|Publication ID: Fall 2017
|Title: Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys in the Gulf of Mexico
The National Marine Fisheries Service is taking this action in response to an October 17, 2016, application from the U.S. Department of the Interior (DOI) and the Bureau of Ocean Energy Management (BOEM) to promulgate regulations and issue Letters of Authorization to take marine mammals incidental to oil and gas industry sponsored seismic surveys for purposes of geophysical exploration on the Outer Continental Shelf in the Gulf of Mexico from approximately 2018 through 2023. BOEM states that underwater activities associated with sound sources (i.e., airguns, boomers, sparkers, and chirpers) may expose marine mammals in the area to noise and pressure.
|Agency: Department of Commerce(DOC)
|Priority: Other Significant
|RIN Status: Previously published in the Unified Agenda
|Agenda Stage of Rulemaking: Proposed Rule Stage
|Unfunded Mandates: No
|EO 13771 Designation: Regulatory
|CFR Citation: 50 CFR 217
|Legal Authority: 16 U.S.C. 1361 et seq.
Statement of Need:
The Marine Mammal Protection Act (MMPA) prohibits the "take" (e.g., behavioral harassment, injury, or mortality) of marine mammals with certain exceptions, including through the issuance of incidental take authorizations. Where there is a reasonable likelihood of an activity resulting in the take of marine mammals--as is the case for certain methods of geophysical exploration, including the use of airgun arrays (i.e., "seismic surveys")--action proponents must ensure that take occurs in a lawful manner. However, there has not previously been any analysis of industry survey activities in the Gulf of Mexico conducted pursuant to requirements of MMPA, and industry operators have been, and currently are, conducting their work without MMPA incidental take authorizations. In support of the oil and gas industry, the Bureau of Ocean Energy Management (BOEM) has requested five-year incidental take regulations, which would provide a regulatory framework under which individual companies could apply for project-specific letters of authorization. Providing for industry compliance with the MMPA through the requested regulatory framework, versus companies pursuing individual authorizations would be the most efficient way to achieve such compliance for both industry and for NMFS, and would provide regulatory certainty for industry operators.
Summary of the Legal Basis:
Marine Mammal Protection Act
While the MMPA does not require consideration of alternatives in rulemaking, the regulatory impact analysis considers a more stringent and less stringent regulatory alternative. The more stringent alternative would require more mitigation of industry authorization-holders. The less stringent alternative is the basis for the proposed rule. As an alternative to regulation, individual companies could request specific permits known as incidental harassment authorizations (IHA). However, these permits require approximately six to nine months to obtain (compared with an anticipated less than three months to obtain letters of authorization under a rule), are information-intensive in terms of the required application, and require a public comment period. They also must be renewed on a yearly basis, whereas a Letter of Authorization lasts for five years.
Anticipated Costs and Benefits:
The proposed rule would include mitigation, monitoring, and reporting requirements, as required by the MMPA. However, as the proposed rule would alleviate other current regulatory requirements that would otherwise be expected to cost 37.8 to 230 million dollars per year, it is estimated to result in a net annualized savings of 8 to 123 million dollars (the range of values reflects ranges of projected future activity levels). The proposed rule would result in additional indirect (non-monetized) costs as a result of the imposition of time-area restrictions on survey effort. However, these costs are expected to be minimal, as two of three proposed restrictions are in areas with low to no levels of activity and a third, which has been in place under current baseline conditions, is seasonal and therefore may be planned around. The proposed rule would also result in certain non-monetized benefits. The protection of marine mammals afforded by this rule (pursuant to the requirements of the MMPA) would benefit the regional economic value of marine mammals via tourism and recreation to some extent, as mitigation measures applied to geophysical survey activities in the GOM region are expected to benefit the marine mammal populations that support this economic activity in the GOM. The proposed rule would also afford significant benefit to the regulated industry by providing an efficient framework within which compliance with the MMPA, and the attendant regulatory certainty, may be achieved. Cost savings may be generated in particular by the reduced administrative effort required to obtain an LOA under the framework established by a rule compared to what would be required to obtain an incidental harassment authorization (IHA) under section 101(a)(5)(D) of the MMPA. Absent the rule, survey operators in the GOM would likely be required to apply for an IHA. Although not monetized, NMFS' analysis indicates that the upfront work associated with the rule (e.g., analyses, modeling, process for obtaining LOA) would likely save significant time and money for operators.
Absent the rule, oil and gas industry operators would face a highly uncertain regulatory environment due to the imminent threat of litigation. BOEM currently issues permits under a stay of ongoing litigation, in the absence of the proposed rule the litigation would continue and NMFS would be added as a defendant. The IHA application process that would be available to companies would be more expensive and time-consuming.
|Regulatory Flexibility Analysis Required: No
|Government Levels Affected: Federal
|Small Entities Affected: Businesses
|Energy Effects: Statement of Energy Effects planned as required by Executive Order 13211.
|Included in the Regulatory Plan: Yes
|RIN Data Printed in the FR: No
Director, Office of Protected Resources
Department of Commerce
National Oceanic and Atmospheric Administration
National Marine Fisheries Service, 1315 East-West Highway,
Silver Spring, MD 20910