[Federal Register Volume 88, Number 172 (Thursday, September 7, 2023)]
[Notices]
[Pages 61806-61847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19187]



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Vol. 88

Thursday,

No. 172

September 7, 2023

Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration





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Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the Port of Nome Modification Project in 
Nome, Alaska; Notice

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

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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.

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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/incidental-take-authorizations-construction-activities. 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-mammal-protection/incidental-take-authorizations-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

[[Page 61807]]

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 site-specific 
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 site-specific, 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, site-specific 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 site-specific 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 * Log<INF>10</INF> (R <INF>1</INF>/R <INF>2</INF>),

where

TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R <INF>1</INF>= the distance of the modeled SPL from the driven 
pile, and
R <INF>2</INF>= 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 in-water 
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 project-specific, 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

[[Page 61810]]

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--long-range remote cameras (for 
initial Arctic examples, see Bouffaut et al. 2022 and Landr[oslash] 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- long-range 
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 co-management 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 site-specific 
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

[[Page 61811]]

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-of-Nome-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 re-detection of the animal.
    Response: NMFS thanks the commenter for its support of the 
requirement for USACE to conduct

[[Page 61812]]

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 (H-piles 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:
    <bullet> 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.
    <bullet> Vessels must not approach within 5.5 km (3 nm) of Steller 
sea lion rookery sites listed in (50 CFR 224.103(d)).
    <bullet> Vessels must not approach within 914 m (3,000 ft) of any 
Steller sea lion haulout or rookery.
    <bullet> 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.
    <bullet> 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

[[Page 61813]]

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

[[Page 61814]]

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

[[Page 61815]]

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 open-water 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-take-authorization-us-army-corps-engineers-port-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'

[[Page 61816]]

response to Comment 2 regarding site-specific 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:
    <bullet> 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).
    <bullet> 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.
    <bullet> 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 post-
activity 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).
    <bullet> 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.
    <bullet> 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 co-management 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 Co-Management 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

[[Page 61817]]

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 co-management 
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

[[Page 61818]]

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-of-Nome-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

[[Page 61819]]

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.
    <bullet> 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.
    <bullet> The POC was not posted on USACE's website.
    <bullet> 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.
    <bullet> USACE's POC was not adequately distributed to Nome's 
subsistence community in a way that allowed for meaningful engagement.
    <bullet> USACE should include the Native Village of Solomon and the 
Native Village of Council in POC.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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-mammal-protection/incidental-take-authorizations-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-of-Nome-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.
    <bullet> 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 subsistence-related 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.
    <bullet> 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

[[Page 61820]]

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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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 co-management by a 
body of subsistence users appointed by local Tribes. The commenter 
stated that the co-management body should be given the

[[Page 61821]]

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 co-
management 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 co-management 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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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

[[Page 61822]]

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,

[[Page 61823]]

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/incidental-take-authorizations-construction-activities.
    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.
    <bullet> The subsistence community;
    <bullet> Ice Seal Commission (likely meant Committee);
    <bullet> Alaska Beluga Whale Committee; and
    <bullet> Eskimo Walrus Commission.
    Response: NMFS concurs that thorough engagement with subsistence 
users and groups is necessary in order to fully understand the 
subsistence-related 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.

[[Page 61824]]

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 site-specific 
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-of-Nome-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

[[Page 61825]]

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 one-time, 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

[[Page 61826]]

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:
    <bullet> Coastal erosion;
    <bullet> Housing shortages during construction;
    <bullet> Inadequate funding for the project;
    <bullet> Inadequate justifications for the project (e.g., national 
security, port capacity);
    <bullet> USACE and the City of Nome's lack of tribal engagement;
    <bullet> Project cost sharing;
    <bullet> Misleading information that Port of Nome modifications can 
be recommended according to 33 U.S. Code section 2242--Remote and 
subsistence harbors authorizations;
    <bullet> Potential violence against Alaska Native women;
    <bullet> Flow of the currents around the project;
    <bullet> Impacts of the project on salmon and birds;
    <bullet> Destruction of Sitnasuak Native Corporations lands because 
of an influx of people;

[[Page 61827]]

    <bullet> Dust mitigation; and
    <bullet> 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-to-
government 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-to-government 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-Nome-Modification-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 ESA-listed 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 density-based 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

[[Page 61828]]

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 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). 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-mammal-protection/marine-mammal-stock-assessments).

                    Table 1--Marine Mammal Species \1\ Likely To Occur Near the Project Area That May Be Taken by USACE's Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \2\          abundance survey) \3\               SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
    Gray Whale......................  Eschrichtius robustus..  Eastern N Pacific......  -, -, N             26,960 (0.05, 25,849,         801        131
                                                                                                             2016).
Family Balaenidae:
    Bowhead whale...................  Balaena mysticetus.....  Western Arctic.........  E, D, Y             14,025 (0.228, 11,603,        116         56
                                                                                                             2019).
Family Balaenopteridae (rorquals):
    Minke Whale.....................  Balaenoptera             AK.....................  -, -, N             N/A (N/A, N/A, N/A)           UND          0
                                       acutorostrata.                                                        \5\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer Whale....................  Orcinus orca...........  Eastern North Pacific    -, -, N             1,920 \6\ (N/A, 1,920,         19        1.3
                                                                Alaska Resident.                             2019).
    Killer Whale....................  Orcinus orca...........  Eastern North Pacific    -, -, N             587 \6\ (N/A, 587,            5.9        0.8
                                                                Gulf of Alaska,                              2012).
                                                                Aleutian Islands and
                                                                Bering Sea Transient.
Family Monodontidae (white whales):
    Beluga Whale....................  Delphinapterus leucas..  Eastern Bering Sea.....  -,-, N              12,269 (0.118, 11,112,        267        226
                                                                                                             2017).
Family Phocoenidae (porpoises):
    Harbor Porpoise.................  Phocoena phocoena......  Bering Sea.............  -, -, Y             UNK (UNK, N/A, 2008)       UND\7\        0.4
                                                                                                             \7\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):

[[Page 61829]]

 
    Steller Sea Lion................  Eumetopias jubatus.....  Western................  E, D, Y             52,932 \8\ (N/A,              318        254
                                                                                                             52,932, 2019).
Family Phocidae (earless seals):
    Bearded Seal....................  Erignathus barbatus....  Beringia...............  T, D, Y             UND (UND, UND, 2013)      \9\ UND      6,709
                                                                                                             \9\.
    Ribbon Seal.....................  Histriophoca fasciata..  Unidentified...........  -, -, N             184,697 (N/A, 163,086,      9,785        163
                                                                                                             2013).
    Ringed Seal.....................  Pusa hispida...........  Arctic.................  T, D, Y             UND (UND, UND, 2013)     \10\ UND      6,459
                                                                                                             \10\.
    Spotted Seal....................  Phoca largha...........  Bering.................  -, -, N             461,625 (N/A, 423,237,     25,394      5,254
                                                                                                             2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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)).
\2\ ESA 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-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These 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.
\7\ The 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.
\10\ A 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

[[Page 61830]]

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 low-frequency 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   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* 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 
(Hemil[auml] 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

[[Page 61831]]

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-mean-squared pressure received levels (RMS SPL) of 120 dB 
(referenced to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., 
vibratory pile-driving) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive 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 [mu]Pa 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 non-impulsive). 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/marine-mammal-acoustic-technical-guidance.

                     Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1 Lpk,flat: 219 dB;    Cell 2 LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3 Lpk,flat: 230 dB;    Cell 4 LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5 Lpk,flat: 202 dB;    Cell 6 LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7 Lpk,flat: 218 dB;    Cell 8 LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9 Lpk,flat: 232 dB;    Cell 10 LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 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 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. 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 km\2\ (290 mi\2\), 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Vibratory sound source levels                               Impact sound source levels \1\
            Pile type            -----------------------------------------------------------------------------------------------------------------------
                                    SPLRMS       SEL             Peak          Literature source     SPLRMS       SEL        Peak     Literature source
--------------------------------------------------------------------------------------------------------------------------------------------------------
Temporary template piles (Pipe         154.0      144.0  Not Available......  Caltrans (2020)....       189.0      178.0      203.0  Caltrans (2015).
 piles <=24-in).
Alternate Temporary template           150.0      147.0  165.0..............  Caltrans (2020)....       178.0      166.0      200.0  Caltrans (2020).
 piles (H-piles 14-in).
Anchor piles (14-in HP14x89 or         150.0      147.0  165.0..............  Caltrans (2020)....       178.0      166.0      200.0  Caltrans (2020).
 similar).
Sheet piles (20-in PS31 or             160.7      161.1  171.5..............  PND (2016, 2020)...       189.0      179.0      205.0  Caltrans (2015).
 similar).

[[Page 61832]]

 
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]
----------------------------------------------------------------------------------------------------------------
                                                                               Strikes per
            Pile type                 Installation/       Minutes per pile    pile (impact)     Piles per day
                                         removal          (vibratory) \1\          \1\
----------------------------------------------------------------------------------------------------------------
Temporary template piles (Pipe     Installation.......  10.................              20  20.
 piles <=24-in).
                                   Removal............  10.................  ..............  20.
(Alternate) Temporary template     Installation.......  10.................              20  (20).
 piles (H-piles 14-in).
                                   Removal............  (10)...............  ..............  (20).
Anchor piles (14-in HP14x89 or     Installation.......  10.................              20  20.
 similar).
Sheet piles (20-in PS31 or         Installation.......  10 (20 per pair)...              10  28 (14 pairs).
 similar).
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
----------------------------------------------------------------------------------------------------------------
                                                      Level A harassment isopleths (m)                Level B
                Pile type                 -------------------------------------------------------   harassment
                                               LF         MF         HF         PW         OW      isopleth (m)
----------------------------------------------------------------------------------------------------------------
                                                    Vibratory
----------------------------------------------------------------------------------------------------------------
Temporary template piles (Pipe piles <=24-         5         <1          7          3         <1           1,848
 in).....................................
(Alternate) Temporary template piles (H-           3         <1          4          2         <1           1,000
 piles 14-in)............................
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-       252          9        300        135         10             858
 in).....................................
(Alternate) Temporary template piles (H-          40          1         48         21          2             159
 piles 14-in)............................
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
----------------------------------------------------------------------------------------------------------------


[[Page 61833]]

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 line-transect 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 km\2\). 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

[[Page 61834]]

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/km\2\ and in the SEBS 
was 0.012 animals/km\2\. 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 x 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 x 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 x 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

[[Page 61835]]

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 x 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/km\2\, 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/km\2\) 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 (km\2\) \b\.............            4.69            1.71           28.09          416.83
----------------------------------------------------------------------------------------------------------------
\a\ Installation and removal.
\b\ As 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 open-
water period (Boveng et al. 2017). Braham et al. (1984) reported a 
maximum density of 0.002 seals/km\2\ 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/km\2\) 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 km\2\ in the Bering Sea. Bengtson et al. 
(2005) reported bearded seal densities ranging from 0.07 to 0.14 seals/
km\2\ 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 km\2\ of 0.39 bearded seals/km\2\ (95 percent CI 0.32-
0.47). Results from 2006 helicopter transect surveys over a 279,880 
km\2\ subset of the study area

[[Page 61836]]

calculated density estimates of 0.22 bearded seals/km\2\ (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/km\2\) 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
----------------------------------------------------------------------------------------------------------------
                                                                                                    Authorized
                                                                    Authorized                       take as a
                Species                           Stock           take  (Level B       Stock       percentage of
                                                                     harassment      abundance         stock
                                                                       only)                         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                 30       \c\ 1,920               2
                                         Alaska Resident.
                                        Eastern North Pacific                            \c\ 587               5
                                         Gulf of Alaska,
                                         Aleutian Islands and
                                         Bering Sea Transient.
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.
\a\ Given 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 (September-October). (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

[[Page 61837]]

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
----------------------------------------------------------------------------------------------------------------
                                                                                        Shutdown zone  (m)
                   Pile type                           Pile driving method       -------------------------------
                                                                                     Cetaceans       Pinnipeds
----------------------------------------------------------------------------------------------------------------
Temporary template piles (Pipe piles <=24-in).  Vibratory.......................              10              10
                                                Impact..........................             300             150
(Alternate) Temporary template piles (H-piles   Vibratory.......................              10              10
 14-in).
                                                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
----------------------------------------------------------------------------------------------------------------
\a\ As 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

[[Page 61838]]

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 post-completion of pile 
driving activity. Pre-start 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 re-detection 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,
    <bullet> Vessels must not approach within 5.5 km (3 nmi) of Steller 
sea lion rookery sites listed in (50 CFR 224.103(d)).
    <bullet> Vessels must not approach within 914 m (3,000 ft) of any 
Steller sea lion haulout or rookery.
    <bullet> 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:
    <bullet> A statement that the applicant has notified and provided 
the affected subsistence community with a draft POC;
    <bullet> 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;
    <bullet> 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
    <bullet> 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

[[Page 61839]]

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:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
    <bullet> 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);
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
    <bullet> How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and,
    <bullet> 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 NMFS-
approved PSOs in a manner consistent with the following:
    <bullet> PSOs must be independent of the activity contractor (for 
example, employed by a subcontractor) and have no other assigned tasks 
during monitoring periods;
    <bullet> At least one PSO must have prior experience performing the 
duties of a PSO during construction activities pursuant to a NMFS-
issued ITA;
    <bullet> 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.);
    <bullet> 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
    <bullet> PSOs must be approved by NMFS prior to beginning any 
activity subject to this IHA.
    PSOs must have the following additional qualifications:
    <bullet> Ability to conduct field observations and collect data 
according to assigned protocols;
    <bullet> Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
    <bullet> Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    <bullet> 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
    <bullet> 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

[[Page 61840]]

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:
    <bullet> Dates and times (begin and end) of all marine mammal 
monitoring;
    <bullet> 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).
    <bullet> PSO locations during marine mammal monitoring;
    <bullet> 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;
    <bullet> 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);
    <bullet> Number of marine mammals detected within the harassment 
zones, by species; and
    <bullet> 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:
    <bullet> 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;
    <bullet> Type and size of pile being driven, substrate type, method 
of driving during recordings;
    <bullet> 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;
    <bullet> Duration per pile measured, one-third octave band 
spectrum, power spectral density plot;
    <bullet> Estimated source levels referenced to 10m, transmission 
loss coefficients, and estimated Level A and Level B harassment 
isopleths; and
    <bullet> 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 (<a href="/cdn-cgi/l/email-protection#2f7f7d01667b7f01624041465b405d4641487d4a5f405d5b5c6f41404e4e01484059"><span class="__cf_email__" data-cfemail="80d0d2aec9d4d0aecdefeee9f4eff2e9eee7d2e5f0eff2f4f3c0eeefe1e1aee7eff6">[email protected]</span></a> and 
<a href="/cdn-cgi/l/email-protection#137a67633d7772657a60537d7c72723d747c65"><span class="__cf_email__" data-cfemail="2b425f5b054f4a5d42586b45444a4a054c445d">[email protected]</span></a>) 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:
    <bullet> Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    <bullet> Species identification (if known) or description of the 
animal(s) involved;
    <bullet> Condition of the animal(s) (including carcass condition if 
the animal is dead);
    <bullet> Observed behaviors of the animal(s), if alive;
    <bullet> If available, photographs or video footage of the 
animal(s); and
    <bullet> 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

[[Page 61841]]

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-mammal-protection/incidental-take-authorizations-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 scientifically-defensible 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.

[[Page 61842]]

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 far-field 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 far-field, 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 user-friendly app 
would make reporting of sightings easier, faster, and more reliable, 
and would further our knowledge of the effects of construction-related 
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 
pre-construction 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 species-specific 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 
species-specific factors.

[[Page 61843]]

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 
project-specific 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., Ara[uacute]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[oslash] 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

[[Page 61844]]

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 post-monitoring 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 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). 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., population-
level 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

[[Page 61845]]

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 long-term 
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 ESA-designated 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:
    <bullet> No injury, serious injury, or mortality is anticipated or 
authorized;
    <bullet> 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;
    <bullet> The area impacted by the specified activity is very small 
relative to the overall habitat ranges of all species;
    <bullet> 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

[[Page 61846]]

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.

[[Page 61847]]

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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