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The National Marine Fisheries Service is taking this action in response to an October 17, 2016, petition from the U.S. Department of Interior (DOI), Bureau of Ocean Energy Management (BOEM), to promulgate regulations governing the authorization of take of marine mammals incidental to oil and gas industry geophysical surveys conducted in support of hydrocarbon exploration and development on the Outer Continental Shelf in the Gulf of Mexico from approximately 2021 through 2026.

Statement of Need:

The Marine Mammal Protection Act (MMPA) prohibits the take (e.g., behavioral harassment, injury, or mortality) of marine mammals with certain exceptions, including through the issuance of incidental take authorizations. Where there is a reasonable likelihood of an activity resulting in the take of marine mammals as is the case for certain methods of geophysical exploration, including the use of airgun arrays (i.e., seismic surveys) action proponents must ensure that take occurs in a lawful manner. However, there has not previously been any analysis of industry survey activities in the Gulf of Mexico conducted pursuant to requirements of MMPA, and industry operators have been, and currently are, conducting their work with authorization under ESA but without MMPA incidental take authorizations. In support of the oil and gas industry, the Bureau of Ocean Energy Management has requested 5-year incidental take regulations, which would provide a regulatory framework under which individual companies could apply for project-specific Letters of Authorization. Providing for industry compliance with the MMPA through the requested regulatory framework, versus companies pursuing individual authorizations, would be the most efficient way to achieve such compliance for both industry and for NMFS, and would provide regulatory certainty for industry operators.

Summary of the Legal Basis:

Marine Mammal Protection Act

Alternatives:

At the proposed rule stage, the regulatory impact analysis considered several alternatives with varying amounts of required mitigation by industry authorization-holders.  The proposed rule requested comment on the extent to which certain areas should be closed to geophysical activity, the distance at which operators must shut down upon detection of specified species of whales, and the mitigation requirements concerning large dolphins.

Anticipated Costs and Benefits:

The rule would include mitigation, monitoring, and reporting requirements, as required by the MMPA. The RIA for the rule analyzes the impacts against two baselines: the current mitigation requirements as stipulated in a settlement agreement currently in effect until December 1, 2020, and the requirements prior to the settlement agreement.  Compared to the settlement agreement, the annualized impacts of the draft final rule are estimated to achieve a cost savings of $21 million to $212 million. Compared to the pre-settlement agreement baseline the annualized costs are estimated to range from $31 million to $90 million. The rule would also result in certain non-monetized benefits. Relative to protections under the ESA, the lessened risk of harm to marine mammals afforded by this rule (pursuant to the requirements of the MMPA) would benefit the regional economic value of marine mammals via tourism and recreation to some extent, as mitigation measures applied to geophysical survey activities in the Gulf of Mexico (GOM) region are expected to benefit the marine mammal populations that support this economic activity in the GOM. The rule would also afford significant benefit to the regulated industry by providing an efficient framework within which compliance with the MMPA, and the attendant regulatory certainty, may be achieved. Cost savings may be generated in particular by the reduced administrative effort required to obtain an LOA under the framework established by a rule compared to what would be required to obtain an incidental harassment authorization (IHA) under section 101(a)(5)(D) of the MMPA. Absent the rule, survey operators in the GOM would likely be required to apply for an IHA. Although not monetized, NMFS’s analysis indicates that the upfront work associated with the rule (e.g., analyses, modeling, process for obtaining LOA) would likely save significant time and money for operators.

Risks:

Absent the rule, oil and gas industry operators would face a highly uncertain regulatory environment due to the imminent threat of litigation. BOEM currently issues permits under a stay of ongoing litigation; in the absence of the rule, the litigation would continue. The IHA application process that would be available to companies would be more expensive and time-consuming.