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

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 implementing incidental take regulations (ITRs) under the MMPA, 16 U.S.C. 1361 et seq., governing the take of marine mammals incidental to the conduct of geophysical survey activities in the GOA.\1\ The ITRs provide a framework for authorization of incidental take through LOAs upon request from individual applicants planning specific geophysical survey activities. The ITRs became effective on April 19, 2021, and are effective through April 19, 2026 (86 FR 5322, January 19, 2021).

\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).

NMFS subsequently discovered that the 2021 rule was based on erroneous take estimates. We conducted another rulemaking to reassess the statutorily required findings for issuance of the 2021 ITRs 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 affirming those findings in April 2024, effective through April 19, 2026 (89 FR 31488, April 24, 2024). The 2024 rule did not result in any changes to the existing ITRs.

On March 25, 2025, NMFS received an application from the EnerGeo Alliance (EnerGeo) requesting development of ITRs governing the taking of marine mammals incidental to geophysical survey activity conducted in the GOA over the course of 5 years following the expiration of the existing ITRs. Following receipt of NMFS' comments on the draft application on April 15, 2025, EnerGeo submitted revised versions of the application on July 14, August 8, and August 12, 2025, the last of which was determined to be adequate and complete. NMFS determined at that time, based on the date of submission of the adequate and complete application, that it was unlikely a new rulemaking process could be completed prior to expiration of the existing ITRs on April 19, 2026.

On August 28, 2025, NMFS Office of Protected Resources (OPR) received a request from NMFS Office of Policy (Policy) for reimplementation of the current ITRs to avoid a lapse in ITRs offering incidental take coverage for GOA geophysical survey activities. The request notes that the pending April 2026 expiration of the current ITRs would affect regulatory certainty through loss of an efficient permitting framework, and that reimplementation of the existing ITRs on the basis of the same specified activity defined in the initial 2021 final rule and associated estimates of incidental take evaluated in the 2024 corrective rulemaking is consistent with the MMPA and appropriate pursuant to Executive Orders 14156, “Declaring a National Energy Emergency,” and 14154, “Unleashing American Energy.” On October 20, 2025, BOEM (the original petitioner for the current ITRs) submitted a request to be included in the process as a co-petitioner.

NMFS has received multiple requests from industry survey operators relating to specific survey activities that would extend beyond the expiration date of the current ITRs, establishing the ongoing need for the ITRs. The reimplementation of the regulations in effect continues the current established framework for authorization of incidental take through LOAs until superseded by new ITRs promulgated on the basis of the separate EnerGeo request.