[Federal Register Volume 67, Number 148 (Thursday, August 1, 2002)]
[Rules and Regulations]
[Pages 49869-49875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19432]


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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 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: 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 for a period 
not to exceed 18 months. 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 structures 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 their habitat.

DATES: Effective August 1, 2002 through February 2, 2004.

ADDRESSES: Copies of the Environmental Assessment (EA), proposed rule, 
and application may be obtained by writing to Donna Wieting, Chief, 
Marine Mammal Conservation Division, Office of Protected Resources, 
1315 East-West Highway, Silver Spring, MD 20910-3282 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 final 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, 
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.) directs the 
Secretary of Commerce (Secretary) 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 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 (NOAA). 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 finds, 
after notice and opportunity for public comment, that the taking will 
involve only small

[[Page 49870]]

 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 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 (LOAs) 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 LOAs for structure removal 
activities in the Gulf of Mexico.

Summary of Action

    On February 12, 2002, the American Petroleum Institute (API) 
submitted a request to NMFS requesting an interim policy statement to 
provide the oil and gas industry with protection from incidental take 
liability under the MMPA during the 2002 structure decommissioning and 
removal season. In response, NMFS has elected to promulgate these 18-
month regulations.
    On April 19, 2002 (67 FR 19373), NMFS proposed 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). 
With finalization of these new regulations, 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 must apply for 
LOAs 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 API for regulations similar to 
those requested originally on October 30, 1989. In that 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. The effects of explosives used for removal of 
oil and gas structures on species listed under the Endangered Species 
Act (ESA) that are 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. The 
conclusions of the previous biological opinion apply to this regulation 
to authorize incidental takes of marine mammals because the underlying 
action (including the use of NMFS observers and take minimization 
measures) is the same. No ESA-listed marine mammals are implicated in 
this action.
    Similar to the case for sea turtles, impacts to bottlenose and 
spotted dolphins would come primarily from exposure to sound and 
pressure waves associated with detonating the explosives. The 1995 EA 
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 employed the mitigation measures for sea turtles to 
also protect dolphins prior to API's 1989 request to NMFS, during the 
effectiveness period of the regulations, and since the time regulations 
governing the taking of small numbers of bottlenose 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 
and comment the proposed rule to authorize and govern 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 OCS 
in the Gulf of Mexico. During the 15-day comment period, NMFS received 
5 letters commenting on the proposed rule. Comments contained in those 
letters are addressed here.

Process Concerns

    Comment 1: The Federal Register notice was published April 19, 
2002, with only a 17-day comment period. This is hardly adequate time 
to obtain a copy of, fully analyze the accompanying EA, and research 
regulations of this complexity. In addition, the prior regulations 
governing these activities expired November 13, 2000, but API submitted 
its request for an interim policy statement on February 12, 2002. 
Considering that the oil and gas industry had already operated for 15 
months without regulation, why did NOAA feel compelled to issue the 
regulations so rapidly? Does the need for these interim regulations 
really outweigh the public's right to participate fully and fairly in 
the regulatory process?
    Response: For this action, NMFS balanced the needs of the requestor 
(i.e., the API) and their legal obligations under the Outer Continental 
Shelf Lands Act, the low likelihood that the activities may result in 
adverse impacts to marine mammals and the fact that this is only a 
short-term action with the requirement to provide an opportunity for 
public review and comment. In this case, in over 5 years of monitoring 
structure removals in the Gulf of Mexico, there has been no evidence of 
a taking, as defined under the MMPA, of a bottlenose or spotted 
dolphin. Therefore, NMFS is confident that the impact of structure 
removals in the Gulf of Mexico on bottlenose and spotted dolphin 
populations to date has been negligible. Since information on impacts 
to other species is lacking and monitoring results from deeper Gulf 
waters do not exist, NMFS decided to implement a regulation that is 
similar to the previous 5-year regulation (i.e., only authorize the 
take of bottlenose and spotted dolphins and explosive charges no 
greater than 50 lbs (22.7 kg)). In order to ensure that this regulation 
did not go beyond the scope of the current EA, NMFS has added a 
prohibition on taking marine mammals in water depths of 200 m (656 ft) 
or greater and additional monitoring requirements in water depths 
greater than 46 m (150 ft).

[[Page 49871]]

Marine Mammal Impact Concerns

    Comment 2: There are at least 30 species of marine mammals reported 
in the Gulf of Mexico that could be present, at least occasionally, in 
areas where they could be affected by structure removal. Therefore, it 
is unclear why the rule would authorize the possible incidental taking 
of only bottlenose dolphins and spotted dolphins. It was 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 its revised 1991 application requested the 
incidental take of only bottlenose and spotted dolphins because these 
two species were the only marine mammal species recorded by NMFS 
observers during 1983-91 aerial and vessel surveys in the Gulf of 
Mexico. These surveys, carried out by the NMFS Southeast Fisheries 
Science Center, indicated that the bottlenose dolphin is the most 
common marine mammal in these waters, accounting for more than 95 
percent of the sightings. The sightings also showed that spotted 
dolphins were common in the Gulf of Mexico. At that time, NMFS 
scientists indicated that the probability of marine mammals other than 
these species being incidentally taken was remote. Therefore, in its 
issuance of regulations governing the same activity in 1995, NMFS did 
not consider it necessary to require the applicant to request an 
authorization for additional species. Moreover, due to aerial surveys 
just prior to detonation, 48-hr pre-detonation vessel observer coverage 
and the relatively shallow water depth, it is highly unlikely that any 
marine mammal of any species would not be observed prior to detonation 
and that detonation suspended.
    Since 1995, NMFS, MMS, and other organizations and universities 
have conducted additional marine mammal surveys and discovered that the 
sperm whale (Physeter macrocephalus), listed as endangered under the 
ESA, is a common inhabitant in areas of the northern Gulf of Mexico 
with water depths greater than 200 m (656 ft). Therefore, to avoid the 
take of this species or any other marine mammal species, this rule does 
not authorize the take of any marine mammal in water depths equal to or 
exceeding 200 m (656 ft). NMFS cannot issue authorizations for the take 
of sperm whales or any other marine mammal species, besides bottlenose 
and spotted dolphins, until industry provides additional information on 
the impact explosive removals may have on marine mammals inhabiting 
water depths of 200 m (656 ft) or more and until industry develops a 
proposal for mitigating and monitoring such impacts. Under this final 
rule, the incidental take of any marine mammal species in water depths 
of 200 m (656 ft) or more will be in violation of the MMPA, the 
regulations, and any LOA issued as a result of this rulemaking.
    Comment 3: Information needed to complete 5-year regulations for 
the removal of oil and gas structures in the Gulf of Mexico at all 
water depths should be collected as soon as possible. Such information 
needs include scientific studies assessing the habitat requirements, 
behaviors, fecundity, and species diversity of deep-water marine mammal 
stocks. If this information is not provided to NMFS as quickly as 
possible, new 5-year regulations may not be developed before the 
proposed 1-year rule expires.
    Response: It is NMFS' understanding that MMS and industry 
representatives are working together to address all information needs 
in order to complete NEPA documentation and to request promulgation of 
MMPA regulations in a timely manner.

Effective Dates Concerns

    Comment 4: Expand the time frame of the rule's effective dates to 
more than 1 year.
    Response: To encourage the timely submission of new documentation 
under the National Environmental Policy Act (NEPA) and a new petition 
for regulations, NMFS originally proposed that this rule only be 
effective for 1 year. NMFS has been informed by MMS (on behalf of the 
oil industry) that the assessments and analyses are presently underway 
but that a new application under section 101(a)(5)(A) of the MMPA, 
along with supporting NEPA documentation, can not be submitted earlier 
than the spring of 2003. In order to avoid another lapse in the 
regulation's period of effectiveness and to ensure maximum public 
review and comment during the regulatory review process (the NMFS 
regulatory process normally takes 8 to 12 months with a minimum of 75 
days for public review), an expiration date in 12 months from the date 
of this rules effectiveness does not allow enough time for the next 
rule-making process to be completed before this current rule expires, 
unless the rule-making process is expedited. As input from the 
environmental science and advocacy communities will play a large role 
in developing these new, comprehensive 5-year regulations, NMFS does 
not want to undertake expedited rulemaking since that would preclude 
adequate public review.

Activity Concerns

    Comment 5: In the proposed rule, the Supplementary Information 
section titled ``Description of Removal Activities'' states that 
``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.'' While this statement may be 
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 
the sea floor. An explosive bulk charge set off within the tubular 
would have the shock wave and acoustic energy directed upward since it 
is the path of least resistance, unlike setting off an explosive charge 
within a piling that goes to the sea surface.
    Response: As discussed in NMFS' 1995 EA on issuance of regulations 
on the taking of bottlenose and spotted dolphins by the explosive 
removal of offshore structures, Connor (1990) indicated that peak shock 
overpressures from explosives detonated within the jacket were 
significantly lower than occurred in free field. His results can be 
summarized as follows: (1) detonation below the mud line with the pile 
top below the water surface provides approximately a 50 percent 
reduction in peak pressure compared to an open field detonation of the 
same size; (2) detonation below the mud line with the pile top above 
the water surface provides approximately a 75 percent reduction in peak 
pressure compared to an open field detonation of the same size; and (3) 
explosive pressures generally were difficult to detect at the 300' 
gauge station, indicating the radius of lethal pressures is limited 
where explosives are contained within a piling.

Monitoring, Mitigation, and Reporting

    Comment 6: Change the rule 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: The regulations prohibit detonations whenever the pre-
detonation aerial survey monitoring requirements cannot be conducted 
within the time

[[Page 49872]]

 frame specified in the regulations, to limit detonations to a daylight 
time period, and to delay any detonations when monitoring activities 
are not possible.
    Comment 7: Section 216.143 (Permissible Methods of Taking; 
mitigation) of the proposed rule does not specify that explosives must 
be set off within a tubular or below the mudline. Are the regulations 
intended to permit the use of explosives outside a tubular or above the 
mudline or are they intended to defer to MMS regulations governing 
structure 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 range determined to be appropriate for sea 
turtles in a biological opinion under section 7 of the ESA. Therefore, 
since NMFS has adopted this precautionary approach to handle all 
explosion scenarios for 50-lb (22.7-kg) explosive charges, the 
expectation is that oil and gas companies and their respective 
demolition contractors must follow MMS regulations governing placement 
of explosives during structure removals throughout the effective dates 
of this regulation.
    Comment 8:Section 216.145(e)(Requirements for Monitoring and 
Reporting) specifies using 328 ft (100 m) or greater as the water depth 
for use of passive acoustic detection. It would be useful to have a 
supporting explanation of the criteria.
    Response: Passive acoustic detection is recognized by NMFS as a 
potentially valuable tool in monitoring the presence or absence of 
marine mammals prior to removal activities and is, therefore, being 
required when operationally practicable. The water depth chosen is 
based on discussions with MMS officials and is intended for deeper 
waters where divers cannot be deployed and remotely operated vehicles 
(ROVs) are also being used. This added monitoring requirement should 
help authorization holders better detect the presence of marine mammal 
species other than bottlenose and spotted dolphins in deeper waters, 
and thus ensure that they are not in violation of the MMPA. If ROVs are 
being used simultaneously this may also allow for verification of 
species identity and/or estimates of the number of animals present.
    Comment 9: Section 216.145(b)(3) (Requirements for Monitoring and 
Reporting) makes reference to a required, 48-hour pre-detonation 
period. Although this 48-hour period has been a standard part of the 
platform-removal monitoring protocol in the past, it is not described 
anywhere else in the section.
    Response: The observers required by this rulemaking are the same 
observers required under the Section 7 Biological Opinion's Incidental 
Take Statement (ITS). That ITS requires observations be conducted no 
less than 48 hours prior to detonation. This rulemaking therefore 
ensures consistency with that Opinion.

Environmental Concerns

    Comment 10: Hazardous substances may be deposited and accumulate in 
sediments around production structures. If disturbed and resuspended in 
the water column, these mate rials 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 
sources 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 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 be 
effective for 18 months.
    2. Since divers are ineffective at depths exceeding 150 ft (46 m), 
the requirement for monitoring with ROVs is changed from a water depth 
of 492 ft (150 m) to 150 ft (46 m) or greater.
    3. Based on several comments, references to ``rigs'' or 
``platforms'' have been changed to ``structures'' to clarify that there 
are a variety of offshore structures that may be removed using 
explosives that need to be included under this regulation.
    4. In section 216.145(e), marine mammals are ``detected'' by the 
passive acoustic device, not ``sighted.''
    5. Section 216.147 (Renewal of LOAs) is deleted since the 
regulations will be in effect for 18 months thereby eliminating the 
requirement for annual renewal.

Summary of Rule

    This final 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 water 
depths equal to or less than 200 m (656 ft) in depth in the Gulf of 
Mexico adjacent to the coasts of Texas, Louisiana, Mississippi, 
Alabama, and Florida for a period not to exceed 18 months. This final 
rule requires that all activities be conducted in a manner that 
minimizes adverse effects on bottlenose 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 structures 
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 most 
commonly 50 lb (22.7 kg) or less, but they can be as much as 200 lb 
(90.8 kg) when necessary. This final rule and the implementing standard 
Biological Opinion however, only authorize the use of 50 lb (22.7 kg) 
or less explosive charges. The use of high velocity shaped

[[Page 49873]]

 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. However, not all 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. For example, an exploratory well can have a well casing 
that opens near the sea floor. An explosive bulk charge set off within 
the tubular would have the shock wave and acoustic energy directed 
upward since it is the path of least resistance, unlike setting off an 
explosive charge within a piling that goes to the sea surface.
    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 
Structure 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 not authorize the incidental taking of marine 
mammals in water depths greater than 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 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 generally 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, 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 final rule, 
bottlenose and spotted dolphins are 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.

Conclusion

    For the reasons discussed above and in an EA prepared for previous 
similar rulemaking, NMFS believes that this activity will likely result 
in the taking of only small numbers of bottlenose and spotted dolphins 
by harassment; the total of such taking during an 18-month period will 
likely have only 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.

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. This 
action imposes the same requirements and thus does not alter those 
conclusions. Therefore, the Chief

[[Page 49874]]

 Counsel for Regulation is again certifying that this final rule will 
not have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. This final 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 
final 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.
    Section 553(d) of Title 5 of the U.S.C. requires that the 
publication of a substantive rule shall be made not less than 30 days 
before its effective date unless the rule grants or recognizes an 
exemption or relieves a restriction. Until these regulations are 
effective, the oil and gas industry can not be issued LOAs authorizing 
takings incidental to their operations. This places the operators in a 
position of potentially violating the MMPA should their activities 
result in a take of a marine mammal. Therefore, the Assistant 
Administrator for Fisheries, NOAA finds that the waiver of the 30-day 
delayed effectiveness date relieves a restriction pursuant to 5 U.S.C. 
553(d)(1).
    This final rule does not contain policies with federalism 
implications as that term is defined in Executive Order 13132.

NEPA

    In accordance with NOAA Administrative Order 216-6 (Environmental 
Review Procedures for Implementing the National Environmental Policy 
Act, May 20, 1999), NMFS has determined that this action is 
categorically excluded from further environmental review. This 
determination is based on the 1995 EA for the 5-year small take 
regulations for the same activities, which resulted in a Finding of No 
Significant Impact, and the absence of any marine mammal takes during 
the reporting period for those regulations.

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 Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 216 is amended 
to read 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   Modifications to Letters of Authorization.

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.

    Effective August 1, 2002 through February 2, 2004.


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 structure prior to detonating charges, detonation 
must be delayed 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 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.
    (2) Detonation of explosives must occur no earlier than 1hour after 
sunrise and no later than 1 hour before sunset;
    (3) If weather or sea conditions preclude adequate aerial, 
shipboard or subsurface surveillance, detonations must be delayed until 
conditions improve sufficiently for surveillance to be undertaken; and

[[Page 49875]]

    (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. 216.141 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 structure 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 structure 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, a 30-minute 
or more aerial survey by NMFS-approved observers must be conducted 
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 marine mammal survey, either by divers or 
remotely operated vehicles that are dedicated to marine mammals and sea 
turtles, of the site has been successfully conducted with 24 hours of 
the detonation event. The aerial or vessel survey must concentrate 
down-current from the structure.
    (3) The NMFS-approved observer may waive post-detonation monitoring 
described in paragraph (b)(2) of this section provided no marine 
mammals were sighted during either the aerial surveys before detonation 
or during the 48 hour pre-detonation observer monitoring period.
    (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 structure (detonation) sites for 
bottlenose or spotted dolphins and if marine mammals are sighted to 
inform either the NMFS-approved observer or the agent of the holder of 
the Letter of Authorization immediately upon surfacing.
    (d) In water depths of 150 ft (46 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, the ROV 
operator must inform either the NMFS-approved 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 
detected by the acoustic 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 structure.
    (2) NMFS will accept the NMFS-approved 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. 216.146  Letters of Authorization.

    (a) To incidentally take bottlenose and spotted dolphins pursuant 
to this subpart, each company operating or that operated an oil or gas 
structure in the geographical area described in Sec. 216.141, and that 
is responsible for abandonment or removal of the structure, 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 the possession 
of the persons conducting activities that may involve incidental 
takings of bottlenose and spotted dolphins.


Sec. 216.147  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.
    (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 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. 02-19432 Filed 7-31-02; 8:45 am]
BILLING CODE 3510-22-S