2024-08583. 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 incidental harassment authorization.

SUMMARY:

NMFS has received a request from the U.S. Army Corps of Engineers (USACE) for the reissuance of a previously issued incidental harassment authorization (IHA) with the only change being effective dates. The initial IHA authorized take of 10 species of marine mammals, by Level B harassment only, incidental to construction activities associated with the Port of Nome Modification Project in Nome, Alaska. The project has been delayed by 1 year and none of the work covered in the initial IHA has been conducted. The initial IHA was effective from May 1, 2024 through April 30, 2025. USACE has requested reissuance with new effective dates of May 1, 2025 through April 30, 2026. The scope of the activities and anticipated effects remain the same, authorized take numbers are not changed, and the required mitigation, monitoring, and reporting remains the same as included in the initial IHA. NMFS is, therefore, issuing a second identical IHA to cover the incidental take analyzed and authorized in the initial IHA.

DATES:

This authorization is effective from May 1, 2025 through April 30, 2026.

ADDRESSES:

An electronic copy of the final 2023 IHA previously issued to USACE, the USACE's application, and the Federal Register notices proposing and issuing the initial IHA may be obtained by visiting https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call the contact listed below (see FOR FURTHER INFORMATION CONTACT ).

FOR FURTHER INFORMATION CONTACT:

Leah Davis, Office of Protected Resources, NMFS, [phone].

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act (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 issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

NMFS has defined “negligible impact” in 50 CFR 216.103 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.

The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

Except with respect to certain activities not pertinent here, 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).

Summary of Request

On September 7, 2023, NMFS published final notice of our issuance of an IHA authorizing take of marine mammals incidental to the Port of Nome Modification Project in Nome, Alaska (88 FR 61806). The effective dates of that IHA were May 1, 2024 through April 30, 2025. On March 4, 2024, USACE informed NMFS that the project would be delayed by one year. None of the work identified in the initial IHA ( e.g., pile driving and removal) has occurred. USACE subsequently submitted a request on March 18, 2024 for NMFS to reissue an identical IHA that would be effective from May 1, 2025 through April 30, 2026, in order to conduct the construction work that was analyzed and authorized through the previously issued IHA. Therefore, reissuance of the IHA is appropriate.

Summary of Specified Activity and Anticipated Impacts

The planned activities (including mitigation, monitoring, and reporting), authorized incidental take, and anticipated impacts on the affected stocks are the same as those analyzed and authorized through the previously issued IHA.

The City of Nome and USACE are proposing to expand the Port of Nome to provide much-needed additional capacity to serve the Arctic as well as to alleviate congestion at the existing port facilities. This IHA would authorize take associated with Year 1 of Phase 1 of the project only. The location, timing, and nature of the activities, including the types of equipment planned for use, are identical to those described in the initial IHA. The mitigation and monitoring are also as prescribed in the initial IHA.

Species that are expected to be taken by the planned activity include bowhead whale ( Balaena mysticetus), minke whale ( Balaenoptera acutorostrata), gray whale ( Eschrichtius robustus), killer whale ( Orcinus orca), harbor porpoise ( Phocoena phocoena), beluga whale ( Delphinapterus leucas), Steller sea lion ( Eumetopias jubatus), spotted seal ( Phoca largha), ringed seal ( Pusa hispida), ribbon seal ( Histriophoca fasciata), bearded seal ( Erignathus barbatus). A description of the methods and inputs used to estimate take anticipated to occur and, ultimately, the take that was authorized is found in the previous documents referenced above. The data inputs and methods of estimating take are identical to those used in the initial IHA. NMFS has reviewed recent Stock Assessment Reports (SAR), information on relevant Unusual Mortality Events, and recent scientific literature. While the bowhead whale (Western Arctic stock) stock assessment information was updated in the draft 2023 SAR, NMFS determined that no new information affects our original analysis of impacts or take estimate under the initial IHA.

We refer to the documents related to the previously issued IHA, which include the Federal Register notice of the issuance of the initial 2023 IHA for the USACE's construction work (88 FR 61806, September 7, 2023), USACE's application, the Federal Register notice of the proposed IHA (88 FR 27464, May 2, 2023), and all associated references and documents.

Determinations

The USACE will conduct activities as analyzed in the initial 2023 IHA. As described above, the number of authorized takes of the same species and stocks of marine mammals are identical to the numbers that were found to meet the negligible impact small numbers standards and authorized under the initial IHA and no new information has emerged that would change those findings. The reissued 2024 IHA includes identical required mitigation, monitoring, and reporting measures as the initial IHA, and there is no new information suggesting that our analysis or findings should change.

Based on the information contained here and in the referenced documents, NMFS has determined the following: (1) the required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) USACE's activities will not have an unmitigable adverse impact on taking for subsistence purposes.

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 with respect to environmental consequences on the human environment.

Accordingly, NMFS determined that the issuance of the initial IHA qualified to be categorically excluded from further NEPA review. NMFS has determined that the application of this categorical exclusion remains appropriate for this reissued IHA.

Endangered Species Act (ESA)

Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the Alaska Regional Office, whenever we propose to authorize take for endangered or threatened species.

The effects of this proposed Federal action were adequately analyzed in NMFS' Biological Opinion for the Port of Nome Modification Project, dated July 27, 2023, which concluded that the take NMFS proposed to authorize through this IHA would not jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify any designated critical habitat.

Authorization

NMFS has issued an IHA to the USACE for in-water construction activities associated with the specified activity from May 1, 2025 through April 30, 2026. All previously described mitigation, monitoring, and reporting requirements from the initial 2021 IHA are incorporated.

Dated: April 17, 2024.

Kimberly Damon-Randall,

Director, Office of Protected Resources, National Marine Fisheries Service.