[Federal Register Volume 89, Number 157 (Wednesday, August 14, 2024)]
[Notices]
[Pages 66057-66067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18146]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE180]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental To Ferndale Refinery Dock Maintenance 
and Pile Replacement Activities in Ferndale, Washington

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Phillips 66 Co. to incidentally harass marine mammals during 
construction activities associated with a dock replacement project in 
Ferndale, Washington.

DATES: This authorization is effective from August 1 through July 31, 
2025.

ADDRESSES: Electronic copies of the application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-phillips-66-cos-ferndale-refinery-dock-maintenance-and-pile. In case of problems accessing these documents, 
please call the contact listed below.

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 the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the monitoring and 
reporting of the takings. The definitions of all applicable MMPA 
statutory terms cited above are included in the relevant sections 
below.

Summary of Request

    On February 29, 2024 we received a request from Phillips 66 for an 
IHA to take marine mammals incidental to Ferndale Refinery Dock 
Maintenance and Pile Replacement Activities in Ferndale, Washington. 
Following NMFS' review of the application, Phillips 66 submitted 
revised versions on May 16 and May 20, 2024. The application was deemed 
adequate and complete on May 21, 2024. Phillips 66 has requested 
authorization of take by Level B harassment for harbor seal, California 
sea lion, Steller sea lion and harbor porpoise. Neither Phillips 66 nor 
NMFS expect serious injury or mortality to result from this activity 
and, therefore, an IHA is appropriate. There are no changes from the 
proposed authorization to the final authorization.

Description of the Specified Activity

    Phillips 66 is planning to modernize the existing timber loading 
dock (on the southeastern shoreline of the Strait of Georgia in 
Ferndale, Washington) and replace it with a stronger structure that 
meets current industry best practices. The activity includes 
installation of steel piles by vibratory driving, and pile removal 
using an underwater chainsaw or cutting torch.
    In-water pile installation construction will occur for 35 days, 
which will occur intermittently through approximately October 31, 2024. 
Take of marine mammals is anticipated to occur due to vibratory pile 
installation. Removal of all piles is expected to take up to 66 days 
for underwater pile cutting with a chainsaw. Take of marine mammals is 
not anticipated to occur due to pile removal.
    This IHA is valid for a period of 1 year from the date of issuance. 
Due to in-water work timing restrictions to protect Endangered Species 
Act (ESA)-listed salmonids, all planned in-water construction in this 
area is limited to a work window beginning August 1 and ending February 
1. However, since the Strait of Georgia is a very large water body with 
a long fetch, calm in-water work conditions are typically only 
available from August to the end of October. Pile removal processes are 
less dependent on good weather, and this portion of the project may 
occur from approximately August 1 to February 1. Therefore, Phillips 66 
expects that in-water pile installation construction work will occur 
through October 31, 2024. Pile driving is anticipated to take up to 35 
days to complete. Work may occur on nonconsecutive days due to weather 
and other project needs. Pile driving will be completed intermittently 
throughout daylight hours.
    A detailed description of the planned dock maintenance and pile 
replacement project is provided in the Federal Register notice for the 
proposed IHA (89

[[Page 66058]]

FR 53046, June 25, 2024). Since that time, no changes have been made to 
the planned 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 Phillips 66 was 
published in the Federal Register on June 25, 2024 (89 FR 53046). That 
notice described, in detail, Phillips 66's activity, the marine mammal 
species that may be affected by the activity, and the anticipated 
effects on marine mammals. In that notice, we requested public input on 
the request for authorization described therein, our analyses, the 
proposed authorization, and any other aspect of the notice of proposed 
IHA, and requested that interested persons submit relevant information, 
suggestions, and comments. During the 30-day public comment period, 
NMFS did not receive any public comments.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, instead of reprinting the information. Additional 
information regarding population trends and threats may be found in 
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which exposure is expected 
for this activity and summarizes information related to the population 
or stock, including regulatory status under the MMPA and ESA and 
potential biological removal (PBR), where known. PBR is defined by the 
MMPA as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population (as described in NMFS' SARs). While no serious injury or 
mortality is anticipated or proposed to be authorized here, PBR and 
annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species or 
stocks and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' Alaska and Pacific SARs. All values presented in table 2 are the 
most recent available at the time of publication (including from the 
draft 2023 SARs) and are available online at: (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). All species that could potentially occur in 
the proposed project area are included in table 2 of the IHA 
application. While the gray whale, minke whale, Dall's porpoise, and 
the Eastern North Pacific Northern Resident stock of killer whale have 
been reported in the area, the temporal and/or spatial occurrence of 
these species is such that take is not expected to occur, and they are 
not discussed further beyond the explanation provided in the Federal 
Register Notice for the proposed IHA (89 FR 53046, June 25, 2024).

                                             Table 2--Species for Which Take Could Occur in the Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       Stock abundance
                                                                                 ESA/MMPA status;      (CV, Nmin, most                     Annual M/SI3
           Common name                Scientific name            Stock          Strategic (Y/N) \1\    recent abundance         PBR             \3\
                                                                                                         survey) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae
 (rorquals):
    Humpback Whale...............  Megaptera             Central America/      E, D, Y.............  1,494 (0.171,                   3.5            14.9
                                    novaeangliae.         Southern Mexico--CA/                        1,284, 2021).
                                                          OR/WA.
    Humpback Whale...............  Megaptera             Mainland Mexico--CA/  T, D, Y.............  3,477 (0.101,                    43              22
                                    novaeangliae.         OR/WA.                                      3,185, 2018).
    Humpback Whale...............  Megaptera             Hawaii..............  -, -, N.............  11,278 (0.56,                   127           27.09
                                    novaeangliae.                                                     7,265, 2020).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer Whale.................  Orcinus orca........  Eastern North         E, D, Y.............  73 (N/A, 73, 2022).            0.13               0
                                                          Pacific Southern
                                                          Resident.
    Killer Whale.................  Orcinus orca........  West Coast Transient  -, -, N.............  349 (N/A, 349,                  3.5             0.4
                                                                                                      2018).
Family Phocoenidae (porpoises):
    Harbor porpoise..............  Phocoena phocoena...  Washington Inland     -, -, N.............  11,233 (0.37,                    66           >=7.2
                                                          Waters.                                     8,308, 2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California Sea Lion..........  Zalophus              U.S.................  -,-; N..............  257,606 (N/A,                14,011            >321
                                    californianus.                                                    233,515, 2014).
    Steller Sea Lion.............  Eumetopias jubatus..  Eastern.............  -,-; N..............  36,308 (N/A,                  2,178            93.2
                                                                                                      36,308, 2022).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):

[[Page 66059]]

 
    Harbor Seal..................  Phoca vitulina......  Washington Northern   -, -, N.............  16,451 (0.07,                   928              40
                                                          Inland Waters.                              15,462, 2019).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 assessments. CV is coefficient of variation; Nmin 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.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. 
(2007, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). Note that no direct measurements of 
hearing ability have been successfully completed for mysticetes (i.e., 
low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in table 3.

                  Table 3--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth et al., 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from Phillip's 66 dock replacement 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the southeastern shores of the Strait 
of Georgia, in Puget Sound WA. The notice of proposed IHA (89 FR 53046, 
June 25, 2024) included a discussion of the effects of anthropogenic 
noise on marine mammals and the potential effects of underwater noise 
from vibratory pile driving on marine mammals and their habitat. That 
information and analysis is referenced in this final IHA determination 
and is not repeated here; please refer to the notice of proposed IHA 
(89 FR 53046, June 25, 2024).

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
authorized through the IHA, which informs NMFS' consideration of 
``small numbers,'' the negligible impact determinations, and impacts on 
subsistence uses.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes will be by Level B harassment only, as use of the 
acoustic stressors (i.e., pile driving) has the potential to result in 
disruption of behavioral patterns for individual marine mammals. The 
mitigation and monitoring measures are expected to minimize the 
severity of the taking to the extent practicable.

[[Page 66060]]

    As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
take numbers are estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will be behaviorally 
harassed or incur some degree of permanent hearing impairment; (2) the 
area or volume of water that will be ensonified above these levels in a 
day; (3) the density or occurrence of marine mammals within these 
ensonified areas; and (4) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
will be reasonably expected to be behaviorally harassed (equated to 
Level B harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012). 
Based on what the available science indicates and the practical need to 
use a threshold based on a metric that is both predictable and 
measurable for most activities, NMFS typically uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS generally predicts that marine mammals are 
likely to be behaviorally harassed in a manner considered to be Level B 
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (referenced 
to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile 
driving, drilling) and above RMS SPL 160 dB (re 1 [mu]Pa) for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources. Generally speaking, Level B harassment take 
estimates based on these behavioral harassment thresholds are expected 
to include any likely takes by TTS as, in most cases, the likelihood of 
TTS occurs at distances from the source less than those at which 
behavioral harassment is likely. TTS of a sufficient degree can 
manifest as behavioral harassment, as reduced hearing sensitivity and 
the potential reduced opportunities to detect important signals 
(conspecific communication, predators, prey) may result in changes in 
behavior patterns that would not otherwise occur.
    The Phillips 66 activity includes the use of continuous sound 
sources (vibratory driving), and therefore the RMS SPL threshold of 120 
dB re 1 [mu]Pa is applicable.
    These thresholds are provided in the table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                    PTS onset acoustic thresholds *  (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa\2\s. In this table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and TL coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the project. Marine 
mammals are expected to be affected via sound generated by the primary 
components of the project (i.e., vibratory pile driving). Additionally, 
vessel traffic and other commercial and industrial activities in the 
project area may contribute to elevated background noise levels which 
may mask sounds produced by the project.
    TL 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 * Log10 (R1/R2),


[[Page 66061]]


Where:

TL = transmission loss in dB
B = transmission loss coefficient
R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. 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 under conditions, such as 
the project site, where water increases with depth as the receiver 
moves away from the shoreline, resulting in an expected propagation 
environment that would lie between spherical and cylindrical spreading 
loss conditions. Practical spreading loss is assumed here.
    The intensity of pile driving sounds is greatly influenced by 
factors such as the type of piles, hammers, and the physical 
environment in which the activity takes place. In order to calculate 
the distances to the Level B harassment sound thresholds for the method 
and piles being used in this project, NMFS used acoustic monitoring 
data from other locations to develop proxy source levels for the 
various pile types, sizes and methods. The project includes vibratory 
pile installation of 20-in steel piles. Source levels for the pile size 
and driving method are presented in table 5. The closest representative 
pile size for reference sound levels was 24-inch piles (WSDOT 2020).

                      Table 5--Proxy Sound Source Levels for Pile Sizes and Driving Methods
----------------------------------------------------------------------------------------------------------------
                                                                 Noise level
               Equipment used                ---------------------------------------------------  Distance from
                                                  dB Peak           dB rms        dB SEL  (m)      measurement
----------------------------------------------------------------------------------------------------------------
Vibratory pile driving 24-inch steel piles               181              153   ...............              10
 \1\........................................
----------------------------------------------------------------------------------------------------------------
\1\ Caltrans 2020.

    The ensonified area associated with Level A harassment is more 
technically challenging to predict due to the need to account for a 
duration component. Therefore, NMFS developed an optional User 
Spreadsheet tool to accompany the Technical Guidance that can be used 
to relatively simply predict an isopleth distance for use in 
conjunction with marine mammal density or occurrence to help predict 
potential takes. We note that because of some of the assumptions 
included in the methods underlying this optional tool, we anticipate 
that the resulting isopleth estimates are typically going to be 
overestimates of some degree, which may result in an overestimate of 
potential take by Level A harassment. However, this optional tool 
offers the best way to estimate isopleth distances when more 
sophisticated modeling methods are not available or practical. For 
stationary sources such as impact or vibratory pile driving and 
removal, the optional User Spreadsheet tool predicts the distance at 
which, if a marine mammal remained at that distance for the duration of 
the activity, it would be expected to incur PTS. Inputs used for impact 
driving in the optional NMFS User Spreadsheet tool, and the resulting 
estimated isopleths, are reported below in table 6 and table 7 below.

    Table 6--User Spreadsheet Inputs for Level A Harassment Isopleths
------------------------------------------------------------------------
                                                20-in Steel vibratory
                  Inputs                            installation
------------------------------------------------------------------------
Spreadsheet Tab Used......................        Vibratory Pile Driving
                                             (STATIONARY: Non-impulsive,
                                                             Continuous)
Source Level (Single Strike/shot SEL).....  ............................
Peak......................................  ............................
RMS.......................................                           153
Weighting Factor Adjustment (kHz).........                           2.5
Strikes per pile..........................  ............................
Piles Per day.............................                            16
Propagation (xLogR).......................                            15
Duration..................................                            15
Distance of source level measurement                                  10
 (meters)+................................
------------------------------------------------------------------------


[[Page 66062]]


                                  Table 7--Calculated Level A and Level B Harassment Isopleths (m) and Ensonified Areas
                                                                 [km\2\ in parentheses]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Level A pinnipeds                       Level A cetaceans
                     Pile size/type                      --------------------------------------------------------------------------------     Level B
                                                            Harbor seal      Sea lions          LF              MF              HF
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Vibratory Installation                                                                   120 dB
                                                                                                                                               threshold
--------------------------------------------------------------------------------------------------------------------------------------------------------
20-in steel.............................................      3.1 (.003)       <1 (.000)        5 (.005)       <1 (.000)      7.5 (.007)      1585 (1.5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The Level A harassment isopleths associated with vibratory installation are all below the minimum shutdown zone and result in very small ensonified
  areas. Therefore they are not provided in this table but will be included in the following calculated take tables.

Marine Mammal Occurrence and Take Estimation

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information which 
will inform the take calculations. The primary source for density 
estimates is from the Navy Marine Species Density Database (NMSDD) 
Phase III for the Northwest Training and Testing Study Area (Navy, 
2019). These density estimates are shown in table 8 and will be used to 
calculate take due to the lack of site-specific data that is available.
    To quantitatively assess potential exposure of marine mammals to 
noise levels from pile driving over the NMFS threshold guidance, the 
following equation was first used to provide an estimate of potential 
exposures within estimated harassment zones:

Exposure estimate = N x harassment zone (km\2\) x maximum days of pile 
driving

where
N = density estimate (animals per km\2\) used for each species.

 Table 8--Marine Mammal Species Densities Used for Exposure Calculations
------------------------------------------------------------------------
                                                             Density
            Species              Region characterized    (Animals/km\2\)
------------------------------------------------------------------------
Humpback Whale................  North Puget Sound/San             0.0027
                                 Juan Islands (Fall
                                 and Winter).
Killer Whale (Southern          North Puget Sound/San             0.0078
 Resident).                      Juan Islands (Fall
                                 and Winter).
Killer Whale (Transient)......  North Puget Sound/San             0.0031
                                 Juan Islands (Fall
                                 and Winter).
Harbor Porpoise...............  North Puget Sound.....              2.16
Steller Sea Lion..............  North Puget Sound/San             0.0027
                                 Juan Islands (Fall).
California Sea Lion...........  North Puget Sound/San             0.0179
                                 Juan Islands (Fall).
Harbor Seal...................  North Puget Sound/San               0.76
                                 Juan Islands (Fall).
------------------------------------------------------------------------
Source: Navy 2019.

    Potential Level A harassment zones were all calculated to less than 
10 meters. As seen from table 7, marine mammals will have to be very 
close to the vibratory driving activity to be within the estimated 
Level A harassment zone. Marine mammal monitors will be in place, 
closely monitoring this zone and stopping work before any marine mammal 
gets near the largest Level A harassment zone of 6.2m from the project 
source. Based on the estimated Level A harassment zones, and density-
based calculations for all species, no take by Level A Harassment was 
estimated (all less than 1.0). Harbor porpoise is the species with the 
highest density at 2.16 per km, multiplied by the Level A harassment 
zone of .007 km (table 7), and 35 days of work yields 0.53 individuals 
exposed to Level A harassment. Therefore, when considered in context of 
planned mitigation, no take by Level A harassment is expected. Table 9 
below shows the total calculated take by Level B harassment over the 35 
in-water work days planned for the Phillips 66 activity resulting in 
total calculated take.

    Table 9--Calculated and Requested Take by Level B Harassment From
                       Vibratory Pile Installation
------------------------------------------------------------------------
        35 Days of 20-inch pile installation by vibratory hammer
-------------------------------------------------------------------------
                                                            Level B
                                      Total Level B        harassment
              Species                   harassment        proposed for
                                        calculated       authorization
------------------------------------------------------------------------
Harbor Porpoise...................                447                447
Steller Sea Lion..................                  1                 35
California Sea Lion...............                  4                105
Harbor Seal.......................                157                157
------------------------------------------------------------------------

Humpback Whale

    Humpback whales are an uncommon occurrence near the project area 
but they do have the potential to be in the area as they migrate to 
feeding grounds to the north and mating grounds far south. Based on 
best available density estimates, Phillips 66 has calculated the 
potential take of one humpback whale, by Level B harassment only. 
However, Phillips 66 proposes to shut down whenever humpback whales 
approach

[[Page 66063]]

the Level B harassment zone. Given the low density of humpback whales 
in the project area, the ability to detect the whales visually from a 
considerable distance, the capacity to track whales through the Orca 
Network, and the anticipated efficacy of mitigation and monitoring 
measures, Phillips 66 determined that no take of humpback whales is 
likely to occur and did not request that any such take be authorized. 
NMFS concurs with this request and, therefore, has not authorized take 
of humpback whales.

Killer Whales

    Both SRKW and transient killer whales could potentially occur near 
the project area. Based on best available density estimates, Phillips 
66 has calculated that up to two SRKWs and one transient whale could be 
taken, by Level B harassment only. Even though the project site is 
located in summer core area critical habitat, and the project may begin 
August 1, the southeastern corner of the Strait of Georgia (where the 
project is located) is not a location where SRKW are commonly sighted. 
According to the monthly ORCA network reports of September through 
October, from 2016-2023, the occurrence of killer whales from any stock 
was uncommon in the southeastern corner of the Strait of Georgia. When 
compared to transient killer whales, sightings of SRKWs were far less 
prevalent (ORCA 2024). Mitigation requires that pile driving activity 
shut down whenever a killer whale from any stock is observed 
approaching a harassment zone. Given the ability to visually detect 
killer whales from proposed PSO locations (including boats), the 
capacity to track this species through contact with the ORCA Network, 
and the expected efficacy of mitigation and monitoring measures, 
Phillips 66 elected to not request take. Due to the expansive range of 
SRKWs; the relatively small area of their habitat that may be affected 
by the project; the ready availability of habitat of similar or higher 
value, and the short-term nature of installation construction (35 
days), Phillips 66 determined that no take of killer whales is likely 
to occur and did not request that any such take be authorized. NMFS 
concurs with this request and, therefore, has not authorized take of 
killer whales.

Steller Sea Lion

    Calculated take based upon the species density in the Strait of 
Georgia yielded one potential take by Level B harassment during the 35 
days of in-water pile driving work. While there are no known nearby 
haulouts, there are haulouts in the greater Strait of Georgia. Phillips 
66 determined, based on anecdotal sightings at the facility, that the 
calculated value was too low. In addition, this species is known to 
travel significant distances in search for prey, possibly into the 
surrounding marine waters of the Cherry Point Aquatic Reserve.
    NMFS reviewed other IHA monitoring reports from Puget Sound and 
found that the Seattle Pier 63 construction project (87 FR 31985, May 
26, 2022) reported a maximum of one animal present per day over 17 in-
water work days between October 12 and November 30, 2022. Therefore, 
NMFS assumes a similar rate of occurrence and has authorized 35 (one/
day) takes of Steller sea lion by Level B harassment.

California Sea Lion

    Calculated take based upon the species density in the Strait of 
Georgia found 4 potential takes by Level B harassment during the 35 
days of pile driving work at the Phillips 66 dock. While there are no 
known nearby haulouts, there are haulouts in the greater Strait of 
Georgia. Phillips 66 determined, based on anecdotal sightings at the 
facility, that the calculated value was too low. In addition, this 
species is known to travel significant distances in search for prey, 
possibly into the surrounding marine waters of the Cherry Point Aquatic 
Reserve.
    NMFS reviewed other IHA monitoring reports from Puget Sound and 
found that the Seattle Pier 63 construction project (87 FR 31985, May 
26, 2022) reported a maximum of three California sea lions present per 
day over 17 in-water work days between October 12 and November 30, 
2022. Therefore, NMFS assumes a similar rate of occurrence and has 
authorized 105 (three/day) takes of California sea lions by Level B 
Harassment.
    Details of takes by Level B harassment as a percentage of stocks 
are shown in table 10.

   Table 10--Authorized Take of Marine Mammals by Level B Harassment by Species, Stock, and Percent of Take by
                                                      Stock
----------------------------------------------------------------------------------------------------------------
                                                                                                Authorized take
           Common name                     Stock          Stock abundance    Total authorized   as percentage of
                                                                                   take              stock
----------------------------------------------------------------------------------------------------------------
Harbor porpoise..................  Washington Inland                11,233                447               3.97
                                    Waters.
Steller sea lion.................  Eastern U.S.........             36,308                 35               0.10
California sea lion..............  U.S.................            257,606                105               0.04
Harbor seal......................  Washington Northern              16,451                157               0.95
                                    Inland.
----------------------------------------------------------------------------------------------------------------

Mitigation

    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 incidental 
take authorizations 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)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if

[[Page 66064]]

implemented as planned), the likelihood of effective implementation 
(probability implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations.
    Pre-start Clearance Monitoring--Prior to the start of daily in-
water construction activity, or whenever a break in pile driving/
removal of 30 minutes or longer occurs, PSOs would observe the shutdown 
and monitoring zones for a period of 30 minutes. The shutdown zone 
would be considered cleared when a marine mammal has not been observed 
within the zone for that 30-minute period. If a marine mammal is 
observed within the shutdown zone, a soft-start (discussed below) 
cannot proceed until the animal has left the zone or has not been 
observed for 15 minutes. If the monitoring zone has been observed for 
30 minutes and marine mammals are not present within the zone, soft-
start procedures can commence and work can continue. Pre-start 
clearance monitoring must be conducted during periods of visibility 
sufficient for the lead PSO to determine that the shutdown zones, 
indicated in table 11, 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. If work 
ceases for more than 30 minutes, the pre-activity monitoring of both 
the monitoring zone and shutdown zone would commence.
    Implementation of Shutdown Zones--For all pile driving activities, 
Phillips 66 would implement shutdowns within designated zones. The 
purpose of a shutdown zone is generally to define an area within which 
shutdown of activity would occur upon sighting of a marine mammal (or 
in anticipation of an animal entering the defined area). Implementation 
of shutdowns would be used to avoid takes by Level A harassment from 
vibratory pile driving for all four species for which take may occur.
    A minimum shutdown zone of 10 m would be required for all in-water 
construction activities to avoid physical interaction with marine 
mammals. Proposed shutdown and monitoring zones for each activity type 
are shown in table 11.

                          Table 11--Shutdown Zones During Pile Installation and Removal
                                                       [m]
----------------------------------------------------------------------------------------------------------------
                                                        Shutdown zones
         Pile size/type          ------------------------------------------------------------ Level B harassment
                                          HF                Phocid              Otariid         monitoring zone
----------------------------------------------------------------------------------------------------------------
20-in steel Vibratory...........                 10                  10                  10               1,585
----------------------------------------------------------------------------------------------------------------

    All marine mammals would be monitored in the Level B harassment 
zones and throughout the area as far as visual monitoring can take 
place. If one of the four species of marine mammal for which take would 
be authorized enters the Level B harassment zone, in-water activities 
would continue and PSOs would document the animal's presence within the 
estimated harassment zone.
    If a species for which authorization has not been granted, or a 
species which has been granted but the authorized takes are met, is 
observed approaching or within the Level B harassment zone, pile 
driving activities will be shut down immediately. Activities will not 
resume until the animal has been confirmed to have left the area or 15 
minutes has elapsed with no sighting of the animal.
    Coordination with Local Marine Mammal Research Network--Prior to 
the start of pile driving for the day the PSOs would contact the Orca 
Network to find out the location of the nearest sightings of any killer 
whales or humpback whales. Phillips 66 must delay or halt pile driving 
activities if any killer whales or humpback whales are sighted within 
the vicinity of the project area and are approaching the Level B 
harassment zones (table 11) during in-water activities. Finally, 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.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has determined that these mitigation measures provide the means of 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the activity; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important

[[Page 66065]]

physical components of marine mammal habitat); and,
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Monitoring shall be conducted by NMFS-approved observers. Trained 
observers shall be placed from the best vantage point(s) practicable to 
monitor for marine mammals and implement shutdown or delay procedures 
when applicable through communication with the equipment operator. 
Observer training must be provided prior to project start, and shall 
include instruction on species identification (sufficient to 
distinguish the species in the project area), description and 
categorization of observed behaviors and interpretation of behaviors 
that may be construed as being reactions to the specified activity, 
proper completion of data forms, and other basic components of 
biological monitoring, including tracking of observed animals or groups 
of animals such that repeat sound exposures may be attributed to 
individuals (to the extent possible).
    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after pile driving activities. In addition, observers shall 
record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven. Pile driving activities 
include the time to install or remove a single pile or series of piles, 
as long as the time elapsed between uses of the pile driving equipment 
is no more than 30 minutes.
    A minimum of two PSOs would be on duty during all in-water pile 
driving activities. One `shore-based' observer will be stationed at 
locations offering best line of sight views to monitor the entirety of 
the shutdown zones and provide the most complete coverage of the 
monitoring zones. Additionally, Phillips 66 proposes to deploy one 
boat-based PSO that will be positioned at a location or moving in a 
pattern that offers the most complete visual coverage of the monitoring 
zone. Note, however, PSO position(s) may vary based on construction 
activity and location of piles or equipment.
    PSOs would scan the waters using binoculars and would use a 
handheld range-finder device to verify the distance to each sighting 
from the project site. All PSOs would be trained in marine mammal 
identification and behaviors and are required to have no other project-
related tasks while conducting monitoring. In addition, monitoring 
would be conducted by qualified observers, who would be placed at the 
best vantage point(s) practicable to monitor for marine mammals and 
implement shutdown/delay procedures when applicable by calling for the 
shutdown to the hammer operator via a radio. Phillips 66 would adhere 
to the following observer qualifications:
    (i) PSOs must be independent of the activity contractor (for 
example, employed by a subcontractor) and have no other assigned tasks 
during monitoring periods,
    (ii) At least one PSO must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization,
    (iii) 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 incidental take authorization,
    (iv) Where a team of three or more PSOs is required, a lead 
observer or monitoring coordinator must be designated. The lead 
observer must have prior experience performing the duties of a PSO 
during construction activity pursuant to a NMFS-issued incidental take 
authorization,
    (v) PSOs must be approved by NMFS prior to beginning any activity 
subject to this IHA.
    Additional standard observer qualifications include:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and,
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.

Reporting

    A draft marine mammal monitoring report would be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities. It would include an overall description of work completed, 
a narrative regarding marine mammal sightings, and associated PSO data 
sheets. Specifically, the report must include:
     Dates and times (begin and end) of all marine mammal 
monitoring,
     Construction activities occurring during each daily 
observation period, including the number and type of piles driven or 
removed and by what method, and the total equipment duration or total 
number of minutes for each pile (vibratory driving),
     PSO locations during marine mammal monitoring,
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance,
     Upon observation of a marine mammal, the following 
information: Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting; Time of sighting; Identification of the 
animal(s) (e.g., genus/species, lowest possible taxonomic level, or 
unidentified), PSO confidence in identification, and the composition of 
the group if there is a mix of species; Distance and bearing of each 
marine mammal observed relative to the pile being driven for each 
sighting (if pile driving was occurring at time of sighting); Estimated 
number of animals (min/max/best estimate); Estimated number of animals 
by cohort (adults, juveniles, neonates, group composition, etc.); 
Animal's closest point of approach and estimated time spent within the 
harassment zone; and Description of any marine mammal behavioral 
observations (e.g., observed behaviors such as feeding or traveling), 
including an assessment of behavioral responses thought to have 
resulted from the activity (e.g., no response or changes in behavioral 
state such as ceasing feeding, changing direction, flushing, or 
breaching),
     Number of marine mammals detected within the harassment 
zone, by species,
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting changes in behavior of the 
animal(s), if any.

[[Page 66066]]

    If no comments are received from NMFS within 30 days, the draft 
final report will constitute the final report. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments.

Reporting Injured or Dead Marine Mammals

    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury, serious injury or mortality, Phillips 
66 would immediately cease the specified activities and report the 
incident to the Office of Protected Resources, NMFS, and the West Coast 
Region regional stranding coordinator. The report will include the 
following information:
     Description of the incident;
     Environmental conditions (e.g., Beaufort sea state, 
visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities will not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with Phillips 66 
to determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Phillips 66 will not be 
able to resume their activities until notified by NMFS.
    In the event that Phillips 66 discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (e.g., in less than 
a moderate state of decomposition as described in the next paragraph), 
Phillips 66 will immediately report the incident to the Office of 
Protected Resources ([email protected]), NMFS and to 
the West Coast Region regional stranding coordinator as soon as 
feasible. The report will include the same information identified in 
the paragraph above. Activities will be able to continue while NMFS 
reviews the circumstances of the incident. NMFS will work with Phillips 
66 to determine whether modifications in the activities are 
appropriate.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in table 9, given that many of the anticipated 
effects of this project on different marine mammal stocks are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are described independently in the analysis below.
    Pile driving activities associated with the project as outlined 
previously, have the potential to disturb or displace marine mammals. 
Specifically, the specified activities may result in take, in the form 
of Level B harassment from underwater sounds generated from pile 
driving. Potential takes could occur if individuals of these species 
are present in zones ensonified above the thresholds for Level B 
harassment identified above when these activities are underway.
    Take by Level B harassment would be due to potential behavioral 
disturbance, and TTS. No serious injury or mortality is anticipated or 
authorized given the nature of the activity and measures designed to 
minimize the possibility of injury to marine mammals. The potential for 
harassment is minimized through the construction method and the 
implementation of the planned mitigation measures (see Mitigation 
section).
    Based on reports in the literature as well as monitoring from other 
similar activities, behavioral disturbance (i.e., Level B harassment) 
would likely be limited to reactions such as increased swimming speeds, 
increased surfacing time, or decreased foraging (if such activity were 
occurring) (e.g., Thorson and Reyff, 2006; HDR, Inc., 2012; Lerma, 
2014). Most likely for pile driving, individuals would simply move away 
from the sound source and be temporarily displaced from the areas of 
pile driving, although even this reaction has been observed primarily 
only in association with impact pile driving. The pile driving 
activities analyzed here are similar to, or less impactful than, 
numerous other construction activities conducted in Washington, which 
have taken place with no observed severe responses of any individuals 
or known long-term adverse consequences. The impact of Level B 
harassment takes on the affected individuals will be minimized through 
use of mitigation measures described herein and, if sound produced by 
project activities is sufficiently disturbing, animals are likely to 
simply avoid the area while the activity is occurring. The project site 
itself is frequented by large tankers every few days, but the majority 
of sound fields produced by the specified activities are relatively 
close to the dock. Animals disturbed by project sound will be expected 
to avoid the area and use nearby higher-quality habitats.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat. The project activities 
will not modify existing marine mammal habitat for a significant amount 
of time. The activities may cause some fish or invertebrates to leave 
the area of disturbance, thus temporarily impacting marine mammals' 
foraging opportunities in a limited portion of the foraging range; but, 
because of the intermittent driving schedule (35 in-water work days 
between August 1 and October 31, 2024); short duration of the 
activities (no more than 4 hours per day vibratory driving); the 
relatively small area of the habitat that may be affected; and the 
availability of nearby habitat of similar or higher value, the impacts 
to marine mammal habitat are not

[[Page 66067]]

expected to cause significant or long-term negative consequences.
    While there are haulouts for pinnipeds in the area, these locations 
are some distance from the actual project site. There are two 
documented California sea lion haulouts in the southern Strait of 
Georgia, both on the western coast of the Strait in British Columbia. 
The closest haulout in near Tumbo Island on the eastern edge of the 
Gulf Island, over 15 miles from the project site. The closest 
documented Steller sea lion haulout location is over 10 miles from the 
project site, on Sucia Island (Jeffries et al., 2000). The closest 
documented harbor seal haulouts are two different low population (>100 
individuals) locations approximately 5 miles from the project site, one 
to the north and one to the south (Jeffries et al., 2000). To the 
southwest and west of the project location are 14 other haulouts dotted 
throughout a few of the small northern San Juan Islands (North of Orcas 
Island) within 10 miles of the project (Jeffries et al., 2000).
    While repeated exposures of individuals to this pile driving 
activity could cause limited Level B harassment in harbor seals, harbor 
porpoises, and sea lions, they are unlikely to considerably disrupt 
foraging behavior or result in significant decrease in fitness, 
reproduction, or survival for the affected individuals.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect any of the species or stocks 
through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     The anticipated incidents of Level B harassment would 
consist of, at worst, temporary modifications in behavior that would 
not result in fitness impacts to individuals;
     The ensonifed area from the project is very small relative 
to the overall habitat ranges of all species and stocks, and no habitat 
of particular importance would be impacted;
     Repeated exposures of marine mammals to this pile driving 
activity could cause Level B harassment in seals, harbor porpoise and 
sea lion species, but are unlikely to considerably disrupt foraging 
behavior or result in significant decrease in fitness, reproduction, or 
survival for the affected individuals. In all, there would be no 
adverse impacts to the stocks as a whole; and
     The mitigation measures are expected to reduce the effects 
of the specified activity by minimizing the intensity and/or duration 
of harassment events.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the proposed activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    Table 8 demonstrates the number of instances in which individuals 
of a given species could be exposed to received noise levels that could 
cause take of marine mammals. Our analysis shows that the total taking 
authorized is less than 4 percent of the best available population 
abundance estimate for all species.
    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals would 
be taken, relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

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 insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally 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 action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NAO 216-6A, which do not 
individually or cumulatively have the potential for significant impacts 
on the quality of the human environment and for which we have not 
identified any extraordinary circumstances that would preclude this 
categorical exclusion. Accordingly, NMFS has determined that the 
issuance of the IHA qualifies to be categorically excluded from further 
NEPA review.

Authorization

    NMFS has issued an IHA to Phillips 66 for the potential harassment 
of small numbers of 4 marine mammal species incidental to the Ferndale 
Refinery Dock Replacement in-water pile driving activities in Ferndale 
Washington, that includes the previously explained mitigation, 
monitoring and reporting requirements.

    Dated: August 9, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-18146 Filed 8-13-24; 8:45 am]
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