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 promulgated or, if the taking is limited to harassment, an IHA is issued.

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 measures”). NMFS must also prescribe requirements pertaining to monitoring and reporting of such takings. The definition of key terms such as “take,” “harassment,” and “negligible impact” can be found in the MMPA and NMFS's implementing regulations (see 16 U.S.C 1362; 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 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:

• 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). 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 ( printed page 53228) 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).
  • 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: www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-harassment-authorization-renewals.

History of Request

On September 4, 2024, NMFS issued an IHA to Petrogas to take marine mammals incidental to Ferndale Pier Maintenance Activities in Ferndale, Washington (89 FR 73381, September 10, 2024), effective from August 1, 2025, through July 31, 2026. On May 15, 2026, NMFS received an application from Petrogas 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 but will not be completed prior to its expiration

As required, the applicant also provided a preliminary monitoring report (available at www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-take-authorizations-construction-activities) 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 notice of the proposed renewal IHA was published on July 13, 2026 (91 FR 42944).

Description of the Specified Activities and Anticipated Impacts

The purpose of this construction project is to remove the existing timber Pier in Ferndale, Washington, that has served as a loading facility since 1965 and replace it with a new structure that meets current industry best practices. As described in detail in the notices for the initial 2025 IHA (89 FR 73381, September 10, 2024; 89 FR 47903, June 4, 2024) planned in-water construction activities included impact and vibratory installation of 9 permanent 30-inch steel pipe piles and removal of 69 existing 16-inch timber piles by vibratory hammer over 17 days. These 69 timber piles were not removed under the initial IHA. During the 2025 construction season, only 10 days of in-water construction were required to install the nine 30-inch steel piles by impact and vibratory installation between August 1, 2025, and October 31, 2025.

A minor change to the activities conducted by Petrogas was described in the renewal letter. We refer to the documents related to the previously issued IHA and describe any new or changed information here. These previous documents include the Federal Register notice of the issuance of the initial IHA (89 FR 73381, September 10, 2024), and the Federal Register notice of the proposed IHA (89 FR 47903, June 4, 2024) and all associated references and documents. The descriptions and analyses contained in those documents remain accurate apart from the minor modifications described herein. We also refer the reader to the previous Petrogas application and final monitoring report for the 2025 construction activities, which can be found at www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-take-authorizations-construction-activities.

Petrogas made a minor, unanticipated design change to the project. Nine permanent 30-inch steel piles were installed by vibratory and impact driving for the replacement North Mooring Dolphin (NMD) as planned under the initial IHA. However, an additional nine temporary 30-inch steel piles were installed by vibratory driving only around the old NMD to build a temporary work platform. One of these temporary 30-inch piles was removed under the initial IHA. The remaining 8 30-inch temporary piles and the existing 69 16-inch timber piles will be removed during the upcoming season by vibratory driving. Work is anticipated to require 5 days of in-water work.

Detailed Description of the Activity

A detailed description of the construction activities for which take is authorized here may be found in the Notices of the Proposed (89 FR 47903, June 4, 2024) and Final IHA (89 FR 73381, September 10, 2024) for the initial authorization. The renewal IHA is effective for a period not exceeding 1 year from the date of expiration of the initial IHA (July 31, 2027). The location and timing are identical to those described in the previous notices.

As noted above, Petrogas was forced to make a design change under the initial IHA. Petrogas initially planned to remove the large concrete cap of the NMD with a crane and place it on a barge. Since the cap weighed approximately 500 tons (453.6 metric tons), a very large crane was needed. Petrogas was not able to procure a crane large enough for this task, so an alternative plan was developed late in the planning, permitting and preparation process. The safest available plan was to build a temporary work platform around the NMD using eight temporary 30-inch steel piles for support and then cut the pile cap into smaller, manageable pieces. Note that an additional, temporary 30-inch pile was lightly placed to hold the pile form for installing the other eight temporary piles at the appropriate design angles. This single pile was removed under the initial IHA.

Under the initial IHA it was assumed that up to 1.5 30-inch steel piles would be installed via vibratory driver each day and 20 16-inch timber piles would be removed via vibratory driver each day. The renewal IHA assumes that the 8 temporary 30-inch steel piles and 20 16-timber piles would be removed via vibratory driver each day.

The mitigation and monitoring requirements as described in the initial IHA and the marine mammal monitoring plan were followed throughout the first year of work including during vibratory installation of the temporary steel 30-inch steel piles. The temporary pile drive time per day in the initial IHA is equivalent to those in the renewal for 16-inch timber piles (40 minutes), while the temporary drive time per day for vibratory driving of the 30-inch piles is 10 minutes greater per day for the renewal IHA (40 vs. 30 minutes). However, vibratory removal of 30-inch steel piles would be done in a single day under the renewal IHA compared to up to 5 days under the initial IHA. Vibratory removal of the existing 16-inch timber piles would take 4 days under either scenario. This assumes that Petrogas is able to work ( printed page 53229) uninterrupted at maximum capacity every day. Since this may not be possible due to a range of factors ( e.g., weather, turbidity above a regulatory threshold), Petrogas may require additional in-water workdays. This renewal IHA is effective from August 13, 2026, through July 31, 2027.

Description of Marine Mammals

A description of the marine mammals in the area of the activities for take is authorized, including information on abundance, status, distribution, and hearing, may be found in the Notices of the Proposed (89 FR 47903, June 4, 2024) and Final IHA (89 FR 73381, September 10, 2024) for the initial authorization. With the exception of harbor seals, NMFS has reviewed the monitoring data from the initial IHA, current 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. According to Pearson et al. (2024), the stock abundance of the Northern Inland Waters stock of harbor seal is now 15,898 animals (changed from 16,451) and the minimum population is 14,505 animals (changed from 15,462). The potential biological removal and mortality/serious injury values are undetermined.

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 incidental take is authorized here may be found in the Notice of the Proposed IHA (89 FR 47903, June 4, 2024) for the initial authorization. NMFS has reviewed the monitoring data from the initial IHA, current 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 used to estimate take for the specified activity are found in the Notices of the Proposed (89 FR 47903, June 4, 2024) and Final IHA (89 FR 73381, September 10, 2024) for the initial authorization. The source levels and marine mammal occurrence data applicable to this renewal authorization remain unchanged from the previously issued initial IHA (89 FR 73381, September 10, 2024).

Petrogas and NMFS reanalyzed the Level A harassment zones for vibratory pile installation and removal activities to reflect Petrogas' planned minor changes (table 1) as well as the 2024 Updated Technical Guidance as the initial analysis was based on the 2018 Technical Guidance (89 FR 73381, September 10, 2024). Results are shown in table 2.

For both the initial IHA and proposed IHA renewal, Petrogas and NMFS quantitatively assessed potential exposure of marine mammals to noise levels from pile driving over the NMFS threshold guidance using the following equation to provide an estimate of potential exposures within estimated harassment zones:

Exposure estimate = N × Level B harassment zone (km² ) × maximum days of pile driving

Where:

N = density estimate (animals per km² ) used for each species.

Level A harassment isopleths increased slightly for all hearing groups except for very high frequency cetaceans (categorized as high frequency cetaceans prior to application of the 2024 Technical Guidance). These changes do not impact NMFS' analysis related to the potential for Level A harassment, which is unlikely to occur.

Petrogas would continue to implement shutdown zones that are equivalent to the Level A harassment zones during all vibratory pile removal activities for all hearing groups, as described in the initial 2025 IHA (89 FR 73381, September 10, 2024). The same occurrence assumptions that were used to estimate take for the 2024 IHA and described in the associated proposed FRN (89 FR 47903, June 4, 2024) are applied here. The daily duration of vibratory removal of 30-inch piles has increased from 30 to 40 minutes while the estimated total number of in-water workdays has decreased from 17 to 5.

The calculated take by Level B harassment based on species density for Steller sea lions and California sea lions was one and six respectively. Petrogas has requested an increase to 10 Steller sea lion takes and 30 California sea lion takes by Level B harassment. While there are no haul-out sites nearby, there are haul-out sites in the greater Strait of Georgia, and animals of these species are known to travel significant distances in search for prey, possibly into the marine waters of the adjacent Cherry Point Aquatic Reserve. The initial IHA had also increased authorized take of sea lions above the calculated estimated take values. The marine mammal monitoring report submitted by Petrogas recorded a single sea lion observation which occurred when there was no driving activity underway. A total of 41 harbor porpoises and 22 harbor seals were observed with 7 porpoise and 9 seal takes by Level B harassment.

NMFS' authorized take for the renewal IHA are indicated in table 3. No take by Level A harassment is authorized.

Description of Mitigation, Monitoring and Reporting Measures

The required mitigation, monitoring, and reporting measures included as requirements in this authorization are nearly identical to those included in the Federal Register notice announcing the issuance of the initial 2025 IHA (89 FR 73381, September 10, 2024) and the discussion of the least practicable adverse impact included in that document and the Notice of the proposed IHA (89 FR 47903, June 4, 2024) remains accurate. The only changes are removal of the mitigation requirements for use of bubble curtains as well as soft start since no impact driving would occur under this renewal IHA. The following measures are required under this renewal:

(a) Petrogas must employ Protected Species Observers (PSO) 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 (table 4), pile driving activity must be delayed or halted.

(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, Petrogas must contact the ORCA network to obtain the latest sightings information for Southern Resident killer whale (SRKW) and humpback whales.

(ii) Petrogas must delay or halt pile driving activities if 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) Construction supervisors and crews, PSOs, and relevant Petrogas 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. ( printed page 53231)

The required shutdown and monitoring zones shown in table 4 are identical to those included as part of the initial IHA.

Comments and Responses

A notice of NMFS' proposal to issue a renewal IHA to Petrogas was published in the Federal Register on July 13, 2026 (91 FR 42944). That notice either described, or referenced descriptions of, Petrogas' activity, the marine mammal species that may be affected by the activity, the anticipated effects on marine mammals and their habitat, estimated amount and manner of take, and proposed mitigation, monitoring and reporting measures. NMFS received no public comments.

Determinations

The planned action is identical to that of the initial authorization in terms of effects. The minor change of vibratory removal of an additional eight temporary 30-inch steel installed under the initial IHA 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 requirements remain the same as the initial authorization apart from removing bubble curtain and soft-start measures since no impact driving is planned. While the population abundance of Northern Inland Waters stock of harbor seal has decreased slightly (now 15,898 animals changed from 16,451) there has been no effect on our findings.

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 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) Petrogas' 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.

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

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 authorized 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.

Renewal

NMFS has issued a renewal IHA to Petrogas for the take of marine mammals incidental to conducting Ferndale Pier Maintenance Activities in Ferndale, Washington effective from the date of issuance through July 31, 2027.

91 FR 53227