90 FR 137 pgs. 34240-34245 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Ferndale Refinery Dock Maintenance and Pile Replacement Project Activities in Ferndale, Washington
Type: NOTICEVolume: 90Number: 137Pages: 34240 - 34245
Pages: 34240, 34241, 34242, 34243, 34244, 34245Docket number: [RTID 0648-XE967]
FR document: [FR Doc. 2025-13684 Filed 7-18-25; 8:45 am]
Agency: Commerce Department
Sub Agency: National Oceanic and Atmospheric Administration
Official PDF Version: PDF Version
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE967]
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Ferndale Refinery Dock Maintenance and Pile Replacement Project Activities in Ferndale, Washington
AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION:
Notice; request for comments on proposed renewal incidental harassment authorization.
SUMMARY:
NMFS received a request from Phillips 66 for the renewal of their currently active incidental harassment authorization (IHA) (hereinafter, the "initial IHA") to take marine mammals incidental to Ferndale Refinery Dock Maintenance and Pile Replacement Activities in Ferndale, Washington. Activities described in the initial IHA will not be completed prior its expiration. IHA Renewal activities are nearly identical to those covered in the initial authorization. Pursuant to the Marine Mammal Protection Act (MMPA), prior to issuing the initial IHA, NMFS requested comments on both the proposed IHA and the potential for renewing the initial IHA if certain requirements were satisfied. The renewal requirements have been satisfied, and NMFS is now providing an additional 15-day comment period to allow for any additional comments on the proposed renewal not previously provided during the initial 30-day comment period.
DATES:
Comments and information must be received no later than August 5, 2025.
ADDRESSES:
[top] Comments should be addressed to the Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, and should be submitted via email to ITP.Gatzke@noaa.gov. Electronic copies of the original application, renewal request, and supporting documents (including NMFS Federal Register notices of the original proposed and final authorizations, and the previous IHA), as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems
Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments, including all attachments, must not exceed a 25-megabyte file size. All comments received are a part of the public record and will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying information ( e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.
FOR FURTHER INFORMATION CONTACT:
Jennifer Gatzke, Office of Protected Resources, NMFS, (301) 427-8401.
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 such species or stocks for taking for certain subsistence uses (referred to here as "mitigation"); and requirements pertaining to the monitoring and reporting of the takings. The definition of all applicable MMPA statutory used above are included in the relevant sections below and can be found in section 3 of the MMPA (16 U.S.C. 1362) and the NMFS's implementing regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods of time not to exceed 1 year for each reauthorization. In the notice of proposed IHA for the initial IHA, NMFS described the circumstances under which we would consider issuing a renewal for this activity, and requested public comment on a potential renewal under those circumstances. Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year renewal of an IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical, or nearly identical, activities as described in the Detailed Description of Specified Activities section of the initial IHA issuance notice is planned or (2) the activities as described in the Description of the Specified Activities and Anticipated Impacts section of the initial IHA issuance notice would not be completed by the time the initial IHA expires and a renewal would allow for completion of the activities beyond that described in the DATES section of the notice of issuance of the initial IHA, provided all of the following conditions are met:
1. A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond 1 year from expiration of the initial IHA).
2. The request for renewal must include the following:
• An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor ( e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take); and
• A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed renewal. A description of the renewal process may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with relevant comments on the initial IHA, have been considered in the development of this proposed IHA renewal, and a summary of agency responses to applicable comments is included in this notice. NMFS will consider any additional public comments prior to making any final decision on the issuance of the requested renewal, and agency responses will be summarized in the final notice of our decision.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action ( i.e., the issuance of a renewal IHA) with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental take authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS determined that the issuance of the initial IHA qualified to be categorically excluded from further NEPA review. NMFS has preliminarily determined that the application of this categorical exclusion remains appropriate for this renewal IHA.
History of Request
[top] On August 9, 2024, NMFS issued an IHA to Phillips 66 to take marine mammals incidental to construction activities at the Ferndale Refinery Dock in Ferndale, Washington (89 FR 66057), effective from August 9, 2024 through August 8, 2025. Figure 1 shows the location of this project in the Strait of
[Federal Register graphic "EN21JY25.000" is not available. Please view the graphic in the PDF version of this document.]
Figure 1.-Vicinity Map Showing the Strait of Georgia in the Northeast Puget Sound, WA
On May 29, 2025, NMFS received an application for the renewal of that initial IHA. As described in the application for renewal IHA, the activities for which incidental take is requested are nearly identical to those covered in the initial authorization, consisting of activities that are covered by the initial authorization but will not be completed prior to its expiration. Phillips 66 submitted a revised version on June 5, 2025, which was deemed adequate and complete. As required, the applicant also provided a preliminary monitoring report which confirms that the applicant has implemented the required mitigation and monitoring, and which also shows that no impacts of a scale or nature not previously analyzed or authorized have occurred as a result of the activities conducted. The initial authorization with incidental take calculations, species discussion, along with the monitoring report and a more detailed map, are available on our website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-phillips-66-cos-ferndale-refinery-dock-maintenance-and-pile.
Description of the Specified Activities and Anticipated Impacts
The purpose of the project is to strengthen the existing timber and steel pier that has long served as a petroleum loading facility, and replace it with a new steel structure that meets current industry best practices. The continuing project will require vibratory pile installation and is expected to take 15 intermittent days between August 1, 2025 and October 31, 2025 since marine conditions are expected to be relatively calm during this period. This IHA renewal would be valid for a period of 1 year from August 9, 2025, through August 8, 2026.
[top] The planned work is nearly identical to the activities analyzed for this IHA and the same monitoring plan will be implemented during pile driving to minimize impacts to marine mammals in the project area. Relative to the initial
The additional piles are of the same size and materials, requiring only 48 minutes of additional vibratory driving time to complete installation. NMFS has determined that the amount of take proposed for authorization through this renewal IHA is sufficient to cover any marine mammal take likely to result from this insignificant incremental increase in pile driving activity.
A detailed description of the demolition and construction activities for which take is proposed here may be found in the Notices of the Proposed and Final IHAs for the initial authorization. The location, timing, and nature of the activities, including the types of equipment planned for use, are nearly identical to those described in the previous notices (89 FR 53046; June 25, 2024, 89 FR 66057, August 14, 2024). The activities are identical, but are a subset of the initial work, except for the minor change of the addition of the four support piles.
The proposed renewal would be effective for a period not exceeding 1 year from the date of expiration of the initial IHA.
Description of Marine Mammals
A description of the marine mammals in the area of the activities for which authorization of take is proposed here, including information on abundance, status, distribution, and hearing, may be found in the Notices of the Proposed IHA for the initial authorization. NMFS has reviewed the monitoring data from the initial IHA, recent Stock Assessment Reports, information on relevant Unusual Mortality Events, and other scientific literature, and determined there is no new information that affects which species or stocks have the potential to be affected or the pertinent information in the Description of the Marine Mammals in the Area of Specified Activities contained in the supporting documents for the initial IHA.
| Common name | Scientific name | Stock | ESA/MMPA status; Strategic (Y/N)? 1 | Stock abundance (CV, N min , most recent abundance survey)? 2 | PBR | Annual M/SI3? 3 |
|---|---|---|---|---|---|---|
| Order Artiodactyla-Cetacea-Mysticeti (baleen whales) | ||||||
| Family Balaenopteridae (rorquals): | ||||||
| Humpback Whale | Megaptera novaeangliae | Central America/Southern Mexico-CA/OR/WA | E, D, Y | 1,494 (0.171, 1,284, 2021) | 3.5 | 14.9 |
| Humpback Whale | Megaptera novaeangliae | Mainland Mexico-CA/OR/WA | T, D, Y | 3,477 (0.101, 3,185, 2018) | 43 | 22 |
| Humpback Whale | Megaptera novaeangliae | Hawaii | -, -, N | 11,278 (0.56, 7,265, 2020) | 127 | 27.09 |
| Odontoceti (toothed whales, dolphins, and porpoises) | ||||||
| Family Delphinidae: | ||||||
| Killer Whale | Orcinus orca | Eastern North Pacific Southern Resident | E, D, Y | 73 (N/A, 73, 2022) | 0.13 | 0 |
| Killer Whale | Orcinus orca | West Coast Transient | -, -, N | 349 (N/A, 349, 2018) | 3.5 | 0.4 |
| Family Phocoenidae (porpoises): | ||||||
| Harbor porpoise | Phocoena phocoena | Washington Inland Waters | -, -, N | 11,233 (0.37, 8,308, 2015) | 66 | =7.2 |
| Order Carnivora-Pinnipedia | ||||||
| Family Otariidae (eared seals and sea lions): | ||||||
| California Sea Lion | Zalophus californianus | U.S. | -,-; N | 257,606 (N/A, 233,515, 2014) | 14,011 | >321 |
| Steller Sea Lion | Eumetopias jubatus | Eastern | -,-; N | 36,308 (N/A, 36,308, 2022) | 2,178 | 93.2 |
| Family Phocidae (earless seals): | ||||||
| Harbor Seal | Phoca vitulina | Washington Northern Inland Waters | -, -, N | 16,451 (0.07, 15,462, 2019) | 928 | 40 |
| 1 ?Information on the classification of marine mammal species follows The Society for Marine Mammalogy's Committee on Taxonomy ( https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/ ). ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. | ||||||
| 2 ?NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; N min is the minimum estimate of stock abundance. In some cases, CV is not applicable. | ||||||
| 3 ?These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined ( e.g., commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. | ||||||
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Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on marine mammals and their habitat for the activities for which an authorization of incidental take is proposed here may be found in the Notice of the Proposed IHA for the initial authorization (89 FR 53046, June 25, 2024). NMFS has reviewed the monitoring data from the initial IHA, recent draft Stock Assessment Reports, information on relevant Unusual Mortality Events, and other scientific literature, and determined that there is no new information that affects our initial analysis of impacts on marine mammals and their habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate take for the specified activity are found in the Notice of the Proposed IHA for the initial authorization (89 FR 53046, June 25, 2024). Specifically, the source levels, days of operation (reduced to 15 days in this renewal), and marine mammal density/occurrence data applicable to this authorization remain unchanged from the previously issued IHA. Similarly, the stocks taken, methods of take, and types of take remain unchanged from the previously issued IHA. The number of takes, reduced to a subset of the intial IHA (smaller number of piles and days pile driving), are indicated below in table 2.
| Common name | Stock (region characterized) | Stock abundance | Density (animals/km 2 ) | Total proposed take | Proposed take as percentage of stock |
|---|---|---|---|---|---|
| Harbor porpoise | Washington Inland Waters (North Puget Sound) | 11,233 | 2.16 | 192 | 1.71 |
| Steller sea lion | Eastern U.S. (North Puget Sound/San Juan Islands (Fall)) | 36,308 | 0.0027 | 15 | 0.03 |
| California sea lion | U.S. (North Puget Sound/San Juan Islands (Fall)) | 257,606 | 0.0179 | 45 | 0.02 |
| Harbor seal | Washington Northern Inland (North Puget Sound/San Juan Islands (Fall)) | 16,451 | 0.76 | 67 | 0.61 |
Description of Proposed Mitigation, Monitoring and Reporting Measures
The proposed mitigation, monitoring, and reporting measures included as requirements in this authorization are identical to those included in the Federal Register notice announcing the issuance of the initial proposed IHA, and the discussion of the least practicable adverse impact included in that document remains accurate (89 FR 53046, June 25, 2024; 89 FR 66057, August 14, 2024). The following measures are proposed for this renewal:
(a) The Holder must employ Protected Species Observer (PSO)s and establish monitoring locations. The Holder must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions.
(b) 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.
(c) Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine that the shutdown zones are clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals.
(d) If a marine mammal is observed entering or within the shutdown zones, pile driving activity must be delayed or halted. Pile driving must be commenced or resumed as described in condition 4(e) of this IHA.
(e) If pile driving is delayed or 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.
(f) Specific measures for avoiding take of killer whales and humpback whales:
(i) Prior to the start of pile driving activities each day, the Holder must contact the Orca Network to obtain the latest sightings information for killer whales and humpback whales.
(ii) The Holder must delay or halt pile driving activities if Southern Resident Killer Whale (SRKW), unidentified killer whale ( i.e. transient) or humpback whales are sighted within the vicinity of the project area and are approaching the Level B harassment zones during in-water activities.
(iii) If a SRKW, unidentified killer whale, or humpback whale enters the Level B harassment zone undetected, in-water pile driving must be suspended immediately upon detection and must not resume until the animal exits the Level B harassment zone or 15 minutes have passed without re-detection of the animal.
(g) Pile driving activity must be halted (as described in condition 4(d) of initial IHA) upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone.
(h) The Holder, construction supervisors and crews, PSOs, and relevant Phillips 66 staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 meters of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary to avoid direct physical interaction.
Comments and Responses
[top] As noted previously, NMFS published a notice of a proposed IHA (89 FR 53046, June 25, 2024) and solicited public comments on both our proposal to issue the initial IHA for Ferndale Refinery Dock Maintenance and Pile Replacement Project Activities in Ferndale, Washington and on the potential for a renewal IHA, should certain requirements be met. No public comments were received following the notice announcing the proposed
Preliminary Determinations
The proposed action is identical to that of the initial authorization in terms of effects. The minor change of four additional piles does not modify our findings. The same marine mammals are affected, and the potential effects and estimated take are a subset of the initial IHA. Mitigation and monitoring remain the same as the initial authorization.
With a subset of estimated take, the extensive analysis, as well as the associated findings included in the prior documents remain applicable. We found that the previous IHA had a negligible impact, and with the issuance of a renewal, the taking would be small relative to population size.
NMFS has preliminarily concluded that there is no new information suggesting that our analysis or findings should change from those reached for the initial IHA. Based on the information and analysis contained here and in the referenced documents, NMFS has determined the following: (1) the required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; (4) Phillip 66's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action, and; (5) appropriate monitoring and reporting requirements are included.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq. ) requires that each Federal agency ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally whenever we propose to authorize take for endangered or threatened species. No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this proposed action.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to issue a renewal IHA to Phillips 66 for conducting the Ferndale Refinery Dock Maintenance and Pile Replacement Project in Ferndale, Washington, from August 9, 2025 through August 8, 2026, provided the previously described mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed and final initial IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comments on our analyses, the proposed renewal IHA, and any other aspect of this notice. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for this renewal IHA.
Dated: July 17, 2025.
Shannon Bettridge,
Acting Director, Office of Protected Resources, National Marine Fisheries Service.
[FR Doc. 2025-13684 Filed 7-18-25; 8:45 am]
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