77714834.1 0078439-00023

 

December 8, 2014

VIA email to monitoringplan@boem.gov

Bureau of Ocean Energy Management

Gulf of Mexico OCS Region & Atlantic Activities

1201 Elmwood Park Blvd. 

New Orleans, LA 70123-2394

Re: Comments on Request for Information on the Development of a Long Term Monitoring 

Plan for Marine Mammals in the Gulf of Mexico — BOEM-14-0075

To Whom It May Concern:

This letter provides the comments of the American Petroleum Institute (“API”), the 

Offshore Operators Committee (“OOC”) and the International Association of Geophysical 

Contractors (“IAGC”) (collectively, the “Associations”) in response to the Bureau of Ocean 

Energy Management’s (“BOEM”) Request for Information on the Development of a Long Term 

Monitoring Plan for Marine Mammals in the Gulf of Mexico (the “Request”). See 79 Fed. Reg. 

66,402 (Nov. 7, 2014). We appreciate BOEM’s consideration of these comments.

The Associations have a strong interest in environmental monitoring, both to better 

understand the environment in which our members work, but also to mitigate risks to living 

marine resources. As set forth in more detail below, the Associations support efforts that 

improve the quantity and quality of information related to determining the nature and magnitude 

of the effects of offshore activities on marine mammals. Such information is essential for 

performing accurate incidental take analyses to support Marine Mammal Protection Act 

(“MMPA”) authorizations, for developing appropriate mitigation measures to minimize 

incidental take, and for correctly assessing the type and amount of incidental take that occurs in 

the course of operations. In this light, the Associations support industry’s ongoing and continued 

research related to determining and mitigating any potential effects of seismic surveys on marine 
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life in the Gulf of Mexico (“GOM”) and support agency efforts to improve the collection and use 

of information and use of best available science while also remaining consistent with the 

requirements and authority of the MMPA. We are not supportive of efforts that will impose 

requirements on the regulated community beyond the scope of the MMPA. 

I. THE ASSOCIATIONS

API is a national trade association representing over 600 member companies involved in 

all aspects of the oil and natural gas industry. API’s members include producers, refiners, 

suppliers, pipeline operators, and marine transporters, as well as service and supply companies 

that support all segments of the industry. API and its members are dedicated to meeting 

environmental requirements, while economically developing and supplying energy resources for 

consumers. 

IAGC is the international trade association representing the industry that provides 

geophysical services (geophysical data acquisition, processing and interpretation, geophysical 

information ownership and licensing, and associated services and product providers) to the oil 

and natural gas industry. IAGC member companies play an integral role in the successful 

exploration and development of offshore hydrocarbon resources through the acquisition and 

processing of geophysical data.

OOC is a non-profit organization comprised of any person, firm or corporation owning 

offshore leases and/or engaged in offshore activity as a drilling contractor, service company, 

supplier or other capacity that chooses to participate. Currently, OOC has 142 member 

companies. The Committee's activities are focused supporting its member companies in 

operations that protective of human health and the environment. 

API, OOC, IAGC, and our members are longstanding supporters of the MMPA 

regulatory process as an effective means of balancing responsible offshore exploration activities 

with the conservation of marine mammals. In addition, as described in more detail below in § 

II.E, the oil and natural gas and geophysical exploration industries have made a considerable 

investment in research related to determining and mitigating the effects of seismic surveys on 

marine life.

II. COMMENTS

A. BOEM Is Not Required to Prepare a “Long Term Monitoring Plan” 

As an initial matter, the Request states that BOEM’s contemplated long-term monitoring 

plan “is a required element of BOEM’s petition for rulemaking under the Marine Mammal 

Protection Act.” 79 Fed. Reg. at 66,402. However, this statement is demonstrably incorrect as 

there is no such requirement contained in the MMPA or in any other legal authority. In fact, 

every statutory and regulatory MMPA provision that refers to “monitoring” does so in the 

context of the “site-specific” monitoring plans that are required as a condition of incidental take 

authorizations issued pursuant to MMPA § 101(a)(5). None of those provisions refer to “long 

term” monitoring. For example, the MMPA regulations require a petition for an incidental take 

authorization to include, among other things:
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The suggested means of accomplishing the necessary monitoring 

and reporting that will result in increased knowledge of the 

species, the level of taking or impacts on populations of marine 

mammals that are expected to be present while conducting 

activities and suggested means of minimizing burdens by 

coordinating such reporting requirements with other schemes 

already applicable to persons conducting such activity. Monitoring 

plans should include a description of the survey techniques that 

would be used to determine the movement and activity of marine 

mammals near the activity site(s) including migration and other 

habitat uses, such as feeding. Guidelines for developing a sitespecific monitoring plan may be obtained by writing to the 

Director, Office of Protected Resources....

50 C.F.R. § 216.104(a)(13) (emphases added). 

Consistent with the requirement to include a “site-specific” monitoring plan in a petition 

for an incidental take authorization, the MMPA simply requires incidental take regulations to 

include “requirements pertaining to the monitoring and reporting of such taking.” 16 U.S.C. § 

1371(a)(5)(A)(i)(II)(bb) (emphasis added); see also id. § 1371(a)(5)(D)(ii)(II) (same description 

for incidental harassment authorization). The MMPA regulations similarly refer only to 

monitoring that is limited to the specific incidental take authorized by the agency in a particular 

authorization. See 50 C.F.R. § 216.102(c) (NMFS must prescribe requirements or conditions 

“pertaining to the monitoring and reporting of such taking”) (emphasis added); 50 C.F.R. § 

216.105(b)(3) (referring to monitoring and reporting requirements “for each allowed activity”).1

Additionally, the settlement agreement reached by the parties in NRDC et al. v. Jewell et 

al., No. 2:10-cv-01882, Dkt. 118-2 (June 18, 2013, E.D. La.) (“GOM Settlement Agreement”) 

does not require BOEM to develop a long-term monitoring plan. In the GOM Settlement 

Agreement, the Federal Defendants simply agreed “to analyze in any EIS or EA for BOEM’s 

MMPA Application the development of a long-term adaptive monitoring plan that addresses 

potential cumulative and chronic impacts from seismic surveys on marine mammal populations 

in the Gulf of Mexico.” Id. § IX.B (emphasis added). In other words, BOEM did not agree to 

develop a plan, just to analyze the development of one. Moreover, as addressed above, the

MMPA does not authorize (i) NMFS to require the development of a long-term monitoring plan 

as a condition of an incidental take authorization or (ii) BOEM to undertake development or 

implementation of a long-term monitoring plan as part of a MMPA § 101(a)(5) petition. The 

GOM Settlement Agreement does not and cannot legally authorize BOEM or NMFS to take

actions that are not otherwise allowed by law. See United States v. Carpenter, 526 F.3d 1237, 

 

1

Indeed, in the nearly two-decade history of the issuance of incidental take authorizations 

in the Beaufort and Chukchi Seas, no federal agency has ever imposed an obligation to prepare a 

long-term monitoring plan or to take any action related to such a plan.
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1241-42 (9th Cir. 2008) (terms in settlement agreement may not “violate the civil laws governing 

the agency”). 2

In sum, there is no requirement for a petitioner under MMPA § 101(a)(5) (BOEM, in this 

instance) to prepare a long-term monitoring plan and there is no legal authorization for NMFS, as 

the agency authorizing incidental take, to require as a condition of an authorization the 

preparation or development of a long-term monitoring plan or the performance of actions related 

to a long-term monitoring plan. Accordingly, although the Associations support efforts to 

improve the quantity and quality of information related to determining the nature and magnitude 

of the effects of geophysical exploration activities on marine mammals and use this information 

to make informed decisions, we are not supportive of efforts that will impose requirements on 

the regulated community beyond the scope of the MMPA.

B. BOEM Should First Consider Extensive Existing Information

Notwithstanding our comments above, should BOEM pursue a long-term monitoring 

program for marine mammals in the GOM, it should first consider the large volume of data and 

information that has already been collected but remains unanalyzed due to the unavailability of 

sufficient resources. A complete assessment of these existing data sets should first be conducted 

to ensure that existing and relevant information is utilized to the fullest extent practicable. 

For example, the current protected species observer program in the GOM provides 

BOEM and the Bureau of Safety and Environmental Enforcement (“BSEE”) with important 

information that could be used more meaningfully by the agencies to determine, among other 

things, species density and their occurrence during ramp-up, full operation, and when no sound 

source is active. The current program requires sighting reports for each marine mammal or sea 

turtle observed during operations and those reports must include information regarding species 

present, group size, direction in relation to the vessel, and behavior – and could be bolstered to 

collect other key data that would allow proper geospatial and sighting condition dependent 

analysis of observer effort and sightings.

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 This data should also be more readily shared with 

stakeholders. Additionally, G&G permits issued since June 2013 must comply with the terms of 

the GOM Settlement Agreement, which imposes interim additional mitigation and monitoring 

measures, including the use of passive acoustic monitoring during periods of low visibility, 

 

2

This is consistent with the position of the Intervenor-Defendants in NRDC v. Jewell, 

who expressly stated that they “do not agree that all of the measures described in paragraph[s] 

IX.A and IX.B are feasible or appropriate.” See GOM Settlement Agreement § IX.D. Both API 

and IAGC are Intervenor-Defendants in the NRDC v. Jewell litigation. NMFS is not a party to 

the NRDC v. Jewell litigation.

3 All on-lease and off-lease geophysical and geological (“G&G”) surveys in the GOM 

must comply with the requirements of Joint Notice to Lessees No. 2012-G02 for Seismic Survey 

Mitigation Measures and Protected Species Observer Program. These mitigation measures 

include, among other things, ramp-up procedures, visual monitoring, shutdown for all marine 

mammals except dolphins within a 500-meter exclusion zone, and reporting requirements. 
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extended shutdown requirements for manatees, and the submittal of bi-weekly reports to BSEE. 

This required reporting is another source of valuable information that has not been fully utilized

by the agencies. 

The monitoring and reporting requirements that have been implemented over the years 

have generated a significant amount of information, but from the regulated community’s 

perspective, that information does not appear to have been meaningfully analyzed, organized, or 

otherwise put to productive use by federal agencies. We suggest that an initial effort be made to 

understand the existing data and information — i.e., who is collecting it, why is it being 

collected, where is it being collected, where is it stored, and what is its content. It may also be 

useful to generate a visual representation showing specifically where the data are currently 

collected, including temporal, spatial and parameter elements, and use this map to identify gaps 

in monitoring. Such an effort could be followed by a meaningful analysis of how the currently 

collected data and information can be organized and used to inform future decisions.

C. Considerations for an Effective Monitoring Program

As stated above, the Associations support efforts to improve the quantity and quality of 

information related to determining the nature and magnitude of the effects of offshore activities 

on marine mammals so long as those efforts are consistent with applicable law. To the extent 

that BOEM plans to design a monitoring program that complies with the MMPA and will not 

impose unauthorized requirements on the regulated community, we offer the following 

considerations. 

1. A monitoring program should establish clear and straightforward goals that help 

guide and bring focus to all efforts conducted as a part of the program. These could include the 

collection of basic, baseline distribution, abundance, and density information for GOM marine 

mammal species that are of most concern. A component of the program could also focus on the 

measurement of GOM ambient sound levels and anthropogenic sound.

2. A monitoring program should include an adaptive management component that is 

based upon the best available scientific information and assessment of relevant risks and is used 

to forecast emerging conditions for response and efficacy of mitigation measures industry 

applies.

3. A monitoring program should provide flexibility for adaptive technology and 

methodology, such as remote visual and passive acoustic monitoring, infrared technology, and 

active acoustics. The industry has worked with BOEM, NMFS, and BSEE for years in the GOM

and other OCS regions, field testing different monitoring technologies and reporting their results. 

4. A monitoring program should use updated reporting forms that capture 

substantive data from observations to substantiate the implementation of appropriate mitigation 

measures. For example, Technical Memorandum NMFS-OPR-49, National Standards for a 

Protected Species Observer and Data Management Program: A Model Using Geological and 

Geophysical Surveys, recommends that agencies implement “standardization including data 

collection methods, standardized electronic forms, and software used in collaboration with 
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NMFS and non-federal stakeholders.” In comments submitted May 2, 2014, the Associations 

agreed with this recommendation and reaffirm it here. 

Collaboration with NMFS should result in a reporting form that produces data the agency 

can use and rely upon to assess population numbers, stock assessments, and effects on marine 

species. The Associations also note that best practices implemented by industry already 

recommend the use of a standard reporting form developed under a project funded by the 

Exploration and Production (“E&P”) Sound and Marine Life Joint Industry Program.4 In 

addition, these reporting forms are recommended for use by the United Kingdom’s Joint Nature 

Conservation Committee (http://jncc.defra.gov.uk/page-1534). The Associations are sincerely 

interested in working with the agencies to update the current reporting forms.

5. Data generated from the monitoring program should be contributed to a publicly 

available database, such as OBIS-SEAMAP, so that the data are readily available to other 

government agencies, industry, researchers, and the public. Data and metadata should meet 

widely accepted standards. 

6. Data analysis and synthesis must be a clear and explicit priority in a monitoring 

program. The plan for how, when, and to what purpose this data analysis will occur should be 

specifically stated and resources must be provided to support this analysis. 

7. An effective monitoring program should be properly scoped to address relevant 

geographic areas and the activities within those areas. For example, because marine mammals 

are not restricted to just U.S. jurisdictional waters, BOEM should explore opportunities to 

partner with Mexico on monitoring projects. Additionally, a marine mammal monitoring 

program that focuses only on G&G activities, and does not account for other industries active in 

the GOM, would result in a piecemeal approach to long-term monitoring. Observed patterns in 

monitoring data can be explained by a number of factors that would not be accounted for in a 

monitoring plan focused solely on G&G activities.

8. BOEM should consider funding research to further the development of the 

“Population Consequences of Disturbance” framework, using the key data referred to above. See 

http://www.smru.co.uk//pcod, http://www.onr.navy.mil/reports/FY11/mbfleish.pdf.

 

4

See Barton, Carolyn J.S., Jaques, Robert, and Mason, Mike. 2008. Identification of 

Potential Utility of Collation of Existing Marine Mammal Observer Data. RSK Environmental

Ltd., Cheshire, UK. The Marine Mammal Recording Form can be accessed at: 

http://www.soundandmarinelife.org/research-categories/mitigation-and-monitoring/collectionand-analysis-of-existing-marine-mammal-observer-mmo-data.aspx. 
7

9. IAGC also recently provided suggested studies programs to BOEM, including 

marine mammal spatial density maps and research concerning the Bryde’s whale (a baleen whale 

species that has been petitioned for listing under the Endangered Species Act).5

D. Any Effect of Seismic Surveys on Marine Mammals is Negligible

The best available scientific data and information demonstrate that the mitigation 

measures applied to offshore operations in the GOM is already more than adequate to protect 

marine mammals and sea turtles in a manner consistent with federal law. Insofar as we are 

aware, no seismic activities (in the GOM or anywhere else) have caused impacts amounting to 

anything more than temporary changes in behavior, without any known injury, mortality, or 

other adverse consequence to any marine mammal species or stocks. See, e.g., the following 

sources:

 BOEM, Final EIS for Gulf of Mexico OCS Oil and Gas Eastern Planning Area 

Lease Sales 225 and 226, at 2-22 (2013), http://www.boem.gov/BOEM-2013-

200-v1/ (“Within the CPA, which is directly adjacent to the EPA, there is a longstanding and well-developed OCS Program (more than 50 years); there are no 

data to suggest that activities from the preexisting OCS Program are significantly 

impacting marine mammal populations.”); id. at 2-23 (with respect to sea turtles, 

“no significant cumulative impacts to sea turtles would be expected as a result of 

the proposed exploration activities when added to the impacts of past, present, or 

reasonably foreseeable oil and gas development in the area, as well as other 

ongoing activities in the area”); 

 BOEM, Final EIS for Gulf of Mexico OCS Oil and Gas Western Planning Area 

(WPA) Lease Sales 229, 233, 238, 246, and 248 and Central Planning Area 

(CPA) Lease Sales 227, 231, 235, 241, and 247, at 4-203 (v.1) (2012), 

http://www.boem.gov/Environmental-Stewardship/EnvironmentalAssessment/NEPA/BOEM-2012-019_v1.aspx (WPA); id. at 4-710 (v.2), 

http://www.boem.gov/Environmental-Stewardship/EnvironmentalAssessment/NEPA/BOEM-2012-019_v2.aspx (CPA) (“Although there will 

always be some level of incomplete information on the effects from routine 

activities under a WPA proposed action on marine mammals, there is credible 

scientific information, applied using acceptable scientific methodologies, to 

support the conclusion that any realized impacts would be sublethal in nature and 

not in themselves rise to the level of reasonably foreseeable significant adverse 

(population-level) effects.”); id. at 4-235, 4-741 (“[T]here are no data to suggest 

that routine activities from the preexisting OCS Program are significantly 

impacting sea turtle populations.”); 

 

5

Provided to BOEM via email dated November 6, 2014. Receipt acknowledged 

December 2, 2014.
8

 BOEM, Final Supplemental EIS for Gulf of Mexico OCS Oil and Gas WPA Lease 

Sales 233 and CPA Lease Sale 231, at 4-30, 4-130 (2013), 

http://www.boem.gov/uploadedFiles/BOEM/BOEM_Newsroom/Library/Publicati

ons/2013/BOEM%202013-0118.pdf (reiterating conclusions noted above); MMS, 

Final Programmatic EA, G&G Exploration on Gulf of Mexico OCS, at III-9, II-14 

(2004), http://www.nmfs.noaa.gov/pr/pdfs/permits/mms_pea2004.pdf (“There 

have been no documented instances of deaths, physical injuries, or auditory 

(physiological) effects on marine mammals from seismic surveys.”); id. at III-23 

(“At this point, there is no evidence that adverse behavioral impacts at the local 

population level are occurring in the GOM.”); 

 MMS, Draft Programmatic EIS for OCS Oil & Gas Leasing Program, 2007-

2012, at V-64 (Apr. 2007) (citing 2005 NRC Report), http://www.boem.gov/Oiland-Gas-Energy-Program/Leasing/Five-Year-Program/5and6-

ConsultationPreparers-pdf.aspx (MMS agreed with the National Academy of 

Sciences’ National Research Council that “there are no documented or known 

population-level effects due to sound,” and “there have been no known instances 

of injury, mortality, or population level effects on marine mammals from seismic 

exposure ”);

 A. Jochens et al., Sperm Whale Seismic Study in the Gulf of Mexico: Synthesis 

Report, at 12 (2008) (“There appeared to be no horizontal avoidance to controlled 

exposure of seismic airgun sounds by sperm whales in the main SWSS study 

area.”); 

 Takes of Marine Mammals Incidental to Specified Activities; Low-Energy Marine 

Geophysical Survey in the Gulf of Mexico, April to May, 2013, 78 Fed. Reg. 

11,821, 11,827, 11,830 (Feb. 20, 2013) (“[I]t is unlikely that the proposed project 

[a USGS seismic project] would result in any cases of temporary or permanent 

hearing impairment, or any significant non-auditory physical or physiological 

effects”; “The history of coexistence between seismic surveys and baleen whales 

suggests that brief exposures to sound pulses from any single seismic survey are 

unlikely to result in prolonged effects.”); 

 Takes of Marine Mammals Incidental to Specified Activities; Marine Geophysical 

Survey in the Northwest Atlantic Ocean Offshore New Jersey, May to August 

2014, 79 Fed. Reg. 14,779, 14,789 (Mar. 17, 2014) (“There has been no specific 

documentation of temporary threshold shift let alone permanent hearing damage[] 

(i.e., permanent threshold shift) in free ranging marine mammals exposed to 

sequences of airgun pulses during realistic field conditions.”); 

 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine 

Mammals Incidental to Seismic Survey in Cook Inlet, Alaska, 79 Fed. Reg. 

12,160, 12,166 (Mar. 4, 2014) (“To date, there is no evidence that serious injury, 

death, or stranding by marine mammals can occur from exposure to air gun 

pulses, even in the case of large air gun arrays.”).
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E. Other Research Efforts and Collaboration Opportunities

For many years, the oil and gas and geophysical exploration industries have made a 

considerable investment in research related to determining and mitigating the effects of seismic 

surveys on marine life. That investment continues today. In 2006, a group of international oil 

and gas companies and the geophysical industry committed to uniting their resources to fund a 

research program to improve understanding of the potential physical and behavioral effects on 

marine life from the sound created during the process of finding and producing oil and gas. The 

E&P Sound and Marine Life Joint Industry Program (“JIP”) is the most extensive industry 

research program in this field. 

The JIP supports research to increase understanding of the effects of sound on marine life 

generated by oil and gas exploration and production activity and to remove some of the 

uncertainty about the possible effects of seismic surveys. The research also helps governments 

make regulatory decisions based on the best science and helps the regulated community develop 

effective mitigation strategies. The JIP’s research is divided into five categories — from 

understanding how sound travels in water, to the possible effects of sound on the physical and 

behavioral well-being of marine life, as well as new technologies and methodologies that might 

further mitigate hypothetical but as yet poorly understood sources of risk. More information on 

the JIP is available at www.soundandmarinelife.org. 

The JIP has also researched and developed a range of research tools that are used to assist 

the understanding of the behavior of marine mammals in their environment. These tools include, 

but are not limited to, animal tracking tags, improved passive acoustic detection, classification 

and tracking tools, and methodologies for assessing and monitoring subtle behavioral and 

physiological responses to manmade sound. These techniques have not just helped the JIP in its 

studies, but have also advanced general scientific knowledge of marine animals. The JIP has 

also developed PAMGuard, which is software designed to facilitate passive acoustic monitoring 

of marine mammals at sea in poor-visibility conditions. The Associations strongly encourage 

BOEM to coordinate its monitoring efforts with the efforts of the JIP.

In addition to the JIP, the following sources contain programs or information that may be 

helpful to BOEM’s GOM monitoring efforts:

 National Academy of Sciences Gulf Research Program, 

http://nationalacademies.org/gulf/index.html.

 National Oceanographic Partnership Program, www.nopp.org.

 NOAA RESTORE Act Science Program, 

http://restoreactscienceprogram.noaa.gov/

 National Fish and Wildlife Foundation Gulf Environmental Benefit Fund, 

http://www.nfwf.org/gulf/Pages/home.aspx
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 US Navy Living Marine Resources (LMR) Program, 

http://www.lmr.navy.mil/Home.aspx

 Integrated Ocean Observing System / GOM Coastal Observing System, 

http://gcoos.org/

 Cetacean & Sound Mapping (CetSound), http://cetsound.noaa.gov

III. CONCLUSION

In addition to industry’s continued research to understand and mitigate the potential 

effects of industry activities on marine life in the GOM, the Associations support agency efforts 

to improve the collection and use of information in support of monitoring and reporting efforts in 

the GOM within the scope of the MMPA. We appreciate BOEM’s consideration of the 

recommendations set forth above and we strongly encourage the agency to continue to reach out 

to, and coordinate with, the regulated community should it proceed with the development of a 

GOM monitoring program. 

Should you have any questions, please contact the undersigned at 202.682.8584, or via email at radforda@api.org. 

Sincerely,

Andy Radford

American Petroleum Institute

Karen St. John

International Association of Geophysical Contractors

Evan Zimmerman

Offshore Operators Committee