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 provid es 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 Managem ent’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 effort s 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 Marin e Mammal Protection Act (“MMPA”) authoriza tions, 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 Ass ociations support industry’s ongoing and continued research related t o determining and mitigating any potential effects of seismic surveys on marine2

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 require ments on the regulated community beyond the scope of the MMPA

.

I. THE ASSOCIATIONS
API is a national trade association representing over 600 member compani es 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 (geophys ical 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 explor ation 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 Te rm 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 stat ement 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” monitor ing 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 author ization to include, among other things:3 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 s urvey 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 site

specific 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 requi res 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 au thorization). 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 “pert aining 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 e t 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 (emph asis 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 a n incidental take authorization or (ii) BOEM to undertake development or impleme ntation of a long

- term monitoring plan as part of a MMPA § 10 1 (a)(5) petition

. The GOM Settlement Agreement does not and cannot legally authorize BOEM or NMFS to take action s 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 pl an.4

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 th e 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

- ter m 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, t he current protected species observer program in the GOM provides BOEM and th e 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 sou nd 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 b ehavior

– and could be bolstered to collect other key data that would allow proper geospatial and sighting condition dependent analysis of observer effort and sightings

. 3 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 Agree ment § 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 requi rements 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 ex cept dolphins within a 500

- meter exclusion zone, and reporting requirements.5

extended sh utdown 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 ha ve been implemented over the years have generated a significant amount of information

, but from the regulat ed 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 meaningf ul 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 applic able 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 establis h 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 o f 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 subs tantiate 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 th at agencies implement “standardization including data collection methods, standardized electronic forms, and software used in collaboration with6

NMFS and non

- federal stakeholders.” In comments submitted May 2, 2014, the Associations agreed with this recom mendation 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 pu blic. 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 specifica lly 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 opportunitie s 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 monitorin g. 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.soun dandmarinelife.org/research

- categories/mitigation

- and

- monitoring/collection

and

- 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 fo r 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 alrea dy 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 cause d 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 long

standing 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 impact s 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 a nd Central Planning Area (CPA) Lease Sales 227, 231, 235, 241, and 247 , at 4

- 203 (v.1) (2012), http://www.boem.gov/Environmental

- Stewardship/E nvironmental

Assessment/NEPA/BOEM

- 2012

- 019_v1.aspx (WPA); id . at 4

- 710 (v.2), http://www.boem.gov/Environmental

- Stewardship/Environmental

Asse ssment/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 accep table 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]h ere 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 seis mic 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 L easing Program, 2007

- 2012 , at V

- 64 (Apr. 2007) (citing 2005 NRC Report), http://www.boem.gov/Oil

and

- Gas

- Energy

- Program/Leasing/Fi ve

- 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 inju ry, mortality, or population level effects on marine mammals from seismic exposure ”);

 A. Jochens et al., Sperm Whale Seismic Study in the Gu lf 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 survey s 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 Atlant ic 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 mar ine 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.”).9

E. Other Research Efforts and Collaboration Opportunities

For man y 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 inte rnational oil and gas companies and the geophysical industry committed to uniting their resources to f und 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 regulat ed 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 acous tic 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 s cientific 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 condit ions. 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

.

 N OAA RESTORE Act Science Program

, http://restoreactscienceprogram.noaa.gov/

 National Fish and Wildlife Foundation Gulf Environmental Benefit Fund

, http://www.nfwf.org/gulf/Pages/home.aspx10

 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 Association s support agency efforts to improve the collection and use of information in su pport of monitoring and report ing efforts in the GOM within the scope of the MMPA. We appreciate BOEM’s consideration of the recommendations set forth above and we strongly e ncourage 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 e

mail at radforda@api.org

. Sincerely,

Andy Radford American Petroleum Institute

Karen St. John International Association of Geophysical Contractors

Evan Zimmerman Offshore Operators Committee