[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.
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Description of Habitat and Marine Mammals Affected by Oil and Gas
Rig Removals
A description of the Gulf of Mexico continental shelf area and the
biology and abundance of the three marine mammal species in the Gulf of
Mexico that are anticipated to be taken by this activity can be found
in the EA prepared for this rulemaking. This information can also be
found in the proposed rule (58 FR 33425, June 17, 1993) and need not be
repeated here. Copies of the EA and proposed rule are available upon
request (see ADDRESSES).
Potential Impact of Removal Activities on Bottlenose and Spotted
Dolphins
The potential for injury to marine mammals in the vicinity of
underwater explosions is associated with gas-containing internal
organs, such as the lungs and intestines. The extent of potential
injury decreases as: (1) Distance of the marine mammal from the
explosion increases, (2) size of the marine mammal increases, (3) depth
of the explosion and the affected marine mammal decreases, and (4) size
of the explosive charge decreases. In addition, explosive charges
confined in structure pilings below the mudline produce shock waves of
lower pressure (at a given distance from the explosion) than free-water
explosions.
A computer model, developed to predict the distances from which
marine mammals would suffer only slight injury from underwater
explosions, estimated that a bottlenose dolphin calf would receive only
slight injury about 4,000 ft (1,200 m) from a 1,200-lb (544-kg) charge
detonated in open water at a depth of 125 ft (38 m). Most structures
scheduled for removal are located in water less than 100 ft (38 m)
deep. In most cases, charges are no greater than 50 lb (22.7 kg) and
are confined within the structure piles about 15 ft (4.6 m) below the
mudline. Therefore, as explained in detail in the application and EA,
it may be assumed that marine mammals more than 3,000 ft (910 m) from
structures to be removed would avoid injury caused by the explosions.
An increase in strandings of bottlenose dolphins in the
northwestern Gulf of Mexico occurred in March and April 1986 following
the explosive removal of oil and gas structures in the area. However,
there is no evidence linking the strandings to the removal of the
structures. Furthermore, observers at removals of more than 525
structures in the Gulf of Mexico reported no indication of injury or
death to bottlenose or spotted dolphins, or any
[[Page 53145]]
other marine mammal related to these structure removals.
While the best scientific information currently available indicates
that odontocete cetaceans cannot hear well in the frequencies emitted
by explosive detonations (Richardson et al., 1991), and as additional
evidence indicates that they may not be able to hear the pulse
generated from open-water underwater detonations of explosive charges
because it is very brief (ca. 0.05 sec) (Lehto 1992), for purposes of
this rulemaking, bottlenose and spotted dolphins will be considered to
be taken by harassment, as a result of a noninjurious physiological
response to the explosion-generated shockwave. For example, Turl (1993)
has suggested that Atlantic bottlenose dolphins may be able to detect
low frequency sound by some mechanism other then conventional hearing.
In addition, there may be harassment due to tactile stings from the
shockwave accompanying detonations. This type of taking has been
inferred from studies on humans and seems plausible given studies on
dolphin skin sensitivity where researchers (Ridgway, S.H. and D.A.
Carter. 1993; 1990) concluded that the most sensitive areas of the
dolphin skin (mouth, eyes, snout, melon and blowhole) are about as
sensitive as the skin of human lips and fingers.6 Therefore, even
if dolphins are not capable of hearing the acoustic signature of the
explosion, physiological or behavioral responses to those detonations
may still result.
\6\ Until tests can be conducted to determine the overall
sensitivity of the skin of marine mammals, NMFS has made the
assumption that both humans and marine mammals have similar tactile
sensitivity in the water.
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Conclusion
For the reasons discussed above and in an EA prepared for this
rulemaking, NMFS finds that the proposed activity will result in the
taking of only small numbers of bottlenose and spotted dolphins by
harassment; the total of such taking during a 5-year period will have a
negligible impact on these species; and the takings will not have an
unmitigable adverse impact on the availability of bottlenose and
spotted dolphins for subsistence uses.
National Environmental Policy Act (NEPA)
The Assistant Administrator for Fisheries, NOAA (AA) has
determined, based on an EA prepared by NMFS under NEPA, that this
action will not have a significant impact on the human environment. As
a result of that determination, an environmental impact statement has
not been prepared.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Small Business Administration
when this rule was proposed, that, if adopted, this rule would not have
a significant economic impact on a substantial number of small
entities. This rule will authorize the incidental taking of marine
mammals that otherwise would be prohibited by the MMPA. Accordingly, no
regulatory flexibility analysis was required or prepared. Only about 10
small businesses are active in removing oil and gas structures in the
Gulf of Mexico. These small businesses work under contract to major
petroleum companies, which bear the costs of mitigation measures.
Moreover, the mitigation measures required by this rule are identical
to those already being followed by these small businesses during
removal of oil and gas structures to protect endangered and threatened
sea turtles.
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act. These requirements have been approved
by the Office of Management and Budget (OMB) under section 3504(b) of
the Paperwork Reduction Act issued under OMB Control number 0648-0151.
Public reporting burden for this collection of information is estimated
to average 27.5 hours per response, including the time to review
instructions, search existing data sources, gather and maintain the
data needed and complete and review the collection of information.
The AA has determined that this rule is consistent to the maximum
extent practicable with the approved Coastal Zone Management Program of
the States of Florida, Alabama, Mississippi, and Louisiana. During the
proposed rule stage, this determination was submitted for review to the
responsible State agencies under section 3.7 of the Coastal Zone
Management Act.
List of Subjects in 50 CFR Part 228
Marine mammals, Reporting and recordkeeping requirements.
Dated: October 4, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 228 is amended
as follows:
PART 228--REGULATIONS GOVERNING SMALL TAKES OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
1. The authority citation for part 228 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. A new subpart E, consisting of Secs. 228.41 through 228.48 is
added to read as follows:
Subpart E--Taking of Bottlenose Dolphins and Spotted Dolphins
Incidental to Oil and Gas Structure Removal Activities
Sec.
228.41 Specified activity and specified geographical region.
228.42 Effective dates.
228.43 Permissible methods of taking; mitigation.
228.44 Prohibitions.
228.45 Requirements for monitoring and reporting.
228.46 Letters of Authorization.
228.47 Renewal of Letters of Authorization.
228.48 Modifications to Letters of Authorization.
Subpart E--Taking of Bottlenose Dolphins and Spotted Dolphins
Incidental to Oil and Gas Structure Removal Activities
Sec. 228.41 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of marine mammals by U.S. citizens engaged in removing oil and gas
drilling and production structures in state waters and on the Outer
Continental Shelf in the Gulf of Mexico adjacent to the coasts of
Texas, Louisiana, Alabama, Mississippi, and Florida. The incidental,
but not intentional, taking of marine mammals by U.S. citizens holding
a Letter of Authorization is permitted during the course of severing
pilings, well conductors, and related supporting structures, and other
activities related to the removal of the oil well structure.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited annually to a
combined total of no more than 200 takings by harassment of bottlenose
dolphins (Tursiops
[[Page 53146]]
truncatus) and spotted dolphins (Stenella frontalis and S. attenuata).
Sec. 228.42 Effective dates.
Regulations in this subpart are effective from November 13, 1995
through November 13, 2000.
Sec. 228.43 Permissible methods of taking; mitigation.
(a) The use of the following means in conducting the activities
identified in Sec. 228.41 is permissible: Bulk explosives, shaped
explosive charges, mechanical or abrasive cutters, and underwater arc
cutters.
(b) All activities identified in Sec. 228.41 must be conducted in a
manner that minimizes, to the greatest extent practicable, adverse
effects on bottlenose dolphins, spotted dolphins, and their habitat.
When using explosives, the following mitigation measures must be
utilized:
(1)(i) If bottlenose or spotted dolphins are observed within 3,000
ft (910 m) of the platform prior to detonating charges, detonation must
be delayed until either the marine mammal(s) are more than 3,000 ft
(910 m) from the platform or actions (e.g., operating a vessel in the
vicinity of the dolphins to stimulate bow riding, then steering the
vessel away from the structure to be removed) are successful in
removing them at least 3,000 ft (910 m) from the detonation site;
(ii) Whenever the conditions described in paragraph (b)(1)(i) of
this section occur, the aerial survey required under Sec. 228.45(b)(1)
must be repeated prior to detonation of charges if the timing
requirements of Sec. 228.45(b)(1) cannot be met.
(2) Detonation of explosives must occur no earlier than 1 hour
after sunrise and no later than 1 hour before sunset;
(3) If weather and/or sea conditions preclude adequate aerial,
shipboard or subsurface surveillance, detonations must be delayed until
conditions improve sufficiently for surveillance to be undertaken; and
(4) Detonations must be staggered by a minimum of 0.9 seconds for
each group of charges.
Sec. 228.44 Prohibitions.
Notwithstanding takings authorized by Sec. 228.43 or by a Letter of
Authorization issued under Sec. 228.6, the following activities are
prohibited:
(a) The taking of a marine mammal that is other than unintentional,
except that the intentional passive herding of dolphins from the
vicinity of the platform may be authorized under section 109(h) of the
Act as described in a Letter of Authorization;
(b) The violation of, or failure to comply with, the terms,
conditions, and requirements of this part or a Letter of Authorization
issued or renewed under Sec. 228.6 or Sec. 228.46;
(c) The incidental taking of any marine mammal of a species either
not specified in this subpart or whenever the incidental taking
authorization for authorized species has been reached; and
(d) The use of single explosive charges having an impulse and
pressure greater than that generated by a 50-lb (22.7 kg) explosive
charge detonated outside the rig piling.
Sec. 228.45 Requirements for monitoring and reporting.
(a) Observer(s) approved by the National Marine Fisheries Service
in advance of the detonation must be used to monitor the area around
the site prior to, during, and after detonation of charges.
(b)(1) Both before and after each detonation episode, an aerial
survey by NMFS-approved observers must be conducted for a period not
less than 30 minutes within 1 hour of the detonation episode. To ensure
that no marine mammals are within the designated 3,000 ft (1,000 yd,
941 m) safety zone nor are likely to enter the designated safety zone
prior to or at the time of detonation, the pre-detonation survey must
encompass all waters within one nautical mile of the structure.
(2) A second post-detonation aerial or vessel survey of the
detonation site must be conducted no earlier than 48 hours and no later
than 1 week after the oil and gas structure is removed, unless a
systematic underwater survey, either by divers or remotely-operated
vehicles, dedicated to marine mammals and sea turtles, of the site has
been successfully conducted within 24 hours of the detonation event.
The aerial or vessel survey must be systematic and concentrate down-
current from the structure.
(3) The NMFS observer may waive post-detonation monitoring
described in paragraph (b)(2) of this section provided no marine
mammals were sighted by the observer during either the required 48 hour
pre-detonation monitoring period or during the pre-detonation aerial
survey.
(c) During all diving operations (working dives as required in the
course of the removals), divers must be instructed to scan the
subsurface areas surrounding the platform (detonation) sites for
bottlenose or spotted dolphins and if marine mammals are sighted to
inform either the U.S. government observer or the agent of the holder
of the Letter of Authorization immediately upon surfacing.
(d)(1) A report summarizing the results of structure removal
activities, mitigation measures, monitoring efforts, and other
information as required by a Letter of Authorization, must be submitted
to the Director, NMFS, Southeast Region, 9721 Executive Center Drive N,
St. Petersburg, FL 33702 within 30 calendar days of completion of the
removal of the rig.
(2) NMFS will accept the U.S. Government observer report as the
activity report if all requirements for reporting contained in the
Letter of Authorization are provided to that observer before the
observer's report is complete.
Sec. 228.46 Letters of Authorization.
(a) To incidentally take bottlenose and spotted dolphins pursuant
to these regulations, each company operating or which operated an oil
or gas structure in the geographical area described in Sec. 228.41, and
which is responsible for abandonment or removal of the platform, must
apply for and obtain a Letter of Authorization in accordance with
Sec. 228.6.
(b) A copy of the Letter of Authorization must be in the possession
of the persons conducting activities that may involve incidental
takings of bottlenose and spotted dolphins.
Sec. 228.47 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 228.6 for the
activity identified in Sec. 228.41 will be renewed annually upon:
(1) Timely receipt of the reports required under Sec. 228.45(d),
which have been reviewed by the Assistant Administrator and determined
to be acceptable;
(2) A determination that the maximum incidental take authorizations
in Sec. 228.41(b) will not be exceeded; and
(3) A determination that the mitigation measures required under
Sec. 228.43(b) and the Letter of Authorization have been undertaken.
(b) If a species' annual authorization is exceeded, the Assistant
Administrator will review the documentation submitted with the annual
reports required under Sec. 228.45(d), to determine that the taking is
not having more than a negligible impact on the species or stock
involved.
(c) Notice of issuance of a renewal of the Letter of Authorization
will be published in the Federal Register.
[[Page 53147]]
Sec. 228.48 Modifications to Letters of Authorization.
(a) In addition to complying with the provisions of Sec. 228.6,
except as provided in paragraph (b) of this section, no substantive
modification, including withdrawal or suspension, to the Letter of
Authorization issued pursuant to Sec. 228.6 and subject to the
provisions of this subpart shall be made until after notice and an
opportunity for public comment. For purposes of this paragraph, renewal
of a Letter of Authorization under Sec. 228.47, without modification,
is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 228.41(b), the Letter of
Authorization issued pursuant to Sec. 228.6, or renewed pursuant to
this section may be substantively modified without prior notice and an
opportunity for public comment. A notice will be published in the
Federal Register subsequent to the action.
[FR Doc. 95-25196 Filed 10-11-95; 8:45 am]
BILLING CODE 3510-22-F
