[Federal Register Volume 89, Number 79 (Tuesday, April 23, 2024)]
[Notices]
[Pages 30322-30324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08583]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD835]


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.

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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

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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, (301) 427-8401.

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

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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.
[FR Doc. 2024-08583 Filed 4-22-24; 8:45 am]
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