# 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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URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-19187

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** September 7, 2023
- **Citation:** 88 FR 61806

## Text

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.

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:
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 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:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.
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

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
10
(R
1
/R
2
),

where

TL = transmission loss in dB

B = transmission loss coefficient; for practical spreading equals 15

R
1
= the distance of the modeled SPL from the driven pile, and

R
2
= 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

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

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

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 Landrø
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 (
https://www.nomealaska.org/port-nome/page/noaa-weather-camera
), 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

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:
https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/,
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

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:

• 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.

• Vessels must not approach within 5.5 km (3 nm) of Steller sea lion rookery sites listed in (50 CFR 224.103(d)).

• Vessels must not approach within 914 m (3,000 ft) of any Steller sea lion haulout or rookery.

• 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.

• 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

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

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:
https://www.fisheries.noaa.gov/s3/2023-05/TECHMEMOGuidance508.pdf
) provides thresholds for onset of PTS and TTS in marine mammal hearing for all

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:
https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-army-corps-engineers-port-nome-modification-project-nome.

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'

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:

• 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).

• 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.

• 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).

• 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.

• 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

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

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
https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/.

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

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.

• 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.

• The POC was not posted on USACE's website.

• 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.

• USACE's POC was not adequately distributed to Nome's subsistence community in a way that allowed for meaningful engagement.

• USACE should include the Native Village of Solomon and the Native Village of Council in POC.

• 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.

• 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.

• 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:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.
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:
https://www.poa.usace.army.mil/Library/Reports-and-Studies/Port-of-Nome-Modification-Project/.

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.

• 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.

• 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

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.

• 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.

• 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.

• 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.

• 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.

• 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

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:

• 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.

• 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.

• 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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-19187. Public record. Not legal advice.