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App/led science for informed decision making March 4, 201S Dear Reader. In August 2014, BOEM published a Science Note addressing a few fundamentals about impacts of seismic air gun surveys on marine mammal populations. The surveys are used to characterize sub -seabed geology, including oil and gas resources but are also used for our marine minerals program and renewable energy One sentence in the Science Note has generated some dialogue: "To date, there has been no documented scientific evidence of noise from air guns used in geological and geophysical (G&G) seismic activities adversely affecting animal populations." BOEM's conclusion regarding the impact of these surveys is in stark contrast with public statements citing BOEM research and asserting that many thousands of marine mammals will be killed or injured through these surveys. For example, one web posting states that "Seismic air gun testing currently being proposed in the Atlantic will injure 138,000 whales and dolphins and disturb millions more, according to government estimates." This characterization of our conclusion, however, is not accurate, that is actually not what we estimate. I hope that providing background and discussion on BOEM's conclusion and the numbers may help those who follow this issue to understand our position. I'll begin with an overview of a few key legal terms. Terms of the Marine Mammal Protection Act (MMPA) Three MMPA terms are key to this conversation. First, a "take" of a marine mammal under the MMPA is defined as follows: "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." The MMPA defines the term "harassment" to mean "[A]ny act of pursuit, torment, or annoyance which - (i) has the potential to injure a marine mammal or marine mammal stock in the wild [referred to in the MMPA as 'Level A harassment']; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [referred to in the MMPA as 'Level B harassment']." MMPA Sec. 3 (18) In other words, a "take" can mean an act that kills or injures a marine mammal, but it can also mean an act that does no more than have the potential to disturb a marine mammal. Second, it is important to recognize that the MMPA prohibits the take of marine mammals as a result of permitted activities - referred to in the statute as "incidental take" -- unless that take will have no more than "negligible impact." In particular, section 101 (5) of the MMPA prohibits incidental "taking" of a marine mammal, including Level A and Level B harassment, unless the Secretary of Commerce, acting through the National Oceanic and Atmospheric Administration (NOAA), determines that the taking will have no more than "negligible impact" on the species or stocks affected. NOAA regulations define negligible impact to mean "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." By definition, then, the impact analysis is measured on the "species or stock," not on an individual animal. Our bureau has stated publicly that it will not consider issuing any air gun seismic survey permits in the Atlantic unless applicants have first obtained an MMPA authorization from NOAA, including the required finding of no adverse effect on marine mammal species or stocks. "Optimum sustainable population" or OSP is a third key MMPA concept. Obtaining optimum sustainable populations is a stated goal of the MMPA, and OSP is defined by the statute to mean, "with respect to any population stock, the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element." OSP is about populations, not individuals. 214