Notice2026-18459
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Office of Naval Research's Arctic Research Activities in the Beaufort and Chukchi Seas (Year 9)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 10, 2026
Effective
September 14, 2026
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 Office of Naval Research (ONR) for authorization to take marine mammals incidental to Arctic Research Activities (ARA) in the Beaufort Sea and eastern Chukchi Sea.
Full Text
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<title>Federal Register, Volume 91 Issue 174 (Thursday, September 10, 2026)</title>
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[Federal Register Volume 91, Number 174 (Thursday, September 10, 2026)]
[Notices]
[Pages 57547-57550]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18459]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XF889]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Office of Naval Research's
Arctic Research Activities in the Beaufort and Chukchi Seas (Year 9)
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 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 Office of Naval Research (ONR) for authorization to take marine
mammals incidental to Arctic Research Activities (ARA) in the Beaufort
Sea and eastern Chukchi Sea.
DATES: This authorization is effective from September 14, 2026, through
September 13, 2027.
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
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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.
Specifically, NMFS shall 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
NMFS' implementing regulations (see 16 U.S.C. 1362; 50 CFR 216.103).
On July 22, 2026, a notice of NMFS' proposal to issue an IHA to ONR
for take of marine mammals incidental to ARA in the Beaufort and
Chukchi Seas was published in the Federal Register (91 FR 46055). In
that notice, NMFS provided estimates of the numbers, types, 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 three
comment letters from private citizens. 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: A commenter asserted NMFS' preliminary negligible impact
determination relied on flawed assumptions regarding cumulative multi-
year acoustic exposure and recommended a programmatic Environmental
Impact Statement (EIS) be prepared.
Response: NMFS disagrees with the commenter that its preliminary
negligible impact determination relied on flawed assumptions, and the
commenter does not provide persuasive evidence to the contrary. Neither
the MMPA nor NMFS' implementing regulations call for consideration of
the take resulting from other activities in the negligible impact
analysis. 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 NMFS' 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 section 101(a)(5) concerning negligible impact.
In this case, the IHA issued to ONR is appropriately considered an
unrelated activity relative to other ITAs currently in effect or
proposed within the geographic region. The ITAs are unrelated in the
sense that they are discrete actions under section 101(a)(5)(A) or (D)
issued to discrete applicants.
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 and will not have an unmitigable adverse impact on the
availability of such species or stocks for taking for subsistence uses.
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,
ONR 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 preparation of an EIS, an EIS is to be prepared when
there may be potentially significant impacts to the human environment.
There is no such evidence here and the commenter provides none.
Comment 2: A commenter asserted NMFS' negligible impact
determination relied on what they describe as an arbitrary and
unsupportable finding of zero takes by Level A harassment based on what
it deemed flawed acoustic modeling and ineffective monitoring
requirements. Specifically, the commenter asserted that the proposed
visual mitigation requirements are unrealistic and ineffective,
asserting that a watchstander cannot reliably detect a ringed seal at a
distance of 180 meters (m) under low-visibility conditions. The
commenter recommended that NMFS require passive acoustic monitoring
(PAM) on all vessels and deployment platforms and expand the mitigation
zones for all active acoustic source deployments and icebreaking
activities to a minimum of 500 m.
Response: Take by Level A harassment is neither anticipated nor
authorized based on the nature of ONR's planned activities, even absent
mitigation, and NMFS has appropriately considered this in its
negligible impact analysis and determination.
As stated in the notice of the proposed IHA, for beluga whale,
modeling did not predict take by Level A harassment given that the
acoustic sources are continuous with a low duty cycle and relatively
short ping duration (4-30 seconds). For ringed seals, as stated in the
notice of the proposed IHA, and NMFS does not anticipate, take by Level
A harassment, nor does NMFS anticipate TTS from active acoustic
sources. Since potentially impactful source levels from acoustic
sources would not exceed 185 dB by system design limits, sound exposure
levels would remain relatively low. Accounting for source level,
spherical spreading, and a 30-second pulse length (table 1), a ringed
seal would need to be in very close range of a single ping of an
acoustic source to risk exposure at or
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above the TTS threshold, an unlikely scenario given the low density of
ringed seals in the Study Area. Given the exceedingly low potential for
TTS, AUD INJ is not anticipated either.
In concluding that the Level A harassment estimates are flawed, the
commenter incorrectly asserted that Navy's Acoustic Effects Model
(NAEMO) assumes animals will exhibit active avoidance behavior before
reaching injury thresholds. As stated in the Marine Mammal Occurrence
and Take Estimation section of the notice of proposed IHA (91 FR 46055,
July 22, 2026), NAEMO estimates acoustic effects on marine mammals
without consideration of behavioral avoidance or mitigation. Further,
the virtual animals (animat dosimeters) within NAEMO do not move
horizontally or react in any way to avoid sound, which may overestimate
impacts. Of note, NAEMO was only used to model take of beluga whales,
and ONR has only reported sightings of beluga whales during transit,
not during research activities or icebreaking when acoustic impacts are
likely to occur; therefore, NMFS did not propose to authorize take of
beluga whale by Level A harassment from active acoustic sources.
For icebreaking, a continuous noise source, modeling for all
previous years of ARA icebreaking activities did not result in any
estimated take by Level A harassment of marine mammals. Further, the
estimated range to TTS is <15 m (see table 5 of the notice of proposed
IHA (91 FR 46055, July 22, 2026)), and the range to AUD INJ would be
even smaller. Given the proposed icebreaking activities have not
changed, neither ONR nor NMFS expect these activities would result in
Level A harassment of beluga whales or ringed seals and, therefore,
NMFS did not authorize take by Level A harassment from icebreaking.
As described above, NMFS' analysis does not rely on implementation
of mitigation measures or animal avoidance to support its conclusion
that Level A harassment is not anticipated. Regarding the
recommendation that NMFS require PAM on vessels and deployment
platforms to supplement visual observers, the commenter does not
explain why they expect PAM would be effective in detecting marine
mammals nor does NMFS agree that this measure is warranted. The use of
PAM on vessels (Research Vessel (R/V) Sikuliaq, U.S. Coast Guard Cutter
HEALY, or another vessel) would require significant investment by ONR
and the vessel operators for a research cruise that is planned for only
22 days in September-October 2026, and mitigation and monitoring data
from past ARA include a limited number of animal detections during
transit, acoustic source deployment and recovery, and icebreaking.
Further, integrating PAM into all active source operations (e.g.,
autonomous underwater vehicles, ice gateway buoys, moorings) would not
mitigate the potential acoustic impacts for those sources but would
only be a source of monitoring data and would only be available upon
recovery of the sources (approximately 1 year after deployment). While
NMFS agrees that PAM can be an important tool for augmenting detection
capabilities in certain circumstances, its utility in reducing impacts
to marine mammals during ARA is limited. PAM is only capable of
detecting animals that are actively vocalizing, yet many marine mammal
species vocalize infrequently or during certain activities, which means
that only a subset of the animals within the range of the PAM would be
detected (and potentially experience reduced impacts via shutdown of
acoustic sources). Further, localization and range detection can be
challenging under certain scenarios. For example, odontocetes (e.g.,
beluga whales) are fast moving and often travel in large or dispersed
groups which makes localization difficult. Given the effects to marine
mammals from the sound sources analyzed are expected to be limited to
Level B harassment; the limited timeframe of the planned research
cruise (22 days); the limited number of animals that have been detected
during transit, acoustic source deployment and recovery, and
icebreaking during past ARA; the limited additional benefit anticipated
by adding PAM as a detection method; and the cost and impracticability
of implementing a full-time PAM program, we have determined the current
requirements for visual monitoring are sufficient to ensure the least
practicable adverse impact on the affected species or stocks and their
habitat. Finally, we note the Navy supports research efforts on
acoustic monitoring and will continue to investigate the feasibility of
passive acoustics as a potential monitoring tool for ARA, as described
in ONR's IHA application.
The IHA requires that during moored and drifting acoustic source
deployment and recovery, ONR must implement a mitigation zone of 55 m
around the deployed source. Deployment and recovery must cease if a
marine mammal is visually detected within the mitigation zone. The IHA
also includes a condition that vessels must avoid approaching marine
mammals head-on and must maneuver to maintain a mitigation zone of 457
m around all observed cetaceans and 183 m around all other observed
marine mammals, provided it is safe to do so. These zones appropriately
mitigate the potential for acoustic impacts and vessel strike, and the
commenter provides no supporting information as to why 500 m would be
more appropriate.
Comment 3: Commenters disagreed with the renewal process, and one
commenter stated the renewal process violates the statutory notice-and-
comment requirements of MMPA section 101(a)(5)(D), which mandates a
full 30-day public review period for IHAs.
Response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about IHA renewals (e.g.,
84 FR 52464, October 2, 2019; 85 FR 53342, August 28, 2020), NMFS
explained the IHA renewal process is consistent with the statutory
requirements contained in section 101(a)(5)(D) of the MMPA and,
further, promotes NMFS' goals of improving conservation of marine
mammals and increasing efficiency in the MMPA compliance process.
Therefore, we intend to continue to implement the existing renewal
process.
All IHAs issued, whether an initial IHA or a renewal, are valid for
a period of not more than 1 year. The public has 30 days to comment on
proposed IHAs, with a cumulative total of 45 days for IHA renewals. The
notice of proposed IHA published in the Federal Register on July 22,
2026 (91 FR 46055) provided a 30-day public comment period and made
clear that NMFS was seeking comment on the proposed IHA and the
potential issuance of a renewal for the planned activities. As detailed
in the Federal Register notice of proposed IHA and on the agency's
website, eligibility for renewal is determined on a case-by-case basis
and renewals are subject to an additional 15-day public comment period.
The renewal is limited to (1) up to another year of identical or nearly
identical activities as described in the Description of Proposed
Activities section of the notice of proposed IHA or (2) the activities
described in the Description of Proposed Activities section of the
notice of proposed IHA would not be completed by the time the IHA
expires, and a renewal would allow for completion of the activities
beyond that described in the Dates and Duration section of the notice
of proposed IHA (91 FR 46055, July 22, 2026). NMFS' analysis of the
anticipated impacts on marine mammals caused by ONR's activities covers
both the initial IHA
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period and the possibility of a 1-year renewal. Therefore, a member of
the public considering commenting on a proposed initial IHA also knows
exactly what activities (or subset of activities) would be included in
a proposed renewal IHA, the potential impacts of those activities, the
maximum amount and type of take that could be caused by those
activities, the mitigation and monitoring measures that would be
required, and the basis for the agency's negligible impact
determinations, least practicable adverse impact findings, and if
applicable, small numbers and no unmitigable adverse impact on
subsistence use findings (neither of which are applicable to this
action)--all the information needed to provide complete and meaningful
comments on a possible renewal at the time of considering the proposed
initial IHA. Reviewers have the information needed to meaningfully
comment on both the immediate proposed IHA and a possible 1-year
renewal, should the IHA holder choose to request one.
While there would be additional documents submitted with a renewal
request, for a qualifying renewal these would be limited to
documentation that NMFS would make available and use to verify that the
activities are identical to those in the initial IHA, are nearly
identical such that the changes would have either no effect on impacts
to marine mammals or decrease those impacts, or are a subset of
activities already analyzed and authorized but not completed under the
initial IHA. NMFS would also need to confirm, among other things, that
the activities would occur in the same location; involve the same
species and stocks; provide for continuation of the same mitigation,
monitoring, and reporting requirements; and that no new information has
been received that would alter the prior analysis. The renewal request
would also contain a preliminary monitoring report, in order to verify
that effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. The additional 15-day public comment
period, which includes NMFS' direct notice to anyone who commented on
the proposed initial IHA, provides the public an opportunity to review
these few documents, provide any additional pertinent information, and
comment on whether they think the criteria for a renewal have been met.
Combined together, the 30-day public comment period on the initial IHA
and the additional 15-day public comment period on the renewal of the
same or nearly identical activities, provides the public with a total
of 45 days to comment on the potential for renewal of the IHA.
In addition to the IHA renewal process being consistent with all
requirements under section 101(a)(5)(D) of the MMPA, it is also
consistent with Congress' intent for issuance of IHAs to the extent
reflected in statements in the legislative history of the MMPA. Through
the description of the process and express invitation to comment on
specific potential renewals in the Request for Public Comments section
of each notice of proposed IHA, the description of the process on NMFS'
website, further elaboration on the process through responses to
comments such as these, posting of substantive documents on the
agency's website, and provision of 30 or 45 days for public review and
comment on all proposed IHAs and renewals respectively, NMFS has
ensured that the public is ``invited and encouraged to participate
fully in the agency's decision-making process,'' as Congress intended.
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 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 of
endangered or threatened species, in this case with the NMFS Alaska
Regional Office (AKR).
There is one marine mammal species (Arctic subspecies of ringed
seal) with confirmed occurrence in the Study Area that is listed as
threatened under the ESA. NMFS AKR issued a Biological Opinion on
September 13, 2022, under section 7 of the ESA, on the issuance of an
IHA to ONR under section 101(a)(5)(D) of the MMPA by the NMFS OPR. The
Biological Opinion concluded that the action is not likely to
jeopardize the continued existence of Arctic ringed seals and is not
likely to destroy or adversely modify Arctic ringed seal critical
habitat. This conclusion remains applicable to this IHA.
Authorization
Accordingly, consistent with the requirements of section
101(a)(5)(D) of the MMPA, NMFS has issued an IHA to ONR for
authorization to take marine mammals incidental to ARA in the Beaufort
and Chukchi Seas.
Dated: September 4, 2026.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2026-18459 Filed 9-9-26; 8:45 am]
BILLING CODE 3510-22-P
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