[Federal Register Volume 60, Number 197 (Thursday, October 12, 1995)]
[Rules and Regulations]
[Pages 53139-53147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25196]



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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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

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