Notice2026-18142
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of America
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 4, 2026
Effective
June 30, 2027
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the Marine Mammal Protection Act (MMPA), as amended, its implementing regulations, and NMFS' MMPA regulations for taking marine mammals incidental to geophysical surveys related to oil and gas activities in the Gulf of America (GOA), notification is hereby given that NMFS has modified the Letter of Authorization (LOA) issued to Future Energy Consultants (FEC) for the take of marine mammals incidental to geophysical survey activity in the GOA.
Full Text
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<title>Federal Register, Volume 91 Issue 171 (Friday, September 4, 2026)</title>
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[Federal Register Volume 91, Number 171 (Friday, September 4, 2026)]
[Notices]
[Pages 56866-56868]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18142]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XG015]
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Geophysical Surveys Related to Oil and Gas Activities in
the Gulf of America
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
[[Page 56867]]
ACTION: Notice; issuance of letter of authorization.
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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as
amended, its implementing regulations, and NMFS' MMPA regulations for
taking marine mammals incidental to geophysical surveys related to oil
and gas activities in the Gulf of America (GOA), notification is hereby
given that NMFS has modified the Letter of Authorization (LOA) issued
to Future Energy Consultants (FEC) for the take of marine mammals
incidental to geophysical survey activity in the GOA.
DATES: The LOA is effective through June 30, 2027.
ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico">https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico</a>. In case of problems accessing these documents, please call
the contact listed below.
FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct 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 if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: any act of pursuit, torment, or
annoyance which: (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
On January 19, 2021, we issued a final rule with regulations to
govern the unintentional taking of marine mammals incidental to
geophysical survey activities conducted by oil and gas industry
operators, and those persons authorized to conduct activities on their
behalf (collectively ``industry operators''), in U.S. waters of the GOA
\1\ over the course of 5 years (86 FR 5322, January 19, 2021). The rule
was based on our findings that the total taking from the specified
activities over the 5-year period will have a negligible impact on the
affected species or stock(s) of marine mammals and will not have an
unmitigable adverse impact on the availability of those species or
stocks for subsistence uses and became effective on April 19, 2021.
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\1\ Pursuant to Executive Order 14172, ``Restoring Names That
Honor American Greatness,'' and Department of the Interior
Secretarial Order 3423, ``The Gulf of America,'' the body of water
formerly known as the Gulf of Mexico is now called the Gulf of
America. Accordingly, NMFS amended the incidental take regulations
to reflect the change. See 90 FR 38001 (August 7, 2025).
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The regulations at 50 CFR 217.180 et seq. allow for the issuance of
LOAs to industry operators for the incidental take of marine mammals
during geophysical survey activities and prescribe the permissible
methods of taking and other means of effecting the least practicable
adverse impact on marine mammal species or stocks and their habitat
(often referred to as mitigation), as well as requirements pertaining
to the monitoring and reporting of such taking. Under 50 CFR
217.186(e), issuance of an LOA shall be based on a determination that
the level of taking will be consistent with the findings made for the
total taking allowable under these regulations and a determination that
the amount of take authorized under the LOA is of no more than small
numbers.
NMFS subsequently discovered that the 2021 rule was based on
erroneous take estimates. We conducted another rulemaking using correct
take estimates and 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. We issued a
final rule in April 2024, effective May 24, 2024 (89 FR 31488, April
24, 2024).
On August 28, 2025, NMFS Office of Protected Resources received a
request from NMFS Office of Policy for reimplementation of the current
Incidental Take Regulation (ITR) to avoid a lapse in ITRs offering
incidental take coverage for GOA geophysical survey activities. On
October 20, 2025, Bureau of Ocean Energy Management (the original
petitioner for the current ITRs) submitted a request to be included in
the process as a co-petitioner. In response to these requests, NMFS
issued a new final rule, effective April 20, 2026, through April 19,
2031 (91 FR 20784, April 17, 2026).
The reimplementation of the regulations continues the established
framework for authorization of incidental take through LOAs. The final
rule made no changes to the specified activities or the specified
geographical region in which those activities would be conducted, and
there are no changes to the associated mitigation, monitoring, and
reporting requirements.
NMFS issued a LOA to FEC on May 1, 2026, for the take of marine
mammals incidental to a FloatSeis seismic field trial survey in the
lease block LA5A, effective June 1, 2026, through December 31, 2026.
Please see the Federal Register notice of issuance (91 FR 24809, May 7,
2026) for additional details regarding the LOA and the survey activity.
On August 3, 2026, FEC informed NMFS that the survey had a delayed
start. Accordingly, they requested that the December 31, 2026,
expiration date be extended to June 30, 2027, due to the delay. There
are no other changes to the survey area or plan, which includes 5 days
of sound source operation in zone 2. Since the survey timing now
involves months for which take was not previously assessed, we have
updated FEC's take estimates based on the revised schedule. The monthly
distribution of survey days is not known in advance, though we assume
that the planned 5 days of source operation would occur contiguously.
Take estimates for each species are based on the period that produces
the greatest value.
Based on the results of our analysis, NMFS has determined that the
level of taking expected for this survey and authorized through the
modified LOA is consistent with the findings made for the total taking
allowable under the regulations. See table 1 in this notice and table 7
of the rule (91 FR 20784, April 17, 2026).
[[Page 56868]]
Small Numbers Determination
Under the rule, NMFS may not authorize incidental take of marine
mammals in an LOA if it will exceed ``small numbers.'' In short, when
an acceptable estimate of the individual marine mammals taken is
available, if the estimated number of individual animals taken is up
to, but not greater than, one-third of the best available abundance
estimate, NMFS will determine that the numbers of marine mammals taken
of a species or stock are small (91 FR 20784, April 17, 2026). For more
information, please see NMFS' discussion of small numbers in the 2026
final rule (91 FR 20784, April 17, 2026).
The take numbers for authorization are determined as described
above and in the Federal Register notice of issuance for the original
LOA (91 FR 24809, May 7, 2026), are used by NMFS in making the
necessary small numbers determinations, through comparison with the
best available abundance estimates (see discussion at 91 FR 20784,
20812, April 17, 2026). For this comparison, NMFS' approach is to use
the maximum theoretical population, determined through review of
current Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and
model-predicted abundance information (<a href="https://seamap.env.duke.edu/models/SEFSC/GOM">https://seamap.env.duke.edu/models/SEFSC/GOM</a>). Information supporting the small numbers
determinations is provided in table 1.
Table 1--Take Analysis \1\
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Authorized Percent
Species take Abundance \2\ abundance
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Rice's whale.................................................... 0 51 n/a
Sperm whale..................................................... 0 2,451 n/a
Kogia spp....................................................... 0 1,385 n/a
Beaked whales................................................... 0 1,038 n/a
Rough-toothed dolphin........................................... 14 4,853 0.3
Bottlenose dolphin.............................................. 1,961 166,538 1.2
Clymene dolphin................................................. 0 6,136 n/a
Atlantic spotted dolphin........................................ 109 21,506 0.5
Pantropical spotted dolphin..................................... 0 50,209 n/a
Spinner dolphin................................................. 0 2,991 n/a
Striped dolphin................................................. 0 16,102 n/a
Fraser's dolphin................................................ 0 1,665 n/a
Risso's dolphin................................................. 0 1,974 n/a
Blackfish \3\................................................... 0 9,535 n/a
Short-finned pilot whale........................................ 0 3,277 n/a
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\1\ Scalar ratios were not applied in this case due to brief survey duration.
\2\ Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take
estimates is considered here to be the model-predicted abundance (Garrison et al., 2023). For Rice's whale,
Atlantic spotted dolphin, spinner dolphin, and Risso's dolphin, the estimated SAR abundance estimate is used.
\3\ The ``blackfish'' guild includes melon-headed whales, false killer whales, pygmy killer whales, and killer
whales.
Based on the analysis contained herein of FEC's proposed survey
activity described in its LOA application, as subsequently modified by
FEC, and the anticipated take of marine mammals, NMFS finds that small
numbers of marine mammals will be taken relative to the affected
species or stock sizes (i.e., less than one-third of the best available
abundance estimate) and therefore the taking is of no more than small
numbers.
Authorization
NMFS has determined that the level of taking for this LOA
modification request is consistent with the findings made for the total
taking allowable under the incidental take regulations and that the
amount of take authorized under the LOA is of no more than small
numbers. Accordingly, we have issued a modification to the LOA to FEC
authorizing the take of marine mammals incidental to its geophysical
survey activity, as described above.
Dated: September 1, 2026.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2026-18142 Filed 9-3-26; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on September 4, 2026.
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