Incidental Take of Marine Mammals; Bottlenose Dolphins and Spotted Dolphins

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 228

[Docket No. 950823213-5213-01; I.D. 102792B]

RIN 0648-AD25

Incidental Take of Marine Mammals; Bottlenose Dolphins and

Spotted Dolphins

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS is issuing regulations authorizing and governing the

taking of bottlenose and spotted dolphins incidental to the removal of

oil and gas drilling and production structures in state waters and on

the Outer Continental Shelf (OCS) in the Gulf of Mexico. The incidental

taking of small numbers of marine mammals is authorized by the Marine

Mammal Protection Act (MMPA), if certain findings are made and

regulations are issued that include requirements for monitoring and

reporting. These regulations do not authorize the removal of the rigs

as such authorization is provided by the Minerals Management Service

(MMS) and is not within the jurisdiction of NMFS. Rather, these

regulations authorize the unintentional incidental take of marine

mammals in connection with such activities and prescribe methods of

taking and other means of effecting the least practicable adverse

impact on the species and its habitat.

EFFECTIVE DATE: November 13, 1995, through November 13, 2000.

ADDRESSES: Copies of the Environmental Assessment (EA), proposed rule,

and application may be obtained by writing to the Chief, Marine Mammal

Division, Office of Protected Resources, 1315 East-West Highway, Silver

Spring, MD 20910-3282 or by telephoning the contact listed below.

Comments regarding the burden-hour estimate or any other aspect of

the collection of information requirement contained in this rule should

be sent to the above individual and to the Office of Information and

Regulatory Affairs, Office of Management and Budget (OMB), Attention:

NOAA Desk Officer, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of

Protected Resources, (301) 713-2055.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs

the Secretary of Commerce to allow, upon request, the incidental, but

not intentional, taking of small numbers of marine mammals by U.S.

citizens who engage in a specified activity (other than commercial

fishing) within a specified geographical region, if certain findings

are made, and regulations are issued. Under the MMPA, the term

``taking'' means to harass, hunt, capture or kill or to attempt to

harass, hunt, capture or kill.

Permission may be granted for periods up to 5 years if NMFS finds,

after notice and opportunity for public comment, that the taking will

have a negligible impact on the species or stock(s) of marine mammals

and will not have an unmitigable adverse impact on the availability of

the species or stock(s) for subsistence uses. In addition, NMFS must

prescribe regulations that include permissible methods of taking and

other means effecting the least practicable adverse impact on the

species and its habitat, and on the availability of the species for

subsistence uses, paying particular attention to rookeries, mating

grounds and areas of similar significance. The regulations must include

requirements pertaining to the monitoring and reporting of such taking.

In 1986, the MMPA and the Endangered Species Act (16 U.S.C. 1531-

1543; the ESA) were amended to allow incidental takings of depleted,

endangered, or threatened marine mammals. Before the 1986 amendments,

section 101(a)(5) applied only to nondepleted marine mammals.

Summary of Request

On October 30, 1989, NMFS received a request from the American

Petroleum

[[Page 53140]]

Institute (API) for an incidental take of bottlenose dolphins (Tursiops

truncatus) and spotted dolphins (Stenella frontalis). API is

representing operators who remove oil and gas drilling and production

structures and related facilities in the Gulf of Mexico in state and

Federal waters adjacent to the coasts of Texas, Louisiana, Mississippi,

Alabama, and Florida. NMFS requested information and invited public

comment on the request on January 30, 1990 (55 FR 3074). As a result of

several requests, NMFS extended the comment period until April 16, 1990

(55 FR 10475, March 21, 1990). A number of comments were received on

the initial request and, based upon the comments, the API amended it's

request and resubmitted it to NMFS on December 13, 1990. NMFS again

requested information and comments on the revised request on March 25,

1991 (58 FR 12361). That comment period closed on May 9, 1991.

API estimates that 670 structures will be removed in the Gulf of

Mexico over a 5-year authorization period. While most of the structures

are in water less than 100 ft (30.5 meters (m)) deep, a few may be in

deeper water. A longer range plan estimates that about 5,500 structures

will be removed in a 35-year period. Some structures have already been

removed using the methods described by the API. The most frequently

used procedure is to wash the soil from inside the piling, lower an

explosive charge to 15 ft (4.6 m) below the mudline, and detonate the

charge, which cuts the piling.

Under section 7 of the ESA, NMFS has consulted with the MMS of the

Department of the Interior on the effects upon endangered and

threatened sea turtles of the removal of oil and gas structures in the

Gulf of Mexico. As a result of these consultations, NMFS requires the

MMS and the U.S. Army Corps of Engineers (Corps), of the Department of

Defense, to employ the following measures to minimize adverse impacts

to listed species: (1) The use of qualified observers; (2) the conduct

of 30-minute aerial surveys within 1 hour before and after detonation;

(3) if sea turtles are observed within 1,000 yds (914 m) of the blast

site, the delay of blast(s) until successful attempts remove the

turtles at least 1,000 yds (914 m) from the site; (4) the detonation of

explosives no sooner than 1 hour following sunrise and no later than 1

hour prior to sunset; and (5) the staggering of charges by at least 0.9

seconds to minimize the cumulative effects of the blasts. However,

under section 7 these measures may be modified by NMFS whenever the

conditions under which the section 7 consultation was conducted are

modified. Under such situations, the MMS is required to reinitiate

consultation with NMFS.

While bottlenose and spotted dolphins are not listed as threatened

or endangered under the ESA, they are protected under the authority of

the MMPA. Therefore, applicants must receive an authorization under the

MMPA before a take is allowed. Similar to the case for sea turtles,

impacts to dolphins would come from exposure to sound and pressure

waves associated with detonating the explosives. API states that the

most likely form of incidental take as a result of structure removals

is harassment from low level sound and pressure waves. However, animals

close enough to the detonation could be injured or killed as a result

of tissue destruction. In recognition of this, removal operators have

been employing the mitigation measures for sea turtles to protect

dolphins as well, and API has filed the subject request for the taking

of small numbers of bottlenose and spotted dolphins, by incidental

harassment only, under the MMPA.

Comments and Responses on the Proposed Rule

On June 17, 1993 (58 FR 33425), NMFS published for public review

and comment a proposed rule to authorize and govern the unintentional

taking of a small number of bottlenose and spotted dolphins incidental

to the removal of oil and gas drilling and production structures in

state waters and on the OCS in the Gulf of Mexico for a period of 5

years. During the 60-day comment period, NMFS received 7 letters

commenting on the proposed rule. These comments and pertinent comments

received during the two petition reviews (55 FR 3074, January 30, 1990

and 56 FR 12361, March 25, 1991) are addressed below.

Comment: One commenter believed that section 101(a)(5) of the MMPA,

under which the API is seeking permission for an unintentional take, is

not appropriate for this purpose, as it was written to allow for

indigenous groups to fish for subsistence.

Response: NMFS does not agree. Section 101(a)(5) of the MMPA was

enacted in 1981 specifically to provide a means to authorize incidental

takes in connection with legitimate maritime activities other than

commercial or subsistence fishing. Prior to 1981, these incidental

takes were prohibited by the MMPA's moratorium on taking and any such

takings were subject to prosecution under the MMPA.

Comment: One commenter believed it was unclear why the structures

must be removed *** given that they have probably become *** home to

many sea creatures. Another commenter inquired on the fate of the

structures and a third believed that the impacts of structure removals

should be addressed in the EA.

Response: Paragraph 5 of Article 5 of the 1958 Continental Shelf

Convention, a treaty to which the United States is a party, states that

any installations which are abandoned or disused must be entirely

removed. The Outer Continental Shelf Lands Act (1953) gives broad

authority to the Secretary of the Interior to administer leasing of the

OCS and to prescribe rules and regulations for the prevention of waste

and conservation of the natural resources of the OCS. The Secretary of

the Interior has exercised that authority through regulations and

standard leasing terms. Regulations (30 CFR 250.143(a) and (b))

published on April 1, 1988, require that ``[t]he lessee shall remove

all structures in a manner approved by the Regional Supervisor to

assure that the location has been cleared of all obstructions to other

activities in the area.'' ``All platforms (including casing, wellhead

equipment, templates, and piling) shall be removed by the lessee to a

depth of at least 15 feet below the ocean floor or to a depth approved

by the Regional Supervisor ***.'' In other words, removing structures

allows for other uses of the OCS, such as shrimp trawling, while

leaving structures upright and in place may pose a hazard to

navigation. Alternatives to rig removals and their impacts on the

environment were discussed by MMS in a Programmatic Environmental

Assessment in 1987.1

\1\ MMS, 1987. Structural Removal Activities Central and Western

Gulf of Mexico Planning Areas. Programmatic Environmental

Assessment. OCS EIS/EA MMS 87-0002.

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All structures removed to date in U.S. waters have been salvaged

either for reuse at another location, converted into an artificial reef

(State rigs to reefs programs), or returned to shore for disposal.

Comment: One commenter believed it was unclear in the notice of

proposed rulemaking why the structures must be blown up and that a less

extreme and less damaging means of removal must be seriously evaluated

and incorporated into the final rule. Other commenters expressed the

opinion that sufficient attention had not been placed on alternative

(nonexplosive) means for removing the structure.

[[Page 53141]]

Response: Structures are not blown-up as the term might commonly be

interpreted. Prior to detonation, the deck sections (superstructure)

are removed from the site leaving only the main piles, wellheads,

connectors and jackets. Explosives are limited to an amount sufficient

only to sever the wellhead and piles below the surface of the seabed.

According to MMS, while the use of mechanical cutters and

underwater arc cutters may be successful in some circumstances, and

would not produce the impulse and pressure forces associated with the

detonation of explosives, a failure of the cutters would necessitate a

larger explosive charge than would otherwise be required since the

explosive shock wave would propagate through the partial cuts already

made by the mechanical cutter. Further, in most instances, these

methods are more time consuming, costly, and more hazardous to divers.

Because of this, these methods are not used on a routine basis

(approximately 7 percent verses 93 percent for explosives (MMS, 1987)).

However, a recent report by the Government Accounting Office2

indicates that although the use of nonexplosives for removal has

increased in recent years (34 percent verses 66 percent removed using

explosives) sufficient effort has not been expended by MMS to develop

nonexplosive means for removal of offshore rigs. For that reason, NMFS

encourages the development of these nonexplosive methods and will

review progress during the 5-year term of these regulations, to

determine whether a small take authorization is warranted in future

years. In this regard, NMFS will request, prior to any reauthorization

for this activity under section 101(a)(5), that MMS submit a report

under 50 CFR 228.4(a)(9) on the development of nonexplosive technology.

\2\ U.S. Government Accounting Office. 1994. Offshore Oil and

Gas Resources: Interior Can Improve Its Management of Lease

Abandonment. GAO/RCED-94-82. 46pp.

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Comment: One commenter stated that it was not clear what

assumptions were made and what variables were considered to make the

determination that pressure waves generated by the explosives will

dissipate within 1,000 yd (914 m), under all circumstances, to levels

which will not cause tissue or hearing damage. Also, it is not clear

whether the calculations were based upon the largest explosive charges

that might be used, or whether additional studies will be done to

verify that sound pressure waves generated by explosive removals will

dissipate to biologically insignificant levels within 1,000 yd (914 m)

under all circumstances likely to be encountered.

Response: While the API application does not mention an upper limit

for size of explosives, in one place it considers a 50-pound (lb) (22.7

kg) charge to be a ``worst case,'' and throughout the application the

API uses 50 lbs as the standard for calculation of impact on marine

mammals. However, a review of section 7 biological opinions on rig

removals on file with NMFS indicates that on rare occasions explosives

of 75 lbs or greater have been utilized. Therefore, to avoid potential

injury to marine mammals and to make clear the level of explosives

authorized under this exemption, NMFS has modified the proposed rule to

limit explosives to a pressure level equivalent to the pressure

generated by a 50-lb (22.7 kg) explosive charge detonated outside the

rig piling. For example, under these regulations, a charge greater than

200 lbs may not be detonated inside a piling that has its top above the

waterline (see below for rationale), a charge greater than 100 lbs may

not be detonated in a pile with its top below the waterline and a

charge greater than 50 lbs may not be detonated exterior to the pile.

Please refer to the EA for additional information on this subject.

On the basis of formulas by Hill (1978)3 and Yelverton (1973),

the distance at which no injury will occur from a 50-lb (22.7 kg)

explosive charge detonated in open water is 2,044 ft (623 m). Use of

these same formulas indicates that injuries, such as eardrum rupture,

could occur at a distance of 872.7 ft (266 m). While these distances

are based upon data from terrestrial mammals, Hill (1978) has suggested

that these distances probably overestimate the zones of physical

influence of shock waves on marine mammals, because marine mammals have

adapted to pressure for deep diving and increased protection due to

their thick body walls. One commenter countered that this may be

misleading as water is less compressible than air. While it is true

that water is less compressible than air, it should be explained that

these explosives tests were conducted in water, but on terrestrial

animals. Obviously, conducting tests on the effects of explosives on

live marine mammals would be controversial and an authorization may be

difficult for a scientific research applicant to obtain under the MMPA.

For that reason, NMFS and others base their impact assessments on

mathematical calculations, supported by test data using small charges

on alternative test animals.

\3\ Reference citations can be found in the EA on this action

(see ADDRESSES).

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In addition to the above research, Goertner (1982) used the results

from experimental data on terrestrial animals to develop a computer

simulation model for determining the region of injury to marine mammals

subjected to an underwater explosion. For a 50-lb (22.7 kg) explosive

charge, the model's contour plot for slight injury indicated that

slight injury could occur 936 ft (285.3 m) and 1,352 ft (412.1 m) from

the explosion in open water for an adult and calf bottlenose dolphin,

respectively (see the application or the EA for a detailed

explanation).

Because the Hill (1978) and Yelverton (1973) tests were conducted

in open water, Connor (1990) determined that detonation below the mud

line inside the casing resulted in a reduction of peak pressure of 50

percent compared to an open water test when the pile top is below the

water surface and 75 percent when the pile top is above the water

surface. Therefore, based upon these determinations, bottlenose

dolphins (including calves) would be unlikely to sustain injury unless

they were closer than 676 ft (206 m) for structures not reaching the

water surface or 225 ft (68.6 m) for structures above the water surface

(the majority of structures). As NMFS has adopted conservative safety

zones to protect marine mammals from the explosives, NMFS does not

believe that it is necessary to repeat these experiments, as one

commenter suggests. Because NMFS has previously determined in

Biological Opinions that an area of 1,000 yd (3,000 ft; 914.4 m) must

be free of sea turtles before detonation can take place, and as this

distance, which has been adopted by the industry for several years as

the marine mammal safety zone, is significantly greater than the

distance to preclude injury to bottlenose and spotted dolphins, no

injuries to marine mammals are anticipated to occur provided this area

does not contain any marine mammals. For that reason, if bottlenose or

spotted dolphins are observed in the vicinity of the platform within

910 m (1,000 yd; 3,000 ft) of the site, detonation must not be carried

out until the area is clear of dolphins or sea turtles. Because of the

relatively shallow depth of the water for most structure removals (less

than 100 ft (30.5 m)), the surface affinity of the requested species of

marine mammals, and their relatively short dive sequences, no injuries

or deaths of marine mammals are anticipated provided the mitigation

measures required by the regulations are followed.

[[Page 53142]]

Comment: One commenter was concerned that the NMFS estimate that a

marine mammal would need to be 910 m from a structure being removed

before it would be safe seems very conservative in light of the

computer model referred to. If the explosion of a 1,200-lb (544

kilogram (kg)) charge in open water might hurt a susceptible dolphin

calf 4,000 ft (1,200 m) away, the range of harm from a 50-lb (22.7 kg)

charge set at 15 ft (5 m) below the mud line inside a piling would, to

a lay person, be expected to have a very much smaller area of impact

than is postulated.

Response: NMFS agrees with this comment. However, because there can

be instances when it may be necessary to detonate a 50-lb (22.7 kg)

charge exterior to the pipe, NMFS has adopted this possible situation

as the worst-case scenario under the application. As stated above, for

a 50-lb (22.7 kg) explosive charge, contour plots indicated that slight

injury could occur 936 ft (285.3 m) and 1,352 ft (412.1 m) from the

explosion in open water for an adult and calf bottlenose dolphin,

respectively. However, the safety range for sea turtles has been

determined, through experimentation, in a Biological Opinion under

section 7 of the ESA to be 3,000 ft (914 m). For consistency therefore,

that range has been determined appropriate as a safety range for marine

mammals also.

Comment: Several commenters noted that there are at least 30

species of marine mammals reported in the Gulf of Mexico and that

conceivably could be present, at least occasionally, in areas where

they could be affected by structure removal. Therefore, it is unclear

to the commenter why the rule would authorize the possible incidental

taking of only bottlenose dolphins and spotted dolphins. One commenter

recommended that either the rule be changed to authorize the incidental

taking of small numbers of any marine mammal that reasonably can be

expected to occur in the northern Gulf of Mexico or specifically

limiting the incidental take to the two species, noting that taking of

any other marine mammal species would constitute a violation of the

MMPA.

Response: The API, in it's application, requested the incidental

take of bottlenose and spotted dolphins, because these two species were

the only marine mammal species recorded by NMFS observers within the

area of the structures. The results of recent (i.e., 1983-91) Southeast

Fisheries Science Center (SEFSC) aerial and vessel surveys for

cetaceans in the Gulf of Mexico indicate that the bottlenose dolphin is

the most common cetacean in these waters, accounting for more than 95

percent of the sightings. Spotted dolphins were the second most

frequently sighted in waters greater than 200 m. depth. However, NMFS

notes that because there are two species of spotted dolphins in the

Gulf of Mexico, S. frontalis and S. attenuata, and distinguishing

between the two by observers is difficult, both these species will be

included under the request for spotted dolphins. SEFSC scientists

indicate that the probability of cetaceans other than these species

being incidentally taken is remote. Therefore, NMFS does not consider

it necessary, at this time, to require the applicant to request

additional species.

In the event, marine mammal species other than those requested are

taken (i.e., harassed, injured or killed) or if, bottlenose and/or

spotted dolphins are injured or killed, such takings would be in

violation of the MMPA, the regulations (modified as a result of this

comment) and any Letters of Authorization (LOA) issued as a result of

this rulemaking. Alternatively, if a nonrequested species of marine

mammal is seen in the area prior to the detonation, but not taken

because the detonation is delayed until the animal leaves, then the API

may elect to request an amendment to its LOA and the authorizing

regulations for future detonations.

Mitigation and Monitoring

Comment: One commenter recommended that the rule either (1) be

expanded to specify and explain the rationale for situations when the

onsite NMFS representative would be authorized to waive any of the

mitigation or monitoring requirements, or (2) be changed to prohibit

detonation of explosives when, for any reason, adequate monitoring

cannot be done to ensure, with a high degree of certainty, that there

are no marine mammals within the area where tissue damage or hearing

damage could occur.

Response: NMFS agrees with the comment and has modified the

regulations to prohibit detonations whenever the pre-detonation aerial

survey monitoring requirements cannot be conducted within the time

frame specified in the regulations and to limit detonations to a

daylight time period.

Comment: Several commenters noted that dolphins killed as a result

of the detonations, tend to sink after death and float to the surface

as decomposition begins. Therefore, to evaluate the numbers of dolphins

killed, but not detected floating at the surface following the blast,

surveys should be undertaken at appropriate periods following removal

of the oil and gas structures.

Response: NMFS agrees with this comment. As a result, NMFS will

require holders of the LOAs or their contractors to undertake marine

mammal/sea turtle assessment surveys after the detonation. However,

because aerial and ship surveys are expensive and because the lethal

range of these explosive charges are limited, NMFS has modified the

monitoring requirements to accommodate concerns for the protection of

the dolphins and the cost of conducting surveys. One modification is

that the NMFS observer may waive the second post-detonation monitoring

provided no marine mammals are sighted during either the required 48

hour pre-detonation monitoring period or the pre-detonation aerial

survey. Another modification is that surveys, if required, can either

be by divers using dark-water search methods or remotely-operated

vehicles of the site (if visibility permits) within 24 hours of any

detonation event at a site, or by either an aerial or ship survey of

the area no sooner than 48 hours and no longer than 7 days after the

detonation. Post-detonation ship or aerial surveys are to concentrate

efforts down-current of the site. LOAs will contain specific monitoring

requirements.

Also, because the seabed must be systematically trawled to ensure

that no structures or debris remain above the seabed surface after

detonation, any dead cetaceans or sea turtles, remaining on the scene,

should eventually be recovered. Operators of this equipment would be

required to report any recovered animals to the LOA holder, who would

be required to report the incident to NMFS.

Reporting Requirements

Comment: One commenter requested that data from the monitoring

reports be compiled and compared, periodically, with marine mammal

stranding data to determine if there are any possible correlations

between strandings and structure removals.

Response: NMFS agrees with this comment and will conduct this

review.

Comment: One commenter recommended changing the report submittal

time requirement of Sec. 228.44(d) from 15 working days to 30 calendar

days. This, the commenter remarks, would allow industry a little more

time to prepare the required report.

Response: NMFS agrees and has modified the final rule to allow 30

calendar days for submitting the report to NMFS (note that the citation

now

[[Page 53143]]

reads Sec. 228.45(d)). Compliance with this requirement does not

relieve the operator from having to comply with MMS' and/or Corps'

reporting requirements.

Comment: This same commenter, for the same reasons, also believed

that reporting should be on an exception basis only (i.e., if the NMFS-

approved onsite observers or other personnel have an indication that a

taking has occurred). A precedent for authorizing incidental taking

without prior registration and requiring only exemption reporting is

found at 50 CFR 229.7 for commercial fishing vessels in Category III

areas (those having only a remote likelihood of incidental taking).

Response: NMFS disagrees. Activity reports (as opposed to marine

mammal taking reports) are required by NMFS, among other reasons, to

correlate stranding data with explosives detonations. NMFS recognizes

however, that often the work is performed by contractors for the holder

of a LOA. To avoid an unnecessary paperwork burden on holders, NMFS

will accept the observer report as the activity report if all

requirements for reporting contained in the LOA are provided to the

observer before that person completes his/her report. However, in most

cases the observer will have departed prior to completion of

monitoring, necessitating a report by the LOA Holder.

Comment: One commenter also recommends that Sec. 228.44(d) be

expanded to specify that post-removal reports must describe the nature

and location of the structure removed; the date, time, and manner by

which the structure was removed; the weather conditions during the pre-

and post-removal surveys; the nature and results of the pre- and post-

removal marine mammal surveys; any actions taken to cause or encourage

animals to leave the area where they might be killed or injured by

explosive detonations; and any incidents where animals were, or may

have been killed or injured as a result of structure removal.

Response: NMFS agrees with the intent of this comment. NMFS prefers

to allow some flexibility in making site-specific requirements however,

and therefore will impose these requirements through the LOA rather

than these regulations.

Letters of Authorization

Comment: One commenter recommended that the rule be expanded to

require that requests for a LOA include a description of the procedures

that will be used to (1) detect the presence of marine mammals in and

near the area where they could be affected by structure removal; (2)

ensure, with a high degree of certainty, that no marine mammals are

within 1,000 yd (941 m) of the structure when explosives are detonated;

and (3) verify that no marine mammals were killed or injured by the

detonation of explosives. Also, the commenter notes with regard to (1)

and (2), that most cetaceans produce species-specific sounds and that

acoustic monitoring therefore might be an additional tool for detecting

animals in or near the potential hazard zone.

Response: NMFS does not consider it necessary for applicants to

state, in their request for a LOA, the mitigation measures that they

will employ to avoid an incidental take of a marine mammal, since these

measures are required by regulation and will be required in the LOA. It

should be recognized that required mitigation measures are the minimum

that a LOA holder must meet; additional measures may be employed at the

discretion of the holder.

The species of marine mammals inhabiting the waters in the vicinity

of oil and gas structures are surface-inhabiting, short-duration diving

animals that are easily visible to observers. Therefore, it is not

necessary at this time to require sophisticated, state-of-the-art

monitoring systems to detect marine mammals within the 1,352 ft (412.1

m) danger zone or the 3,000 ft (914.4 m) safety zone.

Comment: One commenter believed that the rule appears to require an

individual LOA for each platform removal operation. The commenter

recommended that, because operations to remove oil and gas structures

in the Gulf are basically very similar, the LOA and associated notices

in the Federal Register should not be required.

Response: The regulations make clear that an LOA is required to be

held by each company operating or previously operating the platform and

thereby responsible for removing the structure under MMS regulations.

The actual company removing the structure would be considered an agent

of the holder of the LOA. NMFS expects companies will apply annually

for an LOA and in that application will provide a list of structures

anticipated to be removed by them or their contractors in that year.

Environmental Concerns

Comment: Hazardous substances may be deposited and accumulate in

sediments around production platforms. If disturbed and resuspended in

the water column, these materials may enter the marine food web and be

biomagnified in dolphins and other top carnivores.

Response: Impacts resulting from resuspension of bottom sediments

include increased water turbidity and mobilization of sediments

containing hydrocarbon extraction waste (drill mud, cuttings, etc.) in

the water column. The magnitude and extent of any turbidity increases

would depend upon the hydrographic parameters of the area, nature and

duration of the activity, and size and composition of the bottom

material (MMS, 1987). Resuspension of bottom sediments, and solid,

liquid, and gaseous discharges would be generated by removal and

transportation operations.

Increased turbidity would temporarily impact photic processes at

the removal site and reduce primary productivity. The potential effects

of mobilizing sediments with the drilling and production wastes could

also impact the localized marine environment, depending on the

quantities of sediment disturbed, the remaining constituents from the

drilling and development operations, local, hydrographic effects, and

the biota of the immediate area (MMS, 1984 in MMS, 1987). Several

sources4 indicate that the overall impacts to water quality from

resuspension of hydrocarbon extraction wastes is expected to be

temporary and limited in scope to the immediate, localized structure-

removal sites. Also, because of the temporary nature of resuspension,

impacts to marine mammals or their habitat are unlikely.

\4\ National Academy of Sciences (1983), IMCo et. al. (1969),

Neff (1981) among others.

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Other Concerns

Comment: One commenter requested that the rule become effective on

the date of publication in the Federal Register and not on January 1,

1993 as stated in the environmental assessment.

Response: The regulations will become effective November 13, 1995.

Changes from the Proposed Rule

Based upon the comments received on the proposed rule and previous

reviews of the petition, the following modifications have been made:

1. The rule makes clear that the total authorized taking is limited

to 1,000 bottlenose and spotted dolphins by harassment and that the

taking of other species of marine mammals is not authorized. The API in

its application requested an authorization for 100 takes by harassment

of bottlenose and spotted dolphins during the 5-year authorization.

NMFS scientists reviewing the application consider this number to be

low and recommend an authorization for 1,000 dolphins during

[[Page 53144]]

this 5-year period (670 structures 5 years = 134 rigs/year;

1,000 dolphins 5 years = 200 dolphins/yr; 200 dolphins

134 rigs = approximately 1.5 harassment takes/rig removed).

This authorized level of taking, limited to harassment, is still

considered to be small and having a negligible impact on the species or

stocks of marine mammals involved.

2. Because of the difficulty in distinguishing between the two

species of spotted dolphins found in the Gulf of Mexico, NMFS is

authorizing the take of both species.

3. NMFS has modified the regulations to prohibit detonations

whenever the pre-detonation aerial monitoring cannot be conducted and

to limit detonations to a daylight time period;

4. A second post-detonation aerial or vessel survey will be

required to be conducted no earlier than 48 hours and no later than 1

week after the oil and gas structure is removed, unless a systematic

diver or remotely-operated vehicle survey of the site can be, and is,

successfully conducted within 24 hours of the any detonation event.

Aerial and vessel surveys will be required to be systematic and to

concentrate down-current from the structure.

5. The NMFS observer may waive post-detonation monitoring described

in paragraph 4 above provided no marine mammals were sighted during

either the required 48 hour pre-detonation monitoring period or during

the pre-detonation aerial survey.

6. NMFS has modified the regulations to limit explosives to a

pressure level equivalent to the pressure generated by a 50-lb (22.7

kg) explosive charge detonated outside the rig piling.

7. NMFS has modified the regulations to change the reporting

requirement from 15 working days to 30 calendar days for submission of

the reports to NMFS and to allow required information to be provided to

the NMFS observer.

8. New paragraphs have been added to clarify prohibited methods of

taking (Sec. 228.44), renewal of LOAs (Sec. 228.47) and modifications

to LOAs (Sec. 228.48).

9. A new address for the Southeast Regional Office, NMFS has been

provided.

Summary of Rule

This rule authorizes the incidental taking of bottlenose dolphins

and spotted dolphins by U.S. citizens engaged in removing oil and gas

drilling and production structures in state and Federal waters in the

Gulf of Mexico adjacent to the coasts of Texas, Louisiana, Mississippi,

Alabama, and Florida over the next 5 years.

The rule requires that all activities be conducted in a manner that

minimizes adverse effects on bottlenose dolphins and spotted dolphins

and their habitat. Safeguards, monitoring, and reporting requirements

would be consistent with those in place at the time of this proposal

for the incidental take of endangered and threatened sea turtles

authorized for the same activities under the ESA.

Description of Removal Activities

The technology most commonly used in the dismantling of platforms

includes: Bulk explosives, shaped explosive charges, mechanical and

abrasive cutters, and underwater arc cutters. The use of bulk

explosives has become the industry's standard procedure for severing

pilings, well conductors and related supporting structures. When using

bulk charges, the inside of the structure's piles are washed out to at

least 15 ft (4.6 m) below the sediment floor to allow placement of

explosives inside of the structure. Such placement results in a

decrease in the impulse and pressure forces released into the water

column upon detonation. The sizes of the explosive charges are

generally 50 lb (22.7 kg) or less, but can be as much as 200 lb (90.8

kg) when necessary.5 The use of high velocity shaped charges is

reported to have some advantages over bulk explosives and has been used

in combination with smaller bulk charges. The cutting action obtained

by a shaped charge is accomplished by focusing the explosive energy

with a conical metallic liner. A major advantage associated with use of

high velocity shaped charges is that a smaller amount of explosive

charge is required to sever the structure, which also results in

reductions in the impulse and pressure forces released into the water

column. Use of mechanical cutters and underwater arc cutters can be

successful in some circumstances and because they do not produce the

impulse and pressure forces associated with detonation of explosives,

do not involve the incidental taking of marine mammals. According to

MMS, these methods are, in most instances, more time-consuming, costly

and hazardous to divers. Furthermore, if the use of mechanical or arc

cutters were to fail before the structure was completely severed, a

larger charge may be necessary to remove the structure.

\5\ The use of explosive charges greater than 50 lb requires a

reinitiation of consultation under the ESA with NMFS prior to

removal of the rig.

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Description of Habitat and Marine Mammals Affected by Oil and Gas

Rig Removals

A description of the Gulf of Mexico continental shelf area and the

biology and abundance of the three marine mammal species in the Gulf of

Mexico that are anticipated to be taken by this activity can be found

in the EA prepared for this rulemaking. This information can also be

found in the proposed rule (58 FR 33425, June 17, 1993) and need not be

repeated here. Copies of the EA and proposed rule are available upon

request (see ADDRESSES).

Potential Impact of Removal Activities on Bottlenose and Spotted

Dolphins

The potential for injury to marine mammals in the vicinity of

underwater explosions is associated with gas-containing internal

organs, such as the lungs and intestines. The extent of potential

injury decreases as: (1) Distance of the marine mammal from the

explosion increases, (2) size of the marine mammal increases, (3) depth

of the explosion and the affected marine mammal decreases, and (4) size

of the explosive charge decreases. In addition, explosive charges

confined in structure pilings below the mudline produce shock waves of

lower pressure (at a given distance from the explosion) than free-water

explosions.

A computer model, developed to predict the distances from which

marine mammals would suffer only slight injury from underwater

explosions, estimated that a bottlenose dolphin calf would receive only

slight injury about 4,000 ft (1,200 m) from a 1,200-lb (544-kg) charge

detonated in open water at a depth of 125 ft (38 m). Most structures

scheduled for removal are located in water less than 100 ft (38 m)

deep. In most cases, charges are no greater than 50 lb (22.7 kg) and

are confined within the structure piles about 15 ft (4.6 m) below the

mudline. Therefore, as explained in detail in the application and EA,

it may be assumed that marine mammals more than 3,000 ft (910 m) from

structures to be removed would avoid injury caused by the explosions.

An increase in strandings of bottlenose dolphins in the

northwestern Gulf of Mexico occurred in March and April 1986 following

the explosive removal of oil and gas structures in the area. However,

there is no evidence linking the strandings to the removal of the

structures. Furthermore, observers at removals of more than 525

structures in the Gulf of Mexico reported no indication of injury or

death to bottlenose or spotted dolphins, or any

[[Page 53145]]

other marine mammal related to these structure removals.

While the best scientific information currently available indicates

that odontocete cetaceans cannot hear well in the frequencies emitted

by explosive detonations (Richardson et al., 1991), and as additional

evidence indicates that they may not be able to hear the pulse

generated from open-water underwater detonations of explosive charges

because it is very brief (ca. 0.05 sec) (Lehto 1992), for purposes of

this rulemaking, bottlenose and spotted dolphins will be considered to

be taken by harassment, as a result of a noninjurious physiological

response to the explosion-generated shockwave. For example, Turl (1993)

has suggested that Atlantic bottlenose dolphins may be able to detect

low frequency sound by some mechanism other then conventional hearing.

In addition, there may be harassment due to tactile stings from the

shockwave accompanying detonations. This type of taking has been

inferred from studies on humans and seems plausible given studies on

dolphin skin sensitivity where researchers (Ridgway, S.H. and D.A.

Carter. 1993; 1990) concluded that the most sensitive areas of the

dolphin skin (mouth, eyes, snout, melon and blowhole) are about as

sensitive as the skin of human lips and fingers.6 Therefore, even

if dolphins are not capable of hearing the acoustic signature of the

explosion, physiological or behavioral responses to those detonations

may still result.

\6\ Until tests can be conducted to determine the overall

sensitivity of the skin of marine mammals, NMFS has made the

assumption that both humans and marine mammals have similar tactile

sensitivity in the water.

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Conclusion

For the reasons discussed above and in an EA prepared for this

rulemaking, NMFS finds that the proposed activity will result in the

taking of only small numbers of bottlenose and spotted dolphins by

harassment; the total of such taking during a 5-year period will have a

negligible impact on these species; and the takings will not have an

unmitigable adverse impact on the availability of bottlenose and

spotted dolphins for subsistence uses.

National Environmental Policy Act (NEPA)

The Assistant Administrator for Fisheries, NOAA (AA) has

determined, based on an EA prepared by NMFS under NEPA, that this

action will not have a significant impact on the human environment. As

a result of that determination, an environmental impact statement has

not been prepared.

Classification

This final rule has been determined to be not significant for

purposes of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Small Business Administration

when this rule was proposed, that, if adopted, this rule would not have

a significant economic impact on a substantial number of small

entities. This rule will authorize the incidental taking of marine

mammals that otherwise would be prohibited by the MMPA. Accordingly, no

regulatory flexibility analysis was required or prepared. Only about 10

small businesses are active in removing oil and gas structures in the

Gulf of Mexico. These small businesses work under contract to major

petroleum companies, which bear the costs of mitigation measures.

Moreover, the mitigation measures required by this rule are identical

to those already being followed by these small businesses during

removal of oil and gas structures to protect endangered and threatened

sea turtles.

This rule contains collection-of-information requirements subject

to the Paperwork Reduction Act. These requirements have been approved

by the Office of Management and Budget (OMB) under section 3504(b) of

the Paperwork Reduction Act issued under OMB Control number 0648-0151.

Public reporting burden for this collection of information is estimated

to average 27.5 hours per response, including the time to review

instructions, search existing data sources, gather and maintain the

data needed and complete and review the collection of information.

The AA has determined that this rule is consistent to the maximum

extent practicable with the approved Coastal Zone Management Program of

the States of Florida, Alabama, Mississippi, and Louisiana. During the

proposed rule stage, this determination was submitted for review to the

responsible State agencies under section 3.7 of the Coastal Zone

Management Act.

List of Subjects in 50 CFR Part 228

Marine mammals, Reporting and recordkeeping requirements.

Dated: October 4, 1995.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 228 is amended

as follows:

PART 228--REGULATIONS GOVERNING SMALL TAKES OF MARINE MAMMALS

INCIDENTAL TO SPECIFIED ACTIVITIES

1. The authority citation for part 228 continues to read as

follows:

Authority: 16 U.S.C. 1361 et seq.

2. A new subpart E, consisting of Secs. 228.41 through 228.48 is

added to read as follows:

Subpart E--Taking of Bottlenose Dolphins and Spotted Dolphins

Incidental to Oil and Gas Structure Removal Activities

Sec.

228.41 Specified activity and specified geographical region.

228.42 Effective dates.

228.43 Permissible methods of taking; mitigation.

228.44 Prohibitions.

228.45 Requirements for monitoring and reporting.

228.46 Letters of Authorization.

228.47 Renewal of Letters of Authorization.

228.48 Modifications to Letters of Authorization.

Subpart E--Taking of Bottlenose Dolphins and Spotted Dolphins

Incidental to Oil and Gas Structure Removal Activities

Sec. 228.41 Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the incidental taking

of marine mammals by U.S. citizens engaged in removing oil and gas

drilling and production structures in state waters and on the Outer

Continental Shelf in the Gulf of Mexico adjacent to the coasts of

Texas, Louisiana, Alabama, Mississippi, and Florida. The incidental,

but not intentional, taking of marine mammals by U.S. citizens holding

a Letter of Authorization is permitted during the course of severing

pilings, well conductors, and related supporting structures, and other

activities related to the removal of the oil well structure.

(b) The incidental take of marine mammals under the activity

identified in paragraph (a) of this section is limited annually to a

combined total of no more than 200 takings by harassment of bottlenose

dolphins (Tursiops

[[Page 53146]]

truncatus) and spotted dolphins (Stenella frontalis and S. attenuata).

Sec. 228.42 Effective dates.

Regulations in this subpart are effective from November 13, 1995

through November 13, 2000.

Sec. 228.43 Permissible methods of taking; mitigation.

(a) The use of the following means in conducting the activities

identified in Sec. 228.41 is permissible: Bulk explosives, shaped

explosive charges, mechanical or abrasive cutters, and underwater arc

cutters.

(b) All activities identified in Sec. 228.41 must be conducted in a

manner that minimizes, to the greatest extent practicable, adverse

effects on bottlenose dolphins, spotted dolphins, and their habitat.

When using explosives, the following mitigation measures must be

utilized:

(1)(i) If bottlenose or spotted dolphins are observed within 3,000

ft (910 m) of the platform prior to detonating charges, detonation must

be delayed until either the marine mammal(s) are more than 3,000 ft

(910 m) from the platform or actions (e.g., operating a vessel in the

vicinity of the dolphins to stimulate bow riding, then steering the

vessel away from the structure to be removed) are successful in

removing them at least 3,000 ft (910 m) from the detonation site;

(ii) Whenever the conditions described in paragraph (b)(1)(i) of

this section occur, the aerial survey required under Sec. 228.45(b)(1)

must be repeated prior to detonation of charges if the timing

requirements of Sec. 228.45(b)(1) cannot be met.

(2) Detonation of explosives must occur no earlier than 1 hour

after sunrise and no later than 1 hour before sunset;

(3) If weather and/or sea conditions preclude adequate aerial,

shipboard or subsurface surveillance, detonations must be delayed until

conditions improve sufficiently for surveillance to be undertaken; and

(4) Detonations must be staggered by a minimum of 0.9 seconds for

each group of charges.

Sec. 228.44 Prohibitions.

Notwithstanding takings authorized by Sec. 228.43 or by a Letter of

Authorization issued under Sec. 228.6, the following activities are

prohibited:

(a) The taking of a marine mammal that is other than unintentional,

except that the intentional passive herding of dolphins from the

vicinity of the platform may be authorized under section 109(h) of the

Act as described in a Letter of Authorization;

(b) The violation of, or failure to comply with, the terms,

conditions, and requirements of this part or a Letter of Authorization

issued or renewed under Sec. 228.6 or Sec. 228.46;

(c) The incidental taking of any marine mammal of a species either

not specified in this subpart or whenever the incidental taking

authorization for authorized species has been reached; and

(d) The use of single explosive charges having an impulse and

pressure greater than that generated by a 50-lb (22.7 kg) explosive

charge detonated outside the rig piling.

Sec. 228.45 Requirements for monitoring and reporting.

(a) Observer(s) approved by the National Marine Fisheries Service

in advance of the detonation must be used to monitor the area around

the site prior to, during, and after detonation of charges.

(b)(1) Both before and after each detonation episode, an aerial

survey by NMFS-approved observers must be conducted for a period not

less than 30 minutes within 1 hour of the detonation episode. To ensure

that no marine mammals are within the designated 3,000 ft (1,000 yd,

941 m) safety zone nor are likely to enter the designated safety zone

prior to or at the time of detonation, the pre-detonation survey must

encompass all waters within one nautical mile of the structure.

(2) A second post-detonation aerial or vessel survey of the

detonation site must be conducted no earlier than 48 hours and no later

than 1 week after the oil and gas structure is removed, unless a

systematic underwater survey, either by divers or remotely-operated

vehicles, dedicated to marine mammals and sea turtles, of the site has

been successfully conducted within 24 hours of the detonation event.

The aerial or vessel survey must be systematic and concentrate down-

current from the structure.

(3) The NMFS observer may waive post-detonation monitoring

described in paragraph (b)(2) of this section provided no marine

mammals were sighted by the observer during either the required 48 hour

pre-detonation monitoring period or during the pre-detonation aerial

survey.

(c) During all diving operations (working dives as required in the

course of the removals), divers must be instructed to scan the

subsurface areas surrounding the platform (detonation) sites for

bottlenose or spotted dolphins and if marine mammals are sighted to

inform either the U.S. government observer or the agent of the holder

of the Letter of Authorization immediately upon surfacing.

(d)(1) A report summarizing the results of structure removal

activities, mitigation measures, monitoring efforts, and other

information as required by a Letter of Authorization, must be submitted

to the Director, NMFS, Southeast Region, 9721 Executive Center Drive N,

St. Petersburg, FL 33702 within 30 calendar days of completion of the

removal of the rig.

(2) NMFS will accept the U.S. Government observer report as the

activity report if all requirements for reporting contained in the

Letter of Authorization are provided to that observer before the

observer's report is complete.

Sec. 228.46 Letters of Authorization.

(a) To incidentally take bottlenose and spotted dolphins pursuant

to these regulations, each company operating or which operated an oil

or gas structure in the geographical area described in Sec. 228.41, and

which is responsible for abandonment or removal of the platform, must

apply for and obtain a Letter of Authorization in accordance with

Sec. 228.6.

(b) A copy of the Letter of Authorization must be in the possession

of the persons conducting activities that may involve incidental

takings of bottlenose and spotted dolphins.

Sec. 228.47 Renewal of Letters of Authorization.

(a) A Letter of Authorization issued under Sec. 228.6 for the

activity identified in Sec. 228.41 will be renewed annually upon:

(1) Timely receipt of the reports required under Sec. 228.45(d),

which have been reviewed by the Assistant Administrator and determined

to be acceptable;

(2) A determination that the maximum incidental take authorizations

in Sec. 228.41(b) will not be exceeded; and

(3) A determination that the mitigation measures required under

Sec. 228.43(b) and the Letter of Authorization have been undertaken.

(b) If a species' annual authorization is exceeded, the Assistant

Administrator will review the documentation submitted with the annual

reports required under Sec. 228.45(d), to determine that the taking is

not having more than a negligible impact on the species or stock

involved.

(c) Notice of issuance of a renewal of the Letter of Authorization

will be published in the Federal Register.

[[Page 53147]]

Sec. 228.48 Modifications to Letters of Authorization.

(a) In addition to complying with the provisions of Sec. 228.6,

except as provided in paragraph (b) of this section, no substantive

modification, including withdrawal or suspension, to the Letter of

Authorization issued pursuant to Sec. 228.6 and subject to the

provisions of this subpart shall be made until after notice and an

opportunity for public comment. For purposes of this paragraph, renewal

of a Letter of Authorization under Sec. 228.47, without modification,

is not considered a substantive modification.

(b) If the Assistant Administrator determines that an emergency

exists that poses a significant risk to the well-being of the species

or stocks of marine mammals specified in Sec. 228.41(b), the Letter of

Authorization issued pursuant to Sec. 228.6, or renewed pursuant to

this section may be substantively modified without prior notice and an

opportunity for public comment. A notice will be published in the

Federal Register subsequent to the action.

[FR Doc. 95-25196 Filed 10-11-95; 8:45 am]

BILLING CODE 3510-22-F