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API et al. Comments on Draft Guidance for Assessing the Effects of Anthropogenic Sound March 13, 2014 Page 3 2. The Draft Guidance does not provide a full explanation of the anticipated impact of the proposed acoustic criteria on the regulated community, and there is no clear discussion of the regulatory implications of the proposed changes. Because the Guidance will be applied in a range of regulatory actions, we recommend that NMFS undertake a study comparing the assessment approach described in the Draft Guidance with the current assessment methods to demonstrate the regulatory implications of the proposed criteria. The results of this study should be presented in the second version of the Draft Guidance that is made available for public review and comment. Although the Draft Guidance's proposed metrics are not directly comparable to current assessment methods, we believe the results of such a study would be very informative to the regulated community. 3. The Draft Guidance presents uncertainty and potential complications regarding the implementation of the proposed criteria. The complexity of the methods proposed in the Draft Guidance will result in increased time and expenses for applicants, and may lead to confusion in both the regulated community and the general public. In addition, the Draft Guidance does not address a significant category of Level B take (i.e., behavioral modification). We request that NMFS provide a more detailed description of how the proposed acoustic criteria will be implemented generally (e.g., how and when it will be formally adopted and applied in the incidental take authorization process) and specifically (e.g., how it will translate into operational mitigation and monitoring measures for project applicants). 4. We commend NMFS for its commitment to undertake review and revision of this guidance every three to five years to incorporate knowledge as it is acquired. We also welcome the opportunity for applicants to propose alternative approaches to those presented in the Draft Guidance. This flexibility will enable innovation within the bounds of regulatory compliance. There are many ways to estimate potential exposures of marine mammals to various sound levels, and future applicants should not be limited to estimating exposures using the criteria set forth in the Draft Guidance if there are other methods that are more appropriate and scientifically justified. The Draft Guidance should emphasize the agency's discretion to assess and approve approaches that differ from those described in the Draft Guidance. 5. In the Draft Guidance, NMFS has developed criteria based on extrapolations from limited data sets. We do not believe that the methods used in parts of the Draft Guidance to obtain conservative criteria are always reflective of, or consistent with, the best available science. Accordingly, we recommend that the next version of the Draft Guidance address and explain the potential shortcomings associated with extrapolation from limited data and, where appropriate (as identified in the comments below), utilize other data that, although also limited, may more accurately reflect the best available science. 6. Marine mammal incidental take authorizations for the oil and gas industry have, for many years, been authorized by NMFS and the U.S. Fish and Wildlife Service ("FWS"). The best available science demonstrates that these authorizations have resulted in no detectable adverse impacts to marine mammal populations. Although we support NMFS's development of ATTACHMENT E API et al. Comments on Draft Guidance for Assessing the Effects of Anthropogenic Sound March 13, 2014 Page 4 new criteria that are consistent with the best available science, these new criteria should not be applied in a manner that results in increased regulatory burdens. The Associations are concerned that the Draft Guidance will unnecessarily result in an increased burden to the applicant during the permitting process. In addition, if the new criteria results in an increased number of shutdowns, or longer survey duration, not only will there be increased costs, but the safety risks for the activity will also increase. II. STATUTORY CONTEXT The Draft Guidance is primarily relevant to federal authorizations made pursuant to the Outer Continental Shelf Lands Act ("OCSLA"), the MMPA, and the Endangered Species Act ("ESA"). To add context for our comments, this section provides a short summary of the key provisions and requirements of the OCSLA, MMPA, and ESA. A. OCSLA The OCS is a significant source of oil and gas for the nation's energy supply. In 2012, offshore areas of the United States supplied over 12 percent of the country's natural gas and oil production, and are estimated to contain roughly 23 percent of the oil and 12 percent of the natural gas resources in remaining undiscovered fields in the United States. The important role of oil and gas exploration and development in the OCS is clearly reflected in OCSLA and its implementing regulations. Under those authorities, implementing agencies are mandated to preserve, protect, and develop oil and natural gas resources in the OCS in a manner that is consistent with the need to (i) make such resources available to meet the Nation's energy requirements as rapidly as possible, and (ii) balance orderly energy development with protection of human, marine, and coastal environments. See 43 U.S.C. 1332(3)-(5), 1346, 1348; 30 C.F.R 250.101, 250.107. Geophysical surveys using seismic reflection are an essential, state-of-the-art component of oil and gas exploration in the OCS. Geophysical data are used by both industry and federal agencies to make informed economic and regulatory decisions regarding potential accumulations of oil and natural gas. As one of the earliest components of the lengthy process leading from leasing of lands, to exploration, to development and production of hydrocarbon resources, seismic surveys are critical to the OCS resource development mandated by Congress in OCSLA and have been demonstrated to have no detectable long-term impacts on the marine environment. B. MMPA and ESA Section 101(a)(5)(A) of the MMPA empowers NMFS (and FWS) to authorize the incidental take of marine mammals, subject to certain requirements. These authorizations occur in two forms: (i) incidental harassment authorizations ("IHAs"), which are issued for a period of no more than one year; and (ii) incidental take regulations ("ITRs"), which are effective for a period of up to five years and pursuant to which incidental take from a single activity is ATTACHMENT E