comment 32: A commenter noted that 

the PRP stated that the peer review 

should incorporate more time to review 

the Monitoring Plan, particularly when 

looking to incorporate feedback from 

Alaska Native Co-Management 

Organizations such as the Alaska 

Eskimo Whaling Commission (AEWC). 

The commenter further stated that 

AEWC has no authority over Nome 

subsistence users and is not the correct 

co-management organization for the 

community of Nome, but agreed with 

the PRP that more time was needed for 

monitoring plan review. 

They state that Nome subsistence 

users who harvest whales are not under 

the purview of the AEWC, and no Nome 

subsistence user is a member of the 

AEWC. The commenter stated that it 

objects to the PRP’s appeal to the 

authority of the AEWC. The commenter 

stated that it does concur that comanagement organizations could have 

been consulted, but only if they have 

representation from Nome. 

A commenter stated that by allowing 

only a limited time period for peer 

review of the Monitoring Plan, NMFS 

failed to take into account the 

complexities of subsistence uses and 

other engagements from Alaska Native 

Co-Management Organizations. The 

short timetable leaves little room for 

engagement with Alaska Native CoManagement Organizations of Nome 

subsistence users. 

In a related comment, a commenter 

expressed discontent at the timing of the 

proposed IHA, as it is a difficult time of 

year to assemble hunters in a format that 

allows for meaningful engagement. 

Response: Generally speaking, most 

projects reviewed by a PRP occur on the 

North Slope of Alaska, which NMFS 

expects is what prompted the PRP to 

make a reference to AEWC in this 

instance. NMFS does not view this 

statement as an assertion of AEWC 

having authority over subsistence 

activities in Nome. Separately, the 

comment regarding the timing of the 

PRP review of the monitoring plan is 

not related to the timing of the public 

comment period conducted for this 

proposed IHA, as that comment period 

is separate from the PRP monitoring 

plan review period. Unfortunately, 

NMFS does not control when an 

applicant submits an IHA application, 

and NMFS must move forward with 

processing an IHA when an application 

is received. Nonetheless, NMFS 

recognizes that additional time is 

needed in the IHA process to 

appropriately address impacts to 

subsistence uses of marine mammals 

and recommends that applicants 

include sufficient lead time when 

requesting authorization. We are also 

working to allow more time for PRP 

review of the monitoring plan, where 

possible, in the future. 

Regarding the commenter 

concurrence that co-management 

organizations could have been 

consulted, but only if they have 

representation from Nome, please see 

NMFS’ response to Comment 24 and 

Comment 45. 

Reporting 

Comment 33: A commenter stated that 

spotted seals as well as subadult 

bearded and ringed seals remain in and 

around the Nome port and harbor area 

throughout the ice-free season. During 

late spring and early summer with the 

reduced sea ice presence, recently 

weaned ringed and spotted seal pups 

regularly come ashore to rest in and 

near the Nome port and harbor. The 

commenter recommended that if live 

seal pups are found hauled out on the 

beach or in the Port within the 


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construction area, the proper protocol is 

to contact Kawerak Natural Resources 

Department Vice President Brandon 

Ahmasuk, Kawerak Subsistence 

Program Director Chuck Menadelook, 

and/or Gay Sheffield with the UAF 

Alaska Sea Grant Marine Advisory 

Program. The commenter stated that 

Sheffield is a NOAA Alaska Marine 

Mammal Responder and that Sheffield 

and Ahmasuk are the only two people 

authorized by NOAA in the Norton 

Sound region to move live seal pups. 

Response: In the event that personnel 

involved in the construction activities 

discover an injured or dead marine 

mammal, USACE is required to report 

the incident to the Office of Protected 

Resources (OPR), NMFS and to the 

Alaska regional stranding network via 

the 24-hour hotline as soon as feasible, 

rather than to a local stranding 

agreement holder. The hotline provides 

continuous coverage throughout Alaska, 

and reports are collected by a NOAA 

biologist who would relay the report to 

the local stranding agreement holder as 

appropriate. Therefore, NMFS does not 

find it appropriate to modify this 

requirement to require direct reporting 

to the individuals recommended by the 

commenter. 

Comment 34: A commenter described 

an established connection between 

avian influenza and harmful algal bloom 

biotoxins in the Northern Bering Sea 

and marine mammal mortality. The 

commenter recommended that if dead 

marine mammals or birds are found on 

the beach or in the proposed 

construction area, notify Kawerak 

Subsistence Program Director Chuck 

Menadelook and/or Gay Sheffield with 

the UAF Alaska Sea Grant Marine 

Advisory Program to ensure that all 

dead birds and marine mammals are 

documented, inspected, and sampled. 

Response: As noted above, in the 

event that personnel involved in the 

construction activities discover an 

injured or dead marine mammal, 

USACE is required to report the 

incident to OPR, NMFS and to the 

Alaska regional stranding network via 

the 24-hour hotline as soon as feasible, 

rather than to a local stranding 

agreement holder. The hotline provides 

continuous coverage throughout Alaska, 

and reports are collected by a NOAA 

biologist who would relay the report to 

the local stranding agreement holder as 

appropriate. Therefore, NMFS does not 

find it appropriate to modify this 

requirement to require direct reporting 

to the individuals recommended by the 

commenter. NMFS does not have 

authority to require reporting of dead 

birds; however, it has passed this 

comment on to USACE for their 

consideration regarding birds. 

Comment 35: A commenter stated that 

NMFS’ proposal to require the USACE 

to submit a draft report to NMFS within 

90 calendar days after the completion of 

monitoring or 60 calendar days prior to 

the requested issuance of any 

subsequent IHA for construction 

activity, whichever comes first, is not 

appropriate. The commenter stated that 

given that USACE has dramatically 

increased its cost share to fund the Port 

of Nome Modifications, it should be 

required to submit a biannual report as 

well as a report within 30 days after 

completion. The commenter stated in a 

subsequent letter that draft reports 

should be submitted on the first of the 

month throughout the duration of the 

project and comments to the draft report 

should be distributed to the comanagement body (see Comment 45) for 

review. The commenter further 

recommended that a final report be 

prepared and submitted within 30 

calendar days following receipt of any 

NMFS and co-management body 

comments on the draft report. 

The commenter stated that it concurs 

with NMFS that the marine mammal 

monitoring report should include an 

overall description of work completed, 

a narrative regarding marine mammal 

sightings, and associated PSO data 

sheets. 

Response: NMFS thanks the 

commenter for its support of several of 

the reporting requirements in the IHA. 

Further, NMFS agrees with the 

commenter that more frequent reporting 

for this project is appropriate, and rather 

than biannual reports, NMFS is 

requiring USACE to submit a monthly 

report. Each monthly report must be 

submitted by the 15th day of the month 

following the reporting period. NMFS 

does not concur with the commenter’s 

recommendation to require USACE to 

submit its final report within 30 days of 

completion of the activity. NMFS 

generally allows applicants 90 days to 

submit a draft report given the time 

required to produce a high-quality 

document. Therefore, as stated in the 

proposed IHA, the final IHA requires 

that USACE must submit a draft report 

within 90 days of completion of 

monitoring (or 60 calendar days prior to 

the requested issuance of any 

subsequent IHA for construction activity 

at the same location, whichever comes 

first), and a final report must be 

prepared and submitted within 30 

calendar days following receipt of any 

NMFS comments on the draft report. If 

no comments are received from NMFS 

within 30 calendar days of receipt of the 

draft report, the report shall be 

considered final. 

Please see NMFS’ response to 

Comment 45 regarding submission of 

reports to a co-management body. 

Comment 36: A commenter stated that 

NMFS must strengthen oversight of its 

IHAs, if approved. 

Response: It is unclear what the 

commenter means by NMFS 

strengthening its oversight of the IHAs. 

However, NMFS notes that the IHA 

requires USACE to submit a report to 

NMFS that describes the activities 

which occurred under the IHA, 

including the construction activities, 

marine mammal observations, 

implementation of mitigation measures, 

etc. Please see Section 6, Reporting, of 

the IHA for additional details. Further, 

as described above in NMFS’ response 

to Comment 35, this final IHA includes 

a new requirement for USACE to submit 

monthly reports in addition to the final 

report. Please refer to NMFS’ response 

to that comment for additional 

information. 

Impacts to Subsistence Uses of Marine 

Mammals 

Comment 37: A commenter stated that 

it wants to ensure that Nome area 

subsistence hunters retain access to 

beluga whale hunting sites, and that in 

October, at the end of the barge season, 

Nome subsistence hunters use the end 

of the causeway as a look-out point for 

beluga whales. The commenter 

requested that use of the end of the 

causeway for subsistence hunting 

purposes continues. 

Response: NMFS thanks the 

commenter for providing information 

about the importance of the end of the 

causeway as a look-out point for beluga 

whale subsistence hunting, and it has 

updated its analysis to reflect this 

information. As noted in the 

Unmitigable Adverse Impact Analysis 

and Determination section of this 

notice, in order to issue an IHA, NMFS 

must find that the specified activity will 

not have an ‘‘unmitigable adverse 

impact’’ on the subsistence uses of the 

affected marine mammal species or 

stocks by Alaskan natives. NMFS has 

defined ‘‘unmitigable adverse impact’’ 

in 50 CFR 216.103 as an impact 

resulting from the specified activity: (1) 

That is likely to reduce the availability 

of the species to a level insufficient for 

a harvest to meet subsistence needs by: 

(i) Causing the marine mammals to 

abandon or avoid hunting areas; (ii) 

Directly displacing subsistence users; or 

(iii) Placing physical barriers between 

the marine mammals and the 

subsistence hunters; and (2) That cannot 

be sufficiently mitigated by other 


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measures to increase the availability of 

marine mammals to allow subsistence 

needs to be met. NMFS and USACE 

discussed this recommendation. Given 

that the Port is owned and operated by 

the City of Nome, permission from the 

City is required to access the causeway. 

The Port’s ability to grant access to the 

causeway outside of the construction 

period is constrained by safety concerns 

when the Port is active, and 

construction activities at the Port of 

Nome are expected to increase the time 

when safety concerns are present. 

Therefore, during some periods, it may 

not be possible to grant causeway access 

to subsistence users. However, when 

construction activities are not causing 

safety concerns, the Port anticipates 

being able to grant causeway access to 

subsistence users under the same 

conditions that it would when the Port 

of Nome Modification Project is not 

underway. 

Comment 38: A commenter 

recommended that NMFS add Pacific 

walruses to the list on Table 2 of the 

Federal Register notice titled ‘‘Marine 

Mammal Species Likely To Occur Near 

The Project Area that Might be Taken by 

USACE’s Activities.’’ Further, the 

commenter stated that if walruses haul 

out at the Port of Nome, Port authorities 

should notify U.S. Fish and Wildlife 

Service (USFWS). If a walrus hauls out 

at the Port and appears healthy, the 

commenter requested that the USFWS 

make it available for harvest. 

Response: As alluded to by the 

commenter, Pacific walrus are managed 

by the USFWS, rather than NMFS. 

Therefore, as noted in the Description of 

Marine Mammals in the Area of 

Specified Activities section of the notice 

of proposed IHA (May 2, 2023, 88 FR 

27464), they are not considered in this 

document, and NMFS has not included 

them in Table 1 (equivalent to Table 2 

in the notice of proposed IHA (88 FR 

27464, May 2, 2023). NMFS has passed 

along the commenter’s recommendation 

to make a healthy walrus hauled out at 

the Port available for harvest to the 

USACE and USFWS. 

Comment 39: A commenter stated that 

local subsistence hunters harvest 

multiple belugas near Nome annually. 

However, the Norton Sound beluga 

whale harvests are not required to be 

reported by any entity, so there is no 

accurate documentation of beluga whale 

harvest in Norton Sound. The 

commenter stated that the Frost and 

Suydam (2010) publication’s assessment 

of 0.6 beluga harvested near Nome 

annually should not be used in the IHA 

considerations. 

Response: NMFS thanks the 

commenter for the additional 

information regarding Norton Sound 

beluga harvest. NMFS has added this 

additional information to its analysis 

and has removed Frost and Suydam 

(2010) from its analysis in the Effects of 

Specified Activities on Subsistence Uses 

of Marine Mammals section. 

Comment 40: A commenter stated that 

significant spotted, ringed, bearded and 

ribbon seal hunting occurs throughout 

the project period, most importantly 

during the months of May to June. The 

commenter stated that if contractors and 

Port of Nome modifications are not 

inclusive of subsistence hunters then 

there is the possibility of subsistence 

user impacts. The commenter stated that 

it concurs with NMFS on the following: 

the project could deter target species 

and their prey from the project area, 

increasing effort required for a 

successful hunt in that area; 

construction may disturb beluga whales, 

potentially causing them to avoid the 

project area and reducing their 

availability to subsistence hunters; and 

once the project is complete, the 

increased length at the Port of Nome 

could impact hunters’ ability to access 

subsistence areas, but not for the reason 

noted by NMFS. The commenter states 

that the increased length of the Port will 

not meaningfully increase the time and 

fuel required to access marine 

mammals. Instead, the commenter 

asserted that the increased length and 

orientation of the Port poses significant 

safety considerations for small boats 

because small subsistence boats will 

need to navigate stronger currents and 

ship traffic that will require several 

maneuvers in and out of the Port if it is 

modified to the preferred alternative. 

The commenter stated that NMFS is 

correct that increased vessel traffic at 

the Port following construction may 

create additional obstacles for 

subsistence vessels to maneuver and 

may affect marine mammals and their 

movements. The commenter stated that 

the impact to subsistence users stresses 

previous points that the commenter 

made in a previous comment letter that 

this project is not eligible for Categorical 

Exclusion. 

Response: NMFS thanks the 

commenter for its additional input 

about the impacts of the increased 

length and orientation of the modified 

Port. However, NMFS’ authority under 

the MMPA to consider impacts of an 

activity on marine mammals and 

subsistence uses of marine mammals are 

limited to consideration of the impacts 

of the activity for which NMFS is 

authorizing take (i.e., the construction 

activities rather than the end result of 

the construction). Given that the USACE 

is the proponent of the action itself (i.e., 

the Port of Nome modification project), 

NMFS has passed this comment along to 

the USACE for its consideration. 

Please refer to NMFS’ response to 

Comment 52 regarding the commenter’s 

concerns about eligibility for a 

Categorical Exclusion and Comments 

24, 32, 42, 43, 44, 46, and 49 regarding 

subsistence user engagement. For 

information on USACE’s Integrated 

Feasibility Report and Final 

Environmental Assessment, please refer 

to https://www.poa.usace.army.mil/ 

Library/Reports-and-Studies/Port-ofNome-Modification-Project/. 

Comment 41: Commenters noted that 

the Port of Nome construction project 

will bring an influx of workers from 

outside the region into Nome. A 

commenter recommended that incoming 

workers attend cultural awareness 

training from Kawerak Inc’s Katirvik 

Cultural Center to better understand the 

cultural history and practices of the 

region and its Tribes. In a related 

comment, a commenter recommended 

that the USACE convene a working 

group with Kawerak Inc., Native Village 

of Solomon, King Island Native 

Community, Nome Eskimo Community, 

and Native Village of Council to develop 

educational materials that lay out 

behavioral rules and cultural 

expectations for Port project workers. 

The commenter requests that the 

USACE require contractors to adopt 

these materials and agree to abide by 

them. Another commenter 

recommended that NMFS should 

require anti-racism and decolonization 

training prior to start of activities, and 

that if any member of the construction 

crew is unwilling to participate or does 

not take the training seriously, it should 

be grounds for dismissal. In a related 

comment, a commenter stated that if an 

IHA is approved, it is imperative that 

the construction contractor and any of 

its workers do not devalue equity and 

environmental justice considerations. 

Further, a commenter recommended 

that Port workers be informed that 

Alaska Natives have the right to 

customary and traditional harvest of 

marine mammals in marine waters, 

including in and around the Port area 

when subsistence opportunities present 

themselves. 

Response: NMFS thanks the 

commenter for its recommendations. 

While NMFS cannot require cultural 

awareness training, anti-racism training, 

decolonization training, convening of a 

working group for these purposes, or 

development of cultural education 

materials as part of our limited statutory 

authority here regarding authorization 

of take of marine mammals, it has 

passed along these recommendations to 


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USACE. USACE has indicated that it 

will coordinate with Tribal Leadership 

to develop culturally-appropriate 

information and educational materials 

for the Port of Nome construction 

workforce. These materials will include 

language that states that Alaska Natives 

have the right to customary and 

traditional harvest of marine mammals 

in marine waters, including in and 

around the Port area when subsistence 

opportunities present themselves. 

Comment 42: Commenters raised 

several concerns and recommendations 

about distribution of USACE’s POC, 

described below. 

• The POC was developed, but was 

not linked with the Federal Register 

notice. 50 CFR 216.104(a)(12) appears to 

at least require some sort of link within 

the Federal Register notice to the draft 

POC. 

• The POC was not posted on 

USACE’s website. 

• USACE did not adequately disclose 

details of the POC to the community or 

present the POC during its May 17, 2023 

meeting; the POC was only mentioned 

in passing. 

• USACE’s POC was not adequately 

distributed to Nome’s subsistence 

community in a way that allowed for 

meaningful engagement. 

• USACE should include the Native 

Village of Solomon and the Native 

Village of Council in POC. 

• More than half (11 of 20) of the 

recommended organizations to be 

consulted (Table A–1 of the POC), 

including the AEWC, do not represent 

the subsistence users of Nome. Nome 

subsistence users are not represented by 

the AEWC. AEWC may have some sway 

related to bowhead whale presence near 

the Port of Nome, but they do not 

represent the interests of Nome 

subsistence users who have their own 

concerns about bowhead whale 

presence. Community organizations that 

are not directly tied to Nome 

subsistence users are not surrogates for 

community engagement in Nome. 

• Every Norton Sound-based Tribe 

and Tribal organization in Table A–1 

lacks an identified point of contact, 

despite the USACE stating in the POC 

that it has been ‘‘coordinating’’ with 

these groups on this project since April 

2018. Omitting a point of contact signals 

that the USACE did not make the effort 

to contact the entity and ask who the 

document should be shared with. One 

can assume the document was mailed or 

emailed to the general addresses listed 

in the table which is a method for being 

able to check a box that the information 

was distributed, while at the same time, 

likely burying the information at its 

destination. The POC documents sent to 

Kawerak, King Island Native 

Community, and Nome Eskimo 

Community cannot be located. 

• If NMFS is aware of a statement 

from the USACE that it notified the 

underserved community of Nome with 

the draft POC then that should be 

published so the public can verify if that 

occurred. The draft POC has been 

posted to the NMFS website, but as far 

as the commenter is aware, it was not 

distributed to the potentially affected 

stakeholders, subsistence users, or 

community groups. 

Response: NMFS thanks the 

commenters for the information they 

provided about how to distribute the 

POC to effectively engage the 

community and subsistence hunters. A 

POC is intended to be a living document 

that is routinely updated to guide and 

reflect engagement with subsistence 

communities to ensure that marine 

mammal subsistence-related concerns 

are resolved. NMFS posts an applicant’s 

POC to its website to increase public 

access to the document, and did so at 

the start of the public comment period 

for this proposed Port of Nome 

Modification Project IHA, though 

posting the POC is not legally required. 

While the Federal Register document 

(88 FR 27464, May 2, 2023) did not link 

directly to the POC document itself, the 

notice did describe to readers that 

electronic copies of the application and 

supporting documents [including the 

POC], as well as a list of the references 

cited in this document, may be obtained 

online at: https://www.fisheries.

noaa.gov/national/marine-mammalprotection/incidental-takeauthorizations-construction-activities. 

While an applicant may choose to post 

the POC to its website also, there is no 

requirement to do so. However, in 

response to the commenter’s concerns, 

NMFS has requested that USACE post 

the POC to its website, and USACE 

intends to post the POC on its website 

at: https://www.poa.usace.army.mil/ 

Library/Reports-and-Studies/Port-ofNome-Modification-Project/. 

NMFS recognizes that the AEWC does 

not represent subsistence users in 

Nome. NMFS nor the USACE intend for 

communication with the AEWC to serve 

as a substitute for communication with 

subsistence users in Nome. However, in 

addition to engaging local marine 

mammal subsistence users, NMFS finds 

it appropriate to encourage applicants to 

notify subsistence and community 

leaders beyond the immediate area in 

which a project is proposed to occur, as 

sometimes these groups express 

concerns about projects beyond those 

that are immediately offshore from their 

communities, given the range of species 

of interest. Therefore, while the AEWC 

and several other groups that the 

commenter noted do not represent 

subsistence users in Nome, NMFS still 

finds it appropriate to encourage 

USACE to continue communication 

with these organizations as well as 

marine mammal subsistence users in 

and around Nome. 

USACE has updated its POC to 

include the Native Village of Solomon 

and the Native Village of Council in 

POC and to include points of contact for 

each organization listed, where possible. 

At the time of publication of the 

proposed IHA, USACE had not 

distributed the POC given that the 

project is still approximately a year 

away from beginning, though NMFS and 

USACE had a miscommunication about 

this which resulted in an incorrect 

statement in the notice of the proposed 

IHA (88 FR 27464, May 2, 2023) that 

suggested the USACE distributed a copy 

of the POC in October 2022. USACE is 

required to utilize Kawerak’s point of 

contact list and will include all of the 

Tribes within the region. However, as 

stated previously, the POC is intended 

to be a living document, and NMFS 

requires USACE to update the POC as 

additional meetings are planned and 

executed and to redistribute the POC as 

new information is added. Further, 

USACE states that it will notify Tribal 

Leadership when updates are made to 

the POC that will be publicly available 

on USACE’s project website, noted 

above in this response. 

At the time of publication of the 

proposed IHA, it was NMFS’ 

understanding that the draft POC was 

circulated to the recipients indicated in 

Table A–1 of the POC. However USACE 

later clarified that the POC has not yet 

been distributed. USACE distributed the 

revised POC on August 28, 2023. 

Comment 43: Commenters raised 

concerns about the content of USACE’s 

POC, described below. 

• In Table 2–1 of the April 2023 POC, 

the USACE lists 15 community 

engagements. In 10 of those community 

engagements the USACE cannot list any 

summaries of MMPA subsistencerelated concerns, presumably because 

there are no records. Poor recordkeeping 

of community engagements raises many 

flags and flies in the face of meaningful 

community engagement. A commenter 

stated that these engagements may not 

be relied upon to address Nome’s 

subsistence user concerns. 

• USACE claims that they have been 

coordinating with potentially affected 

communities and subsistence groups 

about this project since April 2018 

according to a POC dated April 2023. 

Another commenter stated that the 


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April 2018 Planning Charrette was by 

invite only and could not have 

addressed any subsistence related 

concerns because there was no preferred 

alternative established yet. 

• USACE cannot claim that the draft 

POC incorporates comments and 

concerns expressed by Nome 

subsistence users because the POC was 

developed in isolation absent 

community engagement and relied upon 

a consultant to hammer out the details. 

Such development flies in the face of 

equity and environmental justice to the 

underserved community of Nome. 

• The draft POC does not portray any 

record of meaningful public engagement 

and is a direct result of the lack of 

community engagement by the USACE. 

The commenter stated NMFS is not in 

the greatest position to issue an IHA 

because of the deficiencies in the POC 

and the lack of distribution of the POC 

to Nome’s subsistence community. 

• Table 2–4 of the POC, upcoming 

meetings for future engagement, lists 

meetings that already occurred, such as 

the December 12–15, 2022 meeting of 

the AEWC and the canceled meeting of 

October 2022. A related comment stated 

that USACE has not adequately planned 

for subsistence community engagement, 

as it has not scheduled such meetings. 

• USACE failed to provide 

information that identifies measures 

that have been taken and/or will be 

taken to avoid adverse effects on the 

availability of marine mammals for 

subsistence purposes. 

• The POC does not identify how the 

USACE will resolve conflicts with 

communities. 

Response: USACE has updated its 

POC to reflect a more comprehensive 

record of its community engagement 

regarding the Port of Nome project to 

date. USACE stated that consultation 

with Tribes began early in the 

Feasibility Study process in 2018, and 

that process was used to determine the 

preferred alternative (i.e., USACE began 

its subsistence engagement process in 

2018, prior to establishing a preferred 

alternative). NMFS recommends that 

applicants begin engagement on a 

project as early as possible, and it 

disagrees with the commenter that 

beginning engagement prior to 

identifying the preferred alternative is 

unhelpful. Regarding the commenter’s 

statement that USACE claims that they 

have been coordinating with potentially 

affected communities and subsistence 

groups about this project since April 

2018 according to the POC, it is unclear 

if the commenter disagrees with that 

statement, or if it is suggesting that the 

coordination could not have begun at 

that time because the POC did not exist. 

If the latter, to clarify, the coordination 

is what is detailed in the POC, and 

coordination often begins prior to 

creation of the POC, as there would be 

little to document in it prior to some 

coordination having occurred. 

Therefore, it is reasonable for the POC 

to have listed coordination that 

occurred in 2018. 

The commenter is correct that Table 

2–4 lists a December 2022 AEWC 

meeting that has now occurred. At the 

time that USACE submitted its draft 

POC to NMFS, this meeting had not 

occurred, and USACE intended to 

attend. USACE has updated the POC 

and has removed this meeting from 

Table 2–4. Table 2–4 notes that a 

meeting initially scheduled for October 

2022 was postponed. As of the writing 

of this notice, this meeting has not been 

rescheduled. However, USACE is 

coordinating with the Nome Eskimo 

Community, King Island Native 

Community, Village of Solomon, and 

the Native Village of Council to 

reschedule the October 2022 meeting. 

This meeting will be focused on 

potential project impacts to subsistence 

uses of marine mammals. 

Regarding the comment that USACE 

failed to provide information that 

identifies measures that have been taken 

and/or will be taken to avoid adverse 

effects on the availability of marine 

mammals for subsistence purposes, 

USACE lists its planned measures in 

section 3 of the POC (Mitigation for 

Subsistence Uses of Marine Mammals), 

including that it will coordinate with 

local subsistence communities and take 

action to avoid or mitigate impacts to 

subsistence harvests. Since publication 

of the proposed IHA, USACE has further 

updated this list to indicate that it will 

coordinate with Tribal Leadership to 

develop culturally-appropriate 

information and educational materials 

for the Port of Nome construction 

workforce. 

A POC is intended to guide and 

reflect engagement with subsistence 

communities to ensure that marine 

mammal subsistence-related concerns 

are resolved. It is not intended to guide 

resolution of non-subsistence 

community concerns. Regarding 

resolution of subsistence-related 

concerns raised throughout this IHA 

process, please see responses to 

Comments 37, 38, 40, 43, 46, 47, and 49. 

USACE stated in section 3 of the POC 

(Mitigation for Subsistence Uses of 

Marine Mammals) that it will continue 

to coordinate with local subsistence 

groups throughout the duration of 

project activities. Without knowing 

what future conflicts may arise, USACE 

cannot anticipate exactly how such 

conflicts will be resolved. The final IHA 

requires USACE to coordinate with local 

subsistence communities, as described 

in its POC, and to take action to avoid 

or mitigate impacts to subsistence 

harvests. Mitigation may include 

relocating or rescheduling construction 

activities. 

Comment 44: A commenter 

recommended that the USACE establish 

a constructive relationship with 

subsistence users before the project 

begins. The commenter stated that as 

the POC is currently drafted, it 

communicates a message of: ‘‘We 

(USACE) plan; you (Tribes and Tribal 

organizations) cooperate.’’ We want to 

change that message to: ‘‘We (USACE, 

Tribes, and Tribal organizations) plan; 

we cooperate.’’ In a related comment, a 

commenter stated that the USACE failed 

to meaningfully discuss the proposed 

IHA in any detail thus far. The 

commenter stated that it appears that 

relationship building with the 

underserved community of Nome will 

fail unless a dramatic shift is made to 

the proposed IHA. The commenter 

asserts that the USACE cannot be 

depended on to carry out relationship 

building as required by the MMPA and 

perhaps other laws with the 

underserved community of Nome. 

Response: NMFS agrees that 

establishing constructive relationships 

with communities is an important part 

of conducting effective coordination, 

including coordinating to avoid impacts 

to subsistence hunting from the Port of 

Nome modification activities. As such, 

NMFS has in some instances required, 

and in other instances recommended, 

that USACE implement many of the 

recommendations provided by 

commenters on the proposed IHA with 

regard to engagement with communities 

on subsistence issues, POC content and 

distribution, and mitigation measures 

for subsistence hunting. Please see 

NMFS’ responses to 24, 32, 42, 43, 44, 

and 49 for additional information. 

Further, NMFS conducts a 30-day 

public comment period on all proposed 

IHAs to allow the public to comment 

and make recommendations on 

proposed IHAs. 

Comment 45: A commenter stated that 

because USACE’s project poses a 

significant impact to the human 

environment, (1) NMFS must restrict the 

IHA’s effective dates to May 1, 2024 to 

July 30, 2024, allow for review, and if 

approved, renew the IHA to be effective 

until October 2024, and (2) the IHA 

must be subject to review and comanagement by a body of subsistence 

users appointed by local Tribes. The 

commenter stated that the comanagement body should be given the 


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authority to oversee the IHA. It should 

receive regular weekly reports and be 

given the authority to revoke the IHA if 

there are infractions or if it is shown 

that impacts are not negligible. The 

commenter also recommended that 

PSOs be subject to co-management body 

review and subject to face to face 

interview by the co-management body. 

The commenter asserted that NMFS is 

required to address and allow for comanagement via the MMPA in a broad 

context. 

Response: Regarding the commenter’s 

recommendation to issue a biannual 

authorization, NMFS does not find that 

a biannual authorization is appropriate. 

In its analysis, NMFS evaluated the 

impacts of the USACE’s planned 

activities over the duration of a year and 

appropriately made its findings based 

on that analysis. Therefore, the effective 

period of the IHA remains May 1, 2024 

through April 30, 2025. 

Regarding the commenter’s comanagement requests, NMFS (through 

the Secretary of Commerce) is 

authorized under section 119(a) of the 

MMPA to enter into agreements with 

Alaska Native organizations (defined in 

the MMPA as ‘‘a group designated by 

law or formally chartered which 

represents or consists of Indians, Aleuts, 

or Eskimos residing in Alaska’’) to 

provide co-management of subsistence 

use by Alaska Natives. There is nothing 

in section 119 or section 101(a)(5)(D) to 

suggest that co-management of an IHA 

is appropriate. 

That said, section 101(a)(5)(D) 

contains specific requirements for IHAs 

when subsistence uses of marine 

mammals may be implicated. This 

includes, among other things, a finding 

by NMFS that the taking will not have 

an unmitigable adverse impact on the 

availability of marine mammals for 

taking for subsistence uses, and 

inclusion of required measures in an 

IHA to effect the least practicable 

adverse impact on the availability of the 

species or stocks for taking for 

subsistence uses (often referred to in 

shorthand as mitigation). Section 

101(a)(5)(D) also requires IHAs to 

include monitoring requirements. 

NMFS regulations for IHAs specify that 

we may require an IHA-holder in Arctic 

waters to designate at least one qualified 

biological observer or another 

appropriately experienced individual to 

monitor impacts on marine mammals. 

For this IHA, NMFS has required the 

use of PSOs and has described the 

necessary qualifications and training for 

such PSOs. NMFS has recognized the 

value of Alaska Native traditional 

knowledge and the IHA allows for PSO 

candidates to substitute Alaska Native 

traditional knowledge for other forms of 

experience, while acknowledging that 

PSOs with traditional knowledge may 

also have prior observer experience, and 

may be eligible to serve as the lead PSO. 

In addition, the IHA includes 

numerous provisions specifically 

designed to protect subsistence use of 

marine mammals. The IHA requires 

USACE to and meet with local 

subsistence communities at least once 

prior to the start of the construction 

season and provide weekly updates, 

including contact information for 

USACE project personnel, during the 

construction season. Further, USACE 

must update and redistribute its POC as 

additional meetings with subsistence 

communities are planned and executed, 

and it must clearly describe how all 

concerns related to subsistence hunting 

of marine mammals have been 

addressed. 

We also note that much of the project 

season avoids traditional ice seal 

harvest windows, which would be 

expected to avoid impacts to hunting of 

ice seals during much of the project 

season. USACE is required to coordinate 

with local subsistence communities, 

notify the communities of any changes 

in the operation, and take action to 

avoid or mitigate impacts to subsistence 

harvests. 

Finally, NMFS disagrees with the 

commenter’s view that issuance of the 

IHA will have a significant impact on 

the human environment, as described in 

its response to Comment 52. 

Comment 46: Commenters asserted 

community engagement efforts from the 

Port of Nome and USACE have been 

poor and have not adequately addressed 

subsistence-related concerns, and they 

are not confident that the USACE will 

improve moving forward or comply 

with required measures. Commenters 

raised the following related concerns: 

• There was never a meeting that 

could have considered subsistence-level 

needs or perspectives on how 

construction might interfere with the 

ability for subsistence users to access 

marine resources. 

• The City of Nome and USACE 

cannot be depended on to carry out 

mitigation, community engagement, 

develop a meaningful POC, address 

community impacts to the human 

environment or subsistence uses, or to 

carry out the IHA provisions if the IHA 

is approved. 

• The public may not rely upon the 

USACE to monitor marine mammal 

harassment consistently during the 

construction season and maintain 

communication with subsistence users 

to employ adaptive measures to mitigate 

conflict with subsistence activities. 

Response: NMFS thanks the 

commenter for the concerns it has raised 

regarding adequately addressing 

subsistence-related concerns. While the 

commenter noted that the USACE met 

with the PRP prior to the PRP making 

its recommendations, this was a 

presentation from USACE specifically 

about the marine mammal monitoring 

activities that it intends to conduct in 

Year 1 under its requested IHA, not 

human impacts from the project. 

NMFS’ action is limited to the 

authorization of take of marine 

mammals. NMFS does not have the 

authority to consider community 

engagement or impacts to the human 

environment resulting from the activity, 

other than engagement related to and 

potential impacts on subsistence uses of 

marine mammals. The MMPA 

implementing regulations require that 

USACE identify subsistence-related 

concerns that arise in community 

meetings, as well as how those concerns 

have been resolved. NMFS recognizes 

that for meetings earlier in the planning 

process, notes from these meetings are 

not always available. However, USACE 

has updated its POC to reflect a more 

comprehensive record of its community 

engagement regarding the Port of Nome 

project, and the final IHA includes 

requirements that address many of these 

concerns, including concerns about 

disruption to marine mammals and the 

rights of subsistence users, such as a 

requirement for USACE to indicate in 

the educational materials that it 

develops for the Port of Nome 

construction workforce that Alaska 

Natives have the right to customary and 

traditional harvest of marine mammals 

in marine waters, including in and 

around the Port area when subsistence 

opportunities present themselves. 

Further, NMFS is requiring the USACE 

to continue to meet with affected 

communities both prior to and while 

conducting the activity to resolve 

conflicts (e.g., avoid or mitigate impacts) 

and to notify the communities of any 

changes in the operation. USACE states 

that it is coordinating with Nome 

Eskimo Community, King Island Native 

Community, Village of Solomon, and 

the Native Village of Council to 

reschedule the postponed October 2022 

meeting, which will be focused on 

subsistence-related concerns. The final 

IHA requires USACE to meet with local 

subsistence communities at least once 

prior to the start of the construction 

season and provide weekly updates, 

including contact information for 

USACE project personnel, during the 

construction season. USACE must 

update and redistribute the POC as 


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additional meetings are planned and 

executed and must ensure that all 

concerns from the meetings are 

summarized in the POC. The POC must 

clearly describe how all concerns 

related to subsistence hunting of marine 

mammals have been addressed. 

Distribution of the POC must include all 

Tribes within the Nome region as 

indicated in Kawerak, Inc.’s point of 

contact list. 

Regarding the comments that 

community engagements must be 

honored if an IHA is approved, and the 

USACE must be required to assess that 

the POC is succeeding by ensuring 

engagement with the subsistence 

community, NMFS concurs that USACE 

must continue to conduct community 

engagement related to subsistence 

hunting (see NMFS’ response to 

Comments 24, 32, 42, 43, 44 and 49). 

However, it is unclear what the 

commenter is suggesting by assessing 

whether the POC is succeeding. 

Regarding the commenter’s concern 

about USACE and the City of Nome 

dependably carrying out mitigation, 

monitoring, and engagement with 

subsistence users to adaptively mitigate 

conflicts with subsistence activities, 

USACE has received numerous previous 

ITAs from NMFS for which it has 

implemented the required measures 

(though USACE has not requested or 

received an ITA for a project in the 

Arctic in the recent past). The IHA is a 

legally-binding document, and there are 

repercussions should the USACE not 

comply. Non-compliance could result in 

the suspension or revocation of the IHA, 

and should USACE take a marine 

mammal and not be compliant with the 

measures required in the final IHA, 

USACE would be in violation of the 

MMPA and could be subject to potential 

enforcement actions. Of note, mitigation 

measures will be called for by PSOs, 

which must be independent of the 

activity contractor (for example, 

employed by a subcontractor). As such, 

NMFS anticipates that USACE will 

successfully implement the 

requirements in this IHA as well. The 

final IHA includes required measures 

for marine mammal monitoring and 

mitigation as well as coordination with 

subsistence communities to avoid or 

mitigate impacts to subsistence harvests, 

as described above in this response. 

Please see NMFS’ response to Comment 

5 regarding IHAs vs ITRs. 

Comment 47: A commenter expressed 

concerns about the lack of subsistence 

features in the feasibility design of the 

project and actions that the City of 

Nome has or has not taken that 

complicate subsistence activities. The 

commenter stated that there were 

numerous Nome subsistence hunters 

that are hunting bearded seal and 

walrus and launching from the 

unimproved beach of the Snake River 

below Belmont Point. The commenter 

stated that Nome subsistence hunters 

are not afforded any improved boat 

launches, and there are no subsistence 

features in the feasibility design. 

Further, the commenter states that the 

City of Nome has piled snow at the 

unimproved boat launch that makes it 

frustrating for subsistence users to even 

launch their boats. Further, gold miners 

who come to Nome for the offshore gold 

mining season displace subsistence 

users from their traditional boat launch 

locations at Belmont Point and can 

crowd out subsistence users. The 

commenter stated that the City of Nome 

does not seem to care if subsistence 

users are displaced, which shows the 

immense lack of regard the City of 

Nome has for subsistence users’ ability 

to conduct subsistence activities and 

shows if the IHA is approved it will 

impact subsistence users. 

In a related comment, a commenter 

stated that the proposed takings will 

likely have an unmitigable adverse 

impact on the availability of marine 

mammal populations for subsistence 

uses. Specifically, a commenter stated 

that the Snake River mouth where the 

Port of Nome is located is, and always 

has been, a subsistence use area for 

Inupiaq people, traditionally known as 

Sanispit. The commenter described the 

importance of subsistence harvests of 

marine mammals to Alaska Native 

peoples and stated that the take of 

marine mammals with increased 

development of Port of Nome will be 

devastating to Alaska Native peoples 

and their cultures. 

Response: NMFS thanks the 

commenters for the detail they provided 

regarding subsistence hunting in the 

area as well as existing and potential 

conflicts with other uses of the area. 

Regarding the commenter’s concern 

about piling of snow at the unimproved 

boat launch, while NMFS’ authority to 

consider impacts of an activity on 

marine mammals and subsistence uses 

of marine mammals are limited to 

consideration of the impacts of the 

activity for which NMFS is authorizing 

take (i.e., the construction activities 

rather than the end result of the 

construction), NMFS has raised this 

concern to USACE. USACE states that 

the City of Nome acknowledges this 

concern, and it will take action to 

ensure that the current snow removal 

plans are modified to accommodate a 

spring vessel launch area at the beach. 

USACE states that while this location is 

outside of the project area, the City of 

Nome will continue to ensure that 

subsistence hunters have unfettered 

beach access to launch their vessels as 

desired. 

Regarding the concern that the takings 

will have an unmitigable adverse 

impact, NMFS has strengthened the 

required measures related to subsistence 

hunting in the final IHA to ensure that 

the construction activities covered 

under the IHA do not have an 

unmitigable adverse impact on 

subsistence hunting. The final IHA 

requires USACE to coordinate with local 

subsistence communities, notify the 

communities of any changes in the 

operation, and take action to avoid or 

mitigate impacts to subsistence harvests. 

Further, the final IHA requires USACE 

to meet with local subsistence 

communities at least once prior to the 

start of the construction season and 

provide weekly updates, including 

contact information for USACE project 

personnel, during the construction 

season. USACE must update and 

redistribute its POC as additional 

meetings are planned and executed and 

must ensure that all concerns from the 

meetings are summarized in the POC. 

The POC must clearly describe how all 

concerns related to subsistence hunting 

of marine mammals have been 

addressed. USACE must also indicate in 

the educational materials that it 

develops for the Port of Nome 

construction workforce that Alaska 

Natives have the right to customary and 

traditional harvest of marine mammals 

in marine waters, including in and 

around the Port area when subsistence 

opportunities present themselves. These 

requirements for USACE to enhance its 

communication with subsistence 

communities, resolve all concerns 

related to subsistence hunting of marine 

mammals, and document the resolution 

of those concerns, will ensure that the 

specified activities will not have an 

‘‘unmitigable adverse impact’’ on the 

subsistence uses of the affected marine 

mammal species or stocks by Alaskan 

natives. 

Comment 48: A commenter stated that 

if an IHA is approved, the USACE 

should be required to undertake more 

responsibility than ensuring copies of 

the IHA are in the possession of the 

Holder of the Authorization, 

supervisory construction personnel, 

lead PSOs, and any other relevant 

designees of the Holder operating under 

the authority of the IHA. Every person 

working for the project must fully 

understand that disturbances to marine 

mammals are highly controversial, the 

current POC is deficient, the USACE’s 

community engagement has been poor 

to the underserved community of Nome, 


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and residents of Nome are opposed to 

the project and concerned about its 

impact upon the community. Every 

worker must place a high value on 

ensuring mandates of the IHA are 

achieved, PSOs must be allowed to 

carry out their job. The commenter 

recommends that a copy of the IHA, if 

approved, should be placed in The 

Nome Nugget at least once per month 

that construction is taking place. The 

lack of proper training for construction 

supervisors and crews, the monitoring 

team, and USACE staff prior to the start 

of activities could lead to a failure to 

understand their responsibilities and 

the communication procedures that 

must be followed. The commenter 

asserts that this could result in mistakes 

being made during construction that 

could cause irreparable harm to marine 

mammals and the human environment. 

If there is no adequate understanding of 

operational procedures of the IHA prior 

to construction activities, then it is 

likely that subsistence engagement, 

which is critical for indigenous people’s 

cultural practices, may be put at risk. 

Without proper training in advance of 

construction activities, there is a higher 

likelihood of mistrust of the process. A 

lack of training regarding monitoring 

protocols could prevent adequate 

discovery and assessment of marine 

mammal impacts caused by these 

activities. 

Response: NMFS concurs with the 

commenter that it is of utmost 

importance that all staff involved in the 

construction project understand their 

role in complying with the IHA and are 

properly trained, as that understanding 

is necessary to ensure that the measures 

in the IHA are implemented as required. 

NMFS disagrees with the commenter 

that every person working for the 

project should be informed that 

disturbances to marine mammals are 

highly controversial or that the current 

POC is deficient. Individuals 

responsible for implementing measures 

in the IHA are responsible for doing so 

regardless of the level of controversy, 

and the POC has been updated. 

Regarding the commenter’s 

recommendation that every person 

working for the project must fully 

understand that USACE’s community 

engagement has been poor to the 

underserved community of Nome and 

that the residents of Nome are opposed 

to the project and concerned about its 

impact upon the community, NMFS 

does not have the authority to 

implement such requirements. Further, 

NMFS expects USACE to conduct 

additional engagement with subsistence 

communities between now and May 

2024 when construction is anticipated 

to start. NMFS has passed along this 

comment to USACE for its 

consideration. 

NMFS concurs with the commenter 

that every worker should place a high 

value on ensuring that the requirements 

of the IHA are achieved, though it is not 

possible to mandate or enforce. NMFS 

further concurs that PSOs must be 

allowed to carry out their job. Please see 

the Visual Monitoring section of this 

notice for additional information on 

PSO requirements. 

NMFS disagrees with the commenter 

that publishing a copy of the IHA in The 

Nome Nugget at least once per month 

that construction is taking place is 

appropriate, as it is the USACE that is 

responsible for complying with the IHA, 

rather than the public. In addition, a 

copy of the final IHA will be 

continuously available to the public on 

NMFS’ website at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-constructionactivities. 

Regarding the commenters’ concerns 

about a lack of training resulting in 

impacts to subsistence hunting, the final 

IHA includes a requirement for USACE 

to coordinate with local subsistence 

communities to avoid or mitigate 

impacts to subsistence harvests, as 

described in USACE’s POC. As required 

by measure 3(d) of the IHA, USACE 

must ensure that the appropriate staff 

are adequately trained in order to 

successfully implement requirements 

related to engaging with subsistence 

communities and avoiding impacts to 

subsistence hunting, as well as all other 

requirements in the IHA. 

Comment 49: A commenter 

recommended that the USACE schedule 

and hold meetings with the groups 

listed below, as there have been no POC 

or IHA-specific meetings, and what little 

meetings there have been have often 

been remote. The commenter stated that 

because community meetings have not 

taken place specific to the IHA, the 

USACE has not described the measures 

the USACE plans to take to minimize 

adverse effects on marine mammal 

subsistence use, and consequently, 

Nome subsistence users have not been 

able to provide feedback to the USACE 

or NMFS regarding the proposed IHA in 

a community engagement setting. The 

USACE has not described how it will 

engage with subsistence users which 

must happen before an IHA is approved. 

• The subsistence community; 

• Ice Seal Commission (likely meant 

Committee); 

• Alaska Beluga Whale Committee; 

and 

• Eskimo Walrus Commission. 

Response: NMFS concurs that 

thorough engagement with subsistence 

users and groups is necessary in order 

to fully understand the subsistencerelated concerns. NMFS further concurs 

with the commenter that it is 

appropriate for USACE to conduct 

meetings with the suggested groups 

(noting that walrus are under the 

jurisdiction of the USFWS, not NMFS), 

and USACE has updated is POC to 

reflect that it intends to do so and also 

include them in its POC distribution. 

Determinations 

Comment 50: A commenter stated that 

NMFS is proposing to authorize up to 

5,718 incidental takes of marine 

mammals. The commenter further stated 

that 5,718 takes is by no means small 

and is comparable to all Alaska Native 

subsistence harvest of marine mammals 

across the state. Other commenters 

stated that the Port of Nome IHA does 

not comply with the MMPA because it 

authorizes the taking of more than 

‘‘small numbers’’ of marine mammals. 

The commenters stated that even 

looking at 1 year of this multi-year 

project, it is clear that more than ‘‘small 

numbers’’ of marine mammals will be 

taken. For example, the IHA authorizes 

the take of 2,554 bearded seals of the 

Beringia stock, which is listed as a 

threatened species under the 

Endangered Species Act, and for which 

there is no accurate population estimate. 

It authorizes the take of 1,275, or 

approximately 10 percent of the Eastern 

Bering Sea beluga whale population. 

These are not small numbers in 1 year, 

and they certainly would not qualify as 

small numbers when multiplied by the 

7 years that this project is likely to 

occur. 

Response: First, of important note, the 

takes authorized for all species by this 

IHA are for Level B harassment only, 

with anticipated reactions in the form of 

avoidance of the construction area, 

increased swimming speeds, increased 

surfacing time, or decreased foraging— 

no injury, serious injury, or mortality is 

anticipated or authorized for any 

species. 

As stated in the Small Numbers 

section of the proposed IHA (88 FR 

27464, May 2, 2023) and this final IHA, 

NMFS compares the number of 

individuals taken to the most 

appropriate estimation of abundance of 

the relevant species or stock in our 

determination of whether an 

authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is fewer than one-third of the 

species or stock abundance, the take is 

considered to be of small numbers. 


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Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

As noted in the Changes from the 

Proposed IHA to Final IHA section of 

this notice, NMFS has updated the take 

estimates in this final IHA for bearded 

seal (995 takes by Level B harassment), 

ribbon seal (5 takes by Level B 

harassment), and ringed seal (51 takes 

by Level B harassment) due to an 

updated understanding of the year 1 

project activities. Further, this final IHA 

includes two takes by Level B 

harassment of bowhead whale, as 

recommended by a commenter (see 

Comment 6). Our analysis shows that 

less than one-third of the best available 

population abundance estimate of each 

stock could be taken by harassment. 

Comment 51: Commenters stated that 

the authorized activities will likely have 

more than a negligible impact, in part 

because the public was not invited to 

participate in peer review, the peer 

review report was not made available to 

the public, there will be no site-specific 

data, and community engagement has 

been incredibly poor. Commenters also 

stated that the mitigation measures and 

monitoring and reporting requirements 

are inadequate. 

Response: NMFS disagrees with the 

assertion that the impacts to marine 

mammal species and stocks from the 

Port of Nome modification project will 

not be negligible. With the exception of 

that described in the comment 

summary, commenters have not 

provided support for this assertion. As 

described in the Negligible Impact 

Analysis and Determination section of 

this final IHA, based on the analysis 

contained herein of the likely effects of 

the specified activity on marine 

mammals and their habitat, and taking 

into consideration the implementation 

of the required monitoring and 

mitigation measures, NMFS finds that 

the total marine mammal take from the 

planned activity will have a negligible 

impact on all affected marine mammal 

species or stocks. Please see NMFS’ 

response to Comment 2 regarding sitespecific data, Comment 23 regarding the 

PRP report being inadvertently left off of 

NMFS’ website, Comment 24 regarding 

participation in the peer review, and 

Comments 24, 32, 42, 43, 44, and 49 

regarding community engagement. 

Regarding the assertion that the 

mitigation, monitoring, and reporting 

requirements are inadequate, the 

commenters did not provide support for 

this assertion nor recommendations for 

how to improve these requirements. As 

described in the Mitigation section, 

NMFS has included adequate measures 

to ensure the least practicable adverse 

impact on marine mammals species and 

their habitat and subsistence uses, and 

has also included appropriate 

monitoring and reporting requirements. 

Further, as described in the Changes 

from the Proposed IHA to Final IHA 

section, additional mitigation, 

monitoring, and reporting measures 

have been included in this final rule in 

consideration of input from the PRP and 

the public. Therefore, NMFS finds that 

the mitigation, monitoring, and 

reporting requirements in this final IHA 

are appropriate. 

National Environmental Policy Act 

Comment 52: A commenter stated that 

the proposed action is not eligible for a 

Categorical Exclusion because the Port 

of Nome modifications involve 

significantly expanding the size of the 

existing port which the commenter 

stated has resulted in the destruction of 

Alaska Native people, place and history. 

The commenter stated that the proposed 

construction adds new berths that will 

require additional utility systems, adds 

a significant amount of space to the 

existing port, dramatically changes the 

function of the Port from low draft to 

deep draft, would require subsistence 

users in small boats to navigate large 

vessel traffic that would have to make 

several large vessel maneuvers to enter 

and leave the Port as opposed to the 

current maneuvers of going straight in 

and straight out, and may dramatically 

impact the socio dynamics of the 

community which could pose impacts 

to the subsistence use of marine 

mammals. The Port of Nome 

modifications pose a significant impact 

upon the human environment. 

Response: For information regarding 

the USACE’s NEPA analysis, which 

analyzes impacts of USACE’s 

underlying action, including expanding 

the Port, deepening the channel, and 

increasing vessel traffic, please visit: 

https://www.poa.usace.army.mil/ 

Library/Reports-and-Studies/Port-ofNome-Modification-Project/. 

In determining whether a CE is 

appropriate for a given ITA, NMFS 

considers the applicant’s specified 

activity, in this case, in-water 

construction, and the potential extent 

and magnitude of the effects of the 

authorized ‘‘takes’’ of marine mammals 

associated with that activity along with 

the extraordinary circumstances listed 

in the Companion Manual for NOAA 

Administrative Order 216–6A. The 

evaluation of whether extraordinary 

circumstances (if present) have the 

potential for significant environmental 

effects is limited to the decision NMFS 

is responsible for, which is issuance of 

an ITA (NMFS’ action). While there may 

be environmental effects associated with 

the underlying action, such as those 

raised by the commenter, in the context 

of NEPA, the potential effects of NMFS’ 

action are limited to those that would 

occur due to the authorization of 

incidental take of marine mammals. 

NMFS has prepared numerous 

Environmental Assessments (EAs) 

analyzing the environmental impacts of 

authorizing take of marine mammals 

incidental to construction activities 

such as these, which resulted in 

Findings of No Significant Impacts. 

These EAs also address factors in 40 

CFR 1508.27 regarding the potential for 

significant impacts and demonstrate the 

issuance of ITAs for these types of 

construction activities do not 

individually or cumulatively have a 

significant effect on the human 

environment. For these reasons, only 

circumstances which are present and 

relevant to the issuance of this IHA are 

evaluated herein, and the use of a CatEx 

is appropriate for NMFS’ action of 

issuing an ITA for the Port of Nome 

construction activities. 

Other 

Comment 53: A commenter raised 

concerns about whether NMFS has 

incorporated guidance, policies, and 

requirements concerning equity, 

environmental justice, diversity, and 

engagement of underserved 

communities as well as barriers to 

engagement. While some of the specifics 

are not entirely clear, NMFS’ 

understanding of the comments is that 

the commenter is concerned about (1) 

‘‘hasty’’ USACE and NMFS actions, (2) 

procedural justice barriers, including 

the PRP report only being available for 

a portion of the public comment period, 

(3) the PRP not including Nome-based 

specialists, (4) impacts to an 

underserved and historically 

discriminated against population (i.e., 

Alaska Native people), (5) lack of 

discussion of the proposed action at a 

May 17, 2023 meeting, (6) lack of 

relationship building with the 

community, (7) lack of co-management 

of the IHAs, (8) lack of resolution to 

concerns raised to USACE and the City 

of Nome, and (9) variables of the Port of 

Nome and the proposed IHA that will 

dramatically impact community 

members’ liberty, way of life, and 

culture and traditions. The commenter 

stated that it is reasonable to conclude 

that the USACE and NMFS have acted 

outside of at least E.O. 14091 and 

perhaps others. The commenter stated 

that the USACE and NMFS should have 

asked our community members in an 

Equity and Environmental Justice 


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framework what works best for us before 

any decision was made to move 

forward. The commenter stated that in 

order to achieve the inclusion principle 

and develop the metric of advisory 

bodies that the Equity and 

Environmental Justice Strategy suggests, 

NMFS must reject the draft IHA, and if 

not, it must radically alter the draft IHA 

to achieve the inclusion mandate. 

Response: NMFS does not dictate the 

timeline of projects implemented by 

other agencies. However, NMFS 

disagrees with the commenter that it 

was hasty in processing this IHA. NMFS 

conducted a thorough review of Year 1 

of USACE’s planned project and its 

potential impacts on marine mammals 

and has thoughtfully considered 

appropriate mitigation and monitoring 

measures for marine mammals and 

subsistence uses under this IHA, 

including conducting a monitoring plan 

peer review as well as soliciting public 

comments on the proposed IHA. Please 

refer to NMFS’ response to Comment 23 

regarding availability of the PRP report 

during the public comment period. 

NMFS thanks the commenter for 

reviewing its newly published, May 

2023 NOAA Fisheries Equity and 

Environmental Justice Strategy. NMFS 

fully agrees that it is important to 

incorporate equity, environmental 

justice, diversity, and engagement of 

underserved communities into its 

actions and processes to the maximum 

extent possible. The strategy outlines 

goals and strategies for implementing 

equity and environmental justice in the 

agency’s work; however, it does not 

afford NMFS authorities beyond those 

afforded by the laws discussed therein. 

NMFS anticipates that USACE will 

likely request subsequent ITAs for 

project activities planned beyond Year 1 

of the Port of Nome Modification 

Project. NMFS is considering ways to 

improve its future engagement with 

subsistence users during processing of 

future ITAs to ensure adequate 

discussion, including potentially 

meeting with subsistence users in 

addition to any engagement with 

subsistence users through future PRPs. 

NMFS understands the concerns raised 

regarding short review periods as well 

as the composition of the PRP, and we 

are considering ways to improve our 

process in the future. 

Distribution of the POC is intended to 

empower subsistence communities by 

making them aware of upcoming 

meetings where they can express 

concerns about a project’s potential 

impacts to subsistence hunting of 

marine mammals and work with an IHA 

applicant (in this case, USACE) to 

resolve those concerns, as well as 

sharing what concerns have been raised 

at previous meetings. Regarding lack of 

discussion of the proposed action at a 

May 17, 2023 meeting, please refer to 

NMFS’ response to Comment 42. 

Regarding lack of relationship building 

with the community, please refer to 

NMFS’ response to Comment 44. 

Regarding lack of co-management of the 

IHAs, please refer to NMFS’ response to 

Comment 45. Regarding lack of 

resolution to concerns raised to USACE 

and the City of Nome, please refer to 

NMFS’ response to Comments 46 and 

60. Regarding variables of the Port of 

Nome and the proposed IHA that will 

dramatically impact community 

members’ liberty, way of life, and 

culture and traditions, please refer to 

NMFS’ response to Comments 41, 47, 

and 56. Please see NMFS’ response to 

Comment 23 regarding availability of 

the PRP report during the public 

comment period. 

Throughout the commenter’s letters, 

including related to some of the 

concerns raised above, the commenter 

raised a general concern that USACE 

will not comply with the requirements 

of the IHA, including those related to 

engagement of subsistence communities 

and protection of subsistence practices. 

It is important to note that the IHA is 

a legally-binding document, and should 

USACE take a marine mammal and not 

be compliant with the measures 

required in the final IHA, USACE would 

be in violation of the MMPA and could 

be subject to potential enforcement 

actions. 

Comment 54: If the proposed IHA is 

approved it should only be valid from 

May 1, 2024 until November 1, 2024 

which is the likely construction window 

before freeze up. 

Response: NMFS thanks the 

commenter for its recommendation. In 

its analysis, NMFS evaluated the 

impacts of the USACE’s planned 

activities over the duration of a year, 

and appropriately made its findings 

based on that analysis. Therefore, the 

effective period of the IHA remains May 

1, 2024 through April 30, 2025. 

Comment 55: A commenter stated that 

NMFS is proposing that it issue a onetime, 1-year Renewal IHA following 

notice to the public providing an 

additional 15 days for public comments 

when (1) up to another year of identical, 

or nearly identical activities are planned 

or (2) the specified activities will not be 

completed by the time the IHA expires 

and a Renewal would allow for 

completion of the activities, provided 

certain conditions are met. The 

commenter stated that the proposed 

one-time Renewal IHA comment period 

of 15 days provides insufficient time for 

the public to review and comment given 

the complexity of the activities 

proposed and how they impact marine 

mammals and the human environment. 

This violates the public’s right to be 

consulted on activities that could have 

a significant effect on their livelihoods. 

Response: NMFS has issued a 1-year 

IHA with the understanding that 

USACE can complete the planned work 

for which the IHA authorizes take 

within the 1-year period. If and when 

the USACE requests a renewal, NMFS 

will make the decision of whether or not 

to issue it based on current information 

and the best available science, and in 

adherence with the renewal criteria 

described in the notice of the proposed 

IHA (88 FR 27464, May 2, 2023). NMFS 

may issue a one-time, 1-year Renewal 

IHA if upon review of the request for 

Renewal, the status of the affected 

species or stocks, and any other 

pertinent information, NMFS 

determines that there are no more than 

minor changes in the activities, the 

mitigation and monitoring measures 

will remain the same and appropriate, 

and the findings in the initial IHA 

remain valid. The USACE has not 

requested a renewal at this time and 

NMFS is not proposing to issue one. 

While NMFS typically provides a 15- 

day comment period for renewal IHAs, 

a renewal covers identical, nearly 

identical, or a subset of the activities for 

which take was authorized in the 

original IHA and commented upon in 

the original 30-day public comment 

period. 

Comment 56: A commenter stated that 

expansion of the Port of Nome into a 

deep-water port will not only increase 

the already disruptive marine traffic, but 

it will alter the behavior of marine 

mammals and other species that rely on 

the Bering Strait for migration, breeding 

and birthing. Potential effects cannot be 

known, other than their behavior and 

patterns will adversely change as a 

result of the activities authorized here. 

In related comments, commenters stated 

that from the perspectives of local 

community members and emerging 

local leaders, the Port of Nome 

modification is a poor development 

decision that will permanently alter the 

ecosystem and human footprint leading 

to devastating changes to both marine 

species, Alaska Native culture and 

marine ecosystems. 

Response: NMFS concurs that Port of 

Nome modification activities may result 

in impacts to marine mammals in the 

form of behavioral disturbance (i.e., take 

by Level B harassment), and has 

analyzed those activities for Year 1 of 

the project herein. Regarding impacts to 

other species, NMFS does not have 


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authority over management of those 

species under the MMPA, and therefore, 

they are not discussed further. Further, 

NMFS’ authority to consider impacts of 

an activity on marine mammals are 

limited to consideration of the impacts 

of the activity for which NMFS is 

authorizing take (i.e., the construction 

activities rather than the end result of 

the construction). Given that the USACE 

is the proponent of the action itself (i.e., 

the overall Port of Nome modification), 

NMFS has passed this comment along to 

the USACE for its consideration with 

regard to impacts of the end result of 

this project, such as increased vessel 

traffic, impacts to marine species and 

ecosystems, and impacts to Alaska 

Native culture beyond those to 

subsistence hunting considered herein. 

Comment 57: Commenters stated that 

they find it deeply troubling that 

institutions are allowed a permit to 

harass protected species to shield 

themselves from accountability. The 

commenter stated that for the 

developers, this is ideal, but as a tribal 

and community member, this is a tool 

intentionally created without them to be 

used against them. 

Response: The MMPA 101(a)(5)(D) 

provides for and requires NMFS to 

process applications for incidental take 

of marine mammals. If this process, 

including opportunity for public 

involvement through comment, results 

in an issued IHA, that IHA must also 

incorporate mitigation, monitoring, and 

reporting requirements, as have been 

incorporated here, in order to minimize 

impacts to marine mammals. 

Comment 58: Commenters 

recommended that NMFS deny the 

USACE’s IHA application. Commenters 

stated that free, prior and informed 

consent is the number one priority in 

development. The commenters state that 

their community and outlying 

communities that will be affected by the 

Port of Nome project have not given 

free, prior and informed consent about 

this development project or the IHA, 

which does not comply with the 

MMPA. Further, a commenter stated 

that USACE has no right to ‘‘take’’ their 

protected species, as this goes against 

the MMPA. The commenter stated that 

they do not agree with non-natives 

killing, changing behavior and pushing 

away their much needed resources for 

survival. 

In a related comment, commenters 

stated that the announcement for the 

comment period on the proposed IHA 

was published on May 2, 2023, with a 

deadline for submission less than a 

month later on June 1, 2023. The 

commenters state that for this reason in 

particular, they suggest that the IHA be 

denied and USACE obtain free, prior 

and informed consent before continuing 

on with development. 

Further, commenters stated that noise 

pollution and disturbance from deep 

port development, for a period of at 

least 7 years, is not the only cause for 

concern for the auditory health of 

marine mammals, but the true adverse 

effects in this narrow and shallow body 

of water cannot be known. The 

commenters state that they, once again, 

strongly advise denial of the IHA and 

for further research into effects of 

disturbances in marine ecosystems for 

endangered marine mammals. 

Response: The MMPA requires that 

NMFS issue an ITA, provided the 

necessary findings are made for the 

specified activity put forth in the 

application and appropriate mitigation 

and monitoring measures are set forth, 

as described in the Background section 

of this notice. Please refer to that section 

for additional information. Such 

findings have been made, and therefore, 

NMFS has issued an IHA. Though, of 

note, neither NMFS nor USACE 

anticipates that the project activities 

would result in death of a marine 

mammal, and take by serious injury or 

mortality is not authorized. 

Regarding community engagement, 

the final IHA requires USACE to meet 

with local subsistence communities at 

least once prior to the start of the 

construction season and provide weekly 

updates, including contact information 

for USACE project personnel, during the 

construction season. USACE must 

update and redistribute the POC as 

additional meetings are planned, and 

executed and to ensure that all concerns 

from the meetings are summarized in 

the POC. The POC must be updated to 

clearly describe how any concerns 

related to subsistence hunting of marine 

mammals raised in these meetings have 

been addressed. Distribution of the POC 

must include all Tribes within the 

Nome region as indicated in Kawerak, 

Inc.’s point of contact list. Further, 

USACE is required to coordinate with 

local subsistence communities, as 

described in its POC, notify the 

communities of any changes in the 

operation, and take action to avoid or 

mitigate impacts to subsistence harvests. 

Regarding the duration of the public 

comment period, NMFS generally 

conducts 30-day comment periods on a 

proposed IHA, and continues to find 

that a 30-day public comment period 

was appropriate here. 

Regarding the commenter’s assertion 

that the project is not only cause for 

concern for the auditory health of 

marine mammals, but the true adverse 

effects in this narrow and shallow body 

of water cannot be known, NMFS does 

not have authority over impacts of a 

project other than those on marine 

mammals, their habitat, and subsistence 

uses of marine mammals. However, it is 

important to note that NMFS does not 

anticipate auditory injury of any marine 

mammals given that USACE is required 

to shut down pile driving activities if a 

marine mammal enters a shutdown 

zone, which in all cases are equal to or 

larger than the calculated Level A 

harassment zones. 

Comment 59: A commenter stated that 

the science behind this project is wrong 

and ignores the potential harm it could 

cause. The construction would disrupt 

marine wildlife in the area, as well as 

local fishing businesses that rely on 

sustainable practices. The people of 

Nome depend on justice being served 

and their livelihoods protected, which 

the Port of Nome fails to do. 

Response: The commenter does not 

provide information supporting the 

statement that the science is generally 

wrong. Please refer to NMFS’ responses 

to Comments in the Effects Analysis and 

Estimated Take sections regarding 

particular concerns that the commenter 

raised about NMFS’ assessment of the 

impacts of the project on marine 

mammals. NMFS’ action is limited to 

the take of marine mammals. NMFS 

does not have authority over an action 

itself (in this case, the Port of Nome 

Modification Project) or impacts of an 

action on local businesses. Regarding 

potential impacts to subsistence users of 

marine mammals, please see NMFS’ 

responses to Comments 37, 38, 40, 43, 

46, 47, and 49. 

Comment 60: Commenters raised 

multiple concerns about the Port of 

Nome project, including: 

• Coastal erosion; 

• Housing shortages during 

construction; 

• Inadequate funding for the project; 

• Inadequate justifications for the 

project (e.g., national security, port 

capacity); 

• USACE and the City of Nome’s lack 

of tribal engagement; 

• Project cost sharing; 

• Misleading information that Port of 

Nome modifications can be 

recommended according to 33 U.S. 

Code section 2242—Remote and 

subsistence harbors authorizations; 

• Potential violence against Alaska 

Native women; 

• Flow of the currents around the 

project; 

• Impacts of the project on salmon 

and birds; 

• Destruction of Sitnasuak Native 

Corporations lands because of an influx 

of people; 


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• Dust mitigation; and 

• Strain on emergency services. 

Response: NMFS thanks the 

commenter for the thorough feedback it 

has provided on the Port of Nome 

project. NMFS’ action is limited to the 

authorization of take of marine 

mammals (or denial of such an 

authorization). It is not associated with, 

and does not have authority over the 

specified activity itself, including, but 

not limited to, the reason for the project, 

the project design, etc. The MMPA 

requires that NMFS issue an ITA, 

provided the necessary findings are 

made for the specified activity put forth 

in the application and appropriate 

mitigation and monitoring measures are 

set forth, as described in the 

Background section of this notice. The 

MMPA nor NMFS’ implementing 

regulations require or allow for NMFS to 

consider the justification for an 

applicant’s action nor the economic or 

socioeconomic implications of the 

project on the surrounding community. 

Further, NMFS does not have authority 

over how USACE or the City of Nome 

engages with Tribes or other members of 

the community on issues other than 

those that pertain to impacts on 

subsistence uses of marine mammals 

from the activity itself, not the result of 

the activity (in this case, an expanded 

Port of Nome). USACE stated that it has 

held numerous government-togovernment consultations and 

subsequent staff-level consultations 

throughout the lifespan of this project, 

as reflected in Table 2–1 of the POC. It 

further stated that government-togovernment meetings cover any range of 

topics that the Tribes would like to 

discuss with USACE. 

Further, NMFS does not have 

authority over impacts of an activity on 

birds nor salmon under section 

101(a)(5(D) of the MMPA (the authority 

under which this IHA was developed). 

However, USACE considered impacts 

from the Port of Nome Modification 

project on both salmon and birds in its 

EA. The EA can be accessed at: https:// 

www.poa.usace.army.mil/Library/ 

Reports-and-Studies/Port-of-NomeModification-Project/. Further, USACE 

consulted with NMFS pursuant to 

section 7 of the Endangered Species Act 

(ESA) for the Port of Nome Modification 

Project activities, and NMFS also 

consulted internally on the issuance of 

this IHA under section 101(a)(5)(D) of 

the MMPA. However, there are no ESAlisted salmon in the project area. 

NMFS has provided these comments 

to USACE for its consideration. 

Changes From the Proposed IHA to 

Final IHA 

Changes from the proposed to final 

IHA are summarized here and included, 

with additional detail where 

appropriate, in the associated sections 

in this notice. 

Since publication of the proposed 

IHA, NMFS’ understanding of the year 

1 project activities slightly changed. 

USACE will extend the causeway 

incrementally as part of its Year 1 

activities by installing rip rap. The 

causeway will be extended in advance 

of pile driving activities, which will 

occur on the harbor side of the new 

causeway extension. USACE estimates 

that the causeway will extend 

approximately 200 feet (ft; 61 m) beyond 

the pile driving location at any given 

time. However, the exact distance will 

be determined by the construction 

contractor, and may be as little as 50 ft 

(15.2 m). As a result of this revised 

understanding of the activity, NMFS 

anticipates that the ensonified area will 

be close to 50 percent smaller. Rather 

than propagating in all directions from 

the project site, NMFS anticipates that 

the sound will propagate south/ 

southeast only. Therefore, NMFS has 

updated the analysis to reflect that the 

sound is expected to propagate directly 

to sea along the causeway to the south/ 

southeast. Further, NMFS has added a 

10-degree buffer to the zone toward the 

north/northwest to conservatively 

account for the potential that the 

causeway may not be a full 200 ft (61 

m) in advance of pile driving (and 

therefore, not block the sound from 

propagating to a small degree toward the 

north/northwest). Related to this 

change, USACE is not required to have 

a PSO stationed to the west of the 

project as initially proposed. 

NMFS made several changes to the 

estimated take of marine mammals since 

publication of the proposed IHA. First, 

as recommended by a public 

commenter, NMFS added two takes by 

Level B harassment of bowhead whale 

to this final IHA. Further, given the 

change in the understanding of the 

ensonified area, NMFS has updated the 

estimated take for stocks with densitybased take estimate calculations 

(instances of take reduced in all cases). 

Therefore, this final IHA authorizes 995 

takes of bearded seal, 5 takes of ribbon 

seal, and 51 takes of ringed seal. 

NMFS made changes to the required 

mitigation measures in this final IHA as 

described below. NMFS corrected an 

error in the shutdown zone for 

pinnipeds during vibratory driving of 

sheet piles. This final IHA reflects a 

shutdown zone of 20 m rather than 30 

m. The 20 m shutdown zone still 

incorporates the full Level A harassment 

zones for pinnipeds, and therefore, 

Level A harassment is still not 

anticipated to result from this activity 

(or any other activities). Further, in 

consideration of a public comment, 

NMFS has updated the activity 

commencement/recommencement 

measure in the IHA to require USACE 

to wait 30 minutes prior to 

commencement or recommencement of 

pile driving that is halted or delayed to 

the presence of a marine mammal 

(unless the animal has voluntarily 

exited and been visually confirmed 

beyond the shutdown zone sooner). 

Last, the final IHA includes several new 

measures related to vessel transit. 

The notice of proposed IHA stated 

that USACE provided a draft POC to 

affected parties in October 2022; 

however, that statement was in error. 

USACE later clarified that while it 

provided a draft to NMFS at that time, 

it circulated the POC among the listed 

recipients on August 28, 2023. NMFS 

has clarified this in the Mitigation for 

Subsistence Uses of Marine Mammals or 

Plan of Cooperation section of this 

notice of final IHA. Further, the final 

IHA clarified an existing requirement to 

now state that USACE must coordinate 

with local subsistence communities, 

notify the communities of any changes 

in the operation, and take action to 

avoid or mitigate impacts to subsistence 

harvests. Further, the final IHA includes 

a requirement that USACE must meet 

with local subsistence communities at 

least once prior to the start of the 

construction season and provide weekly 

updates, including contact information 

for USACE project personnel, during the 

construction season. USACE must 

update and redistribute the POC as 

additional meetings are planned, and 

executed and to ensure that all concerns 

from the meetings are summarized in 

the POC. The POC must clearly describe 

how all concerns related to subsistence 

hunting of marine mammals have been 

addressed. Distribution of the POC must 

include all Tribes within the Nome 

region as indicated in Kawerak, Inc.’s 

point of contact list. Additionally, as 

recommended by a commenter on the 

proposed IHA, USACE must indicate in 

the educational materials that it 

develops for the Port of Nome 

construction workforce that Alaska 

Natives have the right to customary and 

traditional harvest of marine mammals 

in marine waters, including in and 

around the Port area when subsistence 

opportunities present themselves. 

Additionally, NMFS made several 

changes to the final IHA to incorporate 

recommendations from the PRP. The 


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final IHA includes a requirement for 

USACE to conduct PAM for marine 

mammals as well as SFV for sheet pile 

driving. Please see the Acoustic 

Monitoring section of this notice for 

additional information. Further, the 

final IHA requires PSOs to rotate every 

4 hours and not work more than 12 

hours within a 24-hour period. 

Additionally, one PSO must monitor for 

8 hours per day for 1 week before and 

1 week after pile driving activities 

(weather and ice permitting). USACE is 

also required to conduct a statistical 

power analysis to estimate the 

minimum number of sightings or 

sample size required for pre- and postmonitoring periods in order to detect an 

effect in marine mammal presence due 

to the construction disturbance (i.e., 

whether the pre- and post-monitoring 

periods were of a sufficient length). As 

also recommended by the PRP, NMFS is 

requiring the lead PSO to have at least 

1 year of prior experience performing 

the duties of a PSO during construction 

activity pursuant to a NMFS-issued ITA, 

and this PSO must be stationed at the 

construction site. As recommended for 

fender pile installation, if, and when, 

USACE drives fender piles, it must 

conduct a minimum of one aerial 

overflight to assist in estimating species 

presence in the far field during fender 

pile installation. USACE will conduct 

two aerial overflights if it determines 

that it is practicable to do so. 

Description of Marine Mammals in the 

Area of Specified Activities 

Sections 3 and 4 of the application 

summarize available information 

regarding status and trends, distribution 

and habitat preferences, and behavior 

and life history of the potentially 

affected species. NMFS fully considered 

all of this information, and we refer the 

reader to these descriptions instead of 

reprinting the information. Additional 

information regarding population trends 

and threats may be found in NMFS’ 

Stock Assessment Reports (SARs; 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-stock-assessments) 

and more general information about 

these species (e.g., physical and 

behavioral descriptions) may be found 

on NMFS’ website (https://

www.fisheries.noaa.gov/find-species). 

Table 1 lists all species or stocks for 

which take is expected and authorized 

for this activity, and summarizes 

information related to the population or 

stock, including regulatory status under 

the MMPA and ESA and potential 

biological removal (PBR), where known. 

PBR is defined by the MMPA as the 

maximum number of animals, not 

including natural mortalities, that may 

be removed from a marine mammal 

stock while allowing that stock to reach 

or maintain its optimum sustainable 

population (as described in NMFS’ 

SARs). While no serious injury or 

mortality is anticipated or proposed to 

be authorized here, PBR and annual 

serious injury and mortality from 

anthropogenic sources are included here 

as gross indicators of the status of the 

species or stocks and other threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’ stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All managed 

stocks in this region are assessed in 

NMFS’ U.S. Alaska SARs (e.g., Muto et 

al. 2022). All values presented in Table 

1 are the most recent available at the 

time of publication (including from the 

draft 2022 SARs) and are available 

online at: https://www.fisheries.

noaa.gov/national/marine-mammalprotection/marine-mammal-stockassessments). 

TABLE 1—MARINE MAMMAL SPECIES 1 LIKELY TO OCCUR NEAR THE PROJECT AREA THAT MAY BE TAKEN BY USACE’S

ACTIVITIES

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 2

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 3

PBR Annual 

M/SI 4

Order Artiodactyla—Cetacea—Mysticeti (baleen whales) 

Family Eschrichtiidae: 

Gray Whale ......................... Eschrichtius robustus ................ Eastern N Pacific ...................... -, -, N 26,960 (0.05, 25,849, 

2016).

801 131 

Family Balaenidae: 

Bowhead whale .................. Balaena mysticetus ................... Western Arctic .......................... E, D, Y 14,025 (0.228, 11,603, 

2019).

116 56 

Family Balaenopteridae 

(rorquals): 

Minke Whale ....................... Balaenoptera acutorostrata ...... AK ............................................. -, -, N N/A (N/A, N/A, N/A) 5 ...... UND 0 

Odontoceti (toothed whales, dolphins, and porpoises) 

Family Delphinidae: 

Killer Whale ........................ Orcinus orca ............................. Eastern North Pacific Alaska 

Resident.

-, -, N 1,920 6 (N/A, 1,920, 

2019).

19 1.3 

Killer Whale ........................ Orcinus orca ............................. Eastern North Pacific Gulf of 

Alaska, Aleutian Islands and 

Bering Sea Transient.

-, -, N 587 6 (N/A, 587, 2012) .... 5.9 0.8 

Family Monodontidae (white 

whales): 

Beluga Whale ..................... Delphinapterus leucas .............. Eastern Bering Sea .................. -,-, N 12,269 (0.118, 11,112, 

2017).

267 226 

Family Phocoenidae (porpoises): 

Harbor Porpoise ................. Phocoena phocoena ................. Bering Sea ................................ -, -, Y UNK (UNK, N/A, 2008) 7 UND7 0.4 

Order Carnivora—Pinnipedia 

Family Otariidae (eared seals 

and sea lions): 


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TABLE 1—MARINE MAMMAL SPECIES 1 LIKELY TO OCCUR NEAR THE PROJECT AREA THAT MAY BE TAKEN BY USACE’S

ACTIVITIES—Continued 

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 2

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 3

PBR Annual 

M/SI 4

Steller Sea Lion .................. Eumetopias jubatus .................. Western ..................................... E, D, Y 52,932 8 (N/A, 52,932, 

2019).

318 254 

Family Phocidae (earless seals): 

Bearded Seal ...................... Erignathus barbatus .................. Beringia ..................................... T, D, Y UND (UND, UND, 

2013) 9.

9 UND 6,709 

Ribbon Seal ........................ Histriophoca fasciata ................ Unidentified ............................... -, -, N 184,697 (N/A, 163,086, 

2013).

9,785 163 

Ringed Seal ........................ Pusa hispida ............................. Arctic ......................................... T, D, Y UND (UND, UND, 

2013) 10.

10 UND 6,459 

Spotted Seal ....................... Phoca largha ............................. Bering ........................................ -, -, N 461,625 (N/A, 423,237, 

2013).

25,394 5,254 

1 Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy’s Committee on Taxonomy 

(https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)). 2ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be 

declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA 

as depleted and as a strategic stock. 3 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. 4These values, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, 

ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. 5 Reliable population estimates are not available for this stock. Please see Friday et al. (2013) and Zerbini et al. (2006) for additional information on numbers of 

minke whales in Alaska. 6 Nest is based upon counts of individuals identified from photo-ID catalogs. 

7The best available abundance estimate and Nmin are likely an underestimate for the entire stock because it is based upon a survey that covered only a small portion of the stock’s range. PBR for this stock is undetermined due to this estimate being older than 8 years. 8 Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys. 

9 Reliable population estimate for the entire stock not available. PBR is based upon the negatively biased Nmin for bearded seals in the U.S. portion of the stock. 

10A reliable population estimate for the entire stock is not available. Using a sub-sample of data collected from the U.S. portion of the Bering Sea, an abundance 

estimate of 171,418 ringed seals has been calculated, but this estimate does not account for availability bias due to seals in the water or in the shore fast ice zone at 

the time of the survey. The actual number of ringed seals in the U.S. portion of the Bering Sea is likely much higher. Using the Nmin based upon this negatively biased population estimate, the PBR is calculated to be 4,755 seals, although this is also a negatively biased estimate. 

As indicated above, all 11 species 

(with 12 managed stocks) in Table 1 

temporally and spatially co-occur with 

the activity to the degree that take is 

reasonably likely to occur. All species 

that could potentially occur in the 

project area are included in Table 3–1 

of USACE’s IHA application. While 

these species could occur in the area, 

the temporal and/or spatial occurrence 

of these species is such that take is not 

expected to occur, and they are not 

discussed further beyond the 

explanation provided here. Cuvier’s 

beaked whale, Central North Pacific 

humpback whale, Dall’s porpoise, 

harbor seal, Pacific white-sided dolphin, 

sperm whale, Stejneger’s beaked whale, 

blue whale, Western North Pacific gray 

whale, bowhead whale, North Pacific 

right whale, sei whale, Northern fur seal 

could all occur in the project area. We 

do not anticipate take of Cuvier’s beaked 

whale, Cook Inlet beluga whale, Dall’s 

porpoise, Pacific white-sided dolphin, 

sperm whale, Stejneger’s beaked whale, 

blue whale, and Western North Pacific 

gray whale as these species’ and stocks’ 

ranges generally do not extend as far 

north as Nome. While it is possible that 

beluga whales from the Eastern Chukchi 

Sea and Beaufort Sea stocks could occur 

in the project area during the winter, 

spring, and fall, as both stocks migrate 

between the Bering and Beaufort seas 

(Citta et al. 2017), animals from the 

Beaufort Sea stock depart the Bering Sea 

in early spring, migrate through the 

Chukchi Sea and into the Canadian 

waters of the Beaufort Sea where they 

remain in the summer and fall, and 

return to the Bering Sea in late fall 

(NMFS 2022c; i.e., are generally not 

expected to occur in the project area 

during the planned work period). 

Animals from the Eastern Chukchi Sea 

stock depart the Bering Sea in late 

spring and early summer, migrate 

through the Chukchi Sea and into the 

western Beaufort Sea where they remain 

in the summer, and return to the Bering 

Sea in the fall (NMFS 2022c). Tagging 

data from Citta et al. (2017) found that 

belugas from the Eastern Chukchi Sea 

and Beaufort Sea stocks moved into the 

central and southern Bering Sea during 

winter months, but did not move into 

Norton Sound (Citta et al. 2017). 

Therefore, given that both stocks are 

already unlikely to occur in the project 

area during most or all of the work 

period, and the animals in Citta et al. 

(2017) did not enter Norton Sound, 

animals from these stocks are not 

anticipated to be taken by project 

activities. Bowhead whale, North Pacific 

right whale, sei whale, Northern fur 

seal, fin whale, Western North Pacific 

humpback whale, are considered rare in 

Nome. While some of the species or 

stocks listed herein could occur on the 

vessel transit route, as noted above, we 

do not anticipate take of marine 

mammals due to vessel transit. 

In addition, the Pacific walrus may be 

found in Nome, AK. However, Pacific 

walrus (Odobenus rosmarus divergens) 

are managed by the USFWS and are not 

considered further in this document. 

A detailed description of the of the 

species likely to be affected by the Port 

of Nome project, including brief 

introductions to the species and 

relevant stocks as well as available 

information regarding population trends 

and threats, and information regarding 

local occurrence, were provided in the 

Federal Register notice for the proposed 

IHA (88 FR 27464, May 2, 2023); since 

that time, we are not aware of any 

changes in the status of these species 

and stocks; therefore, detailed 

descriptions are not provided here. 

Please refer to that Federal Register 

notice for these descriptions. Please also 

refer to NMFS’ website (https://

www.fisheries.noaa.gov/find-species) for 

generalized species accounts. 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 


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underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Not all marine mammal 

species have equal hearing capabilities 

(e.g., Richardson et al. 1995; Wartzok 

and Ketten 1999; Au and Hastings 

2008). To reflect this, Southall et al. 

(2007, 2019) recommended that marine 

mammals be divided into hearing 

groups based on directly measured 

(behavioral or auditory evoked potential 

techniques) or estimated hearing ranges 

(behavioral response data, anatomical 

modeling, etc.). Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). Subsequently, NMFS (2018) 

described generalized hearing ranges for 

these marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65 decibel 

(dB) threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in Table 2. 

TABLE 2—MARINE MAMMAL HEARING GROUPS (NMFS 2018) 

Hearing group Generalized hearing 

range * 

Low-frequency (LF) cetaceans (baleen whales) ..................................................................................................................... 7 Hz to 35 kHz. 

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ........................................... 150 Hz to 160 kHz. 

High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus cruciger & L. 

australis).

275 Hz to 160 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals) ................................................................................................................... 50 Hz to 86 kHz. 

Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .............................................................................................. 60 Hz to 39 kHz. 

* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ 

hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, 

with the exception for lower limits for LF cetaceans (Southall et al. 2007) and PW pinniped (approximation). 

The pinniped functional hearing 

group was modified from Southall et al. 

(2007) on the basis of data indicating 

that phocid species have consistently 

demonstrated an extended frequency 

range of hearing compared to otariids, 

especially in the higher frequency range 

(Hemila ̈ et al. 2006; Kastelein et al. 

2009; Reichmuth and Holt 2013). 

For more detail concerning these 

groups and associated frequency ranges, 

please see NMFS (2018) for a review of 

available information. 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

The effects of underwater noise from 

USACE’s construction activities have 

the potential to result in behavioral 

harassment of marine mammals in the 

vicinity of the survey area. The notice 

of proposed IHA (88 FR 27464, May 2, 

2023) included a discussion of the 

effects of anthropogenic noise on marine 

mammals and the potential effects of 

underwater noise from USACE’s 

construction activities on marine 

mammals and their habitat. That 

information and analysis is incorporated 

by reference into this final IHA 

determination and is not repeated here; 

please refer to the notice of proposed 

IHA (88 FR 27464, May 2, 2023). 

Estimated Take of Marine Mammals 

This section provides an estimate of 

the number of incidental takes 

authorized through this IHA, which will 

inform both NMFS’ consideration of 

‘‘small numbers,’’ and the negligible 

impact determinations. 

Harassment is the only type of take 

expected to result from these activities. 

Except with respect to certain activities 

not pertinent here, section 3(18) of 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). 

Authorized takes would be by Level B 

harassment only, in the form of 

disruption of behavioral patterns and/or 

TTS for individual marine mammals 

resulting from exposure to construction 

activities. Based on the nature of the 

activity and the anticipated 

effectiveness of the mitigation measures 

(i.e., implementation of shutdown 

zones) discussed in detail below in the 

Mitigation section, Level A harassment 

is neither anticipated nor authorized. 

As described previously, no serious 

injury or mortality is anticipated or 

authorized for this activity. Below we 

describe how the authorized take 

numbers are estimated. 

For acoustic impacts, generally 

speaking, we estimate take by 

considering: (1) acoustic thresholds 

above which NMFS believes the best 

available science indicates marine 

mammals will be behaviorally harassed 

or incur some degree of permanent 

hearing impairment; (2) the area or 

volume of water that will be ensonified 

above these levels in a day; (3) the 

density or occurrence of marine 

mammals within these ensonified areas; 

and, (4) the number of days of activities. 

We note that while these factors can 

contribute to a basic calculation to 

provide an initial prediction of potential 

takes, additional information that can 

qualitatively inform take estimates is 

also sometimes available (e.g., previous 

monitoring results or average group 

size). Below, we describe the factors 

considered here in more detail and 

present the take estimates. 

Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 

received level of underwater sound 

above which exposed marine mammals 

would be reasonably expected to be 

behaviorally harassed (equated to Level 

B harassment) or to incur PTS of some 

degree (equated to Level A harassment). 

Level B Harassment—Though 

significantly driven by received level, 

the onset of behavioral disturbance from 

anthropogenic noise exposure is also 

informed to varying degrees by other 

factors related to the source or exposure 

context (e.g., frequency, predictability, 

duty cycle, duration of the exposure, 

signal-to-noise ratio, distance to the 

source), the environment (e.g., 

bathymetry, other noises in the area, 

predators in the area), and the receiving 

animals (hearing, motivation, 

experience, demography, life stage, 

depth) and can be difficult to predict 

(e.g., Southall et al. 2007, 2021; Ellison 


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et al. 2012). Based on what the available 

science indicates and the practical need 

to use a threshold based on a metric that 

is both predictable and measurable for 

most activities, NMFS typically uses a 

generalized acoustic threshold based on 

received level to estimate the onset of 

behavioral harassment. NMFS generally 

predicts that marine mammals are likely 

to be behaviorally harassed in a manner 

considered to be Level B harassment 

when exposed to underwater 

anthropogenic noise above root-meansquared pressure received levels (RMS 

SPL) of 120 dB (referenced to 1 

micropascal (re 1 mPa)) for continuous 

(e.g., vibratory pile-driving) and above 

RMS SPL 160 dB re 1 mPa for nonexplosive impulsive (e.g., seismic 

airguns) or intermittent (e.g., scientific 

sonar) sources. Generally speaking, 

Level B harassment take estimates based 

on these behavioral harassment 

thresholds are expected to include any 

likely takes by TTS as, in most cases, 

the likelihood of TTS occurs at 

distances from the source less than 

those at which behavioral harassment is 

likely. TTS of a sufficient degree can 

manifest as behavioral harassment, as 

reduced hearing sensitivity and the 

potential reduced opportunities to 

detect important signals (conspecific 

communication, predators, prey) may 

result in changes in behavior patterns 

that would not otherwise occur. 

USACE’s activity includes the use of 

continuous (vibratory pile driving) and 

impulsive (impact pile driving) sources, 

and therefore the RMS SPL thresholds 

of 120 and 160 dB re 1 mPa are 

applicable. 

Level A harassment—NMFS’ 

Technical Guidance for Assessing the 

Effects of Anthropogenic Sound on 

Marine Mammal Hearing (Version 2.0) 

(Technical Guidance, 2018) identifies 

dual criteria to assess auditory injury 

(Level A harassment) to five different 

marine mammal groups (based on 

hearing sensitivity) as a result of 

exposure to noise from two different 

types of sources (impulsive or nonimpulsive). USACE’s planned activity 

includes the use of impulsive (impact 

pile driving) and non-impulsive 

(vibratory pile driving) sources. 

These thresholds are provided in the 

Table 3. The references, analysis, and 

methodology used in the development 

of the thresholds are described in 

NMFS’ 2018 Technical Guidance, which 

may be accessed at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance. 

TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

Hearing group 

PTS onset acoustic thresholds * 

(received level) 

Impulsive Non-impulsive 

Low-Frequency (LF) Cetaceans ...................................... Cell 1 Lpk,flat: 219 dB; LE,LF,24h: 183 dB .......................... Cell 2 LE,LF,24h: 199 dB. 

Mid-Frequency (MF) Cetaceans ...................................... Cell 3 Lpk,flat: 230 dB; LE,MF,24h: 185 dB ......................... Cell 4 LE,MF,24h: 198 dB. 

High-Frequency (HF) Cetaceans ..................................... Cell 5 Lpk,flat: 202 dB; LE,HF,24h: 155 dB ......................... Cell 6 LE,HF,24h: 173 dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7 Lpk,flat: 218 dB; LE,PW,24h: 185 dB ........................ Cell 8 LE,PW,24h: 201 dB. 

Otariid Pinnipeds (OW) (Underwater) ............................. Cell 9 Lpk,flat: 232 dB; LE,OW,24h: 203 dB ........................ Cell 10 LE,OW,24h: 219 dB. 

* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should 

also be considered. 

Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. 

In this table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure 

is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being 

included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated 

with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF 

cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level 

thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for 

action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. 

Ensonified Area 

Here, we describe operational and 

environmental parameters of the activity 

that are used in estimating the area 

ensonified above the acoustic 

thresholds, including source levels and 

transmission loss coefficient. 

The sound field in the project area is 

the existing background noise plus 

additional construction noise from the 

planned project. Marine mammals are 

expected to be affected via sound 

generated by the primary components of 

the project (i.e., pile driving and 

removal). The maximum (underwater) 

area ensonified above the thresholds for 

behavioral harassment referenced above 

is 752 km2 (290 mi2), and the calculated 

distance to the farthest behavioral 

harassment isopleth is approximately 

21.5 km (13.4 mi). 

The project includes vibratory pile 

installation and removal and impact 

pile driving. Source levels for these 

activities are based on reviews of 

measurements of the same or similar 

types and dimensions of piles available 

in the literature. Source levels for each 

pile size and activity are presented in 

Table 4. Source levels for vibratory 

installation and removal of piles of the 

same diameter are assumed to be the 

same. 

TABLE 4—SOUND SOURCE LEVELS FOR PILE DRIVING ACTIVITIES AT 10m 

Pile type 

Vibratory sound source levels Impact sound source levels 1

SPLRMS SEL Peak Literature source SPLRMS SEL Peak Literature source 

Temporary template piles (Pipe 

piles ≤24-in).

154.0 144.0 Not Available ............ Caltrans (2020) ........ 189.0 178.0 203.0 Caltrans (2015). 

Alternate Temporary template piles 

(H-piles 14-in).

150.0 147.0 165.0 ........................ Caltrans (2020) ........ 178.0 166.0 200.0 Caltrans (2020). 

Anchor piles (14-in HP14x89 or 

similar).

150.0 147.0 165.0 ........................ Caltrans (2020) ........ 178.0 166.0 200.0 Caltrans (2020). 

Sheet piles (20-in PS31 or similar) 160.7 161.1 171.5 ........................ PND (2016, 2020) .... 189.0 179.0 205.0 Caltrans (2015). 


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TABLE 4—SOUND SOURCE LEVELS FOR PILE DRIVING ACTIVITIES AT 10m—Continued 

Pile type 

Vibratory sound source levels Impact sound source levels 1

SPLRMS SEL Peak Literature source SPLRMS SEL Peak Literature source 

Fender piles (Pipe piles 36-in) ........ 170.0 159.0 191.0 ........................ Caltrans (2015) ........ 193.0 183.0 210.0 Caltrans (2015). 

1 USACE anticipates that all piles would be installed/removed using a vibratory hammer. However, if conditions prevent successful installation with a vibratory hammer, USACE would use an impact hammer to complete installation. 

Transmission loss (TL) is the decrease 

in acoustic intensity as an acoustic 

pressure wave propagates out from a 

source. TL parameters vary with 

frequency, temperature, sea conditions, 

current, source and receiver depth, 

water depth, water chemistry, and 

bottom composition and topography. 

The general formula for underwater 

TL is: 

TL = B * Log10 (R1/R2), 

where 

TL = transmission loss in dB 

B = transmission loss coefficient 

R1 = the distance of the modeled SPL from 

the driven pile, and 

R2 = the distance from the driven pile of the 

initial measurement 

Absent site-specific acoustical 

monitoring with differing measured 

transmission loss, a practical spreading 

value of 15 is used as the transmission 

loss coefficient in the above formula. 

Site-specific transmission loss data for 

the Port of Nome are not available; 

therefore, the default coefficient of 15 is 

used to determine the distances to the 

Level A harassment and Level B 

harassment thresholds. 

The ensonified area associated with 

Level A harassment is more technically 

challenging to predict due to the need 

to account for a duration component. 

Therefore, NMFS developed an optional 

User Spreadsheet tool to accompany the 

Technical Guidance that can be used to 

relatively simply predict an isopleth 

distance for use in conjunction with 

marine mammal density or occurrence 

to help predict potential takes. We note 

that because of some of the assumptions 

included in the methods underlying this 

optional tool, we anticipate that the 

resulting isopleth estimates are typically 

going to be overestimates of some 

degree, which may result in an 

overestimate of potential take by Level 

A harassment. However, this optional 

tool offers the best way to estimate 

isopleth distances when more 

sophisticated modeling methods are not 

available or practical. For stationary 

sources such as pile driving, the 

optional User Spreadsheet tool predicts 

the distance at which, if a marine 

mammal remained at that distance for 

the duration of the activity, it would be 

expected to incur PTS. Inputs used in 

the optional User Spreadsheet tool, and 

the resulting estimated isopleths, are 

reported below. 

TABLE 5—USER SPREADSHEET INPUTS

[Source levels provided in Table 4] 

Pile type Installation/ 

removal 

Minutes per pile 

(vibratory) 1

Strikes per 

pile 

(impact) 1

Piles per day 

Temporary template piles (Pipe piles ≤24-in) ...... Installation .................... 10 ................................. 20 20. 

Removal ....................... 10 ................................. ........................ 20. 

(Alternate) Temporary template piles (H-piles 

14-in).

Installation .................... 10 ................................. 20 (20). 

Removal ....................... (10) ............................... ........................ (20). 

Anchor piles (14-in HP14x89 or similar) ............. Installation .................... 10 ................................. 20 20. 

Sheet piles (20-in PS31 or similar) ..................... Installation .................... 10 (20 per pair) ............ 10 28 (14 pairs). 

Fender piles (Pipe piles 36-in) ............................ Installation .................... 10 ................................. 20 12. 

1 USACE anticipates that all piles would be installed/removed using a vibratory hammer. However, if conditions prevent successful installation 

with a vibratory hammer, USACE would use an impact hammer to complete installation. 

TABLE 6—LEVEL A HARASSMENT AND LEVEL B HARASSMENT ISOPLETHS FROM VIBRATORY AND IMPACT PILE DRIVING

Pile type 

Level A harassment isopleths (m) Level B 

harassment 

isopleth 

(m) LF MF HF PW OW 

Vibratory 

Temporary template piles (Pipe piles ≤24-in) .................................. 5 <1 7 3 <1 1,848 

(Alternate) Temporary template piles (H-piles 14-in) ...................... 3 <1 4 2 <1 1,000 

Anchor piles (14-in HP14x89 or similar) .......................................... 3 <1 4 2 <1 1,000 

Sheet piles (20-in PS31 or similar) .................................................. 18 2 27 11 <1 5,168 

Fender piles (Pipe piles 36-in) ......................................................... 43 4 64 26 2 21,544 

Impact 

Temporary template piles (Pipe piles ≤24-in) .................................. 252 9 300 135 10 858 

(Alternate) Temporary template piles (H-piles 14-in) ...................... 40 1 48 21 2 159 

Anchor piles (14-in HP14x89 or similar) .......................................... 40 1 48 21 2 159 

Sheet piles (20-in PS31 or similar) .................................................. 231 8 276 124 9 858 

Fender piles (Pipe piles 36-in) ......................................................... 386 14 459 206 15 1,585 


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Marine Mammal Occurrence and Take 

Calculation and Estimation 

In this section we provide information 

about the occurrence of marine 

mammals, including density or other 

relevant information that will inform 

the take calculations. We describe how 

the information provided is synthesized 

to produce a quantitative estimate of the 

take that is reasonably likely to occur 

and authorized. A summary of 

authorized take, including as a 

percentage of population for each of the 

species, is shown in Table 8. 

Bowhead Whale 

As stated in in the Description of 

Marine Mammals in the Area of 

Specified Activities section of the notice 

of proposed IHA (88 FR 27464, May 2, 

2023), NMFS understood bowhead 

whales were rare in Nome and that take 

of bowhead whale was unlikely to 

occur. However, during the public 

comment period, NMFS received 

multiple comments from Alaska Natives 

who hold traditional ecological 

knowledge about bowhead whales. One 

commenter stated that bowhead whales 

are occasionally seen off the coast of 

Nome by local residents and subsistence 

hunters. Another commenter stated that 

it has seen bowhead whales numerous 

times near the Port of Nome during their 

50 years of living in Nome. Therefore, 

NMFS has authorized two takes of 

bowhead whale by Level B harassment, 

though, as described in the Mitigation 

section, USACE is required to shut 

down if a PSO observes a bowhead 

whale in the Level B harassment zone, 

even though take is authorized. 

USACE is required to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities. Therefore, especially in 

combination with the already low 

frequency of bowhead whales entering 

the area, implementation of the required 

shutdown zones is expected to 

eliminate the potential for take by Level 

A harassment of bowhead whale. 

Therefore, NMFS did not authorize take 

by Level A harassment of bowhead 

whale. 

Gray Whale 

Various gray whale density and 

occurrence information is available for 

the Bering, Chukchi, and Beaufort Seas 

(e.g., Clarke et al. 2020; Ferguson et al. 

2018a). Ljungblad et al. (1982) and 

Ljungblad and Moore (1983) 

summarized aerial surveys conducted in 

the Bering Sea including the waters of 

Norton Sound in the early 1980s. Both 

reported gray whales feeding in large 

numbers in Norton Sound and waters 

near St. Lawrence Island. During the 

Chukchi Sea Environmental Studies 

Program (CSESP) a large number of gray 

whales (n = 55, including 2 calves) were 

observed feeding in late July 

approximately 130 km from the Port of 

Nome (Lomac-MacNair et al. 2022). 

During the Quintillion subsea fiber 

optic cable project three sightings of 

eight total gray whales were detected 

within 60 km of Nome, four during July 

and four during November 2016 (Blees 

et al. 2017). 

However, NMFS was unable to locate 

data describing frequency of gray whale 

occurrence or density within the project 

area or in Norton Sound more generally. 

USACE conducted monitoring at the 

project site on 19 calendar days during 

2019 and 2021. USACE did not detect 

gray whales during that monitoring, but 

they are known to occur in Norton 

Sound and have been sighted during 

previous aerial line-transect surveys in 

Norton Sound (personal 

communication; Megan Ferguson, 

February 21, 2023). 

NMFS estimates that a gray whale or 

group of gray whales may enter the 

project area periodically throughout the 

duration of the construction period, 

averaging one gray whale per week. 

Therefore, given the limited information 

in the project area to otherwise inform 

a take estimate, NMFS authorized 12 

takes by Level B harassment of gray 

whale. 

USACE is required to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities. Therefore, especially in 

combination with the already low 

frequency of gray whales entering the 

area, implementation of the required 

shutdown zones is expected to 

eliminate the potential for take by Level 

A harassment of gray whale. Therefore, 

USACE did not request take by Level A 

harassment of gray whale, nor did 

NMFS authorize any. 

Minke Whale 

Various minke whale density and 

occurrence information is available for 

the Bering, Chukchi, and Beaufort Seas 

(e.g., Clarke et al. 2020; Moore et al. 

2002). During CSESP surveys (2008– 

2014), minke whales were observed near 

the Port of Nome (Lomac-MacNair et al. 

2022). No minke whales were seen 

during monitoring efforts at Nome 

during the 2016 Quintillion subsea fiber 

optic cable project (Blees et al. 2017). 

NMFS was unable to locate data 

describing frequency of minke whale 

occurrence, group size, or density 

within the project area or in Norton 

Sound more generally. USACE did not 

detect minke whales during its 2019 and 

2021 monitoring, but they are known to 

occur in Norton Sound and have been 

sighted during previous aerial linetransect surveys in Norton Sound 

(personal communication; Megan 

Ferguson, February 21, 2023). 

NMFS estimates that a minke whale 

may enter the project area periodically 

throughout the duration of the 

construction period, averaging one 

minke whale per week. Therefore, given 

the limited information in the project 

area to otherwise inform a take estimate, 

NMFS authorized 12 takes by Level B 

harassment of minke whale. 

USACE is planning to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities. Therefore, especially in 

combination with the already low 

frequency of minke whales entering the 

area, implementation of the required 

shutdown zones is expected to 

eliminate the potential for take by Level 

A harassment of minke whale. 

Therefore, USACE did not request take 

by Level A harassment of minke whale, 

nor did NMFS authorize any. 

Killer Whale 

Limited information regarding killer 

whale occurrence in the Nome area is 

available. Waite et al. (2002) estimated 

391 (95 percent CI = 171–894) killer 

whales of all types in the southeastern 

Bering Sea using line-transect methods 

and indicates that density of killer 

whales is also high in this area (.0025 

whales per km2). During the Quintillion 

subsea fiber optic cable project, a single 

killer whale was recorded within 60 km 

of Nome during July 2016 (Blees et al. 

2017). USACE did not detect killer 

whales during its 2019 and 2021 

monitoring. 

NMFS estimates that 2 groups of 15 

killer whales may enter the project area 

over the duration of the construction 

period. Therefore, given the limited 

information in the project area to 

otherwise inform a take estimate, NMFS 

conservatively authorized 30 takes by 

Level B harassment of killer whale (2 

groups of 15 animals). NMFS anticipates 

that these takes could occur to the 

Eastern North Pacific Alaska Resident 

stock, the Eastern North Pacific Gulf of 

Alaska, Aleutian Islands, and Bering Sea 

Transient stock, or some combination of 

the two. 

USACE is planning to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities. Therefore, especially in 

combination with the already low 

occurrence of killer whales in the area, 

implementation of the required 

shutdown zones is expected to 

eliminate the potential for take by Level 


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A harassment of killer whale. Therefore, 

USACE did not request take by Level A 

harassment of killer whale, nor did 

NMFS authorize any. 

Harbor Porpoise 

Moore et al. (2002) reported density 

estimates for harbor porpoise derived 

from vessel survey data collected on 

visual line transect surveys for 

cetaceans in the central–eastern Bering 

Sea (CEBS) in July and August 1999 and 

in the southeastern Bering Sea (SEBS) in 

June and July 2000. Harbor porpoise 

were seen throughout the coastal (shore 

to 50 m) and middle shelf (50–100 m) 

zones in the SEBS with sighting in the 

coastal zone over four times that of the 

middle shelf zone. Relatively few harbor 

porpoise were reported in the CEBS. 

Density for harbor porpoise in the CEBS 

was 0.0035 porpoise/km2 and in the 

SEBS was 0.012 animals/km2. During 

the Quintillion subsea fiber optic cable 

project four sightings of 8 total harbor 

porpoise were recorded within 60 km of 

Nome, four each during July and August 

2016 (Blees et al. 2017). USACE 

detected one harbor porpoise during its 

2019 and 2021 monitoring. 

Clarke et al. (2019) indicated a 

maximum group size of four harbor 

porpoise in the Distribution and 

Relative Abundance of Marine 

Mammals in the Eastern Chukchi and 

Western Beaufort Seas, 2018 Annual 

Report (Clarke et al. 2019). NMFS 

estimates that one group of four harbor 

porpoise may enter the project area 

every other week during the 

construction period. Therefore, given 

the limited information in the project 

area to otherwise inform a take estimate, 

NMFS conservatively authorized 24 

takes by Level B harassment of harbor 

porpoise (1 groups of 4 animals × 6 

weeks). 

USACE is planning to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities, and it did not request 

take by Level A harassment of harbor 

porpoise. For some activities (i.e., 

impact driving of fender piles), the 

shutdown zones extend farther than 

PSOs may be able to reliably detect 

harbor porpoise. However, given the 

portion of the zone within which PSOs 

could reliably detect a harbor porpoise, 

the infrequency of harbor porpoise 

observations during USACE’s 2019 and 

2021 monitoring, and harbor porpoise 

sensitivity to noise, NMFS does not 

anticipate take by Level A harassment of 

harbor porpoise, nor did NMFS 

authorize any. 

Beluga Whale 

Beluga whales use Norton Sound 

during the entire open-water season, 

generally moving to southern Bering Sea 

waters during winter due to high ice 

concentrations in Norton Sound. During 

the spring and summer, beluga whales 

tend to concentrate in the eastern half 

of the Sound (Oceana and Kawerak 

2014), but the whales may be seen 

migrating in large numbers close to the 

shoreline near Nome in late autumn 

(ADFG 2012). Jewett (1997) stated 

beluga whales ‘‘appear nearshore with 

the onset of herring spawning in early 

summer and feed on these as well as a 

wide variety of other fish congregating 

or migrating nearshore.’’ They are often 

seen passing very close to the end of the 

Nome causeway during the fall 

migration and have been occasionally 

spotted within the Nome Outer Basin 

(USACE personal communication with 

Charlie Lean, 2019). Large groups of 

beluga have been observed in fall in 

front of Cape Nome and near Topkok 

(Oceana and Kawerak 2014). In 2012, 

two beluga whales from the Eastern 

Bering Sea stock were tagged near 

Nome. Prior to being tagged both were 

known to range throughout Norton 

Sound. The first of the two tagged 

belugas left Norton Sound in early 

November and the second departed in 

mid-November (Citta et al. 2017). No 

beluga whales were seen during 

monitoring efforts at Nome during the 

2016 Quintillion subsea fiber optic cable 

project (Blees et al. 2017). 

USACE detected 129 beluga whales (n 

= 75 during September 2019, n = 45 

during September 2021, and n = 12 

during October 2021) over 154 hours of 

monitoring on 19 days in 2019 and 

2021, making beluga whales the most 

frequently detected species during that 

monitoring period. Assuming that 

USACE would conduct a 12-hour work 

day on average, the pre-activity 

monitoring suggests a detection rate of 

approximately 10 beluga whales per 

day. 

NMFS conservatively estimates that 

15 beluga whales may enter the project 

area per day throughout the 

construction period. While 15 is higher 

than the detection rate reported from 

USACE’s 2019 and 2021 monitoring, the 

monitoring was conducted by one or 

two PSOs, and therefore, only a fraction 

of the area that would comprise the 

Level B harassment zones for this 

project was observed. Therefore, NMFS 

conservatively authorized 1,275 takes by 

Level B harassment of beluga whale (15 

animals × 85 days). 

USACE is planning to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities. Therefore, 

implementation of the required 

shutdown zones is expected to 

eliminate the potential for take by Level 

A harassment of beluga whale. 

Therefore, USACE did not request take 

by Level A harassment of beluga whale, 

nor did NMFS authorize any. 

Steller Sea Lion 

USACE did not observe any Steller 

sea lions during the 2019 and 2021 

monitoring. Additional data regarding 

Steller sea lion occurrence in the Nome 

area is very limited. However, Steller 

sea lions are known to occur in the area, 

and observations suggest that Steller sea 

lions are becoming common in the 

northern Bering Sea, including Norton 

Sound. Sea lions have been detected 

hauling out in small numbers at Sledge 

Island, about 22 mi (35.4 km) west of 

Nome. Their change in range is perhaps 

attributed to climate-change-driven, 

northward movement of pelagic fish 

prey species, such as Pacific cod 

(USACE personal communication with 

Gay Sheffield, 2018). Further, during the 

Quintillion subsea fiber optic cable 

project in August 2016, a Steller sea lion 

was detected within 60 km of Nome 

(Blees et al. 2017). 

NMFS conservatively estimates that 

one Steller sea lion may enter the 

project area per day during the 

construction period. Therefore, given 

the limited information in the project 

area to otherwise inform a take estimate, 

NMFS conservatively authorized 85 

takes by Level B harassment of Steller 

sea lion (1 animal × 85 days). 

USACE is planning to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities. Therefore, especially in 

combination with the already low 

occurrence of Steller sea lion in the 

area, implementation of the required 

shutdown zones is expected to 

eliminate the potential for take by Level 

A harassment of Steller sea lion. 

Therefore, USACE did not request take 

by Level A harassment of Steller sea 

lion, nor did NMFS authorize any. 

Spotted Seal 

Most summer and fall concentrations 

of Norton Sound spotted seals are in the 

eastern portion of the Sound, where 

herring and small cod are more 

abundant. However, spotted seals are 

regularly seen at the Port of Nome and 

within the harbor area, especially before 

or after the busy summer season, 

sometimes hauled out on the beach or 

breakwater (USACE personal 

communication with Charlie Lean, 

2019). Since the construction of the new 


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entrance channel and east breakwater in 

2006, the existing Outer Basin at the 

Port of Nome has become the new river 

mouth and a sort of artificial lagoon of 

the Snake River. Seals and other marine 

mammals tend to congregate there, 

especially in the autumn (Oceana and 

Kawerak 2014). During the Quintillion 

subsea fiber optic cable project, a total 

of 10 spotted seals were recorded within 

60 km of Nome during July and August 

2016 (Blees et al. 2017). 

USACE detected 23 spotted seals 

during its 2019 and 2021 monitoring, 

making spotted seals the second most 

frequently detected species during that 

monitoring. Assuming that USACE 

would conduct a 12-hour work day on 

average, the pre-activity monitoring 

suggests a detection rate of 

approximately two spotted seals per 

day. 

NMFS conservatively estimates that 

20 spotted seals may enter the project 

area per day throughout the 

construction period. While 20 is higher 

than the detection rate reported from 

USACE’s 2019 and 2021 monitoring, the 

monitoring was conducted by one or 

two PSOs, and therefore, only a fraction 

of the area that would comprise the 

Level B harassment zones for this 

project was observed. Therefore, NMFS 

conservatively authorized 1,700 takes by 

Level B harassment of spotted seals (20 

animals × 85 days). 

USACE is planning to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities. Therefore, 

implementation of the required 

shutdown zones is expected to 

eliminate the potential for take by Level 

A harassment of spotted seal. Therefore, 

USACE did not request take by Level A 

harassment of spotted seal, nor did 

NMFS authorize any. 

Ringed Seal 

Near Nome, ringed seals often occur 

in the open water offshore from Cape 

Nome and Safety Sound (Oceana and 

Kawerak 2014). Surveys conducted in 

the Bering Sea in the spring of 2012 and 

2013 documented numerous ringed 

seals in both nearshore and offshore 

habitat extending south of Norton 

Sound (79 FR 73010, December 9, 2014; 

Muto et al. 2022). During the Quintillion 

subsea fiber optic cable project two 

ringed seals were recorded within 60 

km of Nome during July 2016 (Blees et 

al. 2017). Braham et al. (1984) reported 

ringed seal densities ranging from 0.005 

to 0.017 in the Bering Sea. Bengtson et 

al. (2005) reported ringed seal densities 

ranging from 1.62 to 1.91 in the Alaskan 

Chukchi Sea. Aerts et al. (2013) report 

combined ringed and spotted seal 

densities of 0.011 to 0.091 in the 

Northeastern Chukchi Sea. USACE did 

not detect ringed seals during its 2019 

and 2021 monitoring. 

Neither USACE nor NMFS were able 

to locate more recent occurrence or 

density information for ringed seals in 

or near Norton Sound, beyond that 

described above. Therefore, USACE 

estimated the density of ringed seals in 

the project area to be 0.02 seals/km2, 

slightly higher than the dated, but most 

local, Braham et al. (1984) Bering Sea 

densities. Unable to locate more recent 

data for the area, NMFS concurs with 

this estimate. 

To calculate take by Level B 

harassment of ringed seal, USACE 

multiplied the estimated density (0.02 

animals/km2) by the area of the Level B 

harassment zone for a given activity by 

the number of days that activity would 

occur (Table 7). NMFS concurs with this 

method and conservatively authorized 

51 takes by Level B harassment of 

ringed seal. 

TABLE 7—AREA OF LEVEL B HARASSMENT ZONES AND NUMBER OF DAYS ON WHICH EACH ACTIVITY WOULD OCCUR

Temporary 

template piles Anchor piles Sheet piles Fender piles 

Number of Days of Activity .............................................................................. a 24 2 57 2 

Level B Harassment Zone (km2) b ................................................................... 4.69 1.71 28.09 416.83 

a Installation and removal. 

bAs described in the Changes from the Proposed IHA to Final IHA section, since publication of the proposed IHA, given the change in NMFS’ 

understanding of the ensonified area since publication of the proposed IHA, NMFS has updated the Level B harassment zone sizes.

USACE is planning to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities. Therefore, 

implementation of the required 

shutdown zones is expected to 

eliminate the potential for take by Level 

A harassment of ringed seal. Therefore, 

USACE did not request take by Level A 

harassment of ringed seal, nor did 

NMFS authorize any. 

Ribbon Seal 

Ribbon seals occur in the Bering Sea 

from late March to early May. From May 

to mid-July the ice recedes, and ribbon 

seals move further north into the Bering 

Strait and the southern part of the 

Chukchi Sea (Muto et al. 2022). An 

estimated 6,000–25,000 ribbon seals 

from the eastern Bering Sea occur in the 

Chukchi Sea during the spring openwater period (Boveng et al. 2017). 

Braham et al. (1984) reported a 

maximum density of 0.002 seals/km2

from 1976 aerial surveys of ribbon seals 

in the Bering Sea. USACE did not detect 

ribbon seals during its 2019 and 2021 

monitoring. 

To calculate take by Level B 

harassment of ribbon seal, USACE 

multiplied the estimated density (0.002 

animals/km2) by the area of the Level B 

harassment zone for a given activity by 

the number of days that activity would 

occur (Table 7). NMFS concurs with this 

method and conservatively authorized 5 

takes by Level B harassment of ribbon 

seal. 

USACE is planning to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities. Therefore, especially in 

combination with the already low 

occurrence of ribbon seals in the area, 

implementation of the required 

shutdown zones is expected to 

eliminate the potential for take by Level 

A harassment of ribbon seal. Therefore, 

USACE did not request take by Level A 

harassment of ribbon seal, nor did 

NMFS authorize any. 

Bearded Seal 

Braham et al. (1984) reported bearded 

seal densities ranging from 0.006 and 

0.782 seals per km2 in the Bering Sea. 

Bengtson et al. (2005) reported bearded 

seal densities ranging from 0.07 to 0.14 

seals/km2 in the Alaskan Chukchi Sea. 

In the spring of 2012 and 2013, U.S. and 

Russian researchers conducted aerial 

abundance and distribution surveys 

over the entire ice-covered portions of 

the Bering Sea (Moreland et al. 2013). 

Conn et al. (2014), using a sub-sample 

of the data collected from the U.S. 

portion of the Bering Sea in 2012, 

calculated a posterior mean density 

estimate using an effective study area of 

767,114 km2 of 0.39 bearded seals/km2

(95 percent CI 0.32–0.47). Results from 

2006 helicopter transect surveys over a 

279,880 km2 subset of the study area 


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calculated density estimates of 0.22 

bearded seals/km2 (95 percent CI 0.12– 

0.61; Ver Hoef et al. 2013). USACE 

detected one bearded seal during its 

2019 and 2021 monitoring. 

To calculate take by Level B 

harassment of bearded seal, USACE 

multiplied the estimated density (0.39 

animals/km2) by the area of the Level B 

harassment zone for a given activity by 

the number of days that activity would 

occur (Table 7). NMFS concurs with this 

method and conservatively authorized 

995 takes by Level B harassment of 

bearded seal. 

USACE is planning to implement 

shutdown zones that extend to or 

exceed the Level A harassment isopleth 

for all activities. Therefore, 

implementation of the required 

shutdown zones is expected to 

eliminate the potential for take by Level 

A harassment of bearded seal. 

Therefore, USACE did not request take 

by Level A harassment of bearded seal, 

nor did NMFS authorize any. 

TABLE 8—AUTHORIZED TAKE AND AUTHORIZED TAKE AS A PERCENTAGE OF STOCK ABUNDANCE

Species Stock 

Authorized 

take 

(Level B 

harassment 

only) 

Stock 

abundance 

Authorized 

take as a 

percentage of 

stock 

abundance 

Bearded Seal .................................................. Beringia .......................................................... a 995 N/A N/A 

Ribbon Seal .................................................... Unidentified .................................................... a 5 184,697 <1 

Ringed Seal .................................................... Arctic .............................................................. a 51 N/A N/A 

Spotted Seal ................................................... Bering ............................................................. 1,700 461,625 <1 

Steller sea lion ................................................ Western .......................................................... 85 b 52,932 <1 

Beluga whale .................................................. Eastern Bering Sea ........................................ 1,275 12,269 10 

Harbor Porpoise .............................................. Bering Sea ..................................................... 24 N/A N/A 

Killer Whale ..................................................... Eastern North Pacific Alaska Resident .......... 30 c 1,920 2 

Eastern North Pacific Gulf of Alaska, Aleutian Islands and Bering Sea Transient.

c 587 5 

Minke Whale ................................................... Alaska ............................................................. 12 N/A N/A 

Gray Whale ..................................................... Eastern North Pacific ..................................... 12 26,960 <1 

Bowhead Whale .............................................. Western Arctic ................................................ 2 14,025 <1 

N/A = Not applicable. 

aGiven the change in the understanding of the ensonified area described in the Changes from the Proposed IHA to Final IHA section, NMFS 

has updated the estimated take for stocks with density-based take estimate calculations (instances of take reduced in all cases). b Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys. 

c Nest is based upon counts of individuals identified from photo-ID catalogs. 

Effects of Specified Activities on 

Subsistence Uses of Marine Mammals 

The availability of the affected marine 

mammal stocks or species for 

subsistence uses may be impacted by 

this activity. The subsistence uses that 

may be affected and the potential 

impacts of the activity on those uses are 

described below. Measures included in 

this IHA to reduce the impacts of the 

activity on subsistence uses are 

described in the Mitigation section. 

Last, the information from this section 

and the Mitigation section is analyzed to 

determine whether the necessary 

findings may be made in the 

Unmitigable Adverse Impact Analysis 

and Determination section. 

Nome Census Area residents 

harvested 195.9 pounds of marine 

mammal per capita in 2017 (McKinley 

Research Group, 2022). The Snake River 

mouth where the Port of Nome is 

located is a subsistence use area for 

Inupiaq people, traditionally known as 

Sanispit, as described by a commenter 

on the proposed IHA. Some subsistence 

hunters launch their boats from the 

unimproved beach of the Snake River 

below Belmont Point, as also described 

by a commenter on the proposed IHA. 

During open-water months (May 

through October) species in the area 

harvested for subsistence uses include 

beluga whale, ice seals (ringed seal, 

bearded seal, ribbon seal, and spotted 

seal), and Steller sea lion. 

Eastern Bering Sea belugas are an 

important nutritional and cultural 

resource to Alaska Natives and are 

harvested by more than 20 communities 

in Norton Sound and the Yukon 

(Ferguson et al. 2018b). The Eastern 

Bering Sea stock of beluga whales are 

harvested by nine Norton Sound 

communities (Elim, Golovin, Koyuk, 

Nome/Council, Saint Michael, 

Shaktoolik, Stebbins, Unalakleet, and 

White Mountain; NSB 2022). In its 

comment letter on the proposed IHA, 

Kawerak, Inc., noted that ‘‘local 

subsistence hunters harvest multiple 

belugas near Nome annually. However, 

the Norton Sound beluga whale harvests 

are not required to be reported by any 

entity, so there is no accurate 

documentation of beluga whale harvest 

in Norton Sound.’’ Nome hunters 

harvest beluga on the west side of Cape 

Nome, all the way from Cape Nome to 

Nome, and from Nome west to Sledge 

Island (Oceana and Kawerak 2014). 

Beluga subsistence areas between spring 

and fall are documented between Cape 

Nome to Cape Darby and around the 

east coastline of Norton Sound to 

Stewart Island (Oceana and Kawerak 

2014). While beluga whales have been 

traditionally hunted in Norton Sound 

project impacts are not expected to 

reach traditional harvest areas. 

However, as described in a comment on 

the proposed IHA (88 FR 27464, May 2, 

2023), the Port of Nome causeway is an 

important lookout point for subsistence 

hunting of beluga whales in October, at 

the end of the barge season. 

Ice seals are also hunted within the 

Norton Sound region. Georgette et al. 

(1998) summarizes a subsistence survey 

of six Norton Sound-Bering Strait 

communities (Mainland coastal: Brevig 

Mission, Golovin, Shaktoolik, and 

Stebbins; Offshore: Savoonga and 

Gambell) between 1996 and 1997 and 

reports seals taken for subsistence in all 

months, with seasonal peaks in spring 

(May-June) and fall (SeptemberOctober). (A commenter on the 

proposed IHA (88 FR 27464, May 2, 

2023) noted that May- June is of 

particular importance.) Bearded seals, 

preferred for their large size and quality 

of meat, were harvested by all 

communities, but Gambell had the 

highest harvest rate of any community. 

Bearded seals are typically harvested in 

early summer as they migrate 

northward. Spotted seals, valued for 


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their skins, are reported in large 

numbers during ice-free months 

(Georgette et al. 1998). Spotted seals 

occur closer to shore, allowing for easier 

harvesting than bearded seals or walrus, 

which occur further from shore and for 

a shorter window as they migrate north 

more quickly (Oceana and Kawerak 

2014). Ringed seals, the most abundant 

and accessible, were harvested in all 

months and taken in higher numbers 

than other species from the mainland 

coastal communities. Ribbon seals are 

harvested less often than other seals 

because their distribution does not 

overlap with most hunting areas and 

their taste is not preferred (Oceana and 

Kawerak 2014). 

Steller sea lions are rarely harvested 

in Norton Sound. During the 1996–1997 

survey, no Steller sea lion harvest was 

reported, however, hunters in Gambell, 

Savoonga, and Brevig Mission reported 

they do hunt for them occasionally 

(Georgette et al. 1998). Additionally, 

only 20 Steller sea lions were reported 

taken between 1992 and 1998 (NMFS 

2008; Wolf and Mishler 1999; Wolf and 

Hutchinson-Scarbrough 1999). 

Project activities mostly avoid 

traditional ice seal harvest windows 

(noted above) and are generally not 

expected to negatively impact hunting 

of seals. However, as noted above, some 

seal hunting does occur throughout the 

project period. The project could deter 

target species and their prey from the 

project area, increasing effort required 

for a successful hunt in that area. 

Construction may also disturb beluga 

whales, potentially causing them to 

avoid the project area and reducing their 

availability to subsistence hunters as 

well. Additionally, once the project is 

complete, the increased length and 

infrastructure at the Port of Nome could 

impact hunters’ ability to access 

subsistence areas by increasing the time 

and fuel needed to exit the harbor, and 

increased vessel traffic at the Port 

following construction may introduce 

larger obstacles for subsistence vessels 

to maneuver and may affect marine 

mammals and their movements. 

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 the activity, and 

other means of effecting the least 

practicable impact on the species or 

stock and its habitat, paying particular 

attention to rookeries, mating grounds, 

and areas of similar significance, and on 

the availability of the species or stock 

for taking for certain subsistence uses. 

NMFS regulations require applicants for 

ITAs to include information about the 

availability and feasibility (economic 

and technological) of equipment, 

methods, and manner of conducting the 

activity or other means of effecting the 

least practicable adverse impact upon 

the affected species or stocks, and their 

habitat (50 CFR 216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, NMFS considers two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat, as well as 

subsistence uses. This considers the 

nature of the potential adverse impact 

being mitigated (likelihood, scope, 

range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), the 

likelihood of effective implementation 

(probability implemented as planned), 

and; 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost, and 

impact on operations. 

Mitigation for Marine Mammals and 

Their Habitat 

Shutdown Zones—The purpose of a 

shutdown zone is generally to define an 

area within which shutdown of the 

activity would occur upon sighting of a 

marine mammal (or in anticipation of an 

animal entering the defined area). 

Construction supervisors and crews, 

PSOs, and relevant USACE staff must 

avoid direct physical interaction with 

marine mammals during construction 

activity. If a marine mammal comes 

within 10 meters of such activity, 

operations must cease and vessels must 

reduce speed to the minimum level 

required to maintain steerage and safe 

working conditions, as necessary to 

avoid direct physical interaction. 

Further, USACE must implement 

activity-specific shutdown zones as 

described in Table 9. Additionally, 

USACE is required to shut down if a 

PSO observes a bowhead whale in the 

Level B harassment zone, even though 

take is authorized. 

TABLE 9—REQUIRED SHUTDOWN ZONES

Pile type Pile driving method 

Shutdown zone 

(m) 

Cetaceans Pinnipeds 

Temporary template piles (Pipe piles ≤24-in) ........................................... Vibratory .......................................... 10 10 

Impact .............................................. 300 150 

(Alternate) Temporary template piles (H-piles 14-in) ................................ Vibratory .......................................... 10 10 

Impact .............................................. 300 150 

Anchor piles (14-in HP14x89 or similar) ................................................... Vibratory .......................................... 10 10 

Impact .............................................. 300 150 

Sheet piles (20-in PS31 or similar) ........................................................... Vibratory .......................................... 30 20 

Impact .............................................. 300 150 

Fender piles (Pipe piles 36-in) .................................................................. Vibratory .......................................... 70 30 

Impact .............................................. 500 210 

Dredging a .................................................................................................. .......................................................... 300 300 

aAs noted previous, take of marine mammals is not anticipated to occur due to dredging. However, USACE will implement a shutdown zone of 

300 m for all marine mammals during dredging. 

Protected Species Observers—The 

placement of PSOs during all 

construction activities (described in the 

Monitoring and Reporting section) 

would ensure that the entire shutdown 

zone is visible. USACE will employ two 

PSOs for vibratory driving of temporary 

template pipe piles, sheet piles, and 

fender pipe piles, and for impact pile 


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driving of fender piles. For all other 

activities, USACE will employ one PSO. 

Pre and Post-Activity Monitoring— 

Monitoring must take place from 30 

minutes prior to initiation of pile 

driving activity (i.e., pre-start clearance 

monitoring) through 30 minutes postcompletion of pile driving activity. Prestart clearance monitoring must be 

conducted during periods of visibility 

sufficient for the lead PSO to determine 

that the shutdown zones indicated in 

Table 9 are clear of marine mammals. 

Pile driving may commence following 

30 minutes of observation when the 

determination is made that the 

shutdown zones are clear of marine 

mammals. If a marine mammal is 

observed entering or within the 

shutdown zones, pile driving activity 

must be delayed or halted. If pile 

driving is delayed or halted due to the 

presence of a marine mammal, the 

activity may not commence or resume 

until either the animal has voluntarily 

exited and been visually confirmed 

beyond the shutdown zone or 15 

minutes (for pinnipeds) or 30 minutes 

(for cetaceans) have passed without redetection of the animal. If a marine 

mammal for which take by Level B 

harassment is authorized is present in 

the Level B harassment zone, activities 

would begin and Level B harassment 

take would be recorded. 

Monitoring for Level B Harassment— 

PSOs would monitor the shutdown 

zones and beyond to the extent that 

PSOs can see. Monitoring beyond the 

shutdown zones enables observers to be 

aware of and communicate the presence 

of marine mammals in the project areas 

outside the shutdown zones and thus 

prepare for a potential cessation of 

activity should the animal enter the 

shutdown zone. 

Soft Start—Soft-start procedures are 

used to provide additional protection to 

marine mammals by providing warning 

and/or giving marine mammals a chance 

to leave the area prior to the hammer 

operating at full capacity. For impact 

pile driving, soft start requires 

contractors to provide an initial set of 

three strikes at reduced energy, followed 

by a 30-second waiting period, then two 

subsequent reduced-energy strike sets. 

A soft start must be implemented at the 

start of each day’s impact pile driving 

and at any time following cessation of 

impact pile driving for a period of 30 

minutes or longer. 

Vessel Transit—Vessels must remain 

at least 460 m (500 yds) from North 

Pacific right whales and avoid transiting 

through designated North Pacific right 

whale critical habitat if practicable (50 

CFR 226.215). If traveling through North 

Pacific right whale critical habitat 

cannot be avoided, vessels must travel 

through North Pacific right whale 

critical habitat at 5 kn (9.3 km/h) or less 

or at 10 kn (18.5 km/h) or less while 

PSOs maintain a constant watch for 

marine mammals from the bridge. 

Vessel personnel must maintain a log 

indicating the time and geographic 

coordinates at which vessels enter and 

exit North Pacific right whale critical 

habitat. Further, 

• Vessels must not approach within 

5.5 km (3 nmi) of Steller sea lion 

rookery sites listed in (50 CFR 

224.103(d)). 

• Vessels must not approach within 

914 m (3,000 ft) of any Steller sea lion 

haulout or rookery. 

• Project vessels operating in Cook 

Inlet must maintain a distance of at least 

1.5 miles (2.4 km) south of the mean 

lower low water line between the Little 

Susitna River and Beluga River. 

Mitigation for Subsistence Uses of 

Marine Mammals or Plan of 

Cooperation 

Regulations at 50 CFR 216.104(a)(12) 

further require IHA applicants 

conducting activities in or near a 

traditional Arctic subsistence hunting 

area and/or that may affect the 

availability of a species or stock of 

marine mammals for Arctic subsistence 

uses to provide a POC or information 

that identifies what measures have been 

taken and/or will be taken to minimize 

adverse effects on the availability of 

marine mammals for subsistence 

purposes. A plan must include the 

following: 

• A statement that the applicant has 

notified and provided the affected 

subsistence community with a draft 

POC; 

• A schedule for meeting with the 

affected subsistence communities to 

discuss proposed activities and to 

resolve potential conflicts regarding any 

aspects of either the operation or the 

POC; 

• A description of what measures the 

applicant has taken and/or will take to 

ensure that proposed activities will not 

interfere with subsistence whaling or 

sealing; and 

• What plans the applicant has to 

continue to meet with the affected 

communities, both prior to and while 

conducting the activity, to resolve 

conflicts and to notify the communities 

of any changes in the operation. 

The notice of proposed IHA stated 

that USACE provided a draft POC to 

affected parties in October 2022; 

however, that statement was in error. 

USACE later clarified that while it 

provided a draft to NMFS at that time, 

it circulated the POC among the listed 

recipients on August 28, 2023. The POC 

includes a description of the project, 

community outreach that has already 

been conducted, and project mitigation 

measures for subsistence uses of marine 

mammals. USACE will continue to meet 

with the potentially affected 

communities and subsistence groups to 

discuss the project, its potential effects 

on subsistence, and planned mitigation 

measures. Prior to the start of 

construction, USACE will provide 

notice to the communities of upcoming 

construction and timing updates using 

local radio stations, posted flyers, or 

other appropriate methods to ensure 

communities are aware of the 

construction activities. The IHA 

requires USACE to meet with local 

subsistence communities at least once 

prior to the start of the construction 

season and provide weekly updates, 

including contact information for 

USACE project personnel, during the 

construction season. 

USACE must update and redistribute 

its POC as additional meetings are 

planned, and executed and must ensure 

that all concerns from the meetings are 

summarized in the POC. The POC must 

clearly describe how all concerns 

related to subsistence hunting of marine 

mammals have been addressed. 

Distribution of the POC must include all 

Tribes within the Nome region as 

indicated in Kawerak, Inc.’s point of 

contact list. 

In addition to the coordination 

described above to avoid or mitigate 

impacts to subsistence harvests of 

beluga whale and Steller sea lion, much 

of the project season avoids traditional 

ice seal harvest windows, which would 

be expected to avoid impacts to hunting 

of ice seals during much of the project 

season. USACE is required to coordinate 

with local subsistence communities, 

notify the communities of any changes 

in the operation, and take action to 

avoid or mitigate impacts to subsistence 

harvests. USACE is also required to 

indicate in the educational materials 

that it develops for the Port of Nome 

construction workforce that Alaska 

Natives have the right to customary and 

traditional harvest of marine mammals 

in marine waters, including in and 

around the Port area when subsistence 

opportunities present themselves. 

Based on our evaluation of USACE’s 

planned measures, as well as other 

measures considered by NMFS, NMFS 

has determined that the required 

mitigation measures provide the means 

of effecting the least practicable impact 

on the affected species or stocks and 

their habitat, paying particular attention 

to rookeries, mating grounds, and areas 

of similar significance, and on the 


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availability of such species or stock for 

subsistence uses. 

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 authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present while conducting the activities. 

Effective reporting is critical both to 

compliance as well as ensuring that the 

most value is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

activity; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas); 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors; 

• How anticipated responses to 

stressors impact either: (1) long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat); and, 

• Mitigation and monitoring 

effectiveness. 

Visual Monitoring 

Marine mammal monitoring must be 

conducted in accordance with the 

Marine Mammal Monitoring Plan, dated 

February 2023. Marine mammal 

monitoring during pile driving and 

removal must be conducted by NMFSapproved PSOs in a manner consistent 

with the following: 

• PSOs must be independent of the 

activity contractor (for example, 

employed by a subcontractor) and have 

no other assigned tasks during 

monitoring periods; 

• At least one PSO must have prior 

experience performing the duties of a 

PSO during construction activities 

pursuant to a NMFS-issued ITA; 

• Other PSOs may substitute other 

relevant experience, education (degree 

in biological science or related field) or 

training for experience performing the 

duties of a PSO during construction 

activities pursuant to a NMFS-issued 

ITA. PSOs may also substitute Alaska 

Native traditional knowledge for 

experience. (NMFS recognizes that 

PSOs with traditional knowledge may 

also have prior experience, and 

therefore be eligible to serve as the lead 

PSO.); 

• Where a team of three or more PSOs 

is required, a lead observer or 

monitoring coordinator must be 

designated. The lead observer must have 

at least 1 year of prior experience 

performing the duties of a PSO during 

construction activity pursuant to a 

NMFS-issued ITA; and 

• PSOs must be approved by NMFS 

prior to beginning any activity subject to 

this IHA. 

PSOs must have the following 

additional qualifications: 

• Ability to conduct field 

observations and collect data according 

to assigned protocols; 

• Experience or training in the field 

identification of marine mammals, 

including the identification of 

behaviors; 

• Sufficient training, orientation, or 

experience with the construction 

operation to provide for personal safety 

during observations; 

• Writing skills sufficient to prepare a 

report of observations including but not 

limited to the number and species of 

marine mammals observed; dates and 

times when in-water construction 

activities were conducted; dates, times, 

and reason for implementation of 

mitigation (or why mitigation was not 

implemented when required); and 

marine mammal behavior; and 

• Ability to communicate orally, by 

radio or in person, with project 

personnel to provide real-time 

information on marine mammals 

observed in the area as necessary. 

USACE will station two PSOs for 

vibratory driving of temporary template 

pipe piles, sheet piles, and fender pipe 

piles, and for impact pile driving of 

fender piles. For all other activities, 

USACE will employ one PSO. One PSO 

will have an unobstructed view of all 

water within the shutdown zone and 

will be stationed at or near the project 

activity. The remaining PSO, when 

applicable, will observe as much of the 

Level B harassment zone as possible and 

will monitor from the shoreline 

approximately 3.5 km to the east of the 

Port of Nome. While the exact 

monitoring stations have not yet been 

determined, USACE provided potential 

locations in Figure A–1 (Appendix A) of 

its Marine Mammal Monitoring and 

Mitigation Plan. USACE must employ a 

sufficient number of PSOs to allow them 

to rotate every 4 hours and not work 

more than 12 hours within a 24-hour 

period. 

Monitoring would be conducted 30 

minutes before, during, and 30 minutes 

after all in water construction activities. 

In addition, PSOs would record all 

incidents of marine mammal 

occurrence, regardless of distance from 

activity, and would document any 

behavioral reactions in concert with 

distance from piles being driven or 

removed. Pile driving activities include 

the time to install or remove a single 

pile or series of piles, as long as the time 

elapsed between uses of the pile driving 

equipment is no more than 30 minutes. 

In addition to on-the-ground 

monitoring, if USACE drives fender 

piles, it must conduct a minimum of 

one aerial overflight to assist in 

estimating species presence in the far 

field during fender pile installation. 

USACE will conduct two aerial 

overflights if it determines that it is 

practicable to do so. 

In addition to monitoring during 

construction, one PSO must monitor for 

8 hours per day for 1 week before and 

1 week after pile driving activities 

(weather and ice permitting). Further, 

USACE must conduct a statistical power 

analysis to estimate the minimum 

number of sightings or sample size 

required for pre- and post-monitoring 

periods in order to detect an effect in 

marine mammal presence due to the 

construction disturbance (i.e., whether 

the pre- and post-monitoring periods 

were of a sufficient length). 

Acoustic Monitoring 

USACE intends to conduct a sound 

field verification (SFV) study to confirm 

the sound source levels, transmission 

loss coefficient, and size of the Level A 

and Level B harassment zones 

associated with sheet pile driving. They 

intend to request a modification to the 

associated Level A harassment, Level B 

harassment, and shutdown zones, if 

appropriate, based on the results of the 


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SFV study. If NMFS approves the 

results of the SFV study, we will modify 

the zone sizes based on the approved 

data. Additionally, USACE intends to 

conduct PAM to record marine mammal 

vocalizations for 1 week prior to 

construction, during construction, and 

for 1 week after construction. USACE is 

required to submit an acoustic 

monitoring plan for NMFS approval 

prior to the start of acoustic monitoring. 

Acoustic monitoring report 

requirements are listed in the Reporting 

section, below. 

Reporting 

USACE would submit a draft annual 

report to NMFS within 90 calendar days 

of the completion of monitoring or 60 

calendar days prior to the requested 

issuance of any subsequent IHA for 

construction activity at the same 

location, whichever comes first. The 

marine mammal monitoring report 

would include an overall description of 

work completed, a narrative regarding 

marine mammal sightings, and 

associated PSO data sheets. Specifically, 

the report would include: 

• Dates and times (begin and end) of 

all marine mammal monitoring; 

• Construction activities occurring 

during each daily observation period, 

including: 

(1) The number and type of piles that 

were driven and the method (e.g., 

impact, vibratory, down-the-hole); and 

(2) Total duration of driving time for 

each pile (vibratory driving) and 

number of strikes for each pile (impact 

driving). 

• PSO locations during marine 

mammal monitoring; 

• Environmental conditions during 

monitoring periods (at beginning and 

end of PSO shift and whenever 

conditions change significantly), 

including Beaufort sea state and any 

other relevant weather conditions 

including cloud cover, fog, sun glare, 

and overall visibility to the horizon, and 

estimated observable distance; 

• Upon observation of a marine 

mammal, the following information: (1) 

Name of PSO who sighted the animal(s) 

and PSO location and activity at time of 

sighting; (2) Time of sighting; (3) 

Identification of the animal(s) (e.g., 

genus/species, lowest possible 

taxonomic level, or unidentified), PSO 

confidence in identification, and the 

composition of the group if there is a 

mix of species; (4) Distance and location 

of each observed marine mammal 

relative to the pile being driven for each 

sighting; (5) Estimated number of 

animals (min/max/best estimate); (6) 

Estimated number of animals by cohort 

(adults, juveniles, neonates, group 

composition, etc.); (7) Animal’s closest 

point of approach and estimated time 

spent within the harassment zone; (8) 

Description of any marine mammal 

behavioral observations (e.g., observed 

behaviors such as feeding or traveling), 

including an assessment of behavioral 

responses thought to have resulted from 

the activity (e.g., no response or changes 

in behavioral state such as ceasing 

feeding, changing direction, flushing, or 

breaching); 

• Number of marine mammals 

detected within the harassment zones, 

by species; and 

• Detailed information about 

implementation of any mitigation (e.g., 

shutdowns and delays), a description of 

specific actions that ensued, and 

resulting changes in behavior of the 

animal(s), if any. 

A final report must be prepared and 

submitted within 30 calendar days 

following receipt of any NMFS 

comments on the draft report. If no 

comments are received from NMFS 

within 30 calendar days of receipt of the 

draft report, the report shall be 

considered final. 

Additionally, USACE must submit 

monthly reports on all monitoring 

conducted under this IHA. The monthly 

reports must include the same 

information described above for the 

annual report and must be submitted by 

the 15th day of the month following the 

reporting period. 

USACE must also submit an acoustic 

monitoring report within 90 calendar 

days of the completion of monitoring or 

60 calendar days prior to the requested 

issuance of any subsequent IHA for 

construction activity at the same 

location, whichever comes first. The 

acoustic monitoring report must include 

the following, at a minimum: 

• Hydrophone equipment and 

methods: recording devices, sampling 

rate, sensitivity of the PAM equipment, 

locations of the hydrophones, duty 

cycle, distance (m) from the pile where 

recordings were made, depth of 

recording devices, depth of water in 

area of recording devices; 

• Type and size of pile being driven, 

substrate type, method of driving during 

recordings; 

• Mean, median, and maximum 

received sound levels: root mean square 

sound pressure level (SPLrms) in 1-sec 

segments, peak sound pressure level 

(SPLpeak), cumulative sound exposure 

level (SELcum), duration to install each 

pile; 

• Duration per pile measured, onethird octave band spectrum, power 

spectral density plot; 

• Estimated source levels referenced 

to 10m, transmission loss coefficients, 

and estimated Level A and Level B 

harassment isopleths; and 

• Number of acoustic detections, by 

species and operation mode (including 

no activity periods as the ‘‘undisturbed’’ 

condition). 

In the event that personnel involved 

in the construction activities discover 

an injured or dead marine mammal, the 

Holder must report the incident to OPR, 

NMFS (PR.ITP.MonitoringReports@

noaa.gov and itp.davis@noaa.gov) and 

to the Alaska regional stranding network 

(877–925–7773) as soon as feasible. If 

the death or injury was clearly caused 

by the specified activity, the Holder 

must immediately cease the activities 

until NMFS OPR is able to review the 

circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of this IHA. 

The Holder must not resume their 

activities until notified by NMFS. 

The report must include the following 

information: 

• Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

• Species identification (if known) or 

description of the animal(s) involved; 

• Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

• Observed behaviors of the 

animal(s), if alive; 

• If available, photographs or video 

footage of the animal(s); and 

• General circumstances under which 

the animal was discovered. 

Monitoring Plan Peer Review 

The MMPA requires that monitoring 

plans be independently peer reviewed 

where the proposed activity may affect 

the availability of a species or stock for 

taking for subsistence uses (16 U.S.C. 

1371(a)(5)(D)(ii)(III)). Regarding this 

requirement, NMFS’ implementing 

regulations state that upon receipt of a 

complete monitoring plan, and at its 

discretion, NMFS will either submit the 

plan to members of a PRP for review or 

within 60 days of receipt of the 

proposed monitoring plan, schedule a 

workshop to review the plan (50 CFR 

216.108(d)). 

NMFS established an independent 

PRP to review USACE’s Monitoring Plan 

for the Port of Nome Modification 

Project. NMFS provided the PRP with a 

copy of USACE’s monitoring plan and 

provided them with a list of 

considerations to guide their discussion 

of the monitoring plan. The PRP met in 

March 2023 and provided a final report 

to NMFS containing recommendations 

for USACE’s monitoring plan on April 


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5, 2023. The PRP’s primary 

recommendations and comments are 

summarized and addressed below. The 

PRP’s full report is posted on NMFS’ 

website at: https://www.fisheries.

noaa.gov/national/marine-mammalprotection/incidental-takeauthorizations-construction-activities. 

Recommendation 1.2 

During its presentation, USACE 

identified monitoring objectives; the 

PRP recommended that USACE state 

those objectives in its monitoring plan. 

The PRP also recommended that USACE 

include a chronogram showing the 

estimated periods for all activities that 

would require monitoring, including 

dredging, armor stone installation, pile 

driving of each category (temporary, 

anchor, sheet, fender, pile removal, 

filling, and compacting cells), and 

construction-related vessel transits, and 

also describe whether concurrent 

activities are expected to affect the 

estimated mitigation zone sizes and 

associated monitoring requirements. 

USACE has updated its monitoring plan 

to include its objectives (to increase 

knowledge of (1) Marine mammal 

species that occur in the project area, (2) 

potential impacts to populations of 

marine mammals expected to occur, and 

(3) movement and activity of marine 

mammals) and a statement that clarifies 

that it does not plan to conduct 

concurrent activities that would affect 

the estimated harassment and/or 

shutdown zone sizes. Activities that 

may occur concurrently with pile 

driving are rock placement, dredging, 

and vessel transit (low, negligible source 

levels). USACE has updated the 

monitoring plan to describe this. 

However USACE did not include a 

chronogram in the updated monitoring 

plan, as it anticipates that its schedule 

could have minor changes depending on 

the contractor selected and the 

construction progression. 

Recommendation 1.2.1 

The PRP made several 

recommendations related to the number, 

experience, and location of PSOs. It 

recommended a minimum of two PSOs 

on duty per PSO location at all times, 

with a sufficient number of PSOs to 

allow for rotation of PSOs every 4 hours. 

It also recommended that PSOs be 

deployed on each side of the 

construction zone to monitor the Level 

B harassment zone, as indicated in the 

Monitoring Plan. The PRP also 

recommended that the lead PSO have at 

least 1 year of prior PSO experience, 

preferably on projects located within 

Alaska. The lead PSO would be 

stationed directly at the construction 

site and would be responsible for 

monitoring the Level A shutdown zone 

and for communications with the 

construction site manager when 

mitigation measures are necessary. The 

lead PSO would also oversee and 

coordinate the other PSOs. Last, it 

recommended that the monitoring plan 

state that PSOs will be rotated in 4-hour 

shifts and individual PSOs will not 

work more than 12 hours per day. 

As recommended, NMFS is requiring 

that USACE employ a sufficient number 

of PSOs to allow them to rotate every 4 

hours and not work more than 12 hours 

within a 24-hour period, and USACE 

has updated its monitoring plan to 

reflect this. USACE states that it will be 

able to station only one PSO per 

relevant monitoring location, as two 

PSOs would be impracticable given the 

additional costs and logistical 

challenges that would result. Given the 

practicability concerns raised by 

USACE, and the fact that NMFS 

anticipates that one PSO per monitoring 

location would be sufficient, NMFS is 

continuing to require that USACE 

station one PSO per relevant monitoring 

location at all times (rather than two 

recommended by the PRP). 

As noted above in the Changes from 

the Proposed IHA to Final IHA section, 

since publication of the proposed IHA, 

NMFS has updated the analysis to 

reflect that the sound is expected to 

propagate directly to sea along the 

causeway to the south/southeast, with a 

10-degree buffer to the north/northwest. 

While the PRP expressed support for 

deploying PSOs on each side of the 

construction zone to monitor the Level 

B harassment zone, as indicated in the 

monitoring plan, given that sound is not 

expected to propagate through most of 

the area north/northwest of the 

causeway, USACE no longer plans to 

station a PSO at the north PSO location 

that it had initially proposed in its 

monitoring plan which the PRP 

reviewed. For in-water activities where 

the Level B harassment zone extends 

less than 1,000 m from the construction 

site, USACE must station a PSO at the 

construction site only. During activities 

where the Level B harassment zones 

extend beyond 1,000 m, a PSO must be 

stationed at the construction site and 

also at the monitoring location to the 

east of the construction site. 

As recommended, NMFS is requiring 

the lead PSO to have at least 1 year of 

prior experience performing the duties 

of a PSO during construction activity 

pursuant to a NMFS-issued ITA, and 

this PSO must be stationed at the 

construction site. The Lead PSO will be 

responsible for monitoring the 

shutdown zones and communicating the 

need to implement mitigation measures 

directly to the construction site manager 

(or designee). 

Recommendation 1.2.2 

The PRP stated that the number and 

location of the PSOs, as proposed, is not 

expected to provide adequate 

monitoring of the Level B harassment 

zones for vibratory pile driving of 20-in 

sheet piles (Level B harassment isopleth 

= 5.17 km) and 36-in fender piles (Level 

B harassment isopleth = 21.54 km). The 

PRP stated that inadequate monitoring 

of the Level B harassment zone for these 

two pile driving activities would not 

allow for an accurate estimation of total 

takes due to these activities, nor would 

it increase our understanding of the 

effects of these activities on marine 

mammals. 

The PRP raised concerns about the 

applicant’s planned method for 

extrapolating takes within 2 km of the 

pile driving activity. The PRP 

recommend that the applicant 

implement additional monitoring 

measures to assist in the detection of 

marine mammals in the far-field (i.e., at 

Level B harassment zone distances that 

are greater than 2 km) for an amount of 

time that will allow for a scientificallydefensible method of extrapolation. For 

observations during sheet pile 

installation, the PRP recommended 

deploying a PSO on an offshore static 

platform (e.g., an anchored barge or a 

vessel) at a distance of ∼3 km from the 

source each day of pile driving. For 

observations during fender pile 

installation, the PRP recommended an 

aerial overflight with a plane sufficient 

for visual marine mammal monitoring 

be flown prior to the start of pile driving 

activities each day (estimated 2 days 

total in year one) to determine species 

present in the area for that day. The PRP 

noted that an alternative option would 

be equipping the offshore static platform 

with a series of remote live cameras 

located at a distance of ∼5 km to detect 

marine mammals that may occur in the 

far field by a PSO operator on land. The 

PRP recognized that fender piles will be 

driven for a total of 2 days over the 

entire season one, however, due to the 

dimensions of the Level B harassment 

zone requiring aerial observations, the 

PRP recommended that this activity be 

concentrated in as few days as possible 

throughout the season to minimize the 

temporal footprint of this acoustic 

disturbance and to reduce the cost of the 

aerial support. 

Regarding the sheet pile 

recommendation, the USACE raised 

concerns regarding the safety and 

logistics of requiring PSOs to be 

stationed on a static offshore platform. 


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Specifically, USACE states that use of 

such a platform would likely require 

multiple shift changes per day using a 

small vessel. This would include at-sea 

(i.e., vessel-to-vessel) personnel 

transfers which are considered high 

risk. Quickly changing weather 

conditions and appropriate amenities 

(e.g., shelter, toilet facilities) pose 

additional risks and logistical 

challenges when considering an 

anchored, barge-type platform. 

Additionally, this would require a 

stand-by vessel for transportation in the 

event of emergency (weather, personnel 

health, etc.). Therefore, NMFS is not 

requiring the USACE to implement this 

measure. As recommended for fender 

pile installation, if, and when, USACE 

drives fender piles, it must conduct a 

minimum of one aerial overflight to 

assist in estimating species presence in 

the far field during fender pile 

installation. USACE will conduct two 

aerial overflights if it determines that it 

is practicable to do so. 

Regarding concentration of the fender 

pile installation into as few days as 

possible, NMFS acknowledges that 

doing so would maximize the 

usefulness of the aerial surveys that 

would occur on 2 days of fender pile 

installation. However, in terms of 

impacts to marine mammals, given the 

short overall duration of the fender pile 

work, NMFS is unaware of data that 

support the idea that it is better to have 

these activities concentrated into a 

couple or few days versus shorter blocks 

of driving spread over more days. As 

such, and given that USACE asserts that 

fender-pile installation must occur 

when necessary and appropriate to meet 

the construction timeline, which is 

dependent on the contractor’s means 

and methods, such a requirement is not 

practicable, and NMFS has not included 

this as a requirement in the final IHA. 

Recommendation 1.2.3 

The PRP stated that assuming the 

applicant will expand visual 

observations based on the previous 

recommendation, PAM is not 

recommended. However, if the 

applicant will not be expanding visual 

observations, the PRP strongly 

recommended the use of archival PAM 

to remedy the ineffective monitoring in 

the far-field and to evaluate whether the 

level of acoustic detections in the farfield of the disturbance area is 

equivalent to the level of visual 

detections in the near-field. The PRP 

states that one PAM station at ∼3 km 

would be needed for the pile sheet 

installation, and at least 3 PAM stations 

would be needed for the fender pile 

installation, at distances of ∼5 km, ∼10 

km, and ∼15 km from the source. The 

PRP stated that recognizing a potential 

negative bias due to false absence when 

animals are not vocally active, as well 

as the detection range dependent on the 

sensitivity of the equipment, it is 

important to highlight here that when 

considering PAM efforts, high quality 

instrumentation should be selected to 

maximize detection range and 

deployment duration. 

As recommended, NMFS is requiring 

USACE to conduct archival PAM for the 

duration of the project to monitor the 

far-field. USACE must deploy the PAM 

equipment 1 week before pile driving 

begins and collect the equipment 1 

week after pile driving activities 

conclude, as feasible considering 

logistics and timing of ice break-up and 

freeze-up. USACE must use the data 

collected from the PAM to estimate 

marine mammal occurrence in the farfield, and must compare the acoustic 

detections in the far-field to the visual 

detections in the near-field in its annual 

monitoring report. USACE must 

conduct the acoustic monitoring in 

accordance with a NMFS-approved 

acoustic monitoring plan which will 

outline the planned instrumentation. 

Given that the plan has not yet been 

developed, the exact locations of the 

PAM equipment have not yet been 

determined. However, USACE will 

consider the PRP’s recommended 

locations in development of its plan, 

and NMFS will consider the PRP’s 

recommended locations in its review of 

the plan. 

Recommendation 1.2.4 

The PRP recommended the collection 

of marine mammal data in the 

construction area, including the far-field 

(out to at least 5 km), prior to and after 

pile driving activities. The PRP stated 

that these data should be collected by 

PSOs with experience identifying 

marine mammals, preferably from Nome 

or elsewhere in the Bering Sea region. 

The PRP suggested that data could be 

collected by sub-sampling throughout 

the day, in smaller blocks of time (such 

as 2 hours every day at the same 

location). The PRP recommended that 

the applicant consider developing a 

marine mammal and environmental 

reporting app or other reporting method 

by community members. Having a userfriendly app would make reporting of 

sightings easier, faster, and more 

reliable, and would further our 

knowledge of the effects of constructionrelated disturbance (by comparison of 

pre, during, and after construction 

periods), and marine mammal 

occurrence in this region during all 

seasons. 

The PRP noted that the presentation 

given at the meeting included a preconstruction monitoring period of 

approximately 1 week, but this was not 

included in the Monitoring Plan. The 

PRP encouraged pre-construction 

monitoring of at least 1 week (or more 

if possible) and recommended that it be 

included in the Monitoring Plan. 

The PRP stated that it was encouraged 

to note that the applicant has collected 

marine mammals sightings data in this 

area in recent years, which it will 

attempt to utilize for the current project 

for the purpose of establishing a 

baseline understanding of marine 

mammal occurrence in the area under 

pre-construction conditions 

(undisturbed) and, for the longer term, 

whether spatial displacement of marine 

mammals has occurred as a result of the 

project-related activities. NMFS concurs 

with the PRP that this pre-activity 

monitoring is commendable. 

Regarding pre and post-activity 

monitoring, as recommended, NMFS is 

requiring one PSO to monitor for 8 

hours per day 1 week before and 1 week 

after pile driving activities (weather and 

ice permitting) to correlate with the 

PAM data collection described above. 

USACE has updated its monitoring plan 

to reflect this. The PSO that conducts 

this monitoring is required to meet the 

same standards as all other project 

PSOs, as outlined in the Visual 

Monitoring section of this notice. 

While USACE does not have the 

capability to develop a reporting app, 

USACE will recommend that the PSO 

contractor collect data using a reporting 

app. Regardless of whether the 

contractor uses a reporting app, the 

USACE is required to provide the 

monitoring data in a digital format, and 

at the latest, USACE must submit this 

data to NMFS along with the draft 

report, as required by the IHA. 

Recommendation 1.2.5 

The PRP recommended that to 

estimate actual takes within the 

observed portion of the Level B 

harassment zone, the applicant develop 

a method for estimating animals that 

may have been missed by PSOs using 

correction factors to account for speciesspecific detection probabilities (f(0) and 

g(0)), where possible). 

NMFS recognizes the value of the PRP 

recommendation and is working on the 

development of a simple method that 

could be used by applicants to help 

estimate animals that may be missed by 

PSOs in consideration of speciesspecific factors. 


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Recommendation 1.2.6 

To ensure that modeled distances are 

applicable to this project, the PRP 

suggested that the applicant either (1) 

obtain already-collected data for 

empirical propagation loss analysis 

obtained in other studies in this same 

region and either confirm or replace the 

practical spreading loss (15 logR) with 

a more precise empirical-based 

propagation loss in the calculation of 

the isopleth distances, or (2) conduct 

sound field verification (SFV) 

measurements to determine the projectspecific propagation loss for a 

representative number of piles 

(particularly sheet piles as these would 

be the bulk of the pile driving activity). 

Regarding the recommendation to 

obtain already-collected data for 

empirical propagation loss analysis 

obtained in other studies in this same 

region, NMFS concurs that when it is 

available, site-specific propagation loss 

data is the most appropriate data to use 

in calculating isopleth distances. 

However, NMFS and USACE are 

unaware of data at the Port of Nome site, 

and given the numerous factors that 

affect propagation loss, NMFS does not 

find it appropriate to incorporate 

propagation loss data from other sites in 

the region. Therefore, the calculations of 

the Level A and Level B harassment 

zones in this final IHA continue to use 

practical spreading loss (15 logR). 

As recommended, NMFS is requiring 

USACE to conduct SFV measurements 

of sheet pile installation to determine 

project-specific propagation loss. 

USACE intends to conduct this SFV 

early in the sheet pile driving process, 

though sheet pile driving may not occur 

early in the construction season, 

depending on the contractor and 

construction progress. If USACE 

provides data early in the construction 

season, NMFS may adjust the shutdown 

zones and revise the Level A and Level 

B harassment zones, as appropriate, and 

pending review and approval of the 

results of SFV. USACE is required to 

submit an acoustic monitoring plan for 

NMFS approval prior to the start of 

acoustic monitoring. Acoustic 

monitoring report requirements are 

listed in the Reporting section of this 

notice. 

Recommendations 1.2.7, 1.2.8, 1.2.9 

These recommendations were 

mitigation-focused, rather than 

monitoring-focused. Therefore, NMFS 

has responded to these 

recommendations as public comments. 

Please see Comments 9, 25, and 27 in 

the Comments and Responses section of 

this notice. 

Recommendation 1.2.10 

The PRP made several 

recommendations about reporting. 

Because this is planned as a multi-year 

project, the PRP recommended that the 

applicant include a section in its final 

report with recommendations for future 

year monitoring improvements based on 

lessons learned during the first year of 

construction activities. Further, the PRP 

stated that if PAM is used in this first 

year, the details of the acoustic 

monitoring should also be included in 

the 90-day report. The PRP also 

requested that it receive a copy of the 

90-day report when submitted by the 

applicant for an initial review and for 

use in subsequent Monitoring Plan peer 

reviews. 

NMFS concurs that, given that this 

IHA is for Year 1 of a multi-year project, 

it is appropriate for USACE to include 

in its final marine mammal monitoring 

report recommendations for 

improvements to monitoring activities 

in future years based on lessons learned 

during Year 1 monitoring, and has 

included this requirement in the 

reporting. Regarding acoustic 

monitoring results, NMFS concurs with 

the PRP that results from PAM for 

marine mammals as well as the SFV 

should be included in a report 

submitted within 90 days of completion 

of the monitoring; however NMFS 

typically requires, and has required 

here, for acoustic monitoring results to 

be submitted in a separate report from 

the marine mammal monitoring report. 

NMFS agrees that it is appropriate for 

the PRP to receive a copy of the final 

report for the project to review and use 

in subsequent Monitoring Plan peer 

reviews. The final IHA requires that the 

Holder submit its draft report(s) on all 

monitoring conducted under the IHA 

within 90 calendar days of the 

completion of monitoring or 60 calendar 

days prior to the requested issuance of 

any subsequent IHA for construction 

activity at the same location, whichever 

comes first. A final report must be 

prepared and submitted within 30 

calendar days following receipt of any 

NMFS comments on the draft report. 

Given that NMFS sometimes has 

comments on reports that result in 

significant changes, NMFS will provide 

the PRP a copy of the final, approved 

report, rather than the draft of the final 

report. 

Recommendation 2.2.1 

The PRP stated that it may be 

instructive to look at the use of remote 

cameras either currently installed at the 

Port of Nome and/or installed at other 

project-specific locations to evaluate 

their effectiveness at detection of marine 

mammals. This could be accomplished 

by comparing detections reported from 

the analysis of web cameras’ footage 

with detections from visual PSOs for the 

same field of view. The PRP stated that 

Artificial Intelligence (AI) methods 

already exist for this type of image 

processing (e.g., Arau ́jo et al. 2022) and 

the PRP recommends exploring this 

approach to enable semi-automatic 

analysis of video. The PRP noted that 

the Port of Nome has a live camera, and 

the Federal Aviation Administration has 

live cameras. The PRP stated that the 

applicant may also consider tethered 

balloons as a test for deployment of 

higher elevation—long-range remote 

cameras (for initial Arctic examples, see 

Bouffaut et al. 2022 and Landr< et al. 

2022). 

NMFS has responded to this 

recommendation in its response to a 

related public comment. Please see 

Comment 11 in the Comments and 

Responses section of this notice. 

Recommendation 2.2.2 

The PRP acknowledged that NMFS 

has very little control over when an 

applicant submits the application, but 

recommended that the peer review 

incorporate more time to review the 

Monitoring Plan, particularly when 

looking to incorporate feedback from 

Alaska Native Co-Management 

Organizations such as the AEWC. 

NMFS recognizes the PRP’s 

challenges associated with reviewing an 

application within the available 

timeframe given the submission date of 

applications. NMFS continues to 

endeavor to improve this process and 

will inform the PRP of its progress. 

Recommendation 2.2.3 

This recommendation was outside of 

the scope of the Monitoring Plan peer 

review. Therefore, NMFS has responded 

to this recommendation as a public 

comment. Please see Comment 5 in the 

Comments and Responses section of this 

notice. 

Recommendation 2.2.4 

The PRP recommends that NMFS 

provide the 90-day report to the PRP for 

review. This will allow for continued 

improvements to monitoring plans, 

particularly for these multi-year 

projects. In addition, the PRP would like 

to receive NMFS’ comments on the 

PRP’s recommendations at the 90-day 

report schedule. This will allow the PRP 

to better understand NMFS’ perspective 

and create transparency. 

As recommended and stated in 

response to Recommendation 1.2.10, 

NMFS will provide the PRP a copy of 


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the final, approved report, rather than 

the draft of the final report. NMFS 

concurs with the PRP’s request to 

receive NMFS’ comments on the PRP’s 

recommendations, and will provide a 

clear list of which recommendations 

that were and were not incorporated 

into this final IHA when it provides the 

PRP with a copy of the applicant’s final 

report. 

Recommendation 3.2 

The PRP noted that it has provided 

recommendations for NMFS 

consideration in past years that are not 

included as part of this report, but may 

be applicable, such as the Incidental 

Harassment Authorization Applications 

for the US Arctic: General Report and 

Recommendations (May 4, 2017). 

NMFS thanks the PRP for the 

recommendations that it has provided 

in the past, including those that are 

broad recommendations for improving 

the PRP process. In the last few years, 

NMFS has been working to incorporate 

these recommendations where possible, 

including those from the May 2017 

report referenced by the PRP, and will 

continue to work with the PRP to 

improve the PRP process. 

The PRP stated that a currently 

omitted effect of the disturbance 

generated by the construction activities 

is spatial displacement. This effect has 

been well documented in many other 

construction projects, including pile 

driving operations (e.g., Weilgart 2007, 

Anderwald et al. 2013). In order to 

increase our understanding of impacts 

and to use the best available science, 

marine mammal presence needs to be 

monitored before, during, and after the 

disturbance period (Green 1979). The 

data collected during the three periods 

is then compared to identify a potential 

reduction in presence during the 

disturbance period. A statistical power 

analysis is required to determine the 

efficiency of the pre- and postmonitoring duration. Power can be 

calculated and reported to comment on 

the confidence one might have in the 

conclusions drawn from the results of a 

study. The PRP stated that in this case, 

a statistical power analysis will be 

useful to estimate the minimum number 

of sightings or sample size required for 

the pre- and post-monitoring periods in 

order to detect an effect in marine 

mammal presence due to the 

construction disturbance. 

The PRP stated that should this 

analysis suggest that the pre/post 

periods of observations are too long to 

be incorporated into the scheduling of 

the construction season, then an 

alternative approach should be 

considered. The PRP suggested the 

alternative of conducting monitoring at 

a control site concurrently with the 

monitoring at the construction area, i.e., 

a similar coastal location in the region 

but outside the zone of disturbance by 

the activities. The comparison of the 

observations between control and 

disturbed sites will determine whether 

the disturbance is impacting the 

presence and marine mammal diversity. 

In addition to the comparison among 

periods, an important consideration is 

any ongoing disturbance in the area 

independent of the construction. The 

PRP stated that for example, in the case 

of the Port of Nome, shipping in and out 

of the Port might potentially displace 

marine mammals away. Therefore, the 

study design should consider the 

collection of vessel traffic information 

as an additional variable to the analysis, 

to control for confounding effects. 

Plenty of literature on disturbance 

effects studies exist for marine 

mammals and other taxa where the pre/ 

post and control sampling methods are 

tested and described. The PRP 

recommends that future applicants 

review this literature to implement a 

solid sampling scheme to allow 

evaluation of any spatial displacement 

effects in addition to takes by Level B 

harassment. 

As recommended and stated above, 

NMFS is requiring one PSO to monitor 

for 8 hours per day 1 week before and 

1 week after pile driving activities 

(weather and ice permitting) to correlate 

with the PAM data collection described 

above. Further, NMFS is requiring 

USACE to conduct a statistical power 

analysis to estimate the minimum 

number of sightings or sample size 

required for the pre- and postmonitoring periods in order to detect an 

effect in marine mammal presence due 

to the construction disturbance (i.e., 

whether the pre- and post-monitoring 

periods were of a sufficient length). 

USACE will include the results of this 

analysis in its ‘‘lessons learned’’ in the 

final marine mammal monitoring report, 

including whether an alternative 

approach such as that recommended by 

the PRP would be appropriate for future 

project years. 

NMFS appreciates the 

recommendation that applicants review 

the broad body of literature that could 

help design a solid sampling scheme to 

evaluate spatial displacement effects. 

However, the identification of 

specifically recommended study designs 

would be more helpful, and we plan to 

hold off suggesting this to applicants 

until we have had an opportunity to 

discuss further with the PRP. 

Negligible Impact Analysis and 

Determination 

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 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any impacts or responses (e.g., 

intensity, duration), the context of any 

impacts or responses (e.g., critical 

reproductive time or location, foraging 

impacts affecting energetics), as well as 

effects on habitat, and the likely 

effectiveness of the mitigation. We also 

assess the number, intensity, and 

context of estimated takes by evaluating 

this information relative to population 

status. Consistent with the 1989 

preamble for NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the baseline (e.g., as 

reflected in the regulatory status of the 

species, population size and growth rate 

where known, ongoing sources of 

human-caused mortality, or ambient 

noise levels). 

To avoid repetition, the majority of 

our analysis applies to all the species 

listed in Table 8, given that many of the 

anticipated effects of this project on 

different marine mammal stocks are 

expected to be relatively similar in 

nature. Where there are meaningful 

differences between species or stocks, or 

groups of species, in anticipated 

individual responses to activities, 

impact of expected take on the 

population due to differences in 

population status, or impacts on habitat, 

they are described independently in the 

analysis below. 

Pile driving and removal activities 

associated with the project, as outlined 

previously, have the potential to disturb 

or displace marine mammals. 

Specifically, the specified activities may 

result in take, in the form of Level B 

harassment, from underwater sounds 

generated from pile driving and 

removal. Potential takes could occur if 

individuals of these species are present 


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in zones ensonified above the 

thresholds for Level B harassment, 

identified above, when these activities 

are underway. 

The takes by Level B harassment 

would be due to potential behavioral 

disturbance. No mortality or serious 

injury is anticipated given the nature of 

the activity, and no Level A harassment 

is anticipated due to USACE’s 

construction method and planned 

mitigation measures (see Mitigation 

section). 

Effects on individuals that are taken 

by Level B harassment, on the basis of 

reports in the literature as well as 

monitoring from other similar activities, 

would likely be limited to reactions 

such as increased swimming speeds, 

increased surfacing time, or decreased 

foraging (if such activity were occurring; 

e.g., Thorson and Reyff 2006; HDR, Inc. 

2012; Lerma 2014; ABR 2016). Most 

likely, individuals would simply move 

away from the sound source and be 

temporarily displaced from the areas of 

pile driving and removal, although even 

this reaction has been observed 

primarily only in association with 

impact pile driving, which USACE does 

not plan to conduct except in scenarios 

where it is required to successfully 

advance a pile. If sound produced by 

project activities is sufficiently 

disturbing, animals are likely to simply 

avoid the area while the activity is 

occurring, particularly as the project is 

expected to occur over just 85 in-water 

pile driving days. 

The project is also not expected to 

have significant adverse effects on 

affected marine mammals’ habitats. The 

project activities would not modify 

existing marine mammal habitat for a 

significant amount of time. The 

activities may cause some fish to leave 

the area of disturbance, thus temporarily 

impacting marine mammals’ foraging 

opportunities in a limited portion of the 

foraging range. We do not expect pile 

driving activities to have significant 

consequences to marine invertebrate 

populations. Given the short duration of 

the activities and the relatively small 

area of the habitat that may be affected, 

the impacts to marine mammal habitat, 

including fish and invertebrates, are not 

expected to cause significant or longterm negative consequences. 

The project area overlaps a 

biologically important area (BIA) 

identified as important for feeding by 

Eastern Bering Sea belugas (Brower et 

al. 2023). The BIA that overlaps the 

project area is active May through 

November, which overlaps USACE’s 

planned work period (May to October). 

The BIA is considered to be of moderate 

importance, has moderately certain 

boundaries, and moderate data to 

support the identification of the BIA. 

The BIA was identified as having 

dynamic spatiotemporal variability. 

Regardless of the exact boundary of the 

BIA, the portion of the BIA that overlaps 

the project area would be extremely 

small in comparison to the full BIA. 

Further, the majority of the southeastern 

half of Norton Sound is separately 

identified as a ‘‘child’’ of the BIA that 

overlaps the project area. The child 

encompasses an especially high-density 

area where belugas congregate to feed 

and is considered to be of higher 

importance than the parent BIA. The 

child BIA does not overlap the project 

area, indicating that animals in the 

Nome area would have available, high 

quality feeding habitat during the 

project period without necessarily being 

disturbed by the construction. 

Therefore, take of beluga whales using 

the parent BIA, given both the scope 

and nature of the anticipated impacts of 

pile driving exposure, is not anticipated 

to impact reproduction or survivorship 

of any individuals. 

The project area also overlaps ESAdesignated critical habitat for both 

ringed seals and bearded seals. As 

described in the Description of Marine 

Mammals in the Area of Specified 

Activities section above, for both ringed 

seals and bearded seals, two of the three 

essential features identified for 

conservation of the species are related to 

sea ice. Given that USACE’s project is 

anticipated to occur in the open water 

season, impacts from the project on sea 

ice habitat are not anticipated. The third 

essential feature for both ringed and 

bearded seals is primary prey sources to 

support the species. While the project 

activities could impact ringed seal and 

bearded seal foraging activities in 

critical habitat that overlaps the project 

area, the overlap between these areas is 

extremely small in comparison to the 

full ESA-designated critical habitat for 

each species, which includes most of 

the waters within the U.S. EEZ. 

As previously described, a UME has 

been declared for gray whales. However, 

we do not expect the takes authorized 

herein to exacerbate the ongoing UME. 

No injury, serious injury, or mortality of 

gray whales is expected or authorized, 

and take by Level B harassment is 

limited (14 takes over the duration of 

the authorization). As such, the 

authorized take by Level B harassment 

of gray whale would not exacerbate or 

compound upon the ongoing UME. 

In summary and as described above, 

the following factors primarily support 

our determination that the impacts 

resulting from this activity are not 

expected to adversely affect any of the 

species or stocks through effects on 

annual rates of recruitment or survival: 

• No injury, serious injury, or 

mortality is anticipated or authorized; 

• The anticipated incidents of Level B 

harassment would consist of, at worst, 

temporary modifications in behavior 

that would not result in fitness impacts 

to individuals; 

• The area impacted by the specified 

activity is very small relative to the 

overall habitat ranges of all species; 

• While impacts would occur within 

areas that are important for feeding for 

multiple stocks, because of the small 

footprint of the activity relative to the 

area of these important use areas, and 

the scope and nature of the anticipated 

impacts of pile driving exposure, we do 

not expect impacts to the reproduction 

or survival of any individuals. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

required monitoring and mitigation 

measures, NMFS finds that the total 

marine mammal take from the planned 

activity will have a negligible impact on 

all affected marine mammal species or 

stocks. 

Small Numbers 

As noted previously, only take of 

small numbers of marine mammals may 

be authorized under sections 

101(a)(5)(A) and (D) of the MMPA for 

specified activities other than military 

readiness activities. The MMPA does 

not define small numbers and so, in 

practice, where estimated numbers are 

available, NMFS compares the number 

of individuals taken to the most 

appropriate estimation of abundance of 

the relevant species or stock in our 

determination of whether an 

authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is fewer than one-third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

The authorized number of instances 

of take for each species or stock is 

included in Table 8. Our analysis shows 

that less than one-third of the best 

available population abundance 

estimate of each stock could be taken by 

harassment. The number of animals 

authorized to be taken for all stocks 

would be considered small relative to 

the relevant stock’s abundances even if 

each estimated taking occurred to a new 


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individual, which is an unlikely 

scenario. 

A lack of an accepted stock 

abundance value for the Alaska stock of 

minke whale did not allow for the 

calculation of an expected percentage of 

the population that would be affected. 

The most relevant estimate of partial 

stock abundance is 1,233 minke whales 

in coastal waters of the Alaska 

Peninsula and Aleutian Islands (Zerbini 

et al. 2006). Given 12 authorized takes 

by Level B harassment for the stock, 

comparison to the best estimate of stock 

abundance shows, at most, 1 percent of 

the stock would be expected to be 

impacted. 

For the Bering Sea stock of harbor 

porpoise, the most reliable abundance 

estimate is 5,713, a corrected estimate 

from a 2008 survey. However, this 

survey covered only a small portion of 

the stock’s range, and therefore, is 

considered to be an underestimate for 

the entire stock (Muto et al. 2022). 

Given the authorized 24 takes by Level 

B harassment for the stock, comparison 

to the abundance estimate, which is 

only a portion of the Bering Sea Stock, 

shows that, at most, less than one 

percent of the stock would be expected 

to be impacted. 

For the Alaska stock of bearded seals, 

a lack of an accepted stock abundance 

value did not allow for the calculation 

of an expected percentage of the 

population that would be affected. As 

noted in the 2021 Alaska SAR (Muto et 

al. 2022), an abundance estimate is 

currently only available for the portion 

of bearded seals in the Bering Sea (Conn 

et al. 2014). The current abundance 

estimate for the Bering Sea is 301,836 

bearded seals. Given the authorized 995 

takes by Level B harassment for the 

stock, comparison to the Bering Sea 

estimate, which is only a portion of the 

Alaska Stock (also includes animals in 

the Chukchi and Beaufort Seas), shows 

that, at most, less than one percent of 

the stock would be expected to be 

impacted. 

The Alaska stock of ringed seals also 

lack an accepted stock abundance value, 

and therefore, we were not able to 

calculate an expected percentage of the 

population that may be affected by 

USACE’s project. As noted in the 2021 

Alaska SAR (Muto et al. 2022), the 

abundance estimate available, 171,418 

animals, is only a partial estimate of the 

Bering Sea portion of the population 

(Conn et al. 2014). As noted in the SAR, 

this estimate does not include animals 

in the shorefast ice zone, and the 

authors did not account for availability 

bias. Muto et al. (2022) expect that the 

Bering Sea portion of the population is 

actually much higher. Given the 

authorized 51 takes by Level B 

harassment for the stock, comparison to 

the Bering Sea partial estimate, which is 

only a portion of the Alaska Stock (also 

includes animals in the Chukchi and 

Beaufort Seas), shows that, at most, less 

than one percent of the stock would be 

expected to be impacted. 

Based on the analysis contained 

herein of the planned activity (including 

the required mitigation and monitoring 

measures) and the anticipated take of 

marine mammals, NMFS finds that 

small numbers of marine mammals 

would be taken relative to the 

population size of the affected species 

or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

In order to issue an IHA, NMFS must 

find that the specified activity will not 

have an ‘‘unmitigable adverse impact’’ 

on the subsistence uses of the affected 

marine mammal species or stocks by 

Alaskan natives. NMFS has defined 

‘‘unmitigable adverse impact’’ in 50 CFR 

216.103 as an impact resulting from the 

specified activity: (1) That is likely to 

reduce the availability of the species to 

a level insufficient for a harvest to meet 

subsistence needs by: (i) Causing the 

marine mammals to abandon or avoid 

hunting areas; (ii) Directly displacing 

subsistence users; or (iii) Placing 

physical barriers between the marine 

mammals and the subsistence hunters; 

and (2) That cannot be sufficiently 

mitigated by other measures to increase 

the availability of marine mammals to 

allow subsistence needs to be met. 

Given the nature of the activity, and 

the required mitigation measures, 

injury, serious injury, and mortality of 

marine mammals is not expected to 

occur. Impacts to marine mammals 

would include limited, temporary 

behavioral disturbances of marine 

mammals. As described above, the 

required mitigation measures, such as 

implementation of shutdown zones, are 

expected to reduce the frequency and 

severity of takes of marine mammals. 

Project impacts are generally not 

expected to reach traditional beluga 

harvest areas, and much of the project 

season avoids traditional ice seal 

harvest windows. While some hunting 

continues throughout the summer, we 

do not anticipate that there would be 

impacts to seals that would make them 

unavailable for subsistence hunters. 

During the public comment period on 

the proposed IHA (88 FR 27464, May 2, 

2023), NMFS received comments about 

potential impacts of the project on 

subsistence hunting of marine 

mammals. As a result of public 

comments, NMFS has strengthened the 

required measures related to subsistence 

hunting in the final IHA to ensure that 

the project activities do not have an 

unmitigable adverse impact on 

subsistence hunting. The final IHA 

requires USACE to coordinate with local 

subsistence communities, notify the 

communities of any changes in the 

operation, and take action to avoid or 

mitigate impacts to subsistence harvests. 

Further, the final IHA requires USACE 

to meet with local subsistence 

communities at least once prior to the 

start of the construction season and 

weekly during the construction season. 

USACE must update and redistribute its 

POC as additional meetings are planned 

and executed and must ensure that all 

concerns from the meetings are 

summarized in the POC. The POC must 

clearly describe how all concerns 

related to subsistence hunting of marine 

mammals have been addressed. 

Based on the description of the 

specified activity, the measures 

described to minimize adverse effects 

on the availability of marine mammals 

for subsistence purposes, and the 

required mitigation and monitoring 

measures, NMFS has determined that 

there will not be an unmitigable adverse 

impact on subsistence uses from 

USACE’s authorized activities. 

Endangered Species Act 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (16 U.S.C. 1531 et 

seq.) requires that each Federal agency 

insure that any action it authorizes, 

funds, or carries out is not likely to 

jeopardize the continued existence of 

any endangered or threatened species or 

result in the destruction or adverse 

modification of designated critical 

habitat. To ensure ESA compliance for 

the issuance of IHAs, NMFS OPR 

consults internally whenever we 

propose to authorize take for 

endangered or threatened species, in 

this case with the Alaska Regional 

Office. 

Three marine mammal species, Steller 

sea lion (Western DPS), ringed seal 

(Arctic subspecies), and bearded seal 

(Beringia DPS), occur in the project area 

and are listed as threatened or 

endangered under the ESA. The NMFS 

Alaska Regional Office issued a 

Biological Opinion under section 7 of 

the ESA on the issuance of an IHA to 

the USACE under section 101(a)(5)(D) of 

the MMPA by NMFS OPR. The 

Biological Opinion concluded that the 

action is not likely to jeopardize the 

continued existence of these species, 

and is not likely to destroy or adversely 

modify their critical habitat. 


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National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and 

NOAA Administrative Order (NAO) 

216–6A, NMFS must evaluate our 

proposed action (i.e., the promulgation 

of regulations and subsequent issuance 

of ITA) and alternatives with respect to 

potential impacts on the human 

environment. This action is consistent 

with categories of activities identified in 

Categorical Exclusion B4 (IHAs with no 

anticipated serious injury or mortality) 

of the Companion Manual for NAO 216– 

6A, which do not individually or 

cumulatively have the potential for 

significant impacts on the quality of the 

human environment and for which we 

have not identified any extraordinary 

circumstances that would preclude this 

categorical exclusion. Accordingly, 

NMFS has determined that the issuance 

of this IHA qualifies to be categorically 

excluded from further NEPA review. 

Authorization 

NMFS has issued an IHA to the 

USACE for the potential harassment of 

small numbers of 11 marine mammal 

species incidental to the Port of Nome 

Modification project in Nome, Alaska, 

that includes the previously explained 

mitigation, monitoring and reporting 

requirements. 

Dated: August 30, 2023. 

Catherine Marzin, 

Acting Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2023–19187 Filed 9–6–23; 8:45 am] 

BILLING CODE 3510–22–P 


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