[Federal Register Volume 67, Number 76 (Friday, April 19, 2002)]
[Proposed Rules]
[Pages 19370-19374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9519]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 020326071-2071-01; I.D. 021402D]
RIN 0648-AP83


Taking and Importing Marine Mammals; Taking Bottlenose Dolphins 
and Spotted Dolphins Incidental to Oil and Gas Structure Removal 
Activities in the Gulf of Mexico

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: NMFS is proposing to issue 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 
for a period not to exceed 1 year. 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.

DATES: Comments and information must be received no later than May 6, 
2002.

ADDRESSES: Comments on the proposed rule should be addressed to Donna 
Wieting, Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910-
3282. Comments will not be accepted if submitted via e-mail or 
Internet. Copies of the Environmental Assessment (EA) for this proposed 
rule may be obtained by writing to this address or by telephoning the 
contact listed here (see FOR FURTHER INFORMATION CONTACT).
    Comments regarding the burden-hour estimate or any other aspect of 
the collection of information requirement contained in this proposed 
rule should be sent to the Chief of the Office of Protected Resources, 
and to the Office of Information and Regulatory Affairs, Office of 
Management and Budget (OMB), Attention: NOAA Desk Officer, Washington, 
DC 20503.

FOR FURTHER INFORMATION CONTACT: Simona Perry Roberts, Office of 
Protected Resources, (301) 713-2322.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (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 governing the taking are 
issued. Effective January 26, 1996, by Department Delegation Order 10-
15, the Secretary of Commerce (Secretary) delegated authority to 
perform the functions vested in the Secretary as prescribed by the MMPA 
to the Administrator of the National Oceanic and Atmospheric 
Administration. On December 17, 1990, under NOAA Administrative Order 
205-11, 7.01, the Under Secretary for Oceans and Atmosphere 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 through 
NMFS finds, after notice and opportunity for public comment, that the 
taking will involve only small numbers of marine mammals, will have no 
more than a negligible impact on the species or stock(s) and will not 
have an unmitigable adverse impact on the availability of the species 
or stock(s) for subsistence uses. If such findings are warranted, 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.
    On October 12, 1995 (60 FR 53145), NMFS issued regulations 
governing the taking of bottlenose and spotted dolphins incidental to 
oil and gas structure removal activities in state waters and on the 
Outer Continental Shelf (OCS) in the Gulf of Mexico (50 CFR 216.141-
148). Under these regulations, operators who removed oil and gas 
drilling and production structures and related facilities in state and 
Federal waters of the Gulf of Mexico adjacent to the coasts of Texas, 
Louisiana, Mississippi, Alabama, and Florida applied for Letters of 
Authorization to incidentally take bottlenose and spotted dolphins in 
the course of structure removal activities. On November 13, 2000, these 
regulations expired and NMFS could no longer issue Letters of 
Authorization for structure removal activities in the Gulf of Mexico.

Summary of Action

    NMFS proposes new regulations governing the incidental take of 
bottlenose dolphins (Tursiops truncatus) and spotted dolphins (Stenella 
frontalis and S. attenuata) in water depths equal to or less than 200 
meters (m) (656 feet, ft) for a period not to exceed 1 year. If these 
new regulations are finalized, operators who remove oil and gas 
drilling and production structures and related facilities in state and 
Federal waters of the Gulf of Mexico adjacent to the coasts of Texas, 
Louisiana, Mississippi, Alabama, and Florida could apply for Letters of 
Authorization to incidentally take bottlenose and spotted dolphins in 
the course of structure removal activities in water depths equal to or 
less than 200 m (656 ft).
    NMFS received a request from the American Petroleum Institute (API) 
for regulations similar to those proposed here on October 30, 1989. In 
their request, API estimated that 670 structures would be removed in 
the Gulf of Mexico over a 5-year authorization period. While most of 
the structures were in water less than 30.5 m (100 ft) deep, a few may 
be in deeper water. A longer range plan estimated that about 5,500 
structures will be removed in a 35-year period. The most frequently 
used procedure of removal 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. On February 12, 2002, API 
submitted a request to NMFS requesting an interim policy statement to 
provide the industry with protection

[[Page 19371]]

from incidental take liability under the MMPA during the 2002 platform 
decommissioning and removal season. In response, NMFS has elected to 
propose these regulations.
    The effects of explosives used for removal of oil and gas 
structures on ESA-listed species under NMFS' purview were analyzed in a 
previous biological opinion. That opinion concluded that the use of 
explosives to remove oil and gas structures, accompanied by the use of 
an observer program and other take minimization measures laid out in 
the accompanying incidental take statement, was not likely to 
jeopardize the continued existence of endangered and threatened sea 
turtles. This proposed regulation to authorize incidental takes of 
marine mammals would not change the conclusions of the previous 
biological opinion because the underlying action (including the use of 
observers and take minimization measures) is the same. No ESA-listed 
marine mammals are implicated in this action.
    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, operators removing structures 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 
has stated 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 employed the mitigation measures for sea turtles 
to also protect dolphins prior to API's 1989 request to NMFS and since 
regulations governing the taking of small numbers of bottlenose and 
spotted dolphins expired in November 2000.

Summary of Proposed Rule

    This proposed rule would authorize 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 equal to or less than 200 m (656 ft) in the Gulf of 
Mexico adjacent to the coasts of Texas, Louisiana, Mississippi, 
Alabama, and Florida for a period not to exceed 1-year. This proposed 
rule requires that all activities be conducted in a manner that 
minimizes adverse effects on bottlenose dolphins and spotted dolphins 
and their habitat. Mitigation, 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. 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, such use does 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.

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 bottlenose and spotted dolphins in the Gulf of 
Mexico that are anticipated to be taken by this activity can be found 
in the EA prepared for previous rulemaking. This information can also 
be found in the previous proposed rule for regulations (58 FR 33425, 
June 17, 1993). To avoid the incidental take of other marine mammal 
species, NMFS will prohibit the incidental taking of marine mammals in 
water depths greater than 200 m (656 ft). Copies of the EA and API's 
1989 application 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). According to API, 
most structures scheduled for removal in 2002 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 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 use of explosives to remove 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 other marine mammal 
related to these structure removals. According to observer reports 
required by NMFS during the 5-year duration of the previous 
regulations' effectiveness,

[[Page 19372]]

there were no marine mammal takes associated with removal activities.
    The best scientific information available indicates that dolphins 
cannot hear well in the frequencies emitted by explosive detonations 
(Richardson et al., 1991), and additional evidence indicates that they 
may not be able to hear the pulse generated from open-water underwater 
detonations of explosive charges because of their short duration (ca. 
0.05 sec) (Lento, 1992). However, for purposes of this proposed rule, 
bottlenose and spotted dolphins will be considered to be taken by 
harassment, as a result of a non-injurious physiological response to 
the explosion-generated shockwave and potential behavioral impacts. 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. 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.

Preliminary Conclusion

    For the reasons discussed above and in an EA prepared for 
rulemaking, NMFS believes that the proposed activity will likely result 
in the taking of only small numbers of bottlenose and spotted dolphins 
by harassment; the total of such taking during a 1-year period will 
likely have only a negligible impact on these species; and the takings 
will probably not have an unmitigable adverse impact on the 
availability of bottlenose and spotted dolphins for subsistence uses.

Classification

    This action is not significant for purposes of Executive Order 
12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration, when the original rule was proposed (58 FR 33425, June 
17, 1993), that, if adopted, the rule would not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act. In 1994, approximately 10 
small businesses were 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 proposed 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 and the number of small business remains about 
the same as in 1994. Because of this classification, a regulatory 
flexibility analysis was neither required nor prepared. This action 
does not alter those conclusions. Therefore, the Chief Counsel for 
Regulation is again certifying that the rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act.
    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act. These requirements are 
identical to those approved during previous rulemaking on the same 
activity 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 
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 collection of information. 
Comments regarding the burden-hour estimate or any other aspect of the 
collection of information requirement, including suggestions for 
reducing the burden to NMFS and OMB (see ADDRESSES) contained in this 
proposed 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, DC 20503.

National Environmental Policy Act

    NMFS' proposed rule to govern the incidental take of bottlenose and 
spotted dolphins during removal of oil and gas structures in the Gulf 
of Mexico will not individually or cumulatively have a significant 
impact on the quality of the human environment. In accordance with 
section 6.01 of NOAA Administrative Order 216-6 (Environmental Review 
Procedures for Implementing the National Environmental Policy Act, May 
20, 1999), NMFS has analyzed both the context and intensity of this 
action and determined based on previous environmental assessments that 
the rule proposed and the proposal to issue 1-year Letters of 
Authorization to the oil and gas industry will not individually or 
cumulatively result in a significant impact on the quality of the human 
environment as defined in 40 CFR 1508.27 and is therefore categorically 
excluded from further NEPA analysis. As a result of that determination, 
an environmental impact statement was not been prepared. This action is 
within the scope of the previous EA and does not alter its conclusions.
    This rule does not contain policies with federalism implications as 
that term is defined in E.O. 13132.

List of Subjects in 50 CFR Part 216

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and record keeping requirements, Seafood, 
Transportation.

    Dated: April 12, 2002.
William T. Hogarth,
Assistant Administrator, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 216 is 
proposed to be added as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for part 216 continues to read as 
follows:

    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 Dolphins 
Incidental 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  Renewal of Letters of Authorization.
216.148  Modifications to Letters of Authorization.

[[Page 19373]]

Subpart M--Taking of Bottlenose Dolphins and Spotted Dolphins 
Incidental to Oil and Gas Structure Removal Activities


Sec. 216.141  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 
total of 200 takings by harassment of bottlenose dolphins (Tursiops 
truncatus) and spotted dolphins (Stenella frontalis and S. attenuata).


Sec. 216.142  Effective dates.

    Regulations in this subpart are effective from May 1, 2002 through 
April 31, 2003.


Sec. 216.143  Permissible methods of taking; mitigation.

    (a) The use of the following means in conducting the activities 
identified in Sec. 216.141 are permissible: Bulk explosives, shaped 
explosive charges, mechanical or abrasive cutters, and underwater arc 
cutters.
    (b) All activities identified in Sec. 216.141 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. 216.145(b)(1) 
must be repeated prior to detonation of charges if the timing 
requirements of Sec. 216.145(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 adequateaerial, 
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. 216.144  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.143 or by a Letter 
of Authorization issued under Sec. 216.106, 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. 216.106 or Sec. 216.146;
     (c) The incidental taking of any marine mammal of a species either 
not specified in this subpart or whenever the taking authorization for 
authorized species has been reached;
    (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; and
    (e) The taking of a marine mammal in water depths greater than 656 
ft (200 m).


Sec. 216.145  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 (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 conducted within 24 hours of the detonation event. The aerial or 
vessel survey must concentrate down-current from the structure.
    (3) The NMFS observer may waive post-detonation monitoring 
described in subparagraph (b)(2) of this section provided no marine 
mammals were sighted 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) In water depths of 492 ft (150 m) or greater, or in cases where 
divers are not deployed in the course of normal removal operations, a 
remotely operated vehicle (ROV) must be deployed prior to detonation to 
scan areas below structures. If marine mammals are sighted by the ROV 
operator must inform either the U.S. government observer or the agent 
of the holder of the Letter of Authorization immediately.
    (e) In water depths of 328 ft (100 m) or greater, passive acoustic 
detection must be employed prior to detonation. If marine mammals are 
sighted by the acoustic detection device, the operator must inform 
either the U.S. government observer or the agent of the holder of the 
Letter of Authorization immediately.
    (f)(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 Regional Administrator, 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

[[Page 19374]]

reporting contained in the Letter of Authorization are provided to that 
observer before the observer's report is complete.


Sec. 216.146  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. 216.141, 
and which is responsible for abandonment or removal of the platform, 
must apply for and obtain a Letter of Authorization in accordance with 
Sec. 216.106.
    (b) A copy of the Letter of Authorization must be in thepossession 
of the persons conducting activities that may involveincidental takings 
of bottlenose and spotted dolphins.


Sec. 216.147  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 for the 
activity identified in Sec. 216.141 will be renewed annually upon:
    (1) Timely receipt of the reports required under Sec. 216.145(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. 216.141(b) will not be exceeded; and
    (3) A determination that the mitigation measures required under 
Sec. 216.143(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 
report required under Sec. 216.145(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.


Sec. 216.148  Modifications to Letters of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
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. 216.106 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. 216.147, 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. 216.141(b), the Letter of 
Authorization issued pursuant to Sec. 216.106, 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. 02-9519 Filed 4-18-02; 8:45 am]
BILLING CODE 3510-22-S