67 FR 148 pgs. 49869-49875 - Taking and Importing Marine Mammals; Taking Bottlenose Dolphinsand Spotted Dolphins Incidental to Oil and Gas Structure Removal Activitiesin the Gulf of Mexico
Type: RULEVolume: 67Number: 148Pages: 49869 - 49875
Docket number: [Docket No. 020326071-2166-02; I.D. 061402E]
FR document: [FR Doc. 02-19432 Filed 7-31-02; 8:45 am]
Agency: Commerce Department
Sub Agency: National Oceanic and Atmospheric Administration
Official PDF Version: PDF Version
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 020326071-2166-02; I.D. 061402E]
RIN 0648-AP83
Taking and Importing Marine Mammals; Taking Bottlenose Dolphinsand Spotted Dolphins Incidental to Oil and Gas Structure Removal Activitiesin the Gulf of Mexico
AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic andAtmospheric Administration (NOAA), Commerce.
ACTION:
Final rule.
SUMMARY:
NMFS is issuing regulations authorizing and governing the taking ofbottlenose and spotted dolphins incidental to the removal of oil and gasdrilling and production structures in state waters and on the OuterContinental Shelf (OCS) in the Gulf of Mexico for a period not to exceed 18months. The incidental taking of small numbers of marine mammals isauthorized by the Marine Mammal Protection Act (MMPA), if certain findingsare made and regulations are issued that include requirements formonitoring and reporting. These regulations do not authorize the removalof the structures as such authorization is provided by the MineralsManagement Service (MMS) and is not within the jurisdiction of NMFS.Rather, these regulations authorize the unintentional incidental take ofmarine mammals in connection with such activities and prescribe methods oftaking and other means of effecting the least practicable adverse impact onthe species and their habitat.
DATES:
Effective August 1, 2002 through February 2, 2004.
ADDRESSES:
Copies of the Environmental Assessment (EA), proposed rule, andapplication may be obtained by writing to Donna Wieting, Chief, MarineMammal Conservation Division, Office of Protected Resources, 1315 East-WestHighway, Silver Spring, MD 20910-3282 or by telephoning the contactlisted here (see FOR FURTHER INFORMATION CONTACT ).
Comments regarding the burden-hour estimate or any other aspect of thecollection of information requirement contained in this final rule shouldbe sent to the Chief of the Office of Protected Resources, and to theOffice of Information and Regulatory Affairs, Office of Management andBudget (OMB), Attention: NOAA Desk Officer, Washington, D.C. 20503.
FOR FURTHER INFORMATION CONTACT:
Kenneth R. Hollingshead, Office of Protected Resources, (301)713-2322.
SUPPLEMENTARY INFORMATION:
Background
Section 101 of the MMPA (16 U.S.C. 1361 et seq. ) directsthe Secretary of Commerce (Secretary) to allow, upon request, theincidental, but not intentional taking of small numbers of marine mammalsby U.S. citizens who engage in a specified activity (other than commercialfishing) within a specified geographical region if certain findings aremade and regulations governing the taking are issued. Effective January26, 1996, by Department Delegation Order 10-15, the Secretarydelegated authority to perform the functions vested in the Secretary asprescribed by the MMPA to the Administrator of the National Oceanic andAtmospheric Administration (NOAA). On December 17, 1990, under NOAAAdministrative Order 205-11, 7.01, the Under Secretary for Oceans andAtmosphere delegated authority to sign material for publication in the Federal Register to the Assistant Administrator for Fisheries,NOAA.
Permission for a take shall be granted if the Secretary finds, afternotice and opportunity for public comment, that the taking will involveonly small numbers of marine mammals, will have no more than a negligibleimpact on the species or stock(s) and will not have an unmitigable adverseimpact on the availability of the species or stock(s) for subsistence uses.If such findings are warranted, NMFS must prescribe regulations thatinclude permissible methods of taking and other means effecting the leastpracticable adverse impact on the species and its habitat, and on theavailability of the species for subsistence uses, paying particularattention to rookeries, mating grounds and areas of similar significance.The regulations must include requirements pertaining to the monitoring andreporting of such taking.
On October 12, 1995 (60 FR 53145), NMFS issued regulations governing thetaking of bottlenose and spotted dolphins incidental to oil and gasstructure removal activities in state waters and on the OCS in the Gulf ofMexico (50 CFR 216.141-148). Under these regulations, operators whoremoved oil and gas drilling and production structures and relatedfacilities in state and Federal waters of the Gulf of Mexico adjacent tothe coasts of Texas, Louisiana, Mississippi, Alabama, and Florida appliedfor Letters of Authorization (LOAs) to incidentally take bottlenose andspotted dolphins in the course of structure removal activities. OnNovember 13, 2000, these regulations expired and NMFS could no longer issueLOAs for structure removal activities in the Gulf of Mexico.
Summary of Action
On February 12, 2002, the American Petroleum Institute (API) submitted arequest to NMFS requesting an interim policy statement to provide the oiland gas industry with protection from incidental take liability under theMMPA during the 2002 structure decommissioning and removal season. Inresponse, NMFS has elected to promulgate these 18-monthregulations.
On April 19, 2002 (67 FR 19373), NMFS proposed new regulations governingthe incidental take of bottlenose dolphins ( Tursiopstruncatus ) and spotted dolphins ( Stenella frontalis and S. attenuata ) in water depths equal to or less than 200meters (m) (656 feet, ft). With finalization of these new regulations,operators who remove oil and gas drilling and production structures andrelated facilities in state and Federal waters of the Gulf of Mexicoadjacent to the coasts of Texas, Louisiana, Mississippi, Alabama, andFlorida must apply for LOAs to incidentally take bottlenose and spotteddolphins in the course of structure removal activities in water depthsequal to or less than 200 m (656 ft).
NMFS received a request from the API for regulations similar to thoserequested originally on October 30, 1989. In that request, API estimatedthat 670 structures would be removed in the Gulf of Mexico over a5-year authorization period. While most of the structures were inwater less than 30.5 m (100 ft) deep, a few may be in deeper water. Alonger range plan estimated that about 5,500 structures will be removed ina 35-year period. The most frequently used procedure of removal isto 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.The effects of explosives used for removal of oil and gas structures onspecies listed under the Endangered Species Act (ESA) that are under NMFS'purview were analyzed in a previous biological opinion. That opinionconcluded that the use of explosives to remove oil and gas structures,accompanied by the use of an observer program and other take minimizationmeasures laid out in the accompanying incidental take statement, was notlikely to jeopardize the continued existence of endangered and threatenedsea turtles. The conclusions of the previous biological opinion apply tothis regulation to authorize incidental takes of marine mammals because theunderlying action (including the use of NMFS observers and takeminimization measures) is the same. No ESA-listed marine mammals areimplicated in this action.
Similar to the case for sea turtles, impacts to bottlenose and spotteddolphins would come primarily from exposure to sound and pressure wavesassociated with detonating the explosives. The 1995 EA states that themost likely form of incidental take as a result of structure removals isharassment from low-level sound and pressure waves. However, animals closeenough to the detonation could be injured or killed as a result of tissuedestruction. In recognition of this, removal operators employed themitigation measures for sea turtles to also protect dolphins prior to API's1989 request to NMFS, during the effectiveness period of the regulations,and since the time regulations governing the taking of small numbers ofbottlenose and spotted dolphins expired in November 2000.
Comments and Responses on the Proposed Rule
On April 19, 2002 (67 FR 19373), NMFS published for public review andcomment the proposed rule to authorize and govern the taking of bottlenoseand spotted dolphins incidental to the removal of oil and gas drilling andproduction structures in state waters and on the OCS in the Gulf of Mexico.During the 15-day comment period, NMFS received 5 letters commentingon the proposed rule. Comments contained in those letters are addressedhere.
Process Concerns
Comment 1: The Federal Register notice waspublished April 19, 2002, with only a 17-day comment period. This ishardly adequate time to obtain a copy of, fully analyze the accompanyingEA, and research regulations of this complexity. In addition, the priorregulations governing these activities expired November 13, 2000, but APIsubmitted its request for an interim policy statement on February 12, 2002.Considering that the oil and gas industry had already operated for 15months without regulation, why did NOAA feel compelled to issue theregulations so rapidly? Does the need for these interim regulations reallyoutweigh the public's right to participate fully and fairly in theregulatory process?
Response: For this action, NMFS balanced the needs of therequestor (i.e., the API) and their legal obligations under the OuterContinental Shelf Lands Act, the low likelihood that the activities mayresult in adverse impacts to marine mammals and the fact that this is onlya short-term action with the requirement to provide an opportunity forpublic review and comment. In this case, in over 5 years of monitoringstructure removals in the Gulf of Mexico, there has been no evidence of ataking, as defined under the MMPA, of a bottlenose or spotted dolphin.Therefore, NMFS is confident that the impact of structure removals in theGulf of Mexico on bottlenose and spotted dolphin populations to date hasbeen negligible. Since information on impacts to other species is lackingand monitoring results from deeper Gulf waters do not exist, NMFS decidedto implement a regulation that is similar to the previous 5-year regulation(i.e., only authorize the take of bottlenose and spotted dolphins andexplosive charges no greater than 50 lbs (22.7 kg)). In order to ensurethat this regulation did not go beyond the scope of the current EA, NMFShas added a prohibition on taking marine mammals in water depths of 200 m(656 ft) or greater and additional monitoring requirements in water depthsgreater than 46 m (150 ft).
Marine Mammal Impact Concerns
Comment 2: There are at least 30 species of marine mammalsreported in the Gulf of Mexico that could be present, at leastoccasionally, in areas where they could be affected by structure removal.Therefore, it is unclear why the rule would authorize the possibleincidental taking of only bottlenose dolphins and spotted dolphins. It wasrecommended that either the rule be changed to authorize the incidentaltaking of small numbers of any marine mammal that reasonably can beexpected to occur in the northern Gulf of Mexico or specifically limitingthe incidental take to the two species, noting that taking of any othermarine mammal species would constitute a violation of the MMPA.
Response: The API in its revised 1991 applicationrequested the incidental take of only bottlenose and spotted dolphinsbecause these two species were the only marine mammal species recorded byNMFS observers during 1983-91 aerial and vessel surveys in the Gulfof Mexico. These surveys, carried out by the NMFS Southeast FisheriesScience Center, indicated that the bottlenose dolphin is the most commonmarine mammal in these waters, accounting for more than 95 percent of thesightings. The sightings also showed that spotted dolphins were common inthe Gulf of Mexico. At that time, NMFS scientists indicated that theprobability of marine mammals other than these species being incidentallytaken was remote. Therefore, in its issuance of regulations governing thesame activity in 1995, NMFS did not consider it necessary to require theapplicant to request an authorization for additional species. Moreover,due to aerial surveys just prior to detonation, 48-hr pre-detonationvessel observer coverage and the relatively shallow water depth, it ishighly unlikely that any marine mammal of any species would not be observedprior to detonation and that detonation suspended.
Since 1995, NMFS, MMS, and other organizations and universities haveconducted additional marine mammal surveys and discovered that the spermwhale ( Physeter macrocephalus ), listed as endangered underthe ESA, is a common inhabitant in areas of the northern Gulf of Mexicowith water depths greater than 200 m (656 ft). Therefore, to avoid thetake of this species or any other marine mammal species, this rule does notauthorize the take of any marine mammal in water depths equal to orexceeding 200 m (656 ft). NMFS cannot issue authorizations for the take ofsperm whales or any other marine mammal species, besides bottlenose andspotted dolphins, until industry provides additional information on theimpact explosive removals may have on marine mammals inhabiting waterdepths of 200 m (656 ft) or more and until industry develops a proposal formitigating and monitoring such impacts. Under this final rule, theincidental take of any marine mammal species in water depths of 200 m (656ft) or more will be in violation of the MMPA, the regulations, and any LOAissued as a result of this rulemaking.
Comment 3: Information needed to complete 5-yearregulations for the removal of oil and gas structures in the Gulf of Mexicoat all water depths should be collected as soon as possible. Suchinformation needs include scientific studies assessing the habitatrequirements, behaviors, fecundity, and species diversity of deep-watermarine mammal stocks. If this information is not provided to NMFS asquickly as possible, new 5-year regulations may not be developed before theproposed 1-year rule expires.
Response: It is NMFS' understanding that MMS andindustry representatives are working together to address all informationneeds in order to complete NEPA documentation and to request promulgationof MMPA regulations in a timely manner.
Effective Dates Concerns
Comment 4: Expand the time frame of the rule's effectivedates to more than 1 year.
Response: To encourage the timely submission of newdocumentation under the National Environmental Policy Act (NEPA) and a newpetition for regulations, NMFS originally proposed that this rule only beeffective for 1 year. NMFS has been informed by MMS (on behalf of the oilindustry) that the assessments and analyses are presently underway but thata new application under section 101(a)(5)(A) of the MMPA, along withsupporting NEPA documentation, can not be submitted earlier than the springof 2003. In order to avoid another lapse in the regulation's period ofeffectiveness and to ensure maximum public review and comment during theregulatory review process (the NMFS regulatory process normally takes 8 to12 months with a minimum of 75 days for public review), an expiration datein 12 months from the date of this rules effectiveness does not allowenough time for the next rule-making process to be completed before thiscurrent rule expires, unless the rule-making process is expedited. Asinput from the environmental science and advocacy communities will play alarge role in developing these new, comprehensive 5-year regulations, NMFSdoes not want to undertake expedited rulemaking since that would precludeadequate public review.
Activity Concerns
Comment 5: In the proposed rule, the SupplementaryInformation section titled "Description of Removal Activities"states that "explosive charges confined in structure pilings belowthe mudline produce shock waves of lower pressure (at a given distance fromthe explosion) than free-water explosions." While this statement maybe true in many instances, it may not be so for all structure removals.For example, an exploratory well can have a well casing that opens near thesea floor. An explosive bulk charge set off within the tubular would havethe shock wave and acoustic energy directed upward since it is the path ofleast resistance, unlike setting off an explosive charge within a pilingthat goes to the sea surface.
Response: As discussed in NMFS' 1995 EA on issuance ofregulations on the taking of bottlenose and spotted dolphins by theexplosive removal of offshore structures, Connor (1990) indicated that peakshock overpressures from explosives detonated within the jacket weresignificantly lower than occurred in free field. His results can besummarized as follows: (1) detonation below the mud line with the pile topbelow the water surface provides approximately a 50 percent reduction inpeak pressure compared to an open field detonation of the same size; (2)detonation below the mud line with the pile top above the water surfaceprovides approximately a 75 percent reduction in peak pressure compared toan open field detonation of the same size; and (3) explosive pressuresgenerally were difficult to detect at the 300' gauge station,indicating the radius of lethal pressures is limited where explosives arecontained within a piling.
Monitoring, Mitigation, and Reporting
Comment 6: Change the rule to prohibit detonation ofexplosives when, for any reason, adequate monitoring cannot be done toensure, with a high degree of certainty, that there are no marine mammalswithin the area where tissue damage or hearing damage could occur.
Response: The regulations prohibit detonations wheneverthe pre-detonation aerial survey monitoring requirements cannot beconducted within the time frame specified in the regulations, to limitdetonations to a daylight time period, and to delay any detonations whenmonitoring activities are not possible.
Comment 7: Section 216.143 (Permissible Methods of Taking;mitigation) of the proposed rule does not specify that explosives must beset off within a tubular or below the mudline. Are the regulationsintended to permit the use of explosives outside a tubular or above themudline or are they intended to defer to MMS regulations governingstructure removals?
Response: The designated 3,000-ft (910-m)marine mammal safety zone for this final rule reflects a"worst-case" explosion outside a tubular and above the mudline.In addition, this safety zone for marine mammals reflects the safety rangedetermined to be appropriate for sea turtles in a biological opinion undersection 7 of the ESA. Therefore, since NMFS has adopted this precautionaryapproach to handle all explosion scenarios for 50-lb (22.7-kg)explosive charges, the expectation is that oil and gas companies and theirrespective demolition contractors must follow MMS regulations governingplacement of explosives during structure removals throughout the effectivedates of this regulation.
Comment 8: Section 216.145(e)(Requirements for Monitoringand Reporting) specifies using 328 ft (100 m) or greater as the water depthfor use of passive acoustic detection. It would be useful to have asupporting explanation of the criteria.
Response: Passive acoustic detection is recognized by NMFSas a potentially valuable tool in monitoring the presence or absence ofmarine mammals prior to removal activities and is, therefore, beingrequired when operationally practicable. The water depth chosen is basedon discussions with MMS officials and is intended for deeper waters wheredivers cannot be deployed and remotely operated vehicles (ROVs) are alsobeing used. This added monitoring requirement should help authorizationholders better detect the presence of marine mammal species other thanbottlenose and spotted dolphins in deeper waters, and thus ensure that theyare not in violation of the MMPA. If ROVs are being used simultaneouslythis may also allow for verification of species identity and/or estimatesof the number of animals present.
Comment 9: Section 216.145(b)(3) (Requirements forMonitoring and Reporting) makes reference to a required, 48-hourpre-detonation period. Although this 48-hour period has been a standardpart of the platform-removal monitoring protocol in the past, it is notdescribed anywhere else in the section.
Response: The observers required by this rulemaking arethe same observers required under the Section 7 Biological Opinion'sIncidental Take Statement (ITS). That ITS requires observations beconducted no less than 48 hours prior to detonation. This rulemakingtherefore ensures consistency with that Opinion.
Environmental Concerns
Comment 10: Hazardous substances may be deposited andaccumulate in sediments around production structures. If disturbed andresuspended in the water column, these mate rials may enter the marine foodweb and be biomagnified in dolphins and other top carnivores.
Response: Impacts resulting from resuspension of bottomsediments include increased water turbidity and mobilization of sedimentscontaining hydrocarbon extraction waste (drill mud, cuttings, etc.) in thewater column. The magnitude and extent of any turbidity increases woulddepend upon the hydrographic parameters of the area, nature and duration ofthe activity, and size and composition of the bottom material (MMS, 1987).Resuspension of bottom sediments, and solid, liquid, and gaseous dischargeswould be generated by removal and transportation operations.
Increased turbidity would temporarily impact photic processes at theremoval site and reduce primary productivity. The potential effects ofmobilizing sediments with the drilling and production wastes could alsoimpact the localized marine environment, depending on the quantities ofsediment disturbed, the remaining constituents from the drilling anddevelopment operations, local, hydrographic effects, and the biota of theimmediate area (MMS, 1984 in MMS, 1987). Several sources indicate that theoverall impacts to water quality from resuspension of hydrocarbonextraction wastes is expected to be temporary and limited in scope to theimmediate, localized structure-removal sites. Also, because of thetemporary nature of resuspension, impacts to marine mammals or theirhabitat are unlikely in an 18-month period.
Changes from the Proposed Rule
The following modifications have been made to the proposed rule:
1. The effective dates of the regulations have been changed to beeffective for 18 months.
2. Since divers are ineffective at depths exceeding 150 ft (46 m), therequirement for monitoring with ROVs is changed from a water depth of 492ft (150 m) to 150 ft (46 m) or greater.
3. Based on several comments, references to "rigs" or"platforms" have been changed to "structures" toclarify that there are a variety of offshore structures that may be removedusing explosives that need to be included under this regulation.
4. In section 216.145(e), marine mammals are "detected" bythe passive acoustic device, not "sighted."
5. Section 216.147 (Renewal of LOAs) is deleted since the regulationswill be in effect for 18 months thereby eliminating the requirement forannual renewal.
Summary of Rule
This final rule authorizes the incidental taking of bottlenose dolphinsand spotted dolphins by U.S. citizens engaged in removing oil and gasdrilling and production structures in state and Federal water depths equalto or less than 200 m (656 ft) in depth in the Gulf of Mexico adjacent tothe coasts of Texas, Louisiana, Mississippi, Alabama, and Florida for aperiod not to exceed 18 months. This final rule requires that allactivities be conducted in a manner that minimizes adverse effects onbottlenose and spotted dolphins and their habitat. Mitigation, monitoring,and reporting requirements would be consistent with those in place at thetime of this proposal for the incidental take of endangered and threatenedsea turtles authorized for the same activities under the ESA.
Description of Removal Activities
The technology most commonly used in the dismantling of structuresincludes: bulk explosives, shaped explosive charges, mechanical andabrasive cutters, and underwater arc cutters. The use of bulk explosiveshas become the industry's standard procedure for severing pilings, wellconductors and related supporting structures. When using bulk charges, theinside 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 thestructure. Such placement results in a decrease in the impulse andpressure forces released into the water column upon detonation. The sizesof the explosive charges are most commonly 50 lb (22.7 kg) or less, butthey can be as much as 200 lb (90.8 kg) when necessary. This final ruleand the implementing standard Biological Opinion however, only authorizethe use of 50 lb (22.7 kg) or less explosive charges. The use of highvelocity shaped charges is reported to have some advantages over bulkexplosives and has been used in combination with smaller bulk charges. Thecutting action obtained by a shaped charge is accomplished by focusing theexplosive energy with a conical metallic liner. A major advantageassociated with use of high velocity shaped charges is that a smalleramount of explosive charge is required to sever the structure, which alsoresults in reductions in the impulse and pressure forces released into thewater column. However, not all explosive charges confined in structurepilings below the mudline produce shock waves of lower pressure (at a givendistance from the explosion) than free-water explosions. For example, anexploratory well can have a well casing that opens near the sea floor. Anexplosive bulk charge set off within the tubular would have the shock waveand acoustic energy directed upward since it is the path of leastresistance, unlike setting off an explosive charge within a piling thatgoes to the sea surface.
Use of mechanical cutters and underwater arc cutters can be successfulin some circumstances, and because they do not produce the impulse andpressure forces associated with detonation of explosives, such use does notinvolve the incidental taking of marine mammals. According to MMS, thesemethods are, in most instances, more time-consuming, costly and hazardousto divers. Furthermore, if the use of mechanical or arc cutters were tofail before the structure was completely severed, a larger charge may benecessary to remove the structure.
Description of Habitat and Marine Mammals Affected by Oil and GasStructure Removals
A description of the Gulf of Mexico continental shelf area and thebiology and abundance of bottlenose and spotted dolphins in the Gulf ofMexico that are anticipated to be taken by this activity can be found inthe EA prepared for previous rulemaking. This information can also be foundin the previous proposed rule for regulations (58 FR 33425, June 17, 1993).To avoid the incidental take of other marine mammal species, NMFS will notauthorize the incidental taking of marine mammals in water depths greaterthan 200 m (656 ft) or the use of explosive charges greater than 50 lb(22.7 kg). Copies of the EA and API's 1989 and revised 1991 applicationare available upon request (see ADDRESSES ).
Potential Impact of Removal Activities on Bottlenose and SpottedDolphins
The potential for injury to marine mammals in the vicinity of underwaterexplosions is associated with gas-containing internal organs, such as thelungs and intestines. The extent of potential injury decreases as: (1)distance of the marine mammal from the explosion increases; (2) size of themarine mammal increases; (3) depth of the explosion and the affected marinemammal decreases; and, (4) size of the explosive charge decreases. Inaddition, explosive charges confined in structure pilings below the mudlinegenerally produce shock waves of lower pressure (at a given distance fromthe explosion) than free-water explosions.
A computer model, developed to predict the distances from which marinemammals would suffer only slight injury from underwater explosions,estimated that a bottlenose dolphin calf would receive only slight injuryabout 4,000 ft (1,200 m) from a 1,200-lb (544-kg) chargedetonated in open water at a depth of 125 ft (38 m). According to API,most structures scheduled for removal in 2002 are located in water lessthan 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 EA, it may beassumed that marine mammals more than 3,000 ft (910 m) from structures tobe removed would avoid injury caused by the explosions.
An increase in strandings of bottlenose dolphins in the northwesternGulf of Mexico occurred in March and April 1986 following the use ofexplosives to remove oil and gas structures in the area. However, there isno evidence linking the strandings to the removal of the structures.Furthermore, observers at removals of more than 525 structures in the Gulfof Mexico reported no indication of injury or death to bottlenose orspotted dolphins, or any other marine mammal related to these structureremovals. According to observer reports required by NMFS during the5-year duration of the previous regulations' effectiveness, therewere no marine mammal takes associated with removal activities.
The best scientific information available indicates that dolphins cannothear well in the frequencies emitted by explosive detonations (Richardson et al. , 1991), and additional evidence indicates that theymay not be able to hear the pulse generated from open-water underwaterdetonations of explosive charges because of their short duration (ca. 0.05sec) (Lento, 1992). However, for purposes of this final rule, bottlenoseand spotted dolphins are considered to be taken by harassment as a resultof a non-injurious physiological response to the explosion-generatedshockwave and potential behavioral impacts. For example, Turl (1993) hassuggested that Atlantic bottlenose dolphins may be able to detect lowfrequency sound by some mechanism other then conventional hearing. Inaddition, there may be harassment due to tactile stings from the shockwaveaccompanying detonations. This type of taking has been inferred fromstudies on humans and seems plausible given studies on dolphin skinsensitivity 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 lipsand fingers. Therefore, even if dolphins are not capable of hearing theacoustic signature of the explosion, physiological or behavioral responsesto those detonations may still result.
Conclusion
For the reasons discussed above and in an EA prepared for previoussimilar rulemaking, NMFS believes that this activity will likely result inthe taking of only small numbers of bottlenose and spotted dolphins byharassment; the total of such taking during an 18-month period will likelyhave only a negligible impact on these species; and the takings will nothave an unmitigable adverse impact on the availability of bottlenose andspotted dolphins for subsistence uses.
Classification
This action is not significant for purposes of Executive Order12866.
The Chief Counsel for Regulation of the Department of Commerce certifiedto the Chief Counsel for Advocacy of the Small Business Administration,when the original rule was proposed (58 FR 33425, June 17, 1993), that, ifadopted, the rule would not have a significant economic impact on asubstantial number of small entities within the meaning of the RegulatoryFlexibility Act. In 1994, approximately 10 small businesses were active inremoving oil and gas structures in the Gulf of Mexico. These smallbusinesses work under contract to major petroleum companies, which bear thecosts of mitigation measures. This action imposes the same requirementsand thus does not alter those conclusions. Therefore, the Chief Counselfor Regulation is again certifying that this final rule will not have asignificant economic impact on a substantial number of small entitieswithin the meaning of the Regulatory Flexibility Act.
Notwithstanding any other provision of law, no person is required torespond to nor shall a person be subject to a penalty for failure tocomply with a collection of information subject to the requirements of thePaperwork Reduction Act (PRA) unless that collection of informationdisplays a currently valid OMB control number. This final rule containscollection-of-information requirements subject to the Paperwork ReductionAct. These requirements are identical to those approved during previousrulemaking on the same activity by the Office of Management and Budget(OMB) under section 3504(b) of the Paperwork Reduction Act issued under OMBcontrol number 0648-0151. Public reporting burden for thiscollection of information was 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 collectionof information. Comments regarding the burden-hour estimate or any otheraspect of the collection of information requirement, including suggestionsfor reducing the burden to NMFS and OMB (see ADDRESSES )contained in this final rule should be sent to the above individual and tothe Office of Information and Regulatory Affairs, Office of Management andBudget (OMB), Attention: NOAA Desk Officer, Washington, D.C. 20503.
Section 553(d) of Title 5 of the U.S.C. requires that the publication ofa substantive rule shall be made not less than 30 days before its effectivedate unless the rule grants or recognizes an exemption or relieves arestriction. Until these regulations are effective, the oil and gasindustry can not be issued LOAs authorizing takings incidental to theiroperations. This places the operators in a position of potentiallyviolating the MMPA should their activities result in a take of a marinemammal. Therefore, the Assistant Administrator for Fisheries, NOAA findsthat the waiver of the 30-day delayed effectiveness date relieves arestriction pursuant to 5 U.S.C. 553(d)(1).
This final rule does not contain policies with federalism implicationsas that term is defined in Executive Order 13132.
NEPA
In accordance with NOAA Administrative Order 216-6 (EnvironmentalReview Procedures for Implementing the National Environmental Policy Act,May 20, 1999), NMFS has determined that this action is categoricallyexcluded from further environmental review. This determination is based onthe 1995 EA for the 5-year small take regulations for the sameactivities, which resulted in a Finding of No Significant Impact, and theabsence of any marine mammal takes during the reporting period for thoseregulations.
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties,Reporting and record keeping requirements, Seafood, Transportation.
Dated: July 26, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Fisheries, National MarineFisheries Service.
For the reasons set out in the preamble, 50 CFR part 216 is amended toread as follows:
PART 216-REGULATIONS GOVERNING THE TAKING AND IMPORTING OFMARINE MAMMALS
1. The authority citation for part 216 continues to read asfollows:
Authority:
16 U.S.C. 1361 et seq . unless otherwise noted.
2. Subpart M is added to read as follows:
Subpart M-Taking of Bottlenose Dolphins and Spotted DolphinsIncidental to Oil and Gas Structure Removal Activities
Sec. 216.141 Specified activity and specified geographical region.216.142 Effective dates.216.143 Permissible methods of taking; mitigation.216.144 Prohibitions.216.145 Requirements for monitoring and reporting.216.146 Letters of Authorization.216.147 Modifications to Letters of Authorization.
Subpart M--Taking of Bottlenose Dolphins and Spotted DolphinsIncidental to Oil and Gas Structure Removal Activities
§ 216.141 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking ofmarine mammals by U.S. citizens engaged in removing oil and gas drillingand production structures in state waters and on the Outer ContinentalShelf 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 Authorizationis permitted during the course of severing pilings, well conductors, andrelated supporting structures, and other activities related to the removalof the oil well structure.
(b) The incidental take of marine mammals under the activity identifiedin paragraph (a) of this section is limited annually to a total of 200takings by harassment of bottlenose dolphins (Tursiops truncatus) andspotted dolphins ( Stenella frontalis and S.attenuata ).
§ 216.142 Effective dates.
Effective August 1, 2002 through February 2, 2004.
§ 216.143 Permissible methods of taking; mitigation.
(a) The use of the following means in conducting the activitiesidentified in § 216.141 are permissible: Bulk explosives,shaped explosive charges, mechanical or abrasive cutters, and underwaterarc cutters.
(b) All activities identified in § 216.141 must be conducted in amanner that minimizes, to the greatest extent practicable, adverse effectson bottlenose dolphins, spotted dolphins, and their habitat. When usingexplosives, the following mitigation measures must be utilized:
(1)(i) If bottlenose or spotted dolphins are observed within 3,000 ft(910 m) of the structure prior to detonating charges, detonation must bedelayed until either the marine mammal(s) are more than 3,000 ft (910 m)from the structure or actions (e.g., operating a vessel in the vicinity ofthe dolphins to stimulate bow riding, then steering the vessel away fromthe structure to be removed) are successful in removing them at least 3,000ft (910 m) from the detonation site;
(ii) Whenever the conditions described in paragraph (b)(1)(i) of thissection occur, the aerial survey required under § 216.145(b)(1)must be repeated prior to detonation of charges.
(2) Detonation of explosives must occur no earlier than 1hour aftersunrise and no later than 1 hour before sunset;
(3) If weather or sea conditions preclude adequate aerial, shipboard orsubsurface surveillance, detonations must be delayed until conditionsimprove sufficiently for surveillance to be undertaken; and
(4) Detonations must be staggered by a minimum of 0.9 seconds for eachgroup of charges.
§ 216.144 Prohibitions.
Notwithstanding takings authorized by § 216.141 or by aLetter of Authorization issued under § 216.106, the followingactivities are prohibited:
(a) The taking of a marine mammal that is other than unintentional,except that the intentional passive herding of dolphins from the vicinityof the structure may be authorized under section 109(h) of the Act asdescribed 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 orrenewed under § 216.106 or § 216.146;
(c) The incidental taking of any marine mammal of a species either notspecified in this subpart or whenever the taking authorization forauthorized species has been reached;
(d) The use of single explosive charges having an impulse and pressuregreater than that generated by a 50-lb (22.7 kg) explosive chargedetonated outside the structure piling; and
(e) The taking of a marine mammal in water depths greater than 656 ft(200 m).
§ 216.145 Requirements for monitoring and reporting.
(a) Observer(s) approved by the National Marine Fisheries Service inadvance of the detonation must be used to monitor the area around the siteprior to, during, and after detonation of charges.
(b)(1) Both before and after each detonation episode, a 30-minute ormore aerial survey by NMFS-approved observers must be conducted within 1hour of the detonation episode. To ensure that no marine mammals arewithin the designated 3,000 ft (941 m) safety zone nor are likely to enterthe designated safety zone prior to or at the time of detonation, thepre-detonation survey must encompass all waters within one nautical mile ofthe structure.
(2) A second post-detonation aerial or vessel survey of the detonationsite must be conducted no earlier than 48 hours and no later than 1 weekafter the oil and gas structure is removed, unless a systematic underwatermarine mammal survey, either by divers or remotely operated vehicles thatare dedicated to marine mammals and sea turtles, of the site has beensuccessfully conducted with 24 hours of the detonation event. The aerialor vessel survey must concentrate down-current from the structure.
(3) The NMFS-approved observer may waive post-detonation monitoringdescribed in paragraph (b)(2) of this section provided no marine mammalswere sighted during either the aerial surveys before detonation or duringthe 48 hour pre-detonation observer monitoring period.
(c) During all diving operations (working dives as required in thecourse of the removals), divers must be instructed to scan the subsurfaceareas surrounding the structure (detonation) sites for bottlenose orspotted dolphins and if marine mammals are sighted to inform either theNMFS-approved observer or the agent of the holder of the Letter ofAuthorization immediately upon surfacing.
(d) In water depths of 150 ft (46 m) or greater, or in cases wheredivers are not deployed in the course of normal removal operations, aremotely operated vehicle (ROV) must be deployed prior to detonation toscan areas below structures. If marine mammals are sighted, the ROVoperator must inform either the NMFS-approved observer or the agent of theholder of the Letter of Authorization immediately.
(e) In water depths of 328 ft (100 m) or greater, passive acousticdetection must be employed prior to detonation. If marine mammals aredetected by the acoustic device, the operator must inform either the U.S.government observer or the agent of the holder of the Letter ofAuthorization immediately.
(f)(1) A report summarizing the results of structure removalactivities, mitigation measures, monitoring efforts, and other informationas required by a Letter of Authorization, must be submitted to the RegionalAdministrator, NMFS, Southeast Region, 9721 Executive Center Drive N, St.Petersburg, FL 33702 within 30 calendar days of completion of the removalof the structure.
(2) NMFS will accept the NMFS-approved observer report as the activityreport if all requirements for reporting contained in the Letter ofAuthorization are provided to that observer before the observer's report iscomplete.
§ 216.146 Letters of Authorization.
(a) To incidentally take bottlenose and spotted dolphins pursuant tothis subpart, each company operating or that operated an oil or gasstructure in the geographical area described in § 216.141, andthat is responsible for abandonment or removal of the structure, must applyfor and obtain a Letter of Authorization in accordance with§ 216.106.
(b) A copy of the Letter of Authorization must be in the possession ofthe persons conducting activities that may involve incidental takings ofbottlenose and spotted dolphins.
§ 216.147 Modifications to Letters of Authorization.
(a) In addition to complying with the provisions of§ 216.106, except as provided in paragraph (b) of this section,no substantive modification, including withdrawal or suspension, to theLetter of Authorization issued pursuant to § 216.106 and subjectto the provisions of this subpart shall be made until after notice and anopportunity for public comment.
(b) If the Assistant Administrator determines that an emergency existsthat poses a significant risk to the well-being of the species or stocks ofmarine mammals specified in § 216.141(b), the Letter ofAuthorization issued pursuant to § 216.106 may be substantivelymodified without prior notice and an opportunity for public comment. Anotice will be published in the Federal Register subsequentto the action.
[FR Doc. 02-19432 Filed 7-31-02; 8:45 am]
BILLING CODE 3510-22-S