# Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys in the Gulf of Mexico

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-08257

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 24, 2024
- **Citation:** 89 FR 31488

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240410-0195]
RIN 0648-BL68
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys in the Gulf of Mexico

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS has reassessed the statutorily mandated findings supporting its January 19, 2021 final rule, “Regulations Governing Taking Marine Mammals Incidental to Geophysical Survey Activities in the Gulf of Mexico,” issued pursuant to the Marine Mammal Protection Act (MMPA), as the estimates of incidental take of marine mammals anticipated from the activities analyzed for the 2021 final rule were erroneous. NMFS has corrected this error and considered and incorporated other newly available and pertinent information relevant to the analyses supporting some of the findings in the 2021 final rule and the taking allowable under the regulations. There are no changes to the specified activities or the specified geographical region in which those activities would be conducted, nor to the original 5-year period of effectiveness. In light of the new information, NMFS presents new analyses supporting our affirmance of the negligible impact determinations for all species, and affirms that the existing regulations, which contain mitigation, monitoring, and reporting requirements, are consistent with the “least practicable adverse impact (LPAI) standard” of the MMPA.

DATES:

Effective from May 24, 2024 through April 19, 2026.

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-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico.
In case of problems accessing these documents, please call the contact listed below.

FOR FURTHER INFORMATION CONTACT:

Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

On January 19, 2021 (86 FR 5322), in response to a petition request from the Bureau of Ocean Energy Management (BOEM), NMFS issued a final rule under the MMPA, 16 U.S.C. 1361
et seq.,
for regulations governing the take of marine mammals incidental to the conduct of geophysical survey activities in the Gulf of Mexico (GOM). This incidental take regulation (ITR), which became effective on April 19, 2021, established a framework to allow for the issuance of Letters of Authorization (LOA) to authorize take by individual survey operators (50 CFR 216.106; 86 FR 5322 (January 19, 2021)). Take is expected to occur by Level A and/or Level B harassment incidental to use of active sound sources as described below.

Errors in the estimates of the maximum annual and 5-year take numbers, discovered during implementation of the ITR, preclude NMFS from issuing LOAs for the full amount of activity described by BOEM in the petition (as revised) and intended to be covered under the ITR. As a result, the utility of the ITR has been limited. NMFS has produced corrected take estimates, including updates to the best available science incorporated into the take estimation process (
i.e.,
new marine mammal density information). Changes to the take numbers required additional analysis to ensure that the necessary statutory findings can still be made. This rule revises NMFS' analysis and affirms the statutory findings that underlie its January 19, 2021, final rule (86 FR 5322), based on consideration of information that corrects and updates the take estimates that were considered for the 2021 final rule.

Legal Authority for the Action

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce 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 for up to 5 years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the LPAI on the affected species or stocks and their habitat (see the discussion below in the Mitigation section), as well as monitoring and reporting requirements. Under NMFS' implementing regulations for section 101(a)(5)(A), NMFS issues LOAs to individuals (including entities) seeking authorization for take under the activity-specific incidental take regulations (50 CFR 216.106).

Summary of Major Provisions Within the Regulations

Following is a summary of the major provisions of the current ITR regarding geophysical survey activities, which NMFS reaffirms through this rulemaking. The regulations contain requirements for mitigation, monitoring, and reporting, including:

• Standard detection-based mitigation measures, including use of visual and acoustic observation to detect marine mammals and shut down acoustic sources in certain circumstances;

• A time-area restriction designed to avoid effects to bottlenose dolphins in times and places believed to be of particular importance;

• Vessel strike avoidance measures; and

• Monitoring and reporting requirements.

See 50 CFR 217.180
et seq.
The ITR continues to govern and allow for the issuance of LOAs for the take of marine mammals incidental to the specified activity (which is unchanged from what was described in the 2021 final rule), within the upper bounds of take evaluated herein.

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 issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be 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 LPAI 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 as “mitigation”); and set forth 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.

On October 17, 2016, BOEM submitted a revised petition
1

to NMFS for rulemaking under section 101(a)(5)(A) of the MMPA to authorize take of marine mammals incidental to conducting geophysical surveys during oil and gas industry exploration and development activities in the GOM. This revised petition was deemed adequate and complete based on NMFS' implementing regulations at 50 CFR 216.104.

1
In the 2018 notice of proposed rulemaking (83 FR 29212, June 22, 2018), NMFS provided a brief history of prior petitions received from BOEM's predecessor agencies.

NMFS published a notice of proposed rulemaking in the
Federal Register
for a 60-day public review on June 22, 2018 (83 FR 29212) (“2018 proposed rule”). All comments received are available online at
www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico.

On February 24, 2020, BOEM submitted a notice to NMFS of its “updated proposed action and action area for the ongoing [ITR] process[.]” This update consisted of removal of the area then under a Congressional leasing moratorium under the Gulf of Mexico Energy Security Act (GOMESA) (Sec. 104, Pub. L. 109-432)
2

from consideration in the ITR. BOEM stated in its notice that survey activities are not likely to be proposed within the area subject to the leasing moratorium during the 5-year period of effectiveness for the ITR and, therefore, that the “number, type, and effects of any such proposed [survey] activities are simply too speculative and uncertain for BOEM to predict or meaningfully analyze.” Based on this updated scope, BOEM on March 26, 2020, submitted revised projections of expected activity levels and corresponding changes to modeled acoustic exposure numbers (
i.e.,
take estimates). BOEM's notice and updated information are available online at:
https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico.
NMFS incorporated this change in scope with the revised take estimates and issued a final rule and ITR on January 19, 2021 (86 FR 5322) (“2021 final rule” or “2021 ITR”), which became effective on April 19, 2021. Consistent with section 101(a)(5)(A) and NMFS' implementing regulations, NMFS may issue LOAs under the 2021 ITR for a period of 5 years.

2
The Congressional moratorium in GOMESA was in place until June 30, 2022. On September 8, 2020, the President withdrew, under section 12 of the Outer Continental Shelf Lands Act, the same area covered by the prior GOMESA moratorium from disposition by leasing for 10 years, beginning on July 1, 2022, and ending on June 30, 2032.

While processing requests for individual LOAs under the ITR using the methodology for developing LOA-specific take numbers presented in the 2021 final rule, NMFS discovered that the estimated maximum annual incidental take and estimated total 5-year take from all survey activities that BOEM projected for its revised scope appeared to be in error, in that maximum annual incidental take was likely to be reached much sooner than anticipated for some species based on the level of activity described in BOEM's petition as revised in 2020. NMFS contacted BOEM regarding this, and BOEM determined that, when it reduced its scope of specified activity in March 2020 by removing the GOMESA moratorium area from its proposed action, it underestimated the level of take by inadvertently factoring species density estimates into its revised exposure estimates twice. Generally, this miscalculation caused BOEM to underestimate the total predicted exposures of species from all survey activities in its revision to the petition, most pronouncedly for those species with the lowest densities (
e.g.,
killer whales).

BOEM provided NMFS with an explanation of the miscalculation with regard to its incidental take estimate and revised take estimates, which is available online at:
https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico.
See the Estimated Take section for additional discussion. NMFS then determined it would conduct a rulemaking to analyze the revised take estimates and, if appropriate, revise its incidental take rule accordingly. On January 5, 2023, NMFS published a proposed rule, requesting comments for a period of 30 days on its revised negligible impact analyses and proposed findings and proposed retention of the existing regulations as consistent with the MMPA's LPAI standard (88 FR 916, January 5, 2023).

Our proposed and final rule together provide analysis of the same activities and activity levels considered for the 2021 final rule, for the original 5-year period, and utilize the same modeling methodology described in the 2021 final rule. We incorporate the best available information, including consideration of specific new information that has become available since the 2021 rule was published, and updates to currently available marine mammal density information. We also incorporate expanded modeling results that estimate take utilizing the existing methodology but also consider the effects of using smaller (relative to the proxy source originally defined by BOEM) airgun arrays currently prevalent, as evidenced by LOA applications received by NMFS to date (see
https://www.fisheries.noaa.gov/issued-letters-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico
).

There are no changes to the nature or level of the specified activities within or across years or to the geographic scope of the activity. Based on our assessment of the specified activity in light of the revised take estimates and other new information, we have determined that the 2021 ITR at 50 CFR 217.180
et seq.,
which include the required mitigation and associated monitoring measures, satisfy the MMPA requirement to prescribe the means of effecting the LPAI on the affected species or stocks and their habitat, and therefore, do not change those regulations, nor do we change the requirements pertaining to monitoring and reporting. This rulemaking supplements the information supporting the 2021 incidental take rule. This rule does not change the existing April 19, 2026, expiration date of the 2021 ITR. In addition, NMFS' demarcation of “years” under the 2021 final rule for purposes of accounting for authorized take (
e.g.,
Year 1 under the rule extended from April 19, 2021, through April 18, 2022) remains unchanged under this rule.

As to the negligible impact findings, the revised take numbers remain within those previously analyzed for most species. (Take numbers increased compared with the 2021 final rule for 4 species: Rice's whale (formerly Bryde's whale), Fraser's dolphin, rough-toothed dolphin, and striped dolphin. See tables 5 and 6. Because of the new category of “blackfish,” there is uncertainty on any change in the take numbers for the individual species that comprise that category, though collectively the take numbers for all species in the blackfish category remain within the levels previously analyzed.) However, we revisited the risk assessment framework used in analyses for the 2021 final rule for all species, as elements of the framework are dependent on information related to stock abundance,

which has been updated (Hayes
et al.,
2021; Garrison
et al.,
2023). For most species, we provide updated negligible impact analyses and determinations. For those species for which take numbers decreased and associated evaluated risk remained static or declined, we incorporate (by either repeating, summarizing, or referencing) applicable information and analyses in the prior rulemaking and supporting documents. For those species, there is no other new information suggesting that the effect of the anticipated take might exceed what was considered in the 2021 final rule. Therefore, the analyses and findings provided in the 2021 final rule remain current and applicable. Please see the Negligible Impact Analysis and Determinations section for further information. As to the small numbers standard, we do not change the interpretation and implementation as laid out in the 2021 final rule (86 FR 5322, 5438, January 19, 2021).

Description of the Specified Activity

Overview

The specified activity for this action is unchanged from the specified activity considered for the 2021 ITR, consisting of geophysical surveys conducted for a variety of reasons. BOEM's 2016 petition described a 10-year period of geophysical survey activity and provided estimates of the amount of effort by survey type and location. BOEM's 2020 update to the scope of activity included revisions to these level-of-effort projections, including reducing the projections to 5 years and removing activity assumed to occur within the areas removed from the scope of activity. Actual total amounts of effort (including by survey type and location) are not known in advance of receiving LOA requests, but take in excess of what is analyzed in this rule would not be authorized. Applicants seeking authorization for take of marine mammals incidental to survey activities outside the geographic scope of the rule (
i.e.,
within the former GOMESA moratorium area) would need to pursue a separate MMPA incidental take authorization. See Figures 1 and 2.

Geophysical surveys in the GOM are typically conducted in support of hydrocarbon exploration, development, and production by companies that provide such services to the oil and gas industry. Broadly, these surveys include deep penetration surveys using large airgun arrays as the acoustic source; shallow penetration surveys using a small airgun array, single airgun, or other systems that may achieve similar objectives (here considered broadly as including other similar sources such as boomers and sparkers) as the acoustic source; or high-resolution surveys, which may use a variety of acoustic sources. Geophysical surveys and associated acoustic sources were described in detail in NMFS' 2018 notice of proposed rulemaking and in the notice of issuance for the 2021 final rule (83 FR 29212, June 22, 2018; 86 FR 5322, January 19, 2021). Please refer to those notices for detailed discussion of geophysical survey operations, associated acoustic sources, and the specific sources and survey types that were the subject of acoustic exposure modeling. Information provided therein remains accurate and relevant and is not repeated here. The use of these acoustic sources produces underwater sound at levels that have the potential to result in harassment of marine mammals. Marine mammal species with the potential to be present in the GOM are described below (see table 2).

The specified geographical region is illustrated below but generally speaking, survey activity may occur within U.S. territorial waters and waters of the U.S. Exclusive Economic Zone (EEZ) within the GOM (
i.e.,
to 200 nautical miles (nmi)), except for the former GOMESA moratorium area).

Dates and Duration

The dates and duration of the specified activities considered for this rule are unchanged from the dates and duration for the 2021 final rule, which may occur at any time during the period of validity of the regulations (April 19, 2021, through April 18, 2026).

Specified Geographical Region

The specified geographical region for this action is unchanged from the one considered for the 2021 final rule. The OCS planning areas are depicted in Figure 1, and the specified geographical region (with the modeling zones and depicting the area withdrawn from leasing consideration) is depicted in Figure 2. NMFS provided a detailed discussion of the specified geographical region in the 2018 notice of proposed rulemaking.

BILLING CODE 3510-22-P

ER24AP24.065

ER24AP24.066

BILLING CODE 3510-22-C

Summary of Representative Sound Sources

The 2021 final rule allows for the authorization of take, through LOAs, incidental to use of airgun sources of different sizes and configurations (as well as similar sources). The supporting modeling considered two specific airgun array sizes/configurations (as well as a single airgun). Acoustic exposure modeling performed in support of the 2021 rule was described in detail in “Acoustic Propagation and Marine Mammal Exposure Modeling of Geological and Geophysical Sources in the Gulf of Mexico” and “Addendum to Acoustic Propagation and Marine Mammal Exposure Modeling of Geological and Geophysical Sources in the Gulf of Mexico” (Zeddies
et al.,
2015, 2017a), as well as in “Gulf of Mexico Acoustic Exposure Model Variable Analysis” (Zeddies
et al.,
2017b), which evaluated a smaller, alternative airgun array. For this final rule, modeling of a third airgun array size that is also smaller than the original large array and more representative of survey activities occurring under the current rule was specifically considered (Weirathmueller
et al.,
2022). These reports provide full detail regarding the modeled acoustic sources and survey types and are available online at:
https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico.

Representative sources for the modeling include three different airgun arrays, a single airgun, and an acoustic source package including a CHIRP sub-bottom profiler in combination with multibeam echosounder and side-scan sonar. Two major survey types were considered: large-area (including 2D, 3D narrow azimuth (NAZ), 3D wide azimuth (WAZ), and coil surveys) and small-area (including single airgun surveys and high-resolution surveys; the single airgun was used as a proxy for surveys using a boomer or sparker). The nominal airgun sources used for analysis of the specified activity include a single airgun (90-cubic inch (in
3
) airgun) and a large airgun array (72-element, 8,000 in
3
). In addition, the Model Variable Analysis (Zeddies
et al.,
2017b) provides analysis of an alternative 4,130-in
3
array, and the most recent modeling effort using the same methodology provides analysis of a 32-element, 5,110-in
3
array (Weirathmueller
et al.,
2022), with specifications defined by NMFS in consultation with industry operators to provide exposure modeling results more relevant to arrays commonly in use (see Letters of Authorization section). Additional discussion is provided in the Estimated Take section.

While it was necessary to identify representative sources for the purposes of modeling take estimates for the analysis for the 2021 rule, the analysis is intended to be, and is appropriately, applicable to takes resulting from the use of other sizes or configurations of airguns (
e.g.,
the smaller, 5,110-in
3
airgun array currently prevalent in GOM survey effort and described in Weirathmueller
et al.
(2022), and the alternative 4,130-in
3
array initially modeled by Zeddies
et al.
(2017b)). Although the analysis herein is based on the modeling results presenting the highest estimated take number for each species (for most species, those resulting from use of the 8,000-in
3
array), actual take numbers for authorization through LOAs are generated based on the results most applicable to the array planned for use.

While these descriptions reflect existing technologies and current practice, new technologies and/or uses of existing technologies may come into practice during the remaining period of validity of these regulations. As stated in the 2021 final rule (86 FR 5322, 5442; January 19, 2021), NMFS will evaluate any such developments on a case-specific basis to determine whether expected impacts on marine mammals are consistent with those described or referenced in this document and, therefore, whether any anticipated take incidental to use of those new technologies or practices may appropriately be authorized under the existing regulatory framework. See Letters of Authorization for additional information.

Estimated Levels of Effort

As noted above, estimated levels of effort are unchanged from those considered in the 2021 final rule. Please see the 2021 final rule notice for additional detailed discussion of those estimates and of the approach to delineating modeling zones (shown in Figure 2).

In support of its 2020 revision of the scope of the rule, BOEM provided NMFS with revised 5-year level of effort predictions and associated acoustic exposure estimates. Table 1 provides those effort projections for the 5-year period, which are unchanged. This table corrects table 2 in NMFS' notice of issuance of the 2021 ITR, which erroneously presented the difference in activity levels between the 2018 proposed ITR and the revised levels after GOMESA removal. The correct information was used in the take calculations, and was concurrently made available to the public via BOEM's 2020 notice to NMFS of its updated scope.

BILLING CODE 3510-22-P

ER24AP24.067

BILLING CODE 3510-22-C

The preceding description of the specified activity is a summary of critical information. The interested reader should refer to the 2018 notice of proposed rulemaking (83 FR 29212, June 22, 2018), as well as BOEM's petition (with addenda) and Programmatic Environmental Impact Statement (PEIS), for additional detail regarding these activities and the region.

Comments and Responses

NMFS published a notice of proposed rulemaking in the
Federal Register
on January 5, 2023 (88 FR 916), beginning a 30-day comment period. In that notice, we requested public input on the proposed rule, including but not limited to NMFS' proposed or preliminary findings, determinations, or conclusions regarding the MMPA standards, and the information NMFS relies on in support of those findings, determinations, or conclusions; and NMFS' preliminary decisions to reaffirm or not make changes to the 2021 final rule, and the information NMFS relies on in support of those preliminary decisions, and requested that interested persons submit relevant information, suggestions, and comments.

During the 30-day comment period, we received 22,832 comment letters. Of this total, we determined that approximately 71 comment letters represented unique submissions, including 6 letters from various organizations (described below) and 65 unique submissions from private citizens. The remaining approximately 22,756 comment letters followed a generic template format in which respondents provided comments that were identical or substantively the same. (For purposes of counting, we considered comments using this template as a single unique submission.)

A letter was submitted jointly by the EnerGeo Alliance (formerly the International Association of Geophysical Contractors), the American Petroleum Institute, the National Ocean Industries Association, and the Offshore Operators Committee (hereafter, the “Associations”). A separate letter was submitted jointly by the Natural Resources Defense Council (NRDC), Association of Zoos and Aquariums, Center for Biological Diversity, Earthjustice, Healthy Gulf, and Surfrider Foundation (hereafter, “NRDC”). Additional letters were submitted by the following: Beacon Offshore Energy (Beacon), BOEM, Chevron USA Inc. (Chevron), and the Marine Mammal Commission (MMC). We note that several of these entities refer to, or restate, comments they provided in response to NMFS' 2018 proposed rulemaking—in some cases appending the entirety of the 2018 letters to the current comment letters, and stating that the 2018 comments are incorporated to the current comments. All comments received in response to the 2018 proposed rulemaking were previously responded to by NMFS (86 FR 5322, January 19, 2021). Where new information or context warranted additional response to the prior comments, we provide it here. However, in most cases no new response is required, and we rely on our prior responses in the 2021 final rule.

NMFS has reviewed all public comments received on the 2023 proposed rule. All relevant comments and our responses are described below. All comments received are available online at:
https://www.regulations.gov.
A direct link to these comments is provided at:
https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico.

General Comments

A large majority of commenters, including all of those following the aforementioned generic template, expressed general opposition towards oil and gas industry geophysical survey activity, suggesting that NMFS has decision-making authority regarding whether such surveys occur. Numerous letters also provide commentary regarding climate change and the relative merits of U.S. use of various sources of energy. As these comments are outside the scope of NMFS' authority and NMFS' decision under the MMPA, we do not respond further. NMFS' action here concerns only the authorization of marine mammal take incidental to projected geophysical surveys, provided that the required analyses, findings, and other requirements have been satisfied. Jurisdiction concerning decisions to allow the surveys themselves rests solely with BOEM, pursuant to its authority under the Outer Continental Shelf Lands Act (OCSLA). We also note that this rulemaking addresses only marine mammals (and their habitat). As such, effects of the surveys on other aspects of the marine environment are not relevant to NMFS' analyses and authorities under section 101(a)(5)(A) of the MMPA.

In addition, numerous commenters (including all of those following the aforementioned generic template) make unsupported assertions regarding the potential impacts of oil and gas industry geophysical survey activity, stating that such activity can deafen and cause the death of marine mammals. As the commenters provide no evidence in support of these assertions, and NMFS is not aware of any such evidence, we do not respond further to these comments.

Comment:
Beacon states that it appreciates NMFS' efforts to correct previous errors, consider newly available and pertinent information, and acknowledge the impact of those factors on the analyses supporting prior findings in the 2021 final rule and the taking allowable under applicable regulations. Beacon also states that it supports the comments submitted by the Associations.

Response:
NMFS appreciates the comments.

Comment:
NRDC, noting that the purported projected levels of effort provided in table 2 of NMFS' 2021 final rule were unaccountably low and likely in error, requests confirmation that the activity levels presented in NMFS' 2023 proposed rule are correct and that these levels were used to generate the current estimated take numbers.

Response:
NMFS confirms that the projected levels of effort provided in table 1 of its 2023 proposed rule (and in this final rule) are correct, and were used to generate the estimated take numbers provided in table 6. Table 1 corrected table 2 in NMFS' 2021 final rule, which erroneously presented the difference in activity levels between the 2018 proposed ITR and the revised levels after GOMESA removal. The correct projected levels of effort were used in the analyses presented in NMFS' 2018 proposed rule, 2021 final rule, 2023 proposed rule, and this final rule.

Comment:
The Associations assert that NMFS has “declined to provide the model inputs and outputs” associated with acoustic exposure modeling performed in support of the rule, and state that this precludes the public from conducting a thorough review of the proposed rule. The Associations separately reference the requirements of the Administrative Procedure Act (APA) in asserting that NMFS has failed to “fully disclose all necessary information about the models it uses (including all inputs and outputs), explain the assumptions and methodology used to prepare the models, allow for public review and feedback on the models and all related supporting information, and respond to public comments and make changes to the models as warranted based on those comments.”

Response:
NMFS has provided information regarding all model inputs and outputs, as well as information regarding all other aspects of the

modeling process. In association with its 2018 proposed rulemaking, NMFS made the modeling report (Zeddies
et al.,
2015, 2017a) available for public review for 60 days. This almost 400-page report includes full detail regarding all model inputs and outputs, assumptions, and methodology. Prior to the 60-day comment period for NMFS' 2018 proposed rulemaking, the report was made available for review and comment during NMFS' 45-day notice of receipt comment period regarding BOEM's petition, as well as during a separate 60-day comment period for BOEM's draft PEIS. Thus, this report was available for public review for a minimum aggregate of 165 days prior to the 30-day comment period for NMFS' 2023 proposed rule. Details regarding the 4,130-in
3
airgun array were provided by the Associations themselves in support of development of their 2017 Gulf of Mexico Acoustic Exposure Model Variable Analysis (Zeddies
et al.,
2017b), which was also provided for public review during the 60-day comment period for NMFS' 2018 proposed rule (and which also remains available to the public online at
https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico
). In order to perform this modeling variable analysis, the Associations were granted access to all modeling products and worked directly with the contracted modelers (JASCO Applied Sciences(JASCO)).

NMFS further explained in its 2023 proposed rule that “all aspects of the modeling (including source, propagation, and animal movement modeling) are the same as described in Zeddies
et al.
(2015, 2017a, 2017b) and discussed in previous
Federal Register
notices associated with the ITR,” with the exception of the introduction of a new source (the 5,110-in
3
array), details of which were provided in the Weirathmueller
et al.
(2022) memorandum provided for public review during the 30-day comment period for the 2023 proposed rule. (We note that the Associations claim that “NMFS provides insufficient information. . .to determine whether this specific array size and the configuration analyzed are accurate or representative. . . .” However, the Associations do not specify what necessary information they believe was omitted from description of the array.)

The Associations do not describe any specific model inputs or outputs or other information that they believe to have been withheld, or specifically describe any assumptions or methodology that they believe has been insufficiently explained. However, during the public comment period, EnerGeo contacted NMFS to request the following:

• Model outputs, specifically the modeled sound pressure levels across depth and range for all modeled radials for modeled seismic arrays and modeling locations/seasons.

Upon receipt of this request, NMFS contacted JASCO to ascertain the availability of the requested products (which are specific output files rather than the descriptions of model outputs that are provided in the modeling report). NMFS then communicated with EnerGeo that JASCO could provide the requested sound field files, but noted that there are several thousand files for each array volume, and that the files are in a proprietary format. Therefore, NMFS explained to EnerGeo that the request would require coordination between EnerGeo and JASCO in order to produce the requested volume of files in a format that might be useful to EnerGeo, and requested EnerGeo's response on how to conduct the necessary coordination. EnerGeo did not respond.

• At each modeling location, the specific geographic location of the centerpoint, the number of radials modeled, and the specific inputs used in the modeling including bathymetry, sound speed profiles, and the geoacoustic parameters of the seabed, as well as the sea surface assumption (sea state or other assumptions).

Regarding this request, NMFS reiterated to EnerGeo the explanation provided in the proposed rule: all of the requested information remains unchanged from the original modeling effort and is described in the original modeling report. However, NMFS noted that if EnerGeo could specify any needed information that it could not find in the modeling report, NMFS would work to provide it. EnerGeo did not respond.

• Summarized metrics on R
95
%
and R
max
distances
3

to the 160-dB behavioral threshold, the behavioral step function (for beaked whales and all other species), and the hearing group-specific distances to Level A harassment thresholds for the NMFS-specified sound exposure level (SEL) and peak thresholds and for all modeled seismic arrays and acoustic modeling sites and seasons.

3
Given a regularly gridded spatial distribution of sound levels, the R
95
%
for a given sound level was defined as the radius of the circle, centered on the source, encompassing 95 percent of the grid points with sound levels at or above the given value. This definition is meaningful in terms of potential impact to animals because, regardless of the shape of the contour for a given sound level, R
95
%
is the range from the source beyond which less than 5 percent of a uniformly distributed population would be exposed to sound at or above that level. The R
max
for a given sound level is simply the distance to the farthest occurrence of the threshold level (equivalent to R
100
%
. It is more conservative than R
95
%
, but may overestimate the effective exposure zone. For cases where the volume ensonified to a specific level is discontinuous and small pockets of higher received levels occur far beyond the main ensonified volume, R
max
would be much larger than R
95
%
and could therefore be misleading if not given along with R
95
%
(Zeddies
et al.,
2015).

Regarding this request, NMFS explained to EnerGeo that JASCO did not specifically calculate R
95
%
and R
max
for every site, because R
max
/R
95
%
are not used for animal movement modeling—the entire sound fields are used. Acoustic ranges were calculated for a subset of the modeled sites in order to provide examples in the modeling report.

NMFS reiterates that the Associations provide no specific information regarding any aspect of the modeling that they believe has been inappropriately withheld from the public. Moreover, NMFS made a good faith effort to respond to EnerGeo's request for information during the public comment period, and EnerGeo neither followed up with additional questions nor responded to NMFS' offer to facilitate a working interaction with the modelers to obtain requested data files. NMFS has provided all details regarding model inputs and outputs, as well as modeling assumptions and methods, and has provided the public with a meaningful opportunity for review. NMFS has further responded to all comments, both here and in its 2021 final rule.

Comment:
Chevron states that NMFS ignores real-world observations that “directly contradict” its model estimates.

Response:
Chevron refers to observations, or lack thereof, by protected species observers (PSO) aboard survey vessels, as proof that NMFS' take estimates are overly conservative. However, PSOs are able to conduct observations over only a relatively small fraction of the area in which marine mammals may be impacted by noise from seismic surveys even during daylight hours, and many marine mammals are not observable at the surface. Similarly, many marine mammals may not be detected by acoustic monitoring. Lack of observations does not demonstrate that takes of marine mammals do not occur. Moreover, we incorporated the best available scientific information for our analysis, as evidenced (for example) by

our references to BOEM's synthesis studies of PSO data from 2002-15 (Barkaszi
et al.,
2012; Barkaszi and Kelly, 2018) (as well as other similar syntheses from other locations).

Comment:
The Associations reiterate comments made initially with regard to NMFS' 2018 proposed rule, asserting that NMFS has employed an “unlawful” approach to the estimation of incidental take, including analyses of “unlikely worst-case scenarios,” resulting in “significant overestimates of take.” Chevron echoes these concerns.

Response:
The commenters' statements that NMFS has substantially overestimated takes are incorrect. As discussed in our 2021 final rule response to the Associations' 2018 comments on this topic (86 FR 5322, 5347, January 19, 2021), NMFS used current scientific information and state-of-the-art acoustic propagation and animal movement modeling to reasonably estimate potential exposures to noise. With regard to the acoustic exposure modeling, NMFS reiterates part of its 2021 response to the 2018 comments, which remains applicable: the Associations' comments do not specify which of the many data inputs are “conservative” or to what degree, nor do they recommend alternatives to the choices that were meticulously documented in developing the modeling.

As in their 2018 public comment letter, the Associations inappropriately characterize statements from NMFS' notice of proposed rulemaking as admissions of purposeful conservativeness. The Associations refer to NMFS' description of the take numbers subject to analysis for purposes of the negligible impact determinations in this rule. In contrast to the 2018 proposed rule, for which NMFS used modeling of one airgun array, for this final rule, NMFS considered acoustic exposure modeling results from three different airgun arrays, and stated simply that, for each species, the maximum take number resulting from analysis of the three different arrays was subject to evaluation as part of NMFS' negligible impact determinations. This approach ensures that the potential takes of each species that could occur from survey effort this final rule is designed to cover—surveys that may involve various airgun arrays—are appropriately analyzed to enable issuance of LOAs for those activities with reasonably accurate take estimates.

The Associations also refer again to the 2017 Acoustic Exposure Model Variable Analysis (Zeddies
et al.,
2017b) as being supportive of their claims that NMFS' modeling is inappropriately conservative, stating that the results show that “alterations to only 4 or 5 variables have dramatic consequences that are the result of redundantly applied precaution [. . .].” The Associations incorrectly characterize the results of the analysis, which investigated five factors:

• Airgun array size (including total volume, number of array elements, element air pressure, array geometry and spacing) used in source and propagation models;

• Acoustic threshold criteria and associated weighting used to calculate exposures;

• Animal densities used for adjusting simulated computer model exposures to potential real-world animal exposures;

• Natural aversive behaviors of marine mammals; and

• The addition of mitigative measures that lessen the potential for animals' exposure to threshold levels of seismic sound.

The primary finding of the Zeddies
et al.
(2017b) analysis is that use of NMFS' acoustic injury criteria (
i.e.,
NMFS, 2016, 2018) decreased predictions of injurious exposure. Thus, NMFS' 2018 proposed rule had already incorporated the change with the most significant impact on estimated take numbers.

We addressed the Associations' investigation of quantitative consideration of animal aversion and mitigation effectiveness in responses to comments provided in the 2021 final rule. In summary, these factors were not quantified in the modeling because there is too much inherent uncertainty regarding the effectiveness of detection-based mitigation for these activities to support any reasonable quantification of its effect in reducing injurious exposure, and there is too little information regarding the likely level of onset and degree of aversion to justify its use in the modeling via precise quantitative control of animat movements (as compared to post-hoc adjustment of the modeling results, as was done in the 2021 final rule and carried forward here). Importantly, while aversion and mitigation implementation are expected to reduce somewhat the modeled levels of injurious exposure, they would not be expected to result in any meaningful reduction in assumed exposures resulting in Level B harassment, nor in total takes by harassment, as any averted injurious (Level A harassment) takes would be appropriately changed to behavioral disturbance (Level B harassment) takes. With regard to marine mammal density information, NMFS has used in both the 2021 final rule and this rule the best available scientific information.

NMFS previously responded to the Associations' comments that the selected array (8,000 in
3
) is unrealistically large, resulting in an overestimation of likely source levels and, therefore, size of the sound field with which marine mammals would interact. We noted then our agreement with the premise that use of a smaller airgun array volume with lower source level would likely create a smaller ensonified area resulting in fewer numbers of animals expected to exceed exposure thresholds, but that selection of the representative array to be used in the modeling was directed by the ITR applicant (
i.e.,
BOEM). For the 2023 proposed rule, in reflection of prior comments from the Associations and others, NMFS determined it appropriate to develop full modeling results for analysis that would provide more scalable take numbers suitable for the actual sound sources in use, and introduced the alternative 4,130-in
3
and 5,110-in
3
airgun arrays. This approach directly refutes the Associations' suggestion that NMFS has not appropriately responded to public comments and made changes as warranted.

With regard to the large number of other data inputs and/or choices made in the modeling, the Associations do not specifically identify any issue where they believe a meaningful data or process error was made in the modeling. NMFS reiterates its conclusion that, while the modeling required that a number of assumptions and choices be made by subject matter experts, these are reasonable, scientifically acceptable choices. These choices do not represent a series of “overly conservative, worst-case assumptions” that, as the Associations state, result in a “compounding error yielding unrealistic calculations lacking scientific basis.” To the extent that the results of the modeling may be conservative, they are the most credible, science-based information available at this time.

NMFS reiterates its conclusion that the modeling effort incorporated representative sound sources and projected survey scenarios (based on the best available information obtained by BOEM, as supplemented by NMFS to address additional airgun sizes that are reasonably likely based on LOA applications to date—which alleviates the primary source of conservativeness about which NMFS and the Associations find agreement), physical and geological oceanographic parameters at multiple locations within the GOM and during different seasons, the best available information regarding marine mammal distribution and

density, and available information regarding known behavioral patterns of the affected species. Current scientific information and state-of-the-art acoustic propagation and animal movement modeling were used to reasonably estimate potential exposures to noise. The 2018 proposed rule described all aspects of the modeling effort in significant detail, including numerous investigations (test scenarios) designed by the agencies to understand various model sensitivities and the effects of certain choices on model results. Additionally, the 2023 proposed rule described in detail all aspects of the modeling that were different, while referring the reader to the 2018 proposed rule and supplementary information for the bulk of the modeling effort, which was unchanged. All relevant information was provided for public review, on multiple occasions.

Because it remains relevant, we quote the MMC's 2018 public comment on this topic: “Complex sound propagation and animat modeling was used to estimate the numbers of potential takes from various types of geophysical surveys in the Gulf. NMFS received comments from industry operators suggesting that the modeling results were overly conservative [. . .]. However, the Commission has reviewed the modeling approach and parameters used to estimate takes and believes they represent the best available information regarding survey scenarios, sound sources, physical and oceanographic conditions in the Gulf, and marine mammal densities and behavior. As such, the Commission agrees with NMFS and BOEM that the resulting take estimates were conservative but reasonable, thereby minimizing the likelihood that actual takes would be underestimated.”

Comment:
The Associations describe potential mistakes in the take numbers evaluated for this rule, noting that the total take numbers for aggregated beaked whales across species and for blackfish across species provided in Weirathmueller
et al.
(2022) exceed the values provided by NMFS in table 6 of the 2023 proposed rule.

Response:
NMFS clarifies that Appendix B of Weirathmueller
et al.
(2022) provides essentially duplicate results for species that are represented by the same density value. For example, Garrison
et al.
(2023)
4

provide generic (versus species-specific) density information for beaked whales and blackfish. The results provided in Weirathmueller
et al.
(2022) applied those same density values to multiple species within a particular guild; thereby, duplicating modeling results for,
e.g.,
Cuvier's, Blainville's, and Gervais' beaked whale. One can see that the resulting take numbers are the same for Blainville's and Gervais' beaked whale, as these two species are governed by the same assumed animal movement parameters in the animat modeling. However, the results for Cuvier's beaked whale are slightly different, resulting from the application of slightly different animal movement parameters in the modeling. For purposes of providing an estimate of total takes for the beaked whale guild, NMFS assumed the larger set of values—as necessary to ensure that the potential takes for the species with the largest values (in this case, Cuvier's beaked whales) were appropriately analyzed. A similar situation exists for the four species in the blackfish category,
i.e.,
the four species are represented together by a generic, guild density that encompasses all four species. However, each of the four species were represented in the animal movement modeling component by animats guided by species-specific animal movement parameters. Thus, when the appropriate density value was applied to scale the animat exposure estimates to real-world exposure estimates, slightly different results were found across the four species, but the total take number for the blackfish guild is correctly represented through summing the take values for one of the species. The take numbers provided in table 6 are correct; no error exists.

4
At the time of publication of the 2023 proposed rule, no technical reports associated with the updated density models had been released to the public, and we cited the models (and density outputs, which were publicly available online) as Garrison
et al.
(2022) in that proposed rule. Associated reports (Rappucci
et al.,
2023; Garrison
et al.,
2023) have since been released to the public. In this final rule, references to the updated density models are cited as Garrison
et al.
(2023).

Comment:
Chevron states that the modeling performed in support of the rule qualifies as a “highly influential scientific assessment.”

Response:
NMFS disagrees that the modeling constitutes a highly influential scientific assessment. The Office of Management and Budget's Final Information Quality Bulletin for Peer Review (70 FR 2664, January 14, 2005) defines a highly influential scientific assessment as information whose dissemination could have a potential impact of more than $500 million in any one year on either the public or private sector or for which the dissemination is novel, controversial, or precedent-setting, or has significant interagency interest. Our Regulatory Impact Analysis (RIA) for the 2021 final rule, which remains applicable, indicated that annual impacts are less than $500 million. Moreover, similar approaches to acoustic exposure modeling have been performed by numerous disparate entities for multiple applications. In 2014, during a modeling workshop co-sponsored by the American Petroleum Institute and International Association of Geophysical Contractors, at least a half-dozen expert presenters (representing private and governmental entities from both the United States and Europe) discussed various available packages that function much the same way as the modeling supporting this rule. Thus, there is nothing novel, controversial, or precedent-setting about the modeling described here, and the additional peer review requirements associated with HISAs are not applicable.

Comment:
The Associations encourage NMFS to consider employing what they refer to as a “pooled” approach to authorizing take of species that are rarely encountered in the GOM. The Associations suggest that NMFS may authorize take via the suggested “pool” approach generically, versus through an LOA issued to a specific applicant. This authorized “pool” of take would then be drawn down as such take occurs.

Response:
NMFS appreciates the Associations' suggestion. We note that, on February 17, 2022, the Associations proposed this concept to NMFS as a potential solution to the errors in the rule. Instead, NMFS determined it appropriate to pursue a corrective rulemaking. NMFS does not believe the approach suggested by the Associations is necessary or relevant following completion of this rule.

Comment:
The Associations suggest that NMFS should develop an appropriate “scalar ratio” for application to surveys of fewer than 20 days in duration.

Response:
The scalar ratio employed by NMFS during implementation of the ITR to date was developed in consideration of the relationship between takes estimated for a full simulated 30-day survey, versus those resulting from 24-hour results scaled up to the 30-day duration, and is, therefore, suitable for use in better estimating the number of individuals affected for surveys of longer duration (
e.g.,
20 days or more). NMFS agrees with the Associations that it would be useful to develop a suitable scalar ratio for surveys of shorter duration. However, the Associations' comments on the topic suggest a misunderstanding of the limitations under the rule on take

authorization. As rationale for the comment, they state that failure to develop such a scalar ratio “is a major problem because it will result in an artificial and mathematically erroneous inflation of estimated individual takes at the LOA level that may ultimately prevent authorization of the amount of take contemplated” in the rule. However, for all surveys, NMFS authorizes through an LOA the appropriate, unscaled estimated take number. Scaled values are only used in the LOA-specific “small numbers” analysis to help inform an assessment of how many individual marine mammals to which the estimated instances of take might appropriately accrue. As such, lack of an applicable scalar ratio for surveys of shorter duration means that NMFS is analyzing overestimates of the numbers of individuals potentially impacted (versus total instances of take) for purposes of the small numbers analysis, but has no other effect on NMFS' ability to authorize take under the rule. NMFS expects to consider development of the recommended scalar ratio in the future, but has not to date undertaken such an effort.

Comment:
NRDC states that the density estimates used for Rice's whale “appear to omit most of the available science” on Rice's whale habitat, and notes that the density data are based on visual observations made during large vessel surveys without incorporating passive acoustic data.

Response:
NMFS disagrees that the new Rice's whale density estimates, which are based on spatial density models, omit most of the available science on Rice's whale. These spatial density models are based upon large vessel surveys conducted by NMFS' Southeast Fisheries Science Center (SEFSC) between 2003 and 2019,
5

including a mix of broadscale line-transect surveys of shelf and oceanic waters, along with directed surveys within the Rice's whale's northeastern GOM core habitat (Rappucci
et al.,
2023; Garrison
et al.,
2023). Habitat variables associated with the whale sightings during vessel surveys from 2003-2019 were used to determine which variables are most predictive of whale presence.

5
We note here that the 2023 proposed rule erroneously referred to the period over which survey data were considered as 2003-2018. This range is correct for species other than Rice's whale, for which surveys conducted in 2019 were incorporated.

Survey effort (kilometers of survey trackline) was partitioned into segments within a grid of cells and matched to physical oceanographic parameter values within each cell. All available oceanographic and physiographic variables were included in the model selection for Rice's whales. The selected model included water depth, chlorophyll-a concentration, geostrophic velocity, bottom temperature, and bottom salinity, and indicated that Rice's whale density was highest in waters between 100-400 meter (m) depth with intermediate bottom temperatures between 10-19 °C and intermediate surface chlorophyll-a concentrations,
i.e.,
in areas along the outer continental shelf break associated with higher productivity and upwelling of cooler bottom water (Garrison
et al.,
2023). These predictions are consistent with the information referenced by NRDC,
i.e.,
passive acoustic detections on the continental shelf break and current information regarding habitat suitability. The web page for the habitat suitability study referenced by NRDC indicates that the data were incorporated to updated density models (see
https://www.fisheries.noaa.gov/southeast/endangered-species-conservation/trophic-interactions-and-habitat-requirements-gulf-mexico
(“Combining environmental datasets with whale sightings allows us to develop predictive habitat models that explain what environmental features may be driving whale distribution.”)).

We agree that ideally, passive acoustic data could be incorporated to the spatial density models to improve the model predictions. However, incorporation of visual and acoustic data to spatial density models remains cutting edge science, and such models have only rarely been produced. NRDC refers to Roberts
et al.
(2016) as an example of such modeling; however, Roberts
et al.
(2016) did not incorporate any acoustic data to their models. The long-term cetacean density modeling effort represented by reference to Roberts
et al.
(2016) is in fact a good example of the difficulty of doing so. This U.S. Navy-funded effort has been responsible for continually improved iterations of spatial density models for cetaceans along the U.S. East Coast since 2015. However, to date, acoustic data have been incorporated only into models for beaked whales and sperm whales (two species that are most amenable to acoustic surveys and for which acoustic detections are most important to understanding occurrence), and only in the most recently updated model iterations. This required 7 years and a model version 7 for beaked whales and model version 8 for sperm whales (
https://seamap.env.duke.edu/models/Duke/EC/
). Acoustic data have been used to qualitatively verify density model predictions for certain mysticetes, but have not been incorporated to date into any East Coast mysticete density model. Efforts to evaluate the feasibility and utility of combining visual and acoustic survey data in the GOM have only recently been conducted as a pilot study (Frasier
et al.,
2021).

We note that the same areas in which the acoustic detections were made are predicted by the spatial density model as being suitable Rice's whale habitat (see
https://seamap.env.duke.edu/models/SEFSC/GOM/
) and, in fact, density predictions within areas expected to provide suitable habitat for Rice's whale increased compared with the predictions provided by Roberts
et al.
(2016) (
e.g.,
Rice's whale density value in Zone 5, which includes areas of the central GOM where acoustic detections were made, increased by 71 percent; see Appendix A of Weirathmueller
et al.,
2022).

Comment:
NRDC states that the only resource available to the public regarding the revised density information was the density information itself (available online for download) and that no associated report was available for public review. NRDC goes on to state that marine mammal density estimates “are typically presented in publicly available technical memoranda or technical reports, which set forth in detail the authors' data sources, methods, quantitative results, and limitations, with discussion of their application to particular species,” and suggests that failure to provide such a report may be a violation of the APA. The MMC similarly recommends that NMFS provide to the public “marine mammal densities, associated [coefficients of variation], and supporting documentation regarding how such estimates were derived.” Both NRDC and the MMC requested an additional 30-day public comment period once the information is provided.

Response:
The data and analyses supporting this final rule have undergone appropriate pre-dissemination review for utility, integrity, and objectivity, and have been determined to be in compliance with the applicable information quality guidelines implementing the Information Quality Act (section 515 of Pub. L. 106-554).

NMFS acknowledges that supporting technical reports related to the marine mammal density data used in the exposure modeling informing this rule were not publicly available at the time that NMFS' proposed rule was released to the public for review. NMFS did not have discretion over the timeline for release of supporting technical reports,

as BOEM is the primary funding agency for development of the updated marine mammal density data. The reports have since been released (Rappucci
et al.,
2023; Garrison
et al.,
2023) and are available online at
https://www.govinfo.gov/collection/boem.

The NOAA Information Quality guidelines expressly address and allow for the use of supporting information which cannot be disclosed. In this case, the supporting information (
i.e.,
the density data) was publicly available. However, technical description regarding development of that information had not been released, as described above. The “especially rigorous robustness checks” called for in the guidelines when proprietary models are used or when supporting information cannot be disclosed had already been conducted by the model authors, as described in the reports, and NMFS has conducted rigorous robustness checks of the data used in support of this rule.

To determine the abundance and spatial distribution of marine mammals in the GOM, NMFS' SEFSC conducts visual line transect surveys aboard NOAA research vessels or aircraft, with survey effort designed to support estimation of abundance for all marine mammals in the GOM. Similar survey efforts and abundance estimation have been ongoing in the GOM since the early 1990s and have been subject to both peer and other public review on numerous occasions.

In addition to abundance, line transect survey data can be used to develop habitat models that map animal density as a function of environmental conditions. Historically, distance sampling methodology (Buckland
et al.,
2001) has been applied to visual line-transect survey data to estimate abundance within large geographic strata (
e.g.,
Fulling
et al.,
2003; Mullin and Fulling, 2004; Palka, 2006). Design-based surveys that apply such sampling techniques produce stratified abundance estimates and do not provide information at appropriate spatiotemporal scales for assessing environmental risk of a planned survey. To address this issue of scale, efforts were developed to relate animal observations and environmental correlates such as sea surface temperature in order to develop predictive models used to produce fine-scale maps of habitat suitability (
e.g.,
Waring
et al.,
2001; Hamazaki, 2002; Best
et al.,
2012). However, these studies generally produce relative estimates that cannot be directly used to quantify potential exposures of marine mammals to sound, for example. A more recent approach known as density surface modeling, as described in Roberts
et al.
(2016) and used by Garrison
et al.
(2023), couples traditional distance sampling with multivariate regression modeling to produce density maps predicted from fine-scale environmental covariates (
e.g.,
Becker
et al.,
2014, 2017, 2020; Forney
et al.,
2015).

In summary, the modeling effort follows accepted, state of the science density modeling procedures (Rappucci
et al.,
2023; Garrison
et al.,
2023), and habitat based density modeling in general is not novel, controversial, or precedent-setting, as similar modeling has been performed for various applications for over 10 years. There were no novel assumptions or methodologies employed in development of the models; the models simply make use of updated information regarding marine mammal observations and associated habitat covariates. In addition, ample opportunity was provided for public input and review of the underlying scientific information and modeling efforts contained herein (including by scientists, peer experts at other agencies, and non-governmental organizations). NMFS has not failed to provide information necessary for interested parties to comment meaningfully.

Predictions from the updated density models were publicly released in July 2022, and we note that the authors of the previously best available density models (Roberts
et al.,
2016), which NMFS used in support of its 2021 final rule, independently determined that the updated models represent the best available scientific data, stating “As of October 2022, SEFSC and [the Duke Marine Geospatial Ecology Lab] consider the Roberts
et al.,
2016 models obsolete and recommend the [Garrison
et al.,
2023] models [. . .] be used instead.” See
https://seamap.env.duke.edu/models/SEFSC/GOM/.
NMFS similarly determined that the updated density models represented the best available scientific data and, accordingly, should be used in an updated modeling effort.

We also note that it is not unusual for updated density information to be released without supporting technical reports. The latest major update to the Roberts
et al.
east coast cetacean density models (affecting all modeled taxa) was released in June 2022 and, as the best available science, including by virtue of providing increased quality of information regarding the North Atlantic right whale, was used in support of numerous regulatory decisions immediately upon release. However, due to the Navy's priorities as the funding agency, no associated documentation was released until June 2023. Notably, neither NRDC nor the MMC (or any other member of the public) commented on the lack of supporting documentation in any of the numerous regulatory actions under the MMPA that were proposed for public review during that interval.

Further, concerning the MMC's reference to the actual density values and associated CVs used in the take estimation process, this information was provided upon request during the public comment period to both the MMC and NRDC as well as to the Associations. (We note that the specific density values used in the prior modeling effort were included in the comprehensive modeling report. As minimal new information was associated with the current updated effort, the updated values were not included in the brief modeling memorandum, but could be duplicated by the public using available information.) None of the aforementioned entities included any comments regarding the specific density values and associated CVs used in the take estimation process in their comment letters. NMFS does not agree that the recommendations to allow for an additional 30-day comment period for the public to review supplementary technical reports in advance of issuing the final rule are warranted.

Comment:
The Associations provide comments critical of NMFS' core distribution area, noting the lack of additional sightings or tagging data to support the expansion of the previously described core habitat area to areas offshore of Mississippi and stating that “The addition of these buffers and extension of Rice's whale densities into the buffers causes overestimates of the amount of potential Rice's whale take. . . .”.

Response:
Neither the core distribution area nor the core habitat area factored into the process for estimating Rice's whale takes in any way. (See the Estimated Take section for explanation of the take estimation process for this rule.) However, NMFS did consider whether additional mitigation was warranted under the LPAI standard in light of the best available information, including information regarding the core distribution area. Based on that evaluation, we concluded the current mitigation meets the LPAI standard. (See the Mitigation section for our LPAI analysis.)

Comment:
The MMC recommends that NMFS require a closure to survey

activity of the portion of the Rice's whale core distribution area that overlaps the area covered by the ITR.

Response:
As discussed in the 2023 proposed rule, the description of a core distribution area which, relative to the core habitat area described in the 2018 proposed rule and 2021 final rule, expands westward into waters off Mississippi and into the area of the specified activity covered by this final rule, does not reflect new information regarding documented Rice's whale occurrence. The core distribution area reflects a more conservative approach to considering the data, including the application of substantial buffer areas to account for uncertainty. Rice's whales have not been visually observed in the small portion (5 percent) of the core distribution area that overlaps the geographic scope of the specified activity under this rule, and 76 percent of that small portion of the core distribution area that overlaps the geographic scope of the specified activity under this rule is shallower than 100 m water depth or deeper than 400 m. Please see the Mitigation section for more detailed discussion.

In summary, there is no information supporting identification of this area (
i.e.,
the 5 percent of the core distribution area overlapping the geographic scope of this rule) as being of particular importance relative to Rice's whale habitat more broadly (
i.e.,
GOM waters between 100-400 m depth), and only 24 percent of this area contains water depths 100-400 m. As a result of these considerations, NMFS has determined that a restriction on survey activity within the portion of the core distribution area that occurs within the scope of the rule is not warranted, as the available information does not support a conclusion that such a restriction would contribute meaningfully to a reduction in adverse impacts to Rice's whales or their habitat. The MMC offers no additional rationale for closing this area to survey activity, other than that it is now within the geographic scope of the rule (despite the absence of new data supporting this change). As such, NMFS disagrees and does not adopt the MMC's recommendation.

In addition, we note the MMC's statement in support of this recommendation that “[i]t is not clear from the information presented by NMFS how much the increase in the numbers of takes is attributed to geophysical surveys that are expected to occur in the expanded core distribution area [. . .].” As described in the 2023 proposed rule, changes in take estimates for all species result from (1) correction of BOEM's errors in calculating updated estimated take following its revision of scope for the 2021 final rule; (2) revisions to species definition files governing animat behavior during animal movement modeling; and (3) new density information for all species other than Fraser's dolphin and rough-toothed dolphin. In addition, for Rice's whale only, propagation modeling of a new array specification produced the greatest values for estimated instances of take.

The process for estimating take numbers did not involve placement of projected survey effort in specific locations, such as the portion of the core distribution area that overlaps the geographic scope of the ITR. Instead, within each modeling zone, acoustic source and propagation modeling was performed using zone-specific environmental parameters, following which animal movement modeling results in zone-specific exposure estimates for animats. These estimates were then scaled to real-world values using zone-specific density estimates, generating 24-hour exposure estimates that were then scaled to totals based on zone-specific level of effort projections (see table 1). No survey effort is specifically assumed to occur within the portion of the core distribution area that overlaps the area within scope of the ITR.

The MMC goes on to state that “the year-round restriction on geophysical surveys in the Rice's whale core distribution area was the basis of NMFS's negligible impact determination for the final rule.” This is incorrect. As one consideration in support of our negligible impact determination for Rice's whales, we noted that no survey activity would occur in the northeastern GOM core habitat area (please see discussion provided in the Description of Marine Mammals in the Area of the Specified Activities section regarding the distinction between Rice's whale core habitat and the core distribution area discussed herein). This was not the result of any restriction, but rather, BOEM's removal of the GOMESA area from the scope of the rule.

Comment:
BOEM challenges statements made in NMFS' 2023 proposed rule regarding potential Rice's whale habitat contraction relative to the historical range. The Associations echo these concerns. The Associations also claim that NMFS has made erroneous statements with regard to the potential impacts of the
Deepwater Horizon
(DWH) oil spill on Rice's whales.

Response:
BOEM acknowledges that it is possible Rice's whales were historically more broadly distributed throughout the GOM, but suggests that currently available information is insufficient to definitively support such a conclusion. Passive acoustic recording devices have detected Rice's whale calls at several sites along the continental shelf break from Florida to Texas, and more recently in Mexican waters (Rice
et al.,
2014; Soldevilla
et al.,
2022, 2024). Nonetheless, we agree that the number of Rice's whales and the full extent to which Rice's whales use waters outside of 100-400 meter depths in the GOM remains unclear. Please see the Description of Marine Mammals in the Area of the Specified Activities section of this rule for added discussion regarding Rice's whale occurrence.

The Associations suggest NMFS has claimed that the Rice's whale population has declined. NMFS made no such statement in the 2023 proposed rule. NMFS referenced the low population abundance of the Rice's whale while citing modeling results relating to the quantification of injury from the DWH spill. The Associations are incorrect in stating that NMFS has made erroneous statements regarding the modeling results concerning quantification of injury. NMFS refers the Associations to the detailed discussion provided in the 2018 proposed rule, as well as to DWH NRDA Trustees (2016), which presents the estimates of concern to the Associations (
i.e.,
48 percent of the Rice's whale population potentially exposed to DWH oil, with 17 percent killed). NMFS has neither mischaracterized nor engaged in speculation about the findings regarding quantified injury due to the DWH spill.

Comment:
NRDC comments that NMFS has not prescribed mitigation for Rice's whales sufficient to meet the MMPA's LPAI standard, adding that NMFS has not adequately considered mitigation of impacts to habitat in its decision-making. In support, NRDC refers to new scientific information since the 2021 final rule was published, including investigations of Rice's whale habitat.

Response:
NMFS disagrees with NRDC's comments regarding the adequacy of mitigation for Rice's whales and their habitat. NMFS fully considered the new information NRDC references (see the Mitigation section of this final rule). In our view, these investigations (
e.g.,
Kok
et al.,
2023; Kiszka
et al.,
2023; Soldevilla
et al.,
2022) solidify NMFS' previous understanding of the importance of continental slope waters between approximately 100-400 m water depth as Rice's whale habitat. (We note this same area (
i.e.,
continental shelf and slope waters between the 100-400 m

isobaths) was recently included in NMFS' proposed rule to designate Rice's whale critical habitat under the ESA (88 FR 47453, July 24, 2023)). The previously used spatial density model for Rice's whale (Roberts
et al.,
2016) identified waters of approximately 100-400 m depth on the continental slope throughout the GOM as potential habitat, and the updated density model (which, as discussed previously, incorporates new data on Rice's whale habitat associations) predictions do not markedly differ (Garrison
et al.,
2023).

Perhaps the most important new information is the acoustic detection of Rice's whales in areas along the shelf break in the central and western GOM, which for the first time demonstrates year-round Rice's whale occurrence in areas outside of the previously identified core habitat. Soldevilla
et al.
(2022) detected Rice's whale calls at 3 of 4 sites in the central GOM south of Louisiana. Year-round detections occurred sporadically at two of the sites, with calls detected on 6 and 16 percent of days when recordings were available, respectively. Calls were detected on 1 percent of days at the 3rd site, in February and April only.

Additional information regarding Rice's whale acoustic detections has become available since publication of the 2023 proposed rule. A subsequent study placed acoustic recorders in shelf break waters in the same central GOM area, and added a location in the western GOM offshore of Texas (Soldevilla
et al.,
2024). This new information provides additional evidence of the regular occurrence of Rice's whales outside the northeastern GOM, with Rice's whale calls recorded on 33 and 25 percent of days at the central and western GOM sites, respectively. As in the prior study, calls were recorded throughout the year.

The rate of call detections throughout the year is considerably higher in the eastern GOM than at the central GOM sites where calls were most commonly detected, with at least 8.3 calls/hour among 4 eastern GOM sites over 110 deployment days (Rice
et al.,
2014) compared to 0.3 calls/hour over the 299-day deployment at the central GOM site where calls were detected most frequently during the Soldevilla
et al.
(2022) study. During that study, approximately 2,000 total calls were detected at the central site over 10 months, compared to more than 66,000 total detections at the eastern GOM deployment site over 11 months (approximately 30 times more calls detected at the eastern GOM site) (Soldevilla
et al.,
2022). Similarly, Soldevilla
et al.
(2024) reported detecting 0.2 calls/hour at the western GOM site off Texas (1,694 detections over 8,547 hours of recording).

Caution should always be used when interpreting passive acoustic detection results because call detection rates are not necessarily correlated with the density or abundance of whales in a given area. Several factors influence call detection rates, including the rate at which whales call (which can vary by demographic group, individual, time of year, etc.) and the range over which calls can be detected (which is affected by auditory masking from competing noise sources, site characteristics and other factors) (Erbe
et al.,
2016; Gibb
et al.,
2018). Many of these variables remain undetermined for Rice's whales in the GOM. Those uncertainties notwithstanding, results from passive acoustic recordings, combined with the low number of confirmed and suspected visual sightings of Rice's whales in the central and western GOM (Barkaszi and Kelly, 2019; Rosel
et al.,
2021; Garrison
et al.,
2023), suggest that density and abundance of Rice's whales is likely lower in the central and western GOM than in the species' core habitat area in the eastern GOM. More research is needed to answer key questions about Rice's whale abundance, density, habitat use, demography, and stock structure in the central and western GOM.

Regarding the suggestion that NMFS has not adequately considered habitat in its consideration of mitigation, we disagree. Habitat value is informed by marine mammal presence and use, and the available data can support the consideration and discussion of impacts to (and mitigation for) both marine mammals and their habitat simultaneously. The discussion above clearly considers physical features that can drive habitat use (
e.g.,
depth), as well as detailed information related to relative presence in the eastern versus the central and western GOM, which is indicative of preferred habitat in the east. As stated in the 2021 final rule, because habitat value is informed by marine mammal presence and use, in some cases, there may be overlap in measures for the species or stock and for use of habitat. NRDC has not presented any information that would suggest habitat we did not consider for mitigation.

In summary, the newly available data related to marine mammal presence and habitat were considered under the LPAI standard, and we concluded additional mitigation for Rice's whale was not warranted under that standard.

Comment:
NRDC finds fault with NMFS' consideration of practicability concerning possible closure of potential Rice's whale habitat in the central and western GOM to future survey activity, suggesting that NMFS' reference to analysis presented in its Regulatory Impact Analysis (RIA) for the 2021 final rule is not relevant. NRDC also suggests that NMFS must consider that OCSLA “requires a balancing between the development of offshore energy resources and the protection of marine resources” and that, based on the requirements of Executive Order 13990, NMFS must consider the social cost of carbon in making its determinations regarding practicability of mitigation.

Response:
As was acknowledged in the 2023 proposed rule, the RIA did not directly evaluate a potential closure of potentially suitable habitat in the central and western GOM outside of the Rice's whale core distribution area. However, we disagree that the RIA is not relevant to our practicability analysis here. The RIA's assessment of potential restrictions in the northeastern GOM provided a useful framework for considering practicability relating to a broad closure of potential Rice's whale habitat to future survey activity.

To bolster that discussion, we turned to the same sources of data referenced in the RIA in analysis of potential closure areas considered therein (see
https://www.data.boem.gov/Main/Default.aspx
). While areas of Rice's whale habitat (
i.e.,
water depths of 100-400 m on the continental shelf break) contain less oil and gas industry infrastructure than do shallower, more mature waters, and have been subject to less leasing activity than deeper waters with greater expected potential reserves, they nonetheless host significant industry activity. BOEM provides summary information by water depth bin, including water depths of 201-400 m. Omitting information regarding water depths of 100-200 m, the area overlaps 33 active leases, with 17 active platforms and over 1,200 approved applications to drill. In the past 20 years, over 500 wells have been drilled in water depths of 100-400 m. These data confirm that there is substantial oil and gas industry activity in this area and, therefore, the inability to collect new seismic data could affect oil and gas development given that oil companies typically use targeted seismic to refine their geologic analysis before drilling a well. In addition, year-round occurrence of Rice's whales in waters 100-400 m deep precludes the use of seasonal closures to minimize exposure of Rice's whales. Therefore, we analyze the potential for a year-round closure, which exacerbates the potential for effects on oil and gas

productivity in the GOM because operators have no ability to plan around the closure. While the area is not as important to regional oil and gas productivity as the prospective deepwater central GOM closure analyzed in the RIA (as we acknowledged in the 2023 proposed rule), the more area-specific data provided above continue to support NMFS' previous conclusions, which we affirm here: (1) We are unable to delineate specific areas of Rice's whale habitat in the central and western GOM where restrictions on survey activity would be appropriate because there is currently uncertainty about Rice's whale density, abundance, habitat usage patterns and other factors in the central and western GOM; and (2) there is high likelihood that closures or other restrictions on survey activity in all waters of 100-400 m depth in the central and western GOM would have significant economic impacts. Finally, we note that despite NRDC's concerns, it does not recommend any particular closure that it believes NMFS should evaluate.

Regarding NRDC's suggestions concerning OCSLA—a statute administered by BOEM—NMFS' statutory obligations arise under the MMPA (with associated requirements under the Endangered Species Act, National Environmental Policy Act, and Administrative Procedure Act, among others). NMFS has no statutory obligation relative to OCSLA. Similarly, NMFS' obligations under the MMPA require that we prescribe the means of effecting the LPAI on the affected species or stock and their habitat, which we have done here. E.O. 13990 does not require NMFS to consider the social cost of carbon in determining whether potential mitigation requirements are practicable under the MMPA.

Comment:
NRDC states that NMFS “fails to consider mitigation measures” for Rice's whale, suggesting that NMFS consider: (1) allowing some survey activities in the area, such as surveys undertaken by leaseholders to develop their lease blocks, while prohibiting others; (2) extending geographically vessel strike avoidance measures “presently in effect for industry in the core habitat area”; and (3) requiring use of “lowest practicable source levels within the whales' communication frequencies for activities taking place in the vicinity of the whales' habitat.” In a somewhat similar vein, the MMC recommends that NMFS “restrict speculative geophysical surveys from occurring in waters in the 100- to 400-m depth range in the Central and Western Planning Areas.”

Response:
NRDC does not provide supporting detail regarding its recommended mitigation requirements. As such, NMFS is unable to fully evaluate the suggested measures.

Regarding the suggestion to allow some surveys but prohibit others, section 101(a)(5)(A) of the MMPA requires NMFS to make a determination that the take incidental to a “specified activity” will have a negligible impact on the affected species or stocks of marine mammals, and will not result in an unmitigable adverse impact on the availability of marine mammals for taking for subsistence uses. NMFS' implementing regulations require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals. 50 CFR 216.104(a)(1). Thus, the “specified activity” for which incidental take coverage is being sought under section 101(a)(5)(A) is generally defined and described by the applicant. Here, BOEM is the applicant for the ITR in support of industry operators, and we are responding to the specified activity as described in that petition (and making the necessary findings on that basis). BOEM's petition made no distinction between surveys that may be speculative or otherwise fall into a category of surveys that NRDC suggests should be prohibited, and those that are not.

Moreover, NRDC does not describe any useful metric for determining which surveys should be allowed, aside from vague reference to “surveys undertaken by leaseholders to develop their lease blocks.” The MMC similarly does not provide any useful definition of the “speculative” surveys it believes NMFS should prohibit, aside from stating that it believes these are typically “2D or similar surveys.” No 2D surveys have been conducted in the GOM during the period of time since the ITR became effective. During that time, NMFS has issued over 50 LOAs. Less than 10 of these were issued to what are sometimes referred to as “multi-client operators,” or companies that conduct surveys in order to acquire data that may be sold to one or more development companies. Regardless of the small proportion of LOAs issued to such companies, the surveys conducted under those LOAs are not necessarily what the commenters may refer to as “speculative,” but instead may be designed to cover multiple lease areas and therefore provide data to multiple leaseholders. The suggestions are not sufficiently developed to allow for adequate consideration.

Regarding vessel strike avoidance measures, NRDC does not specify to what measures it is referring. However, the ITR already contains a suite of vessel strike avoidance measures that apply wherever survey activity is occurring.

Finally, NRDC does not describe any useful scheme by which “lowest practicable source levels within the whales' communication frequencies” might be defined. Further, NMFS previously responded to a similar, if more detailed, comment in its 2021 final rule (86 FR 5387, January 19, 2021).

Comment:
NRDC states that NMFS “fails to reconsider prescribing quieter alternatives to conventional seismic airguns, despite evidence of the availability of such alternatives,” and claims that NMFS has not adequately analyzed the practicability of such a requirement.

Response:
NMFS acknowledges that there are an increasing number of sources that may reasonably be considered as environmentally preferable to conventional airguns, including sources operating at lower frequencies and without the high peak pressure output associated with airguns. In fact, such sources have been used during certain surveys conducted under NMFS-issued LOAs. However, imposing requirements to use certain technologies, or prescribing the manner in which geophysical survey data must be acquired, would exceed NMFS' authority under the MMPA. Survey funders and operators define survey objectives and methodologies, including which acoustic sources are used, on the basis of data needs that are beyond NMFS' technical expertise to judge. NRDC argues that specific mandates are not required, versus a generic “best available technology” requirement, but offers no recommended metrics. NMFS agrees that increased use of environmentally preferable sources is an appropriate goal, but it would be more appropriate to continue working with industry to incentivize use of such sources and techniques rather than require them.

Comment:
NRDC states that NMFS uses an “arbitrary” method to convert area-specific risk scores into a “basis for making Gulf-wide negligible impact determinations.” NRDC takes issue with NMFS' use of the median of zone-specific risk ratings (for those zones including at least 0.05 percent of GOM-wide abundance for a particular species), suggesting that the application of this method inappropriately minimizes findings of “high” to “very high” risk for certain species in Zone 5, where there is a confluence of relatively

high levels of survey activity and high proportions of GOM-wide abundance for some species, resulting in high take numbers. NRDC expressed concern that using the median does not allow for appropriate consideration of the importance of specific areas to a particular species,
i.e.,
that this approach “smooths” away granularity of the risk assessment.

Response:
We disagree with NRDC's comments on this topic, and note that NRDC provided no alternative recommendation. On the contrary, this approach explicitly incorporates considerations of the importance of a particular area to a species, or the particular localized threats faced by a species, through the zone-specific vulnerability assessment that contributes to the overall risk rating. In addition, NMFS' approach is specifically designed to retain considerations of zone-specific impacts and vulnerability beyond simply the inclusion of the vulnerability scoring. For example, an alternative approach to generating a GOM-wide risk rating would be to employ a wholly different paradigm in which aggregate GOM-wide vulnerability and severity scores are assessed, versus taking a median value of zone-specific ratings. NMFS retained the median value approach precisely because we believe that evaluating risk for such a large and variable area (
i.e.,
the entire U.S. GOM) with species and activities that are each highly localized would provide only a very general and less informative answer regarding risk. The approach employed by NMFS highlights the fundamental importance of the spatiotemporal intersection of animals and activity as the fundamental driver in evaluating risk, while also allowing us to avoid exactly the effect of concern to NRDC (blurring of localized scoring) by avoiding the influence of areas where a particular species essentially does not occur on the overall risk rating for that species.

NRDC is incorrect that use of the median value is inappropriate or that it has “no biological basis.” We note that mean (or average) values can be more heavily skewed by outliers with small sample size than median values. Thus, we chose the median as a better descriptor of central tendency, which is a more appropriate perspective for the risk analysis. (We also rounded up values of .5 (
e.g.,
median score of 3.5 would be rounded to a 4), a mathematically valid approach that builds in a reasonable degree of conservatism.)

As we discussed in response to NRDC's public comment on the 2018 proposed rule (January 19, 2021, 86 FR 5322, 5359), one of the fundamental values of the analytical framework is that it is structured in a spatially explicit way that can be applied at multiple scales, based on the scope of the action and the information available, to inform an assessment of the risk associated with the activity (or suite of activities). This allows one to generate overall risk ratings while also evaluating risk on finer scales. In this case, severity ratings were generated on the basis of seven different GOM zones, allowing an understanding not only of the relative scenario-specific risk across the entire GOM, as is demanded for this analysis, but also to better understand the particular zones where risk may be relatively high (depending on actual future survey effort) and what part of the stock's range may be subject to relatively high risk.

NRDC cites the Expert Working Group (EWG) Report in support of its comment, stating it was “[telling]” that “the [EWG] Report did not contrive a Gulf-wide risk assessment” and that “doing so would have belied the very different purpose underlying its design: a relative risk assessment across multiple species and geographies.” Although the initial EWG report (Southall
et al.,
2017) made available for public review of the framework concept did not derive GOM-wide risk ratings, the EWG did so in a later draft report that NMFS adopted in producing the risk evaluation presented in its 2021 final rule.

NRDC continues to suggest (as it did in its 2018 comment letter) that the risk ratings are the primary or even sole basis for NMFS' negligible impact determinations, and repeats the assertion that NMFS has erroneously used the relativistic assessment presented in the EWG report as the basis for the negligible impact determination, thereby incorrectly applying the EWG report as though it evaluated absolute risk. These claims are incorrect. We reiterate our 2021 response to NRDC's previous comments on these topics (January 19, 2021, 86 FR 5322, 5359): the EWG analysis is an important component of the negligible impact analysis, but is not the sole basis for our determination. While the EWG analysis comprehensively considered the spatial and temporal overlay of the activities and the marine mammals in the GOM, as well as the number of takes predicted by the described modeling, there are details about the nature of any “take” anticipated to result from these activities that were not considered directly in the EWG analysis and which warrant explicit consideration in the negligible impact analysis. Accordingly, NMFS' analysis considers the results of the EWG analysis, the effects of the required mitigation, and the nature and context of the takes that are predicted to occur. NMFS' analysis also explicitly considers the effects of predicted Level A harassment, duration of Level B harassment events, and impacts to marine mammal habitat, which respectively were not integrated into or included in the EWG risk ratings. These components of the full analysis, along with any germane species or stock-specific information, are integrated and summarized for each species or stock in the Species and Stock-specific Negligible Impact Analysis Summaries section of the negligible impact analysis.

While the EWG framework produces relativistic risk ratings, its components consist of absolute concepts, some of which are also absolutely quantified (
e.g.,
whether the specified activity area contains greater than 30 percent of total region-wide estimated population, between 30 and 15 percent, between 15 and 5 percent, or less than 5 percent). Further, NMFS provided substantive input into the scoring used in implementing the EWG framework for the GOM, to ensure that the categories associated with different scores, the scores themselves, and the weight of the scores within the overall risk rating all reflected meaningful biological, activity, or environmental distinctions that would appropriately inform the negligible impact analysis. Accordingly, and as intended, we used our understanding of the EWG framework and applied professional judgment to interpret the relativistic results of the EWG analysis appropriately into the larger negligible impact analysis, with the other factors discussed above, to make the necessary findings specific to the effects of the total taking on the affected species and stocks.

Comment:
NRDC describes the risk assessment results for Rice's whale over time (
i.e.,
across NMFS' 2018 proposed rule, 2021 final rule, and 2023 proposed rule) as inconsistent, particularly in Zone 5, suggesting that there could be some unexplained error at play.

Response:
NMFS acknowledges that the risk ratings for the Rice's whale/Bryde's whale in Zone 5 have changed compared with the original analysis presented in NMFS' 2018 proposed rule. In that analysis, Zone 5 risk was assessed as “very high” for the then-named Bryde's whale across all evaluated scenarios. Assessed risk was reduced to “low” for the species in Zone 5 in NMFS' 2021 final rule, and this rating remained consistent in NMFS' 2023 proposed rule. This change is explained by the accompanying take

estimates in each of the three analyses: in the 2018 proposed rule, the mean annual take number across scenarios for the species was 462, with Zone 5 severity rankings ranging from high to very high. Following revision of the analysis reflecting the erroneous take numbers estimated by BOEM due to its removal of the GOMESA area, the mean annual take number declined to 8. It is no surprise, then, that the associated risk ratings changed from “very high” to “low.” In NMFS' 2023 proposed rule, following correction of the estimated take numbers, but inclusive of BOEM's removal of the GOMESA area, the mean annual take number increased to 26 and, accordingly, the risk ratings remained low. The risk ratings assessed for Rice's whale across these analyses simply reflect the underlying take estimates and, therefore, the associated severity scoring. No error has been made.

Comment:
The MMC recommends that NMFS provide an update on progress by LOA-holders or their representative(s) toward completing and making publicly available the synthesis report of all activities that were conducted by LOA-holders during the first year of the reporting period for the final rule.

Response:
The report is complete and available online at:
https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico.

Comment:
The MMC reiterates its previous recommendation that NMFS and BOEM establish a GOM scientific advisory group, composed of agency and industry representatives and independent scientists, to assist in the review of data collected to date and to identify and prioritize monitoring needs and hypothesis-driven research projects to better understand the short- and long-term effects of geophysical surveys on marine mammals in GOM.

Response:
NMFS reiterates its previous response to this recommendation. NMFS would be willing to explore with the MMC the appropriate mechanisms for convening such a group, including consideration of the MMC's authorities under the MMPA. However, NMFS disagrees that responsibility to establish such a group is either a requirement of the MMPA, or warranted as a condition of promulgating this rule.

Description of Marine Mammals in the Area of the Specified Activities

Table 2 lists all species with expected potential for occurrence in the GOM and summarizes information related to the population or stock, including potential biological removal (PBR). PBR, 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, is considered in concert with known sources of ongoing anthropogenic mortality (as described in NMFS' stock assessment reports (SAR)). For status of species, we provide information regarding U.S. regulatory status under the MMPA and Endangered Species Act (ESA). The affected species and stocks have not changed from those described in the notice of issuance of the 2021 rule. We incorporate information newly available since that rule, including updated information from NMFS' SARs, but do not otherwise repeat discussion provided in this section of the 2018 proposed rule and 2021 final rule.

In some cases, species are treated as guilds (as was the case for the analysis conducted in support of the 2021 ITR). In general ecological terms, a guild is a group of species that have similar requirements and play a similar role within a community. However, for purposes of stock assessment or abundance prediction, certain species may be treated together as a guild because they are difficult to distinguish visually and many observations are ambiguous. For example, NMFS' GOM SARs assess stocks of
Mesoplodon
spp. and
Kogia
spp. as guilds. As was the case for the 2021 final rule, we consider beaked whales and
Kogia
spp. as guilds. In this rule, reference to “beaked whales” includes the Cuvier's, Blainville's, and Gervais beaked whales, and reference to “
Kogia
spp.” includes both the dwarf and pygmy sperm whale.

The use of guilds in the 2021 final rule followed the best available density information at the time (
i.e.,
Roberts
et al.,
2016). Subsequently, updated density information became available for all species except for Fraser's dolphin and rough-toothed dolphin (Garrison
et al.,
2023). The updated density models retain the treatment of beaked whales and
Kogia
spp. as guilds and have additionally consolidated 4 species into an undifferentiated blackfish guild. These species include the melon-headed whale, false killer whale, pygmy killer whale, and killer whale. The model authors determined that, for this group of species, there were insufficient sightings of any individual species to generate a species-specific model (Garrison
et al.,
2023). Therefore, reference to blackfish hereafter includes the melon-headed whale, false killer whale, pygmy killer whale, and killer whale.
6

6
NMFS' 2021 final rule provided take estimates separately for the melon-headed whale, false killer whale, pygmy killer whale, and killer whale. This rule provides a single take estimate for those four species grouped together as the “blackfish.” This change in approach reflects the best available scientific information,
i.e.,
updated density information (Garrison
et al.,
2023). These species are encountered only occasionally during any given vessel survey, and these relatively infrequent encounters make it difficult to fit species-specific detection and habitat models. Roberts
et al.
(2016) fit species-specific models based on survey data from 1992-2009, including 29, 19, 27, and 16 sightings, respectively, of these species. For each of these models, the authors detail analyses and decisions relevant to model development, as well as notes of caution regarding use of the models given the associated uncertainty resulting from development of a model based on few sightings. The Garrison
et al.
(2023) models are based on survey data from 2003-2019. Notably, surveys conducted after 2009 were conducted in “passing” mode, where the ship did not deviate from the trackline to approach and verify species identifications for detected marine mammal groups, resulting in an increase in observed marine mammal groups that could not be identified to species. As a result of these factors, the model authors determined it appropriate to develop a single spatial model based on sightings of unidentified blackfish, in addition to the relatively few sightings where species identification could be confirmed.

Twenty-one species (with 24 managed stocks) have the potential to co-occur with the prospective survey activities. For detailed discussion of these species, please see the 2018 proposed rule. In addition, the West Indian manatee (
Trichechus manatus latirostris
) may be found in coastal waters of the GOM. However, manatees are managed by the U.S. Fish and Wildlife Service and are not considered further in this document. All managed stocks in this region are assessed in NMFS' U.S. Atlantic SARs.

All values presented in table 2 are the most recent available at the time the analyses for this notice were completed, including information presented in NMFS' 2022 SARs (the most recent SARs available at the time of publication) (available online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports
).

BILLING CODE 3510-22-P

ER24AP24.068

ER24AP24.069

ER24AP24.070

BILLING CODE 3510-22-C

In table 2 above, we report two sets of abundance estimates: those from NMFS' SARs and those predicted by habitat-based cetacean density models. Please see footnote 3 of table 2 for more detail. NMFS' SAR estimates are typically generated from the most recent shipboard and/or aerial surveys conducted. GOM oceanography is dynamic, and the spatial scale of the GOM is small relative to the ability of most cetacean species to travel. U.S. waters only comprise about 40 percent of the entire GOM, and 65 percent of GOM oceanic waters are south of the U.S. EEZ. Studies based on abundance and distribution surveys restricted to U.S. waters are unable to detect temporal shifts in distribution beyond U.S. waters that might account for any changes in abundance within U.S. waters. NMFS' SAR estimates also in some cases do not incorporate correction for detection bias. Therefore, for cryptic or long-diving species (
e.g.,
beaked whales,
Kogia
spp., sperm whales), they should generally be considered underestimates (see footnotes 6 and 8 of table 2).

The model-based abundance estimates represent the output of predictive models derived from multi-year observations and associated environmental parameters and which incorporate corrections for detection bias (the same models and data from which the density estimates are derived). Incorporating more data over multiple years of observation can yield different results in either direction, as the result is not as readily influenced by fine-scale shifts in species habitat preferences or by the absence of a species in the study area during a given year. NMFS' SAR abundance estimates show substantial year-to-year variability in some cases. Incorporation of correction for detection bias should systematically result in greater abundance predictions. For these reasons, the model-based estimates are generally more realistic and, for the purposes of assessing estimated exposures relative to abundance—used in this case to understand the scale of the predicted takes compared to the population—NMFS generally believes that the model-based abundance predictions are the best available information and most appropriate because they were used to generate the exposure estimates and therefore, provide the most relevant comparison.

NMFS' 2021 final rule provided take estimates separately for the melon-headed whale, false killer whale, pygmy killer whale, and killer whale. This rule provides a single take estimate for those four species grouped together as the blackfish. This approach was dictated by the best available science. The model authors determined it necessary to aggregate the few sightings data available for each of the four species with sightings data that could not be resolved to the species level in order to develop a density model, as there were not sufficient confirmed sightings of individual species to create individual spatial models (Garrison
et al.,
2023). Further, the model authors advised that any attempt to parse the results to species would be fraught with complicated assumptions and limited data, and that there is no readily available way to do so in a scientifically defensible manner. Previous estimates (Roberts
et al.,
2016) were based on older data (data range 1992-2009 versus 2003-2019), and the updated models notably include post-DWH oil spill survey data and, for the first time, winter survey data. Nonetheless, interested members of the public may review NMFS' 2018 proposed rule and supporting documentation, which assumed slightly greater activity levels and larger take numbers before the GOMESA area was removed and still preliminarily determined a negligible impact on all 4 species comprising the blackfish group.

NMFS does not have sufficient information to support apportioning the blackfish takes to the constituent species, but we note that the sum of annual average evaluated take for the 4 species in the 2021 final rule is 64,742, while the new annual average take estimate for blackfish (using the updated density information) is 55,441.

NMFS' ability to issue LOAs under the 2021 rule to date has been limited specifically with regard to killer whales, because BOEM's error most severely affected killer whale take numbers. (Evaluated Rice's whale takes were similarly affected, but were generally not implicated in LOA requests based on the location of planned surveys.) Effects to killer whales from the specified activity have not presented particular concern in a negligible impact context, even considering the original take numbers evaluated in NMFS' 2018 proposed rule (annual average take of 1,160), which produced overall scenario-specific risk ratings of low to moderate. Evaluated risk is similar across the 2018 proposed rule and this rule.

Further, we note that we make a conservative assumption in this rule in the application of the risk assessment framework to blackfish. Risk is a product of severity and vulnerability. While severity is based on density and abundance and is, therefore, reflective of the new density information, vulnerability is based on species-specific factors and is different for the four species. We applied the highest vulnerability score of the four to combine with the severity to get the overall risk rating for the group. Please see Negligible Impact Analysis and Determinations for additional discussion.

As part of our analyses for incidental take rules, we consider any known areas of importance as marine mammal habitat. We also consider other relevant information, such as unusual mortality events (UME) and the 2010 DWH oil

spill. The 2018 proposed rule provided detailed discussion of important marine mammal habitat, relevant UMEs, and of the DWH oil spill. The 2021 final rule updated those discussions as necessary. That information is part of the baseline for our analyses for this final rule. There have been no new UMEs, or new information regarding the UMEs discussed in the prior notices. Similarly, there is no new information regarding the DWH oil spill. However, estimates of annual mortality for many stocks over the period 2014-2018 now include mortality attributed to the effects of the DWH oil spill (see table 2) (Hayes
et al.,
2021), and these mortality estimates are considered as part of the environmental baseline.

Habitat.
Important habitat areas may include areas of known importance for reproduction, feeding, or migration, or areas where small and resident populations are known to occur. They may have independent regulatory status such as designated critical habitat for ESA-listed species (as defined by section 3 of the ESA) or be identified through other means (
e.g.,
recognized Biologically Important Areas (BIA)).

As noted above in table 2, the former GOM Bryde's whale has been described as a new species, Rice's whale (Rosel
et al.,
2021). No critical habitat has yet been designated for the species, though a proposed rule was published (88 FR 47453, July 24, 2023). The proposal references the same supporting information discussed herein, and draws similar conclusions in suggesting that GOM continental slope waters between 100-400 m water depth be designated as critical habitat. In addition, a BIA has been recognized since 2015 (LaBrecque
et al.,
2015). This year-round BIA was discussed in the 2018 proposed rule and 2021 final rule, and we do not repeat the description of the 2015 BIA.

NOAA's ESA status review of the former GOM Bryde's whale (Rosel
et al.,
2016) expanded the 2015 BIA description by stating that, due to the depth of some sightings, the area is appropriately defined to the 400-m isobath and westward to Mobile Bay, Alabama, in order to provide some buffer around the deeper sightings and to include all sightings in the northeastern GOM. Based on the description provided by the status review (Rosel
et al.,
2016), our 2018 proposed rule considered a Rice's whale “core habitat area” between the 100- and 400-m isobaths, from 87.5° W to 27.5° N (83 FR 29212, August 21, 2018), in order to appropriately encompass Rice's whale sightings at the time. In addition, the area largely covered the home range (
i.e.,
95 percent of predicted abundance) predicted by Roberts
et al.
(2016).

NMFS SEFSC subsequently developed a description of what is referred to as a Rice's whale “core distribution area”
7

(
https://www.fisheries.noaa.gov/resource/map/rices-whale-core-distribution-area-map-gis-data
) (see Figures 3 and 4) (Rosel and Garrison, 2022). The authors state that the core distribution area description is based on visual sightings and tag data, and does not imply knowledge of habitat preferences (Rosel and Garrison, 2022). A description of the core distribution area and associated methodology was provided in the 2023 proposed rule (88 FR 916, 924-925, January 5, 2023). In summary, that process involved the addition of buffers meant to address uncertainty regarding whale locations and possible movements from those locations to a polygon encompassing all confirmed Rice's whale visual observations and location data from two tagged whales. The incorporation of this approach to address uncertainty is what differentiates the “core habitat area” discussed in the previous paragraph, considered in the 2018 proposed rule and 2021 final rule, from the “core distribution area.” The core distribution area does not reflect new sightings data or other information relative to the basis for the core habitat area. However, whereas the “core habitat area” was located entirely within the GOMESA area removed from the geographic scope of the specified activity for the 2021 final rule (and therefore no longer relevant for consideration in prescribing mitigation), the buffer portion of the “core distribution area” results in a small overlap with the geographic scope of the specified activity (5 percent) and is therefore appropriate for consideration.

7
The 2023 proposed rule retained the “core habitat area” terminology when describing the core distribution area, for continuity with the 2021 rule, but this final rule reverts to preserving the different terminologies associated for each.

Our knowledge of Rice's whale distribution is based on a combination of historic and contemporary sightings, passive acoustic detections, and spatial modeling. The evidence collected from these methods indicates that Rice's whales occupy waters along the continental shelf and slope and adjacent waters throughout the U.S. GOM, and in particular, waters between 100 and 400 m deep. The widest swath of habitat occurs in the species' core distribution area in the northeastern GOM, south and west of Alabama and Florida. However, a contiguous strip of habitat also extends south of the core distribution area toward the Florida Keys, and westward along the continental shelf and slope offshore of Mississippi, Louisiana, and Texas (Garrison
et al.,
2023). PAM recordings have been especially valuable for confirming the species' year-round presence in the central and western GOM (Soldevilla
et al.,
2022, 2024), helping to offset the limited visual survey effort in those locations. The shallowest and deepest waters where Rice's whales have been confirmed visually to date are 117 m and 408 m, respectively, but Rice's whales may use waters that are deeper or shallower than those values at times. Historic whaling records indicate Rice's whales occurred more broadly throughout the GOM historically (Reeves
et al.,
2011), and unconfirmed sightings from protected species observers have occurred at a wider range of locations and depths (Barkaszi and Kelley, 2018, 2024).

Potential Effects of the Specified Activities on Marine Mammals and Their Habitat

In NMFS' 2018 proposed rule (83 FR 29212, June 22, 2018), this section included a comprehensive summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat, including general background information on sound and specific discussion of potential effects to marine mammals from noise produced through use of airgun arrays. NMFS provided a description of the ways marine mammals may be affected by the same activities considered herein, including sensory impairment (permanent and temporary threshold shifts and acoustic masking), physiological responses (particularly stress responses), behavioral disturbance, or habitat effects, as well as of the potential for serious injury or mortality. The 2021 final rule (86 FR 5322, January 19, 2021) provided updates to the discussion of potential impacts, as well as significantly expanded discussion of certain issues (
e.g.,
potential effects to habitat, including prey, and the potential for stranding events to occur) in the “Comments and Responses” section of that notice. These prior notices also provided discussion of marine mammal hearing and detailed background discussion of active acoustic sources and related acoustic terminology used herein. We have reviewed new information available since the 2021 final rule was issued. Having considered this information, we have determined that there is no new information that substantively affects

our analysis of potential impacts on marine mammals and their habitat that appeared in the 2018 proposed and 2021 final rules, all of which remains applicable and valid for our assessment of the effects of t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-08257. Public record. Not legal advice.