Notice2026-01911
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Ice Exercise Activities 2026 in the Arctic Ocean
Primary source
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Published
January 30, 2026
Effective
February 18, 2026
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with 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. Department of the Navy (hereafter Navy) for authorization to take marine mammals incidental to Ice Exercise Activities 2026 (ICEX26) in the Arctic Ocean. The Navy's activities are considered military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA).
Full Text
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<title>Federal Register, Volume 91 Issue 20 (Friday, January 30, 2026)</title>
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[Federal Register Volume 91, Number 20 (Friday, January 30, 2026)]
[Notices]
[Pages 4062-4064]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-01911]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XF333]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to U.S. Navy Ice Exercise Activities
2026 in the Arctic Ocean
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of incidental harassment authorization.
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SUMMARY: In accordance with 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. Department of the Navy (hereafter Navy) for authorization to take
marine mammals incidental to Ice Exercise Activities 2026 (ICEX26) in
the Arctic Ocean. The Navy's activities are considered military
readiness activities pursuant to the MMPA, as amended by the National
Defense Authorization Act for Fiscal Year 2004 (2004 NDAA).
DATES: This authorization is effective from February 18, 2026, through
April 30, 2026.
ADDRESSES: 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-military-readiness-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities</a>. In case of problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, Office of
Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
MMPA Background and Determinations
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Among the exceptions is section 101(a)(5)(D) of the MMPA
(16 U.S.C. 1361 et seq.) which directs the Secretary of Commerce (as
delegated to NMFS) to allow, upon request, the incidental, but not
intentional, taking by harassment 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 the public has an opportunity to comment on the proposed IHA.
[[Page 4063]]
Specifically, NMFS will issue an IHA if it 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 such species or stocks for taking for certain
subsistence uses (referred to here as ``mitigation''). NMFS must also
prescribe requirements pertaining to the monitoring and reporting of
such takings. The definitions of key terms, such as ``take,''
``harassment,'' and ``negligible impact,'' can be found in the MMPA and
the NMFS' implementing regulations (see 16 U.S.C. 1362; 50 CFR
216.103).
The 2004 NDAA (Pub. L. 108-136) removed the ``small numbers'' and
``specified geographical region'' limitations indicated above and
amended the definition of ``harassment'' as applied to a ``military
readiness activity.'' The activity for which incidental take of marine
mammals is being requested qualifies as a military readiness activity.
On November 14, 2025, a notice of NMFS' proposal to issue an IHA to
the Navy for take of marine mammals incidental to submarine training
and testing activities in the Arctic Ocean was published in the Federal
Register (90 FR 51043). In that notice, NMFS indicated the estimated
numbers, type, and methods of incidental take proposed for each species
or stock, as well as the mitigation, monitoring, and reporting measures
that would be required should the IHA be issued. The Federal Register
notice also included analysis to support NMFS' preliminary conclusions
and determinations that the IHA, if issued, would satisfy the
requirements of section 101(a)(5)(D) of the MMPA for issuance of the
IHA. The Federal Register notice included web links to a draft IHA for
review, as well as other supporting documents.
During the 30-day public comment period, NMFS received one comment
letter from a private citizen. NMFS' consideration of public comments,
which we respond to below, did not result in changes to the analysis or
findings in the Federal Register notice of proposed IHA or the required
mitigation, monitoring, or reporting measures set forth in the proposed
IHA. There are no changes to the specified activity, the species taken,
the proposed numbers, type, or methods of take, or the mitigation,
monitoring, or reporting measures in the proposed IHA notice. No new
information that would change any of the preliminary analyses,
conclusions, or determinations in the proposed IHA notice has become
available since that notice was published, and therefore, the
preliminary analyses, conclusions, and determinations included in the
proposed IHA are considered final.
Comment 1: The commenter asserted that Level A harassment cannot be
wholly ruled out given the difficulty of detecting seals beneath ice
and snow, and stated that this necessitates additional precautionary
mitigation measures. The commenter provided five recommendations to
enhance mitigation, monitoring, and reporting: seasonal restrictions on
``high-intensity sound sources,'' expanded shutdown and monitoring
zones, implementation of passive acoustic monitoring (PAM), avoidance
of ringed seal lair-rich areas, and enhanced reporting requirements.
Response: As discussed in the notice of the proposed IHA, Level A
harassment is not likely to occur as a result of the specified
activity, and the commenter provided no information that would
invalidate this determination. Modeling for three previous ICEXs (2018,
2020, and 2022), which employed similar acoustic sources, did not
result in any estimated takes by permanent threshold shift (PTS) (Level
A harassment), and NMFS anticipates that the density of ringed seals is
actually much lower than estimated in those previous analyses, further
reducing the likelihood of Level A harassment. In addition, at close
ranges and high sound levels approaching those that could cause
auditory injury, seals would likely avoid the area immediately around
the sound source. In consideration of the fact that total takes were
likely overestimated for previous ICEX activities given the density
information used in the analyses and the similarity between those
activities and the activities planned for ICEX26, NMFS does not expect,
and did not authorize, take by Level A harassment of ringed seal.
Regarding the recommendation to seasonally restrict sound sources,
as described in the notice of proposed IHA, the dates and duration of
the planned activity, along with the seasonal mitigation to minimize
impacts to ringed seal lair construction and use of lairs, are expected
to reduce potential acoustic impacts to ringed seals in the Study Area.
As such, NMFS disagrees with the commenter that limiting acoustic
transmissions during periods when seals rely most heavily on lairs
would substantially reduce disturbance.
Regarding the other four recommendations from the commenter, two of
these were included as proposed measures and are required by the IHA:
implementation of PAM and avoidance of lair-rich areas; therefore,
these measures are not discussed further.
The commenter recommended expanded shutdown and monitoring zones
but did not provide specific recommendations for zone sizes or provide
any information that could be used to assess expansion of shutdown and
monitoring zones. The proposed IHA and this final IHA require that Navy
personnel must conduct PAM during all active sonar use, and must delay
or shut down active acoustic transmissions and exercise torpedo
launches if a marine mammal is detected. The IHA does not specify a
distance for delaying or shutting down active acoustic sources
following a marine mammal detection; any marine mammal detected with
PAM would result in a shutdown of the active sonar source. As such, it
is not possible to expand shutdown and monitoring zones as recommended
by the commenter as these zones already extend to the farthest distance
that marine mammals can be detected visually or acoustically.
Finally, the commenter did not provide specific reporting details
that it considers to be enhanced from what was proposed and is required
under the IHA. Therefore, we cannot further consider the
recommendation. The monitoring and reporting measures required by the
IHA satisfy the requirements of the MMPA.
Comment 2: The commenter stated the potential impacts from ICEX26
must also be considered alongside cumulative effects as part of the
negligible impact determination required by the MMPA. Separately, the
commenter also stated that NMFS should explicitly disclose how it
interprets ``small numbers'' in this context and justify how the
proposed take aligns with the requirement that take must be negligible
relative to overall population size.
Response: NMFS has defined negligible impact as an impact resulting
from the specified activity that cannot be reasonably expected to, and
is not reasonably likely to, adversely affect the species or stock
through effects on annual rates of recruitment or survival (50 CFR
216.103). A negligible impact finding is based on the lack of likely
adverse effects on annual rates of recruitment or survival (i.e.,
population-level effects). An estimate of the number of takes alone is
not enough information
[[Page 4064]]
on which to base an impact determination. In addition to considering
estimates of the number of marine mammals that might be ``taken''
through harassment, NMFS considers other factors, such as the likely
nature of any impacts or responses (e.g., intensity, duration), the
context of any impacts or responses (e.g., critical reproductive time
or location, foraging impacts affecting energetics), as well as effects
on habitat, and the likely effectiveness of the mitigation. We also
assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status.
Neither the MMPA nor NMFS' codified implementing regulations call
for consideration of other unrelated activities and their impacts on
marine mammal populations. The preamble for NMFS' implementing
regulations (54 FR 40338, September 29, 1989) states in response to
comments that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the density, distribution, and status
of the species, population size and growth rate, and other relevant
stressors. The 1989 final rule for the MMPA implementing regulations
also addressed public comments regarding cumulative effects from
future, unrelated activities. There, NMFS stated that such effects are
not considered in making findings under MMPA section 101(a)(5)
concerning negligible impact.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations 50 CFR 216.104(a)(1) require
applicants to include in their request a detailed description of the
specified activity or class of activities that can be expected to
result in incidental taking of marine mammals. Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, the Navy was the applicant for the IHA, and we are
responding to the specified activity as described in that application
and making the necessary findings on that basis.
Regarding the ``small numbers'' interpretation, as stated in the
Background section of the Federal Register notice of proposed IHA, the
2004 NDAA amended section 101(a)(5) of the MMPA for military readiness
activities to remove the ``small numbers'' provision. ICEX26 qualifies
as a military readiness activity and, as such, the ``small numbers''
provision does not apply.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA)
(42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NAO 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has determined that the
issuance of this IHA qualifies to be categorically excluded from
further NEPA review.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA) (16
U.S.C. 1531 et seq.) requires that each Federal agency ensures that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally whenever we propose to authorize take for
endangered or threatened species, in this case with NMFS' Alaska
Regional Office (AKR).
There is one marine mammal species (Alaska stock of ringed seals)
with confirmed occurrence in the project area that is listed under the
ESA. The NMFS AKR issued a Biological Opinion under section 7 of the
ESA, on the issuance of an IHA to the Navy under section 101(a)(5)(D)
of the MMPA by the NMFS Office of Protected Resources. The Biological
Opinion concluded that the proposed action is not likely to jeopardize
the continued existence of ringed seals.
Authorization
Accordingly, consistent with the requirements of section
101(a)(5)(D) of the MMPA, NMFS has issued an IHA to the Navy for
authorization to take marine mammals incidental to submarine training
and testing activities in the Arctic Ocean.
Dated: January 28, 2026.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2026-01911 Filed 1-29-26; 8:45 am]
BILLING CODE 3510-22-P
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