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Notice2023-19187

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

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Published

September 7, 2023

Effective

May 1, 2024

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

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.

Full Text

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

[[Page 61805]]

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

[[Page 61806]]

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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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>. 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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>.
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

[[Page 61808]]

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

[[Page 61809]]

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 (<a href="https://www.nomealaska.org/port-nome/page/noaa-weather-camera">https://www.nomealaska.org/port-nome/page/noaa-weather-camera</a>), 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: <a href="https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/">https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/</a>, 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: <a href="https://www.fisheries.noaa.gov/s3/2023-05/TECHMEMOGuidance508.pdf">https://www.fisheries.noaa.gov/s3/2023-05/TECHMEMOGuidance508.pdf</a>) 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: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-army-corps-engineers-port-nome-modification-project-nome">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-army-corps-engineers-port-nome-modification-project-nome</a>.
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 <a href="https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/">https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/</a>.
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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>. 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: <a href="https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/">https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/</a>.
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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>.
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: <a href="https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/">https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/</a>.
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: <a href="https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/">https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/</a>. 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; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
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:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>).

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
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>; 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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. 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 (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) 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:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.

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

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