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

NMFS' implementing regulations define negligible impact 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 (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base a negligible impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” by mortality, serious injury, and Level A or Level B harassment, we consider other factors, such as the type of take, the likely nature of any behavioral responses (e.g., intensity, duration), the context of any such responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into these analyses via their impacts on the baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality).

For each potential activity-related stressor, NMFS considers the potential effects to marine mammals and the likely significance of those effects to the species or stock as a whole. Potential risk due to vessel collision in view of the related mitigation measures, as well as potential risk due to entanglement and contaminant spills, were addressed in the Mitigation section and in the Potential Effects of the Specified Activity on Marine Mammals section of the notice of proposed rulemaking (91 FR 9014, February 24, 2026), respectively, and are not discussed further, as there are minimal risks expected from these potential stressors.

The “specified activity” for this rule continues to be a broad program of geophysical survey activity that could occur at any time of year in U.S. waters of the GOA, within the same specified geographical region as the 2021 final rule (i.e., U.S. waters of the GOA, excluding the former GOMESA leasing moratorium area). We rely upon the

acoustic exposure modeling developed to support the 2021 final rule and ITRs, as updated for the 2024 corrective rule, which provides marine mammal noise exposure estimates based on projections of future survey effort and best available modeling of sound propagation, animal distribution, and animal movement. This information provides a best estimate of potential acute noise exposure events that may result from the described suite of activities.

Overview of Negligible Impact Analysis--In recognition of the broad geographic and temporal scale of this activity, we again apply an analytical methodology through which an explicit, systematic risk assessment framework is used to evaluate potential effects of aggregated discrete acoustic exposure events (i.e., geophysical survey activities) on marine mammals, which is in turn used in the negligible impact analysis. This risk assessment framework was described by Southall et al. (2017) (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-oil-and-gas) and applied in support of the 2021 rule.

The systematic risk assessment framework uses the modeling results to put into biologically-relevant context the level of potential risk of injury and/or behavioral impacts to marine mammals. The framework considers both the aggregation of acute effects and the broad temporal and spatial scales over which chronic effects may occur. Generally, this approach is a relativistic risk assessment that provides an interpretation of the exposure estimates within the context of key biological and population parameters (e.g., population size, life history factors, compensatory ability of the species, animal behavioral state, aversion), as well as other biological, environmental, and anthropogenic factors. This analysis was performed on a species- specific basis within each modeling zone (figure 1), and the end result provides an indication of the biological significance of the evaluated exposure numbers for each affected marine mammal stock (i.e., yielding the severity of impact and vulnerability of stock/population information), and forecasts the likelihood of any such impact. This result is expressed as relative impact ratings of overall risk that couple (1) potential severity of effect on a stock, and (2) likely vulnerability of the population to the consequences of those effects, given biologically relevant information (e.g., compensatory ability).

Spectral, temporal, and spatial overlaps between survey activities and animal distribution/hearing sensitivity are the primary factors that drive the type, magnitude, and severity of potential effects on marine mammals, and these considerations are integrated into both the severity and vulnerability assessments. The risk assessment framework utilizes a strategic approach to balance the weight of these considerations between the two assessments, specifying and clarifying where and how the interactions between potential disturbance and species within these dimensions are evaluated.

This risk assessment framework is one component of the negligible impact analysis. As we explain more below, overall risk ratings from the risk assessment are then considered in conjunction with the required mitigation and any additional relevant contextual information such as the nature of the takes to ultimately inform our negligible impact determinations. Elements of this approach are subjective and relative within the context of this program of projected survey activity and, overall, the analysis necessarily requires the application of professional judgment.

Our negligible impact analyses begin with the risk assessment framework, which comprehensively considers the aggregate impacts to marine mammal populations from the specified activities in the context of both the severity of the impacts and the vulnerability of the affected species. However, it does not consider the effects of the mitigation required through the regulations in identifying risk ratings for the affected species. In addition, while the risk assessment framework comprehensively considers the spatial and temporal overlay of the activities and the marine mammals in the GOA, as well as the number of predicted takes, there are details about the nature of any “take” anticipated to result from these activities that were not considered directly in the framework analysis that warrant explicit consideration in the negligible impact determination.

Accordingly, following the description of the framework analysis presented below, NMFS highlights a few factors regarding the nature of the predicted “takes,” then synthesizes the results of implementation of the framework, the additional factors regarding the nature of the predicted takes, and the anticipated effects of the mitigation to consider the negligible impact determination for each of the species considered here. The risk assessment analysis below is performed for 2 representative years, one representing a relatively high-effort scenario (Year 1 of the effective period of rule) and the other representing a moderate-effort scenario (Year 4 of the rule). Please see table 1 for details regarding level of effort projections.

Severity ratings consider the scaled Level B harassment takes relative to zone-specific population abundance to evaluate the severity of effect. As described above in Estimated Take, a significant model assumption was that populations of animals were reset for each 24-hour period. Exposure estimates for the 24-hour period were then aggregated across all assumed survey days as completely independent events, assuming populations turn over completely within each large zone on a daily basis. In order to evaluate modeled daily exposures and determine more realistic exposure probabilities for individuals across multiple days, we used information on species-typical movement behavior to determine a species-typical offset of modeled daily exposures, described under Estimated Take. Given that many of the evaluated survey activities occur for 30-day or longer periods, particularly some of the larger surveys for which the majority of the modeled exposures occur, this scaling process is appropriate to evaluate the likely severity of the predicted exposures (although, for surveys significantly longer than 30 days, the take numbers with this scaling applied would still be expected to overestimate the number of individuals, given the greater degree of repeat exposures that would be expected the longer the survey goes on). This scaling output was used in a severity assessment. This approach is also discussed in more detail in the Southall et al. (2017) report.

The scaled Level B harassment takes were then rated through a population-dependent binning system. For each species, scaled takes were divided by the zone-specific predicted abundance, and these proportions were used to evaluate the relative severity of modeled exposures based on the distribution of values across species to evaluate risk associated with behavioral disruption across species--a simple, logical means of evaluating relative risk across species and areas. Relative risk ratings using percent of area population size were defined as follows:

Very high--Adjusted Level B harassment takes greater than 800 percent of zone-specific population;

High--Adjusted Level B harassment takes 401-800 percent of zone-specific population;

Moderate--Adjusted Level B harassment takes 201-400 percent of zone-specific population;

Low--Adjusted Level B harassment takes 100-200 percent of zone-specific population; and

Very low--Adjusted Level B harassment takes less than 100 percent of zone-specific population.

Results of the severity ratings are shown in table 9. Level A harassment (including PTS) is not expected to occur for any of the species evaluated here, with the exception of Kogia spp. Estimated takes by Level A harassment for Kogia spp. are discussed in further detail in the species-specific sections below. BILLING CODE 3510-22-P [GRAPHIC] [TIFF OMITTED] TR17AP26.039

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Vulnerability rating seeks to evaluate the relative risk of a predicted effect given species-typical and population-specific parameters (e.g., species-specific life history, population factors) and other relevant interacting factors (e.g., human or other environmental stressors). The assessment includes consideration of four categories within two overarching risk factors (species-specific biological and environmental risk factors). These values were selected to capture key aspects of the importance of spatial (geographic), spectral (frequency content of noise in relation to species-typical hearing and sound communications), and temporal relationships between sound and receivers. Explicit numerical criteria for identifying scores were specified where possible, but in some cases qualitative judgments, based on a reasonable interpretation of given aspects of the specified activity and how it relates to the species in question and the environment within the specified area, were required. The vulnerability assessment includes factors related to population status, habitat use and compensatory ability, masking, and other stressors. These factors were detailed in Southall et al. (2017), and species-specific ratings were updated as appropriate in the 2024 final rule. There is no new information that would

change the species-specific vulnerability assessment ratings since the 2024 final rule, which are shown in table 10. Note that the effects of the DWH oil spill are accounted for through a non-noise chronic anthropogenic risk factor, while the effects to acoustic habitat and on individual animal behavior via masking are accounted for through the masking and chronic anthropogenic noise risk factors. Note that, as there are certain species-specific elements of the vulnerability assessment, we evaluated each of the four species contained within the blackfish group. For purposes of evaluating relative risk, we assume that the greatest vulnerability (assessed for melon-headed whale) applies to each species in the blackfish group. BILLING CODE 3510-22-P [GRAPHIC] [TIFF OMITTED] TR17AP26.040

In the final step of the framework, severity and vulnerability ratings are integrated to provide relative impact ratings of overall risk, i.e., relative risk ratings. Severity and vulnerability assessments each produce a numerical rating (1-5) corresponding with the qualitative rating (i.e., very low, low, moderate, high, very high). A matrix is then used to integrate these two scores to provide an overall risk assessment rating for each species. The matrix is shown in table 2 of Southall et al. (2017).

Table 11 provides relative impact ratings for overall risk by zone and activity effort scenario (high and moderate), and table 12 provides GOA-wide relative impact ratings for overall risk for representative high and moderate effort scenarios.

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In order to characterize the relative risk for each species across their entire range in the GOA, we used the median of the seven zone- specific risk ratings for each activity scenario (high and moderate effort), not counting those in which less than 0.05 percent of the GOA- wide abundance occurred (“n/a” in table 11), to describe a GOA-wide risk rating for each of the representative activity scenarios (table 12).

Overall, the results of the risk assessment show that (as expected) risk is highly correlated with effort and density. Areas where little or no survey activity is predicted to occur or areas within which few or no animals of a particular species are believed to occur generally have very low or no potential risk of negatively affecting marine mammals, as seen across activity scenarios in Zones 1-4 (no activity will occur in Zone 1, which was entirely removed from scope of the rule, and less than 2 percent of Zone 4 remains within scope of the rule). Fewer species are expected to be present in Zones 1-3, where only bottlenose and Atlantic spotted dolphins occur in meaningful numbers. Areas with consistently high projected levels of effort (Zones 5-7) are generally predicted to have higher overall evaluated risk across all species. In Zone 7, animals are expected to be subject to less other chronic noise and non-noise stressors, which is reflected in the vulnerability scoring for that zone. Therefore, despite consistently high levels of projected effort, overall rankings for Zone 7 are lower than for Zones 5 and 6.

Zone 5 is the only zone with “very high” levels of risk due to behavioral disturbance, identified for two species of particular concern (beaked and sperm whales) due to assumed greater sensitivity to the effects of noise exposure. For sperm whales, this sensitivity is manifest through typically higher vulnerability scoring, whereas the assumed sensitivity of beaked whales to noise exposure is expressed through the application of behavioral harassment criteria (table 4) and, therefore, relatively high estimated take numbers (note that, overall, relative risk for beaked whales is evaluated as “very

low” based on “very low” relative risk ratings under both scenarios in all zones other than Zone 5). A “high” level of relative risk due to behavioral disturbance was identified in Zone 5 under both scenarios for most species (excepting Rice's whale (both scenarios) and Kogia spp., bottlenose dolphin, Atlantic spotted dolphin, and short-finned pilot whale (moderate effort scenario only)). Outside of Zone 5, there is no relative risk evaluated as greater than “moderate” for any species or scenario (excepting Atlantic spotted dolphin in Zone 2). Overall, the greatest relative risk across species is generally seen in Zone 5 (both scenarios) and in Zone 6 (under the high effort scenario).

When considered across both representative activity scenarios (table 12), no species is considered to have even relatively moderate risk, though several species are evaluated as having low to moderate relative risk under the high effort scenario. The rest of the species have no more than low to very low risk under either scenario. Beaked whales, shelf/coastal and oceanic bottlenose dolphin stocks, spinner dolphins, and Fraser's dolphins are assessed as having no greater than very low relative risk under any scenario.

Although the scores generated by the risk assessment framework and further aggregated across zones (as described above) are species- or guild-specific, additional stock-specific information is also considered in our analysis, where appropriate, as indicated in the Description of Marine Mammals in the Area of the Specified Activity and Mitigation sections, as well as in the Potential Effects of the Specified Activity on Marine Mammals and Their Habitat section of the proposed rule.

In order to more fully place the predicted amount of take into meaningful context, it is useful to understand the duration of exposure at or above a given level of received sound, as well as the likely number of repeated exposures across days. The accounting of Level B harassment take estimates in the risk assessment framework does not make any distinction between fleeting exposures and more severe encounters in which an animal may be exposed to that received level of sound for a longer period of time. Yet, this information is meaningful to an understanding of the likely severity of the exposure, which is relevant to the negligible impact evaluation and not directly incorporated into the risk assessment framework. Each animat modeled has a record or time history of received levels of sound over the course of the modeled 24-hour period. For example, for the four blackfish species exposed to noise from 3D WAZ surveys, the 50th percentile of the cumulative distribution function indicates that the time spent exposed to levels of sound above 160 dB rms SPL (i.e., the 50 percent midpoint for Level B harassment) would range from only 1.4 to 3.3 minutes--a minimal amount of exposure carrying little potential for significant disruption of behavioral activity. We provide summary information for the species evaluated here regarding the total average time in a 24-hour period that an animal would spend with received levels above 160 dB (the threshold at which 50 percent of the exposed population is considered taken) and between 140 and 160 dB (where 10 percent of the exposed population is considered taken) in table 13.

Additionally, by comparing exposure estimates generated by multiplying 24-hour exposure estimates by the total number of survey days versus modeling for a full 30-day survey duration for six representative species, we were able to refine the exposure estimates to better reflect the number of individuals exposed above threshold within a single survey. Using this same comparison and scalar ratios described earlier, we are able to predict an average number of days that each of the representative species modeled in the test scenario will be exposed above the Level B harassment thresholds within a single survey. As with the duration of exposures discussed above, the number of repeated exposures is important to an understanding of the severity of effects. For example, the ratio for dolphins indicates that the 30- day modeling showed that approximately 29 percent as many individual dolphins (compared to the results produced by multiplying average 24- hour exposure results by the 30-day survey duration) could be expected to be exposed above harassment thresholds. However, scaling up the 24- hour exposure estimates appropriately reflects the instances of exposure above threshold (which cannot be more than 1 in 24 hours), so the inverse of the scalar ratio suggests the average number of days in the 30-day modeling period that any given dolphin is exposed above threshold is approximately 3.5. It is important to remember that this is an average within a given survey, and that it is more likely some individuals would be exposed on fewer days and some on more. Table 13 reflects the average days exposed above threshold for the indicated species after the scalar ratios were applied. BILLING CODE 3510-22-P

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In general, NMFS expects that noise-induced hearing loss as a result of airgun survey activity, whether temporary (temporary threshold shift, equivalent to Level B harassment) or permanent (PTS, equivalent to Level A harassment), is only possible for LF and VHF cetaceans. The best available scientific information indicates that LF cetacean species (i.e., mysticete whales, including the Rice's whale) have heightened sensitivity to frequencies in the range output by airguns, as shown by their auditory weighting function, whereas VHF cetacean species (including Kogia spp.) have heightened sensitivity to noise in general (as shown by their lower threshold for the onset of PTS) (NMFS, 2024). However, no instances of Level A harassment are predicted to occur for Rice's whales, and none may be authorized in any LOAs issued under this rule.

Level A harassment is predicted to occur for Kogia spp. (as indicated in table 7). However, the degree of injury (hearing impairment) is expected to be mild. If permanent hearing impairment occurs, it is most likely that the affected animal would lose a few dB in its hearing sensitivity, which in most cases would not be expected to affect its ability to survive and reproduce. Hearing impairment that occurs for these individual animals would be limited to at or slightly above the dominant frequency of the noise sources. In particular, the predicted PTS resulting from airgun exposure is not likely to affect their echolocation performance or communication, as Kogia spp. likely produce acoustic signals at frequencies above 100 kHz (Merkens et al., 2018), well above the frequency range of airgun noise. Further, modeled exceedance of Level A harassment criteria typically resulted from being near an individual source once, rather than accumulating energy from multiple sources. Overall, the modeling indicated that exceeding the SEL threshold for PTS is a rare event, and having 4 vessels close to each other (350 m between tracks) did not cause appreciable accumulation of energy at the ranges relevant for injury exposures. Accumulation of energy from independent surveys is expected to be negligible. This is relevant for Kogia spp. because based on their expected sensitivity, we expect that aversion may play a stronger role in avoiding exposures above the peak pressure PTS threshold than we have accounted for.

Some subset of the individual marine mammals predicted to be taken by Level B harassment may incur some TTS. For Rice's whales, TTS may occur at frequencies important for

communication. However, any TTS incurred would be expected to be of a relatively small degree and short duration. This is due to the low likelihood of sound source exposures of the intensity or duration necessary to cause more severe TTS, given the fact that both sound source and marine mammals are continuously moving, the anticipated effectiveness of shutdowns, and general avoidance by marine mammals of louder sources.

For these reasons, and in conjunction with the required mitigation, NMFS does not believe that Level A harassment (here, PTS) or Level B harassment in the form of TTS will play a meaningful role in the overall degree of impact experienced by marine mammal populations as a result of the projected survey activity. Further, the impacts of any TTS incurred are addressed through the broader analysis of Level B harassment.

Regarding impacts to prey species such as fish and invertebrates, NMFS' review of the available information leads to a conclusion that the most likely impact of survey activity on prey would be temporary avoidance of an area, with a rapid return to pre-survey distribution and behavior, and minimal impacts to recruitment or survival anticipated. Therefore, the specified activities are not likely to have more than short-term adverse effects on any prey habitat or populations of prey species. Further, any impacts to prey species are not expected to result in significant or long-term consequences for individual marine mammals, or to contribute to adverse impacts on their populations.

Regarding potential impacts to acoustic habitat, NMFS provided a detailed analysis of potential cumulative and chronic effects to marine mammals (found in the Cumulative and Chronic Effects report, available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-america). See also 83 FR 29212, 29242 (June 22, 2018) for detailed discussion of this analysis. That analysis focused on potential effects to the acoustic habitat of sperm whales and Rice's whales via an assessment of listening and communication space. The analysis performed for sperm whales (which provides a useful proxy for other HF and VHF cetaceans evaluated here) shows that the survey activities do not significantly contribute to the soundscape in the frequency band relevant for their lower-frequency slow-clicks and that there will be no significant change in communication space for sperm whales. Similar conclusions may be assumed for other HF and VHF cetacean species.

Implications for acoustic masking and reduced communication space resulting from noise produced by airgun surveys in the GOA are expected to be particularly heightened for animals that actively produce low- frequency sounds or whose hearing is attuned to lower frequencies (i.e., Rice's whales). The strength of the communication space approach used here is that it evaluates potential contractions in the availability of a signal of documented importance. In this case, losses of communication space for Rice's whales were estimated to be higher in western and central GOA canyons and shelf break areas. In contrast, relative maintenance of listening area and communication space was seen within the Rice's whale core habitat area in the northeastern GOA. The result was heavily influenced by the projected lack of survey activity in that region, which underscores the importance of maintaining the acoustic soundscape of this important habitat for the Rice's whale. However, no survey activity will occur under this rule within the Rice's whale core habitat area or within the broader eastern GOA (see figure 1). In deepwater areas where larger amounts of survey activity were projected, significant loss of low-frequency listening area and communication space was predicted by the model, but this finding was discounted because Rice's whales are unlikely to occur in deeper waters of the central and western GOA.

In this section, we consider the relative impact ratings from the risk assessment framework described above in conjunction with the required mitigation and other relevant contextual information in order to produce a final assessment of impact to the species or stocks, i.e., the negligible impact determinations. The effects of the DWH oil spill are accounted for through the risk assessment framework vulnerability scoring (table 10).

Although Rice's whale core habitat in the northeastern GOA is not the subject of restrictions on survey activity, as the scope of the specified activity does not include the area (see figure 1), the beneficial effect for the species remains the same. The absence of survey activity in the eastern GOA benefits GOA marine mammals by reducing the portion of a stock likely exposed to survey noise and avoiding impacts to certain species in areas of importance for them. Habitat areas of importance in the eastern GOA were discussed in detail in the Proposed Mitigation section of the 2018 notice of proposed rulemaking. Rice's Whale

The risk assessment analysis, which evaluated the relative significance of the aggregated impacts of the survey activities across seven GOA zones in the context of the vulnerability of each species, concluded that the GOA-wide risk ratings for Rice's whales are low, regardless of activity scenario. We note that, although the evaluated severity of take for Rice's whales is very low in all zones where take could occur, vulnerability for the species is assessed as high in 5 of the 6 zones where the species occurs (vulnerability is assessed as moderate in Zone 3, where less than 1 percent of GOA-wide abundance is predicted to occur). When integrated through the risk framework described above, overall risk for the species is therefore assessed as low for both the high and moderate effort scenarios. In the context of relatively low predicted take numbers, the relative risk ratings for the species are driven by the assessed vulnerability.

We further consider the likely severity of any predicted behavioral disruption of Rice's whales in the context of the likely duration of exposure above Level B harassment thresholds. Specifically, the average modeled time per day spent at received levels above 160 dB rms (the threshold at which 50 percent of the exposed population is considered taken) ranges from 6.8 to 21.4 minutes for deep penetration survey types. The average time spent exposed to received levels between 140 and 160 dB rms (where 10 percent of the exposed population is considered taken) ranges from 55 to 164 minutes for 2D, 3D NAZ, and 3D WAZ surveys, and 401 minutes for coil surveys (which comprise approximately 10 percent of the total activity days).

Importantly, no survey activity will occur within the eastern GOA pursuant to this rule. Although there is evidence of Rice's whale occurrence in the central and western GOA from passive acoustic detections (Soldevilla et al., 2022; 2024), the highest densities of Rice's whales remain confined to the northeastern GOA core habitat. Moreover, the number of individuals that occur in the central and western GOA and nature of their use of this area is poorly understood. Soldevilla et al. (2022) suggest that more than one individual was present on at least one occasion, as overlapping calls of

different call subtypes were recorded in that instance, but also state that call detection rates suggest that either multiple individuals are typically calling or that individual whales are producing calls at higher rates in the central/western GOA. Soldevilla et al. (2024) provide further evidence that Rice's whale habitat encompasses all 100- 400 m depth waters encircling the entire GOA (including Mexican waters), but they also note that further research is needed to understand the density of whales in these areas, seasonal changes in whale density, and other aspects of habitat usage.

This new information does not affect the prior conclusion that the absence of survey activity in the eastern GOA benefits Rice's whales and their habitat by minimizing a range of potential effects of airgun noise, both acute and chronic, that could otherwise accrue to impact the reproduction or survival of individuals in this area, and that the absence of survey activity in the eastern GOA will minimize disturbance of the species in the place most important to them for critical behaviors such as foraging and socialization. The absence of survey activity in this area and significant reduction in associated exposures of Rice's whales to seismic airgun noise is expected to eliminate the likelihood of auditory injury of Rice's whales. Finally, the absence of survey activity in the eastern GOA will reduce chronic exposure of Rice's whales to higher levels of anthropogenic sound and the associated effects including masking, disruption of acoustic habitat, long-term changes in behavior such as vocalization, and stress.

As described in the preceding Loss of Hearing Sensitivity section, we have analyzed the likely impacts of potential temporary hearing impairment and do not expect that they would result in impacts on reproduction or survival of any individuals. The extended shutdown zone for Rice's whales (1,500 m)--to be implemented in the unlikely event that a Rice's whale is encountered at that distance--is expected to further minimize the severity of any hearing impairment incurred as well as reduce the likelihood of more severe behavioral responses.

No mortality of Rice's whales is anticipated or authorized. It is possible that Rice's whale individuals, if encountered, will be taken briefly by Level B harassment on one or more days during a year of activity by one type of survey or another and some subset of those exposures above thresholds may be of comparatively long duration within a day. However, the amount of take is low (annual average of 26 incidents, with a maximum in any year of 30), and the significant and critical functional protection afforded through the absence of survey activity in the species' northeastern GOA core habitat and the extended shutdown requirement means that the impacts of the expected takes from these activities are not likely to impact the reproduction or survival of any individual Rice's whales, much less adversely affect the species through impacts on annual rates of recruitment or survival. Accordingly, we conclude the taking from the specified activity will have a negligible impact on Rice's whales as a species. Sperm Whale

The risk assessment analysis, which evaluated the relative significance of the aggregated impacts of the survey activities across seven GOA zones in the context of the vulnerability of each species, concluded that the GOA-wide risk ratings for sperm whales were between moderate and low (equivalent to a 2.5 on a 5-point scale, with a 3 equating to “moderate”) (for the high effort scenario) or low (for the moderate effort scenario). We further consider the likely severity of any predicted behavioral disruption of sperm whales in the context of the likely duration of exposure above Level B harassment thresholds. Specifically, the average modeled time per day spent at received levels above 160 dB rms (where 50 percent of the exposed population is considered taken) ranges from 4 to 10.3 minutes for 2D, 3D NAZ, and 3D WAZ surveys and up to 20.7 minutes for coil surveys (which comprise less than 10 percent of the total projected activity days) and the average time spent between 140 and 160 dB rms (where 10 percent of the exposed population is considered taken) is 12 to 31.8 minutes.

Odontocetes echolocate to find prey, and while there are many different strategies for hunting, one common pattern, especially for deeper-diving species, is to conduct multiple repeated deep dives within a feeding bout, and multiple bouts within a day, to find and catch prey. While exposures of the short durations noted above could potentially interrupt a dive or cause an individual to relocate to feed, such a short-duration interruption would typically be unlikely to have significant impacts on an individual's energy budget and, further, for these species and this open-ocean area, there are no specific known reasons (i.e., these species range GOA-wide beyond the continental slope and there are no known BIAs) to expect that there would not be adequate alternate feeding areas relatively nearby, especially considering the anticipated absence of survey activity in the eastern GOA. Importantly, the absence of survey activity in the eastern GOA will reduce disturbance of sperm whales in places of importance to them for critical behaviors such as foraging and socialization and, overall, help to reduce impacts to the species as a whole.

Additionally, we note that the extended distance shutdown zone for sperm whales (1,500 m) is expected to further reduce the likelihood of, and minimize the severity of, more severe behavioral responses. Similarly, application of this extended distance shutdown requirement when calves are present will minimize the potential for and degree of disturbance during this sensitive life stage.

No mortality or Level A harassment of sperm whales is anticipated or authorized. While it is likely that the majority of the individual sperm whales will be impacted briefly on one or more days during a year of activity by one type of survey or another, based on the nature of the individual exposures and takes, as well as the aggregated scale of the impacts across the GOA, and in consideration of the mitigation discussed here, the impacts of the expected takes from these activities are not likely to impact the reproduction or survival of any individuals, much less adversely affect the GOA stock of sperm whales through impacts on annual rates of recruitment or survival. Accordingly, we conclude the taking from the specified activity will have a negligible impact on the GOA stock of sperm whales. Beaked Whales

In consideration of the similarities in the nature and scale of impacts, we consider the GOA stocks of the goose-beaked whale and Gervais' and Blainville's beaked whales together in this section. The risk assessment analysis, which evaluated the relative significance of the aggregated impacts of the survey activities across seven GOA zones in the context of the vulnerability of each species, concluded that the GOA-wide risk ratings for beaked whales were very low for both effort scenarios. We further consider the likely severity of any predicted behavioral disruption of beaked whales in the context of the likely duration of exposure above Level B harassment thresholds. Beaked whales are considered more behaviorally sensitive to sound than most other species, and therefore we utilize different thresholds to predict behavioral disturbance. This means that beaked whales are evaluated as “taken” upon exposure to received

sound levels as low as 120 dB (where 50 percent of the exposed beaked whale population is considered taken). These received levels are typically reached at extreme distance from the acoustic source (i.e., greater than 50 km from the source). Behavioral responses to noise are significantly correlated with distance from the source (e.g., Gomez et al., 2016); thus potential responses to these relatively low received levels at such great distances, while evaluated here as take under the MMPA, are unlikely to result in any response of such a severity as to carry any cost to the animal (additionally, in certain circumstances, noise from the surveys at these distances may be indistinguishable from other low-frequency background noise). Therefore, as for other species, we consider only the average modeled time per day spent at received levels above 140 dB rms (where 90 percent of the exposed beaked whale populations are considered taken) and 160 dB rms (where, potentially, all exposed beaked whales are taken). Specifically, the average modeled time per day spent at received levels above 160 dB rms ranges from 6 to 12.4 minutes for 2D, 3D NAZ, and 3D WAZ surveys and up to 24 minutes for coil surveys (which comprise less than 10 percent of the total projected activity days), and the average time spent between 140 and 160 dB rms is 14.1 to 16.2 minutes for 3D WAZ and 2D surveys, 31.1 minutes for coil surveys, and 39.7 minutes for 3D NAZ surveys.

Odontocetes echolocate to find prey, and while there are many different strategies for hunting, one common pattern, especially for deeper-diving species, is to conduct multiple repeated deep dives within a feeding bout, and multiple bouts within a day, to find and catch prey. While some of the exposures of the durations noted above could interrupt a dive or cause an individual to relocate to feed because of the lower thresholds combined with the way exposures are distributed across received levels, a higher proportion of the total takes (as compared to other taxa) are at the lower end of the received levels at which take would be expected to occur and at great distance from the acoustic source, where responses (if any) should be assumed to be minor. All else being equal, exposures to lower received levels and, separately, at greater distances might be expected to result in less severe responses, even given longer durations (e.g., DeRuiter et al., 2013). Considered individually or infrequently, these sorts of feeding interruptions would be unlikely to have significant impacts on an individual's energy budget and, further, for these species and this open-ocean area, there are no specific known reasons (i.e., these species range GOA-wide beyond the continental slope and there are no known BIAs) to expect that there would not be adequate alternate feeding areas relatively nearby, especially considering the anticipated absence of survey activity in the eastern GOA. Importantly, the absence of survey activity in the eastern GOA will reduce disturbance of beaked whales in places of importance to them for critical behaviors such as foraging and socialization and, overall, help to reduce impacts to the species as a whole.

Additionally, we note that the extended distance shutdown zone for beaked whales (1,500 m) is expected to further reduce the likelihood of, and minimize the severity of, more severe behavioral responses.

Of note, due to their pelagic distribution, typical high availability bias due to deep-diving behavior and cryptic nature when at the surface, beaked whales are rarely sighted during at-sea surveys and difficult to distinguish between species when visually observed in the field. Accordingly, abundance estimates in NMFS SARs are recorded for Mesoplodon spp. (and, separately, for the goose-beaked whale). Available sightings data, including often unresolved sightings of beaked whales, must be combined in order to develop habitat-based density models for beaked whales, as were used to inform our acoustic exposure modeling effort. Therefore, density and take estimates in this rule are similarly lumped for the three species of beaked whales, and there is no additional information by which NMFS could appropriately apportion impacts other than equally/proportionally across the three species.

No mortality or Level A harassment of any of these three species of beaked whales is anticipated or authorized. While it is likely that the majority of the individuals of these three species will be impacted briefly on one or more days during a year of activity by one type of survey or another, based on the nature of the individual exposures and takes, as well as the aggregated scale of the impacts across the GOA, and in consideration of the mitigation discussed here, the impacts of the expected takes from these activities are not likely to impact the reproduction or survival of any individuals, much less adversely affect the GOA stocks of goose-beaked whale or Gervais' or Blainville's beaked whales through impacts on annual rates of recruitment or survival. Accordingly, we conclude the taking from the specified activity will have a negligible impact on GOA stocks of beaked whales. Kogia spp.

The risk assessment analysis, which evaluated the relative significance of the aggregated impacts of the survey activities across seven GOA zones in the context of the vulnerability of each species, concluded that the GOA-wide risk ratings for Kogia spp. were between low and moderate (for the high effort scenario) and between very low and low (for the moderate effort scenario). We further consider the likely severity of any predicted behavioral disruption of Kogia spp. in the context of the likely duration of exposure above Level B harassment thresholds. Specifically, the average modeled time per day spent at received levels above 160 dB rms (where 50 percent of the exposed population is considered taken) ranges from 2.8 to 7.9 minutes for 2D, 3D NAZ, and 3D WAZ surveys and up to 15.3 minutes for coil surveys (which comprise less than 10 percent of the total projected activity days), and the average time spent between 140 and 160 dB rms (where 10 percent of the exposed population is considered taken) is 6.7 to 19 minutes.

Odontocetes echolocate to find prey, and while there are many different strategies for hunting, one common pattern, especially for deeper diving species, is to conduct multiple repeated deep dives within a feeding bout, and multiple bouts within a day, to find and catch prey. While exposures of the short durations noted above could potentially interrupt a dive or cause an individual to relocate to feed, such a short-duration interruption would be unlikely to have significant impacts on an individual's energy budget and, further, for these species and this open-ocean area, there are no specific known reasons (i.e., these species range GOA-wide beyond the continental slope and there are no known biologically important areas) to expect that there would not be adequate alternate feeding areas relatively nearby, especially considering the anticipated absence of survey activity in the eastern GOA. Importantly, the absence of survey activity in the eastern GOA will reduce disturbance of Kogia spp. in places of importance to them for critical behaviors such as foraging and socialization and, overall, help to reduce impacts to the species as a whole.

NMFS has analyzed the likely impacts of potential hearing impairment, including the estimated upper bounds

of auditory injury (Level A harassment) that could be authorized under the rule and do not expect that they would result in impacts on reproduction or survival of any individuals. As described in the previous section, the degree of injury for individuals would be expected to be mild, and the predicted PTS resulting from airgun exposure is not likely to affect echolocation performance or communication for Kogia spp. Additionally, the extended distance shutdown zone for Kogia spp. (1,500 m) is expected to further minimize the severity of any hearing impairment incurred and also to further reduce the likelihood of, and minimize the severity of, more severe behavioral responses.

Of note, due to their pelagic distribution, small size, and cryptic behavior, pygmy sperm whales and dwarf sperm whales are rarely sighted during at-sea surveys and difficult to distinguish when visually observed in the field. Accordingly, abundance estimates in NMFS SARs are recorded for Kogia spp. only, density and take estimates in this rule are similarly lumped for the two species, and there is no additional information by which NMFS could appropriately apportion impacts other than equally/proportionally across the two species.

No mortality of Kogia spp. is anticipated or authorized. While it is likely that the majority of the individuals of these two species will be impacted briefly on one or more days during a year of activity by one type of survey or another, based on the nature of the individual exposures and takes, as well as the aggregated scale of the impacts across the GOA, and in consideration of the mitigation discussed here, the impacts of the expected takes from these activities are not likely to impact the reproduction or survival of any individuals, much less adversely affect the GOA stocks of dwarf or pygmy sperm whales through impacts on annual rates of recruitment or survival. Accordingly, we conclude the taking from the specified activity will have a negligible impact on GOA stocks of dwarf or pygmy sperm whales. Bottlenose Dolphins

The risk assessment analysis, which evaluated the relative significance of the aggregated impacts of the survey activities across seven GOA zones in the context of the vulnerability of each species, concluded that the GOA-wide risk ratings for both oceanic bottlenose dolphins and coastal/shelf bottlenose dolphins are very low for both scenarios. We further considered the likely severity of any predicted behavioral disruption of bottlenose dolphins in the context of the likely duration of exposure above Level B harassment thresholds. Specifically, the average modeled time per day spent at received levels above 160 dB rms (where 50 percent of the exposed population is considered taken) ranges from 4 to 11.7 minutes for 2D, 3D NAZ, and 3D WAZ surveys and up to 16.8 minutes for coil surveys (which comprise less than 10 percent of the total projected activity days) and the average time spent between 140 and 160 dB rms is 19.7 to 54.6 minutes. While exposures of the short durations noted above could potentially interrupt a dive or cause an individual to relocate to feed, such a short-duration interruption would be unlikely to have significant impacts on an individual's energy budget and, further, for this species, there are no specific known reasons (i.e., the species ranges GOA-wide and there are no known BIAs for the stocks affected by this activity) to expect that there would not be adequate alternate feeding areas relatively nearby, especially considering the anticipated absence of survey activity in the eastern GOA. It is likely that the noise exposure considered herein would result in minimal significant disruption of foraging behavior and, therefore, the corresponding energetic effects would similarly be minimal.

As described earlier in this preamble, the northern coastal stock of bottlenose dolphin was particularly severely impacted by the DWH oil spill, and was additionally affected by a recent UME. Importantly, as described in Mitigation, NMFS is again requiring a seasonal time-area restriction on airgun survey activity within the coastal waters where this stock is likely to be found. The closure area is expected to protect coastal bottlenose dolphins and their habitat through the alleviation or minimization of a range of potential effects of airgun noise, both acute and chronic, that could otherwise accrue to impact the reproduction or survival of individuals in this area. The timing of the restriction provides protection during the times of year thought to be most important for bottlenose dolphin calving and nursing of young. Although some sound from airguns may still propagate into the area from surveys that may occur outside of the area, exposure of bottlenose dolphins to sound levels that would result in Level B harassment will be alleviated or reduced for animals within the closure area. Any exposure to noise that may increase stress levels and exacerbate health problems in bottlenose dolphins still recovering from the effects of the DWH spill will be minimized during this important reproductive period. This mitigation results in a reduction in the scale of aggregate effects (which, among other things, suggests the comparative number of days across which individual bottlenose dolphins might be taken within a year) and associated risk assessment.

Of note, bottlenose dolphins cannot be identified to stock when visually observed in the field. Abundance estimates in NMFS' SARs are based strictly on the location where animals are observed, and available sightings data must be combined in order to develop habitat- based density models for bottlenose dolphins, as were used to inform our acoustic exposure modeling effort. Density estimates used in this rule are provided for bottlenose dolphins GOA-wide for shelf/coastal bottlenose dolphins and, separately, for oceanic dolphins (estimated take numbers provided in tables 7 and 8 are aggregated for the species GOA-wide). Based on NMFS' stock delineations, we assume that dolphins occurring within Zones 4-7 would be from the oceanic stock, while dolphins occurring within Zones 2-3 would be from the shelf stock and/ or coastal stocks (the eastern coastal stock is assumed to occur only in Zone 1 and is therefore excluded from this analysis). Therefore, for the oceanic stock, we are able to draw stock-specific conclusions in this analysis. For coastal/shelf stocks, there is no additional information by which NMFS could appropriately apportion impacts other than equally/proportionally across the stocks, with the exception of predicting reduced impacts to the northern coastal stock as described above.

No mortality or Level A harassment of bottlenose dolphins is anticipated or authorized. While it is likely that the majority of individual dolphins may be impacted briefly on one or more days during a year of activity by one type of survey or another, based on the nature of the individual exposures and takes, as well as the aggregated scale of the impacts across the GOA, and in consideration of the mitigation discussed here, the impacts of the expected takes from these activities are not likely to impact the reproduction or survival of any individuals, much less adversely affect any GOA stocks of bottlenose dolphins through impacts on annual rates of recruitment or survival. Accordingly, we conclude the taking from the specified activity will have a negligible impact on GOA stocks of bottlenose dolphin, including the oceanic, continental shelf, and western and northern coastal stocks.

In consideration of the similarities in the nature and scale of impacts, we consider the GOA stocks of the following species together in this section: rough-toothed dolphin, Clymene dolphin, Atlantic spotted dolphin, pantropical spotted dolphin, striped dolphin, spinner dolphin, Fraser's dolphin, Risso's dolphin, melon-headed whale, pygmy killer whale, false killer whale, killer whale, and short-finned pilot whale.

The risk assessment analysis, which evaluated the relative significance of the aggregated impacts of the survey activities across seven GOA zones in the context of the vulnerability of each species, concluded that the GOA-wide risk ratings for high and moderate effort scenarios ranged from very low to between low and moderate for these species.

We further considered the likely severity of any predicted behavioral disruption of the individuals of these species in the context of the likely duration of exposure above Level B harassment thresholds. Specifically, the average modeled time per day spent at received levels above 160 dB rms (where 50 percent of the exposed population is considered taken) ranges from 1.4 to 11.7 minutes for 2D, 3D NAZ, and 3D WAZ surveys and up to 25.7 minutes for coil surveys (which comprise less than 10 percent of the total projected activity days). The average time per day spent between 140 and 160 dB rms for individuals that are taken is from 8 to 58.1 minutes, with the one exception of killer whales exposed to noise from coil surveys, which average 73.6 minutes (though we note that the overall risk rating for the blackfish group, including killer whales, is low).

Odontocetes echolocate to find prey, and there are many different strategies for hunting. One common pattern for deeper-diving species is to conduct multiple repeated deep dives within a feeding bout, and multiple bouts within a day, to find and catch prey. While exposures of the shorter durations noted above could potentially interrupt a dive or cause an individual to relocate to feed, such a short-duration interruption would be unlikely to have significant impacts on an individual's energy budget and, further, for these species and this open-ocean area, there are no specific known reasons (i.e., these species range GOA-wide beyond the continental slope (or, for Atlantic spotted dolphin, in coastal and shelf waters) and there are no known biologically important areas) to expect that there would not be adequate alternate feeding areas relatively nearby, especially considering the anticipated absence of survey activity in the eastern GOA. For those species that are more shallow feeding species, it is likely that the noise exposure considered herein would result in minimal significant disruption of foraging behavior and, therefore, the corresponding energetic effects would similarly be minimal.

Of note, the Atlantic spotted dolphin is expected to benefit (via lessening of both number and severity of takes) from the coastal waters time-area restriction developed to benefit bottlenose dolphins, and several additional species can be expected to benefit from the absence of survey activity in important eastern GOA habitat.

No mortality or Level A harassment of these species is anticipated or authorized. It is likely that the majority of the individuals of these species will be impacted briefly on one or more days during a year of activity by one type of survey or another. Based on the nature of the individual exposures and takes, as well as the very low to low aggregated scale of the impacts across the GOA and considering the mitigation discussed here, the impacts of the expected takes from these activities are not likely to impact the reproduction or survival of any individuals, much less adversely affect the GOA stocks of any of these 13 species through impacts on annual rates of recruitment or survival. Accordingly, we conclude the taking from the specified activity will have a negligible impact on GOA stocks of these 13 species.

The sections below provide an explanation of how NMFS interprets and applies the small numbers standard. Our analysis of our small numbers interpretation and application in the 2021 final rule was conducted under the agency deference standard then in effect under Chevron, USA, Inc. v. NRDC, Inc., 467 U.S. 837 (1984). In 2024, the U.S. Supreme Court overturned Chevron and with it the requirement to afford deference to reasonable agency interpretations of ambiguous statutory provisions, holding that courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority and determine the best reading of the statute. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400, 412-13 (2024). The Court acknowledged that careful attention to the judgment of the Executive Branch may help inform that inquiry. In view of the Loper Bright standard, we have re-examined our interpretation and application of small numbers.

What are small numbers?

The term “small numbers” appears in section 101(a)(5)(A) of the MMPA as follows:

(i) Upon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specified geographical region, the Secretary shall allow, during periods of not more than 5 consecutive years each, the incidental, but not intentional, taking by citizens while engaging in that activity within that region of small numbers of marine mammals of a species or population stock if the Secretary, after notice (in the Federal Register and in newspapers of general circulation, and through appropriate electronic media, in the coastal areas that may be affected by such activity) and opportunity for public comment--

(I) finds that the total of such taking during each five-year (or less) period concerned will have a negligible impact on such species or stock and will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses . . . and

(II) prescribes regulations setting forth--

(aa) permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses; and

(bb) requirements pertaining to the monitoring and reporting of such taking.

(Emphasis added.)

In addition to section 101(a)(5)(A), the MMPA as amended in 1994 includes a similar provision in section 101(a)(5)(D), which provides for the issuance of incidental take authorizations for small numbers of marine mammals without the need for regulations, effective for up to 1 year, where the taking is limited to harassment:

(i) Upon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specific geographic region, the Secretary shall authorize, for periods of not more than 1 year, subject to such conditions as the Secretary may specify, the incidental,

but not intentional, taking by harassment of small numbers of marine mammals of a species or population stock by such citizens while engaging in that activity within that region if the Secretary finds that such harassment during each period concerned--

(I) will have a negligible impact on such species or stock, and

(II) will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses[.]

(Emphasis added.)

The MMPA does not define “small numbers.” NMFS' and the U.S. Fish and Wildlife Service's 1989 implementing regulations defined small numbers as a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock. This definition was invalidated in Natural Resources Defense Council v. Evans, 279 F.Supp.2d 1129 (N.D. Cal. 2003), based on the court's determination that the regulatory definition of small numbers was improperly conflated with the regulatory definition of “negligible impact,” which rendered the small numbers standard superfluous. As the court observed, “the plain language indicates that small numbers is a separate requirement from negligible impact.” Since that time, NMFS has not applied the definition found in its regulations. Rather, consistent with Congress' pronouncement that small numbers is not a concept that can be expressed in absolute terms (House Committee on Merchant Marine and Fisheries Report No. 97-228 (September 16, 1981)), NMFS makes its small numbers findings based on an analysis of whether the number of individuals authorized to be taken annually from a specified activity is small relative to the stock or population size. We note the definition of “small” in Webster's New Collegiate Dictionary (1981) included “having little size, esp. as compared with other similar things.” See also www.merriam-webster.com/dictionary/small (defining “small” as “having comparatively little size”). These definitions comport with the small numbers interpretation developed by NMFS, which utilizes a proportional or relative approach. The Ninth Circuit has upheld a similar approach. See Center for Biological Diversity v. Salazar, 695 F.3d 893 (9th Cir. 2012). We believe this interpretation of small numbers is the best reading of the MMPA, consistent with Loper Bright.

While NMFS has utilized the proportional approach to “small numbers” since shortly after Evans was decided, until our 2018 proposed rule we had not indicated how NMFs would draw the upper limit of small numbers and implement the concept in practice.

To maintain an interpretation of small numbers as a proportion of a species or stock that does not conflate with negligible impact, NMFS developed a simple approach that is transparent and operationally feasible. Our approach establishes equal bins corresponding to small, medium, and large proportions of the population abundance. NMFS then compares the number of individuals estimated and authorized to be taken against the best available abundance estimate for that species or stock.

It can be challenging to predict the numbers of individual marine mammals that will be taken by an activity. Many models calculate instances of take but are unable to account for repeated exposures of individual marine mammals, though the instances of take necessarily represent the upper bound of the number of individuals. In some of those cases, such as for this rule (see Estimated Take), we are able to generate a more refined estimate of the numbers of individuals predicted to be taken utilizing a combination of quantitative tools and qualitative information. When an acceptable estimate of the individual marine mammals taken is available,\8\ the small numbers determination is based directly upon whether these estimates exceed one-third of the stock abundance. In other words, consistent with past practice, when the estimated number of individual animals taken (which may or may not be assumed as equal to the total number of takes, depending on the available information) is up to, but not greater than, one-third of the most appropriate species or stock abundance, NMFS will determine that the numbers of marine mammals taken of a species or stock are small.

\8\ We note that although NMFS' implementing regulations require applications for incidental take to include an estimate of the marine mammals to be taken, there is nothing in section 101(a)(5)(A) (or (D)) that requires NMFS to quantify or estimate numbers of marine mammals to be taken for purposes of evaluating whether the number is small. See Center for Biological Diversity v. Salazar, 695 F.3d 893 (9th Cir. 2012).

Another circumstance in which NMFS considers it appropriate to make a small numbers finding is in the case of a species or stock that may potentially be taken but is either rarely encountered or only expected to be taken on rare occasions. In that circumstance, one or two assumed encounters with a group of animals (meaning a group that is traveling together or aggregated, and thus exposed to a stressor at the same approximate time) should reasonably be considered small numbers, regardless of consideration of the proportion of the stock, as infrequent or rare encounters resulting in take of one or two groups should be considered small relative to the range and distribution of any stock.

In summary, when quantitative take estimates of individual marine mammals are available or inferable through consideration of additional factors, and the number of animals taken is one-third or less of the best available abundance estimate for the species or stock, NMFS considers it to be of small numbers. NMFS may also appropriately find that one or two predicted group encounters will result in small numbers of take relative to the range and distribution of a species, regardless of the estimated proportion of the abundance.

Is the small numbers standard evaluated based on total take under incidental take regulations or within the context of an individual letter of authorization?

Neither the MMPA nor NMFS' implementing regulations address whether the small numbers determination should be based upon the total annual taking for (1) all activities occurring under a specific incidental take regulation or (2) individual LOAs issued thereunder. The MMPA does not define small numbers or explain how to apply the term in either paragraph (A) or (D) of section 101(a)(5), including how to apply the term in a way that allows for consistency between those two very similar provisions in the statute. Whether to apply the small numbers finding to each individual LOA under regulations that cover multiple concurrent LOA holders was a matter of first impression for NMFS when it conducted rulemaking for the 2021 final rule.

Specifically, section 101(a)(5)(A)(i)(I) explicitly states that the negligible impact determination for a specified activity must take into account the total taking over the 5-year period, but the small numbers language is not tied explicitly to the same language. Rather, the small numbers provision appears in section 101(a)(5)(A)(i) as a limitation on what the Secretary may allow. The regulatory vehicle for authorizing (i.e., “allowing”) the take of marine mammals is the LOA. In light of the ambiguities in the structure of the statute regarding application of the small numbers standard and our long-standing implementing regulations for administering section 101(a)(5)(A), including the issuance of LOAs to allow incidental take under an incidental take regulation (see, e.g., 50 CFR 216.106), we have determined that, under the best

reading of the statute, the small numbers finding applies to the annual take authorized per individual LOA, and not to the total annual taking for all activities potentially occurring under the incidental take regulations.

While not determinative, this per-LOA approach harmonizes section 101(a)(5)(A) with the per-IHA application of small numbers in section 101(a)(5)(D) of the MMPA.\9\ The per-LOA approach also affords regulatory flexibility to utilize section 101(a)(5)(A) when there are benefits to doing so for the resource (marine mammals), the public, prospective applicants, and administrative efficiency:

\9\ As the court observed in Native Village of Chickaloon v. NMFS, 947 F. Supp. 2d 1031, 1049 n.123 (D. Alaska 2013) “the same statutory standards apply” to incidental take authorization under both provisions.

From a resource protection standpoint, it is better to conduct a comprehensive negligible impact analysis that considers all of the activities covered under the rule (versus considering them independently pursuant to individual IHAs) and ensures that the total combined taking from those activities will have a negligible impact on the affected marine mammal species or stocks and no unmitigable adverse impact on subsistence uses. Furthermore, mitigation and monitoring are more effective when considered across all activity and years covered under regulations.

From an agency resource standpoint, it ultimately will save significant time and effort to cover multi-year activities under a rule instead of multiple incidental harassment authorizations (IHAs). While regulations require more analysis up front, additional public comment and internal review, and additional time to promulgate compared to a single IHA, they are effective for up to 5 years (for non-military readiness activities) and can cover multiple actors within a year. The process of issuing individual LOAs under incidental take regulations utilizes the analysis, public comment, and review that was conducted for the regulations, and takes significantly less time than it takes to issue independent IHAs.

From an applicant standpoint, incidental take regulations offer more regulatory certainty than IHAs (5 years versus 1 year) and significant cost savings, both in time and environmental compliance analysis and documentation. This is especially true for situations like here, where multiple applicants will be applying for individual LOAs under regulations. In the case of this rule, the certainty afforded by the promulgation of a regulatory framework (e.g., by using previously established take estimates, mitigation and monitoring requirements, and procedures for requesting and obtaining an LOA) is a significant benefit for prospective applicants.

NMFS' evaluation of past IHAs suggests that bundling together the activities covered by two or three IHAs that might be ideal subjects for a combined incidental take regulation (e.g., for ongoing maintenance construction activities, or seismic surveys in the Arctic by different entities) may exceed the taking of small numbers of a species if NMFS were to apply the small numbers standard across all taking contemplated by the regulation in a year. In other words, if the small numbers standard is applied to the total annual taking under a rule, NMFS may not be able to make the necessary small numbers finding, which would preclude the use of section 101(a)(5)(A) for multiple activities, thereby eliminating the opportunity to derive the resource and streamlining benefits outlined above. Also, application of the small numbers standard across the total annual taking covered by an incidental take regulation, inasmuch as prospective applicants can see that the total annual take may exceed one-third of species or stock abundance, would create an incentive for applicants to pursue individual IHAs (again, precluding the ability to gain the benefits outlined above).

Our conclusion that a “small numbers” finding is based on the estimated annual take in individual LOAs issued under a rule does not affect the negligible impact analysis for a rule, which is the biologically relevant inquiry and based on the total annual estimated taking for all activities the regulations will govern over the five- year period. Making the small numbers finding based on the estimated annual take in individual LOAs allows NMFS to take advantage of the associated administrative and environmental benefits of utilizing section 101(a)(5)(A) that would be precluded in many cases if small numbers were required to be applied to the total annual taking under the regulations. NMFS finds this method of making a small numbers determination to be the best reading of the relevant MMPA provisions.

Although this LOA-based application of small numbers may be argued as being less protective of marine mammals, NMFS disagrees. As noted previously, the small numbers standard has less biological significance as compared to the substantive and contextually-specific analysis necessary to support the negligible impact determination. The negligible impact determination is still controlling, and the maximum total annual taking that may be authorized across all LOAs under an incidental take regulation still could not exceed the overall amount analyzed for the negligible impact determination. Thus, under this option, the negligible impact analysis for the rulemaking still would have to be conducted for the time period explicitly specified in the statute (i.e., up to 5 years), but the small numbers analysis would attach to the instrument itself that authorizes the taking, i.e., the LOA.

How will small numbers be evaluated under this GOA rule?

In this rule, up-to-date species information is available, and sophisticated models have been used to estimate take in a manner that will allow for quantitative comparison of the take of individuals versus the best available abundance estimates for the species or stocks. Specifically, while the modeling effort utilized in the rule enumerates the estimated instances of takes that will occur across days as the result of the operation of certain survey types in certain areas, the modeling report also includes the evaluation of a test scenario that allows for a reasonable modification of those generalized take estimates to better estimate the number of individuals that will be taken within one survey. LOA applicants using modeling results from the rule to inform their applications will be able to reasonably estimate the number of marine mammal individuals taken by their activities. LOA applications that do not use the modeling provided in the rule to estimate take for their activities will need to be reviewed, and applicants will be required to ensure that their estimates adequately inform the small numbers finding. If applicants use the modeling provided by this rule to estimate take, additional review will not be deemed necessary (unless other conditions necessitating review exist, as described in the Letters of Authorization section). If applicants do not use the modeling provided by the rule, however, NMFS may publish a notice in the Federal Register soliciting public comment, if the model or inputs differ substantively from those that have been reviewed by NMFS and the public previously. The estimated take of marine mammals for each species will then be compared against the best available scientific information on species or stock abundance estimate as

determined by NMFS and estimates that do not exceed one-third of that estimate will be considered small numbers.

The regulations governing the take of marine mammals incidental to geophysical survey activities contain an adaptive management component. The comprehensive reporting requirements are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the LOA-holders regarding practicability) on a regular (e.g., annual or biennial) basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggest that such modifications would have a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth herein. The adaptive management process and associated reporting requirements would serve as the basis for evaluating performance and compliance.

Under this rule, NMFS plans to continue to implement an annual adaptive management process. The foundation of the adaptive management process is the annual comprehensive reports produced by LOA-holders (or their representatives), as well as the results of any relevant research activities, including research supported voluntarily by the oil and gas industry and research supported by the Federal government. Data collection and reporting by individual LOA-holders occurs on an ongoing basis, per the terms of issued LOAs. In a given annual cycle, the comprehensive annual report will summarize and synthesize LOA-specific reports, with report development (supported through collaboration of individual LOA-holders or by their representatives) occurring for 90 days following the end of a given 1-year period. Review and revision of the report will occur within 90 days following receipt of the annual report. Any agreed-upon modifications will occur through the process for modifications and/or adaptive management described in the regulatory text following this preamble.

All reporting requirements have been complied with under the current ITRs to date. Annual reports compiled by industry trade associations in order to comply with the comprehensive reporting requirements, as well as the LOA-specific reports upon which they are based, are available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-america.

There are no relevant subsistence uses of marine mammals implicated by these actions. Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

Endangered Species Act (ESA)

Section 7 of the ESA generally requires Federal agencies to insure that their actions are not likely to jeopardize the continued existence of endangered or threatened species or adversely modify or destroy their designated critical habitat. Federal agencies must consult with NMFS for actions that may affect such species under NMFS' jurisdiction or critical habitat designated for such species. At the conclusion of consultation, the consulting agency provides an opinion stating whether the Federal agency's action is likely to jeopardize the continued existence of ESA-listed species or destroy or adversely modify designated critical habitat.

NMFS issued a biological opinion (BiOp) in May 2025 for federally regulated oil and gas program activities in the GOA, including NMFS' issuance of the 2021 ITRs and subsequent LOAs (as well as all BOEM and Bureau of Safety and Environmental Enforcement (BSEE) approvals of activities associated with the Outer Continental Shelf (OCS) oil and gas program in the GOA), which superseded and replaced all prior BiOps on that action. On January 23, 2026, the U.S. District Court for the Western District of Louisiana found certain aspects of the 2025 BiOp to be unlawful and remanded it for NMFS to fix the identified errors. However, the court did not vacate the 2025 BiOp and the identified deficiencies were not related to NMFS' MMPA action here. On March 31, 2026, the Endangered Species Committee granted an exemption for all federally regulated oil and gas activities in the GOA pursuant to section 7(h) of the ESA. See https://www.doi.gov/endangered-species-committee. Section 7(h) enables the Committee to consider and grant an exemption from the requirements for ESA consultation. In this instance, the Secretary of War requested an exemption for reasons of national security under section 7(j) of the ESA. The March 31, 2026, exemption order encompasses the full suite of agency actions that BOEM and BSEE identified when initiating and pursuing ESA consultation with NMFS and the Fish and Wildlife Service, including NMFS' issuance of the existing ITRs and subsequent LOAs (as well as all BOEM and BSEE approvals of activities associated with the OCS oil and gas program in the GOA). Thus, consultation is not required for this rule. Even if consultation were required, this final rule does not contain changes to the take numbers or to the prescribed mitigation and related monitoring requirements considered in the May 2025 BiOp, and reinitiation of consultation would not be required.

In 2017, BOEM produced a final PEIS to evaluate the direct, indirect, and cumulative impacts of geological and geophysical survey activities in the GOA, pursuant to requirements of NEPA. The PEIS is available online at: https://www.boem.gov/Gulf-of-Mexico-Geological-and-Geophysical-Activities-Programmatic-EIS/. NOAA, through NMFS, participated in preparation of the PEIS as a cooperating agency due to its legal jurisdiction and special

expertise in conservation and management of marine mammals, including its authority to authorize incidental take of marine mammals under the MMPA.

In 2020, NMFS prepared a ROD: (1) to adopt BOEM's Final PEIS to support NMFS' analysis associated with issuance of incidental take authorizations pursuant to section 101(a)(5)(A) or (D) of the MMPA and the regulations governing the taking and importing of marine mammals (50 CFR part 216); and (2) to announce and explain the basis for NMFS' decision to review and potentially issue incidental take authorizations under the MMPA on a case-by-case basis, if appropriate.

The 2017 NOAA NEPA Companion Manual required supplements to Environmental Impact Statements if (1) the agency made substantial changes in the proposed action that are relevant to environmental concerns or (2) there were significant new circumstances or information relevant to environmental issues and bearing on the proposed action or its impacts. For the 2024 final rule, NMFS considered these criteria and the criteria relied upon for the 2020 ROD to determine whether any new circumstances or information were “significant,” thereby requiring supplementation of the 2017 PEIS. NMFS reevaluated its findings related to the MMPA negligible impact standard and the LPAI standard governing its regulations in light of the corrected take estimates and other relevant new information. Based on that evaluation, NMFS reaffirmed its negligible impact determinations and determined that the existing regulations prescribed the means of effecting the LPAI on the affected species or stocks and their habitat, and therefore made no changes to the regulations. NMFS considered updated take estimates that corrected the take estimate errors and incorporated other new information, e.g., modeling of a more representative airgun array and updated marine mammal density information. NMFS also consulted scientific publications from 2021 through 2024, data that were collected by the agency and other entities after the PEIS was completed, field reports, reports produced under the BOEM-funded Gulf of Mexico Marine Assessment Program for Protected Species (GoMMAPPS) project, and other sources (e.g., updated NMFS SARs). In addition, NMFS considered new circumstances and information related to updated information on Rice's whales in the action area (population abundance, mortality and sources of mortality, distribution and occurrence) and any new data, analysis, or information on the effects of geophysical survey activity on marine mammals and relating to the effectiveness and practicability of measures to reduce the risk associated with impacts of such survey activity. Based on the review applying the 2017 supplementation standard and the 2020 ROD criteria, NMFS determined for its 2024 final rule that supplementation of the 2017 PEIS was not warranted.

In 2025, NOAA revised its NEPA procedures. As required by the 2025 procedures, environmental documents must be supplemented when (1) the agency makes substantial changes to the proposed activity or decision that are relevant to environmental concerns; or (2) the agency decides, in its discretion, that there are substantial new circumstances or information about the significance of the adverse effects that bear on the proposed activity or decision or its effects. Under this standard, NMFS has again considered whether there are any substantial new circumstances or information that bear on this action or its impacts. For NMFS' consideration of new circumstances and information, NMFS has consulted any new scientific information available since issuance of the 2024 final rule. Again, NMFS has not made any changes to the action relevant to environmental concerns, and has made no changes to the regulations. Based on the current review, NMFS has again determined that supplementation of the 2017 PEIS is not warranted.

Under the incidental take regulations in effect for this specified activity, industry operators may apply for LOAs (50 CFR 217.186). LOAs may be issued for any time period that does not exceed the effective period of the regulations, provided that NMFS is able to make the relevant determinations (50 CFR 217.183). Because the specified activity does not provide actual specifics of the timing, location, and survey design for activities that would be the subject of issued LOAs, such requests must include, at minimum, the information described at 50 CFR 216.104(a)(1) and (2), and an affirmation of intent to adhere to the mitigation, monitoring, and reporting requirements described in the regulations. The level of effort proposed by an operator will be used to develop an LOA-specific take estimate based on the results of Weirathmueller et al. (2022). These results will be based on the appropriate source proxy (i.e., either 90-in\3\ single airgun or 4,130- , 5,110-, or 8,000-in\3\ airgun array).

If applicants do not use the modeling provided by the rule, NMFS may publish a notice in the Federal Register soliciting public comment, if the model or inputs differ substantively from those that have been reviewed by NMFS and the public previously. Additional public review is not needed unless the model or inputs differ substantively from those that have been reviewed by NMFS and the public previously.

Technologies continue to evolve to meet the technical, environmental, and economic challenges of oil and gas development. The use of technologies other than those described herein will be evaluated on a case-by-case basis and may require public review. Some seemingly new technologies proposed for use by operators are often extended applications of existing technologies and interface with the environment in essentially the same way as well-known or conventional technologies. NMFS will evaluate such technologies accordingly and as described in the notice of issuance for the 2021 final rule. Please see that document for further detail.

The Assistant Administrator for Fisheries has determined that there is a sufficient basis under the Administrative Procedure Act (APA) to waive the 30-day delay in the effective date of the regulations contained in the final rule. Section 553 of the APA provides that the required publication or service of a substantive rule shall be made not less than 30 days before its effective date with certain exceptions, including (1) for a substantive rule that relieves a restriction or (2) when the agency finds and provides good cause for foregoing delayed effectiveness. See 5 U.S.C. 553(d)(1), (d)(3). Here, consistent with the APA, 5 U.S.C. 553(d)(1), the issuance of regulations under section 101(a)(5)(A) of the MMPA is a substantive rule that relieves the statutory prohibition on the taking of marine mammals, specifically, the incidental taking of marine mammals associated with the specified activities. Upon expiration of the current regulations and until these regulations are effective, survey operators are prohibited from taking marine mammals incidental to their specified activities.

The Assistant Administrator has also determined that there is good cause under the APA (5 U.S.C. 553(d)(3)) to waive the 30-day delay in the effective date of this final rule. No individual or entity, other than survey operators applying for LOAs to avail themselves of the take authorization afforded by this rule and regulations, are affected by the provisions of these regulations, and survey operators do not require 30 days

to prepare for implementation of the regulations. Survey operators have been conducting survey operations identical to those described in this final rule and implementing associated mitigation requirements identical to those described in this final rule, for 5 years. The regulated industry, through its trade association representative, has informed NMFS that it requests that this final rule take effect as soon as possible to minimize the time without the availability of regulations under which LOAs may be issued and avoid any potential disruption of planned survey activities. For these reasons, NMFS finds good cause to waive the 30-day delay in the effective date.

Executive Order 12866

The Office of Management and Budget (OMB) has determined that this final rule is significant for purposes of Executive Order 12866.

Pursuant to the procedures established to implement Executive Order 12866, OMB determined that the 2021 Final Rule (the rule), “Regulations Governing Taking Marine Mammals Incidental to Geophysical Survey Activities in the Gulf of America,” was economically significant under Executive Order 12866 section 3(f)(1). Accordingly, NMFS prepared a regulatory impact analysis (RIA) that evaluated and, to the extent feasible, quantified the likely costs and benefits of the rule. The RIA evaluated the impacts of the 2021 rule relative to two baselines, including a baseline that corresponded with BOEM's management of geophysical survey activities in the GOA prior to a 2013 litigation settlement agreement (pre-settlement baseline) and a baseline that reflected the settlement agreement-related mitigation measures for survey activities in the GOA that were in place at the time the analysis was conducted (i.e., post-settlement agreement). As the terms of the litigation settlement agreement are no longer in effect, NMFS considers evaluation of the costs of the rule relative to this baseline inapplicable. However, in December 2024, BOEM completed a Biological Assessment (BA), “Focused Biological Assessment to Support Endangered Species Act Reinitiated Consultation of the Gulf of Mexico Oil and Gas Program,” that specifies certain Conditions of Approval (COA) for geophysical survey activities that are largely redundant with mitigation requirements of the 2021 rule. NMFS considers it appropriate to assess the impacts of this rule relative to both the pre-settlement baseline and a baseline that incorporates COA specified in BOEM's 2024 BA, thereby providing a range of plausible impacts of the rule.

Relative to the pre-settlement regulatory baseline, the RIA projected that annualized direct compliance costs of the rule would range from approximately $31 million to $90 million (2019$), applying a 7 percent discount rate.\10\

\10\ Annualized direct compliance costs ranging from $31 million to $90 million reflect analysis assuming a pre-settlement regulatory baseline. The RIA estimated net cost savings of regulatory compliance ranging from $21 million to $212 million (2019$, 7 percent discount rate) relative to a Settlement Agreement Baseline.

Key drivers of direct costs of the rule relative to this baseline include the number and type of surveys conducted in the GOA and the duration of shutdowns. Due to uncertainty about the future level of survey activity and duration of shutdowns, the RIA provides low-end and high-end forecasts for these factors, by survey type, for the years 2021-2025. An additional key driver of costs is the frequency of marine mammal encounters resulting in shutdowns. A review of PSO reports for surveys completed since implementation of the rule revealed the following:

The actual number of surveys conducted since 2021 is lower than the low-end forecast in the RIA. Low-end forecasts exceed actual survey counts for all types except one, and no surveys of the type with the highest projected costs have been conducted. This signals that cost projections in the RIA may be overstated relative to the pre-settlement baseline.

The actual average duration of shutdowns has been lower than the low-end forecast for the types of surveys that have been conducted. This signals that cost projections in the RIA may be overstated relative to the pre-settlement baseline.

The frequency of encounters with marine mammals resulting in shutdowns has been slightly higher than forecasted in the RIA. This signals that cost projections in the RIA may be understated relative to the pre-settlement baseline.

Direct compliance costs of the rule relative to a baseline incorporating non-discretionary COA specified in BOEM's 2024 BA are considerably lower than costs relative to the pre-settlement baseline due to significant overlap between mitigation requirements of the rule and COA contained in the BA. For example, both the rule and BA require constant use of PAM for deep penetration airgun surveys in water depths greater than 100 meters, as well as the shutdown of such surveys upon PAM detection of baleen whales, sperm whales, beaked whales, and Kogia species. Both the rule and BA also require the shutdown of seismic airgun surveys when large dolphins are identified within a 500-meter exclusion zone for deep penetration surveys and a 100-meter exclusion zone for shallow penetration surveys. The 2021 RIA projected that these two measures together account for between 76 and 77 percent of total direct annualized compliance costs of the rule. In addition, both the rule and BA require the shutdown of deep penetration seismic airgun surveys due to PSO sightings of baleen whales, beaked whales, and Kogia species outside of the 500-meter exclusion zone and within a 1,500- meter extended distance shutdown zone. Unlike the rule, the BA does not specify that this requirement applies to sightings of sperm whales, unless a sperm whale is traveling with a calf or in a group of six or more. Given the considerable overlap between the rule and BA in application of this shutdown requirement, it is reasonable to assume that at least a portion of the costs of this measure relative to the pre-settlement baseline are baseline costs of the rule relative to the baseline incorporating COA of the BA. The 2021 RIA projected that costs attributable to this mitigation measure account for between 20 and 24 percent of total direct annualized costs of the rule.

Based on these findings, we have determined that the RIA estimates provide a reasonable approximation of direct compliance costs of the rule relative to the pre-settlement baseline, and that direct compliance costs of the rule are considerably lower relative to a baseline that incorporates COA specified in BOEM's 2024 BA.

In addition to the quantified direct costs of the rule, the RIA identifies seasonal closures of specific areas to survey activities as a potential source of indirect costs. BOEM does not include seasonal closures as COA in its 2024 BA. Indirect costs could be incurred by the oil and gas industry to the extent that the seasonal closures delay or reduce the ability of industry to collect data necessary to identify and recover oil and gas resources, thereby reducing the overall level of oil and gas production in the GOA. The RIA states that such delays or reductions in production could also impact dependent social welfare associated with changes in the timing and volume

of surveys and oil and gas production activities.

The RIA also identifies potential direct and indirect benefits of the rule. First, oil and gas industry survey operators' reliance since 2021 on the MMPA compliance framework afforded by the rule suggests that these companies rely upon NMFS' incidental take authorizations to proceed with the actions analyzed herein. While a MMPA incidental take authorization is not a pre-condition for conducting these actions (as the survey operators are ultimately responsible for this decision), issuance of LOAs provides survey operators with two key benefits: (1) a legal exemption from the MMPA's general prohibition on the take of marine mammals (assuming survey operators comply with the terms and conditions of authorizations); and (2) regulatory certainty because survey operators will be fully cognizant of NMFS' expectations in regard to the steps needed to be taken to address risks to marine mammals and how to minimize legal exposure under the statute. Survey operators will also incur costs to comply with certain mitigation and monitoring requirements, as required by the MMPA and described in detail in the preceding. Despite the additional costs of such measures, the costs related to MMPA compliance during survey operations are small compared with expenditures on other aspects of oil and gas industry operations, and direct compliance costs of the regulatory requirements are unlikely to result in material impacts to those operations.

In addition, cost savings are generated by the reduced administrative effort required to obtain an LOA under the framework established by a rule compared to what would be required to obtain an incidental harassment authorization absent the rule. Data are not available at this time to quantify these cost savings. Data are not available to determine the extent to which the rule has generated conservation benefits, and, even with these data, available literature does not allow for the monetization of such benefits.

To the extent that this rule would allow a number of surveys to move forward, or move forward sooner, there may be effects on tourism, ecosystem services, and non-use valuations. NMFS describes each of these values below. To the extent that the proposed rule would allow additional take, each of these values may be decreased.

The protection and restoration of populations of endangered whales may also generate non-use benefits. Economic research has demonstrated that society places economic value on environmental assets, whether or not those assets are ever directly exploited. For example, society places real (and potentially measurable) economic value on simply knowing that large whale populations are flourishing in their natural environment (often referred to as “existence value”) and will be preserved for the enjoyment of future generations. Using survey research methods, economists have developed several studies of non-use values associated with protection of whales or other marine mammals (table 15). BILLING CODE 3510-22-P

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Executive Order 14192

This final rule is an Executive Order 14192 deregulatory action. Though there are no monetized cost savings for the rule, the rule is expected to reduce burden on industry.

Regulatory Flexibility Act (RFA)

NMFS prepared a regulatory impact analysis (RIA), including a final regulatory flexibility analysis (FRFA), in support of the 2021 final rule. The FRFA described the economic effects of the 2021 final rule on small entities. In summary, the FRFA found the following: First, in the majority of cases (88 percent), survey permit applicants are large businesses. Second, when the permit applicants are small businesses, the majority of the time (63 percent) they are oil and gas extractors (NAICS 2111). Third, together, these permits (for large businesses and small businesses with high annual revenues for which rule costs are a small fraction) account

for 96 percent of the survey permits. Fourth, while small entities in other industries occasionally apply for permits (four percent historically), these businesses are quite small, with average annual revenues in the millions or even less. Given their size, it is unlikely that these permit applicants bear survey costs; otherwise it would be reflected in their annual revenues (i.e., their revenues on average would reflect that they recover their costs). Accordingly, NMFS expects it is most likely that survey costs are passed on to oil and gas extraction companies that commission the surveys or purchase the data. And fifth, overall, up to five small businesses (NAICS 2111) per year may experience increased costs of between 0.1 and 0.7 percent of average annual revenues. See 86 FR 5322, 5443 (January 19, 2021). A copy of the full FRFA is available as Appendix B to the RIA. No changes are made here that would affect the findings of the FRFA, and there are no new data that would meaningfully change the FRFA.

As a result, pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. Because of this certification, no new regulatory flexibility analysis is required and none has been prepared. No comments were received that would change this determination.

Paperwork Reduction Act (PRA)

This rule contains collection-of-information requirements subject to the provisions of the PRA. These requirements have been approved by the Office of Management and Budget (OMB) under control number 0648- 0151 (Applications and Reporting Requirements for the Incidental Take of Marine Mammals by Specified Activities under the Marine Mammal Protection Act) and include the applications for regulations, subsequent LOAs, and reports. The current information collection approved by OMB under control number 0648-0151 includes burden estimates for incidental take authorizations issued under the MMPA. The current numbers approved under 0648-0151 are as follows: 576 respondents, 576 responses, 70,236 burden hours, and $2,892,557 in labor and miscellaneous costs. This current rulemaking is expected to result in the following burden estimates; 137 respondents, 391 responses, and 30,926 burden hours, $1,422,281 in labor and miscellaneous costs. The burden hours in this rule fall within the existing burden estimates associated with this control number.

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.