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Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the Explosive Removal of Offshore Structures in the Gulf of Mexico
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 7, 2006 (Volume 71, Number 67)]
[Proposed Rules]
[Page 17790-17804]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap06-22]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 060314068-6068-01; I.D. 030905A]
RIN 0648-AT79
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to the Explosive Removal of Offshore Structures in the Gulf of Mexico
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule.
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SUMMARY: NMFS has received a request from the Minerals Management
Service (MMS), for authorization to ``take'' by harassment small
numbers of marine mammals incidental to explosive severance activities
at offshore oil and gas structures in the Gulf of Mexico (GOM) outer
continental shelf (OCS). By this document, NMFS is proposing
regulations to govern that take. In order to issue Letters of
Authorization (LOAs) and final regulations governing the take, NMFS
must determine that the total taking will have a negligible impact on
the affected species and stocks of marine mammals, will be at the
lowest level practicable, and will not have an unmitigable adverse
impact on the availability of the species or stock(s) for subsistence
uses. NMFS invites comment on the application and the proposed rule.
DATES: Comments and information must be postmarked no later than May
22, 2006.
ADDRESSES: You may submit comments on the application and proposed
rule, using the identifier 030905A, by any of the following methods:
? E-mail: PR1.030905A@noaa.gov. Please include the
identifier 030905A in the subject line of the message. Comments sent
via e-mail, including all attachments, must not exceed a 10-megabyte
file size.
? Federal e-Rulemaking Portal: http://www.regulations.gov 
.
Follow the instructions for submitting comments.
? Hand-delivery or mailing of paper, disk, or CD-ROM
comments should be addressed to: Stephen L. Leathery, Chief, Permits,
Conservation and Education Division, Office of Protected Resources,
National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910.
A copy of the MMS application, under section 101(a)(5)(A) of the
Marine Mammal Protection Act (MMPA), containing a list of references
used in this document may be obtained by writing to this address, by
telephoning the contact listed under FOR FURTHER INFORMATION CONTACT, or
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha .
A copy of MMS' Programmatic Environmental Assessment (PEA) is available on-
line at: http://www.gomr.mms.gov/homepg/regulate/environ/nepa/2005-013.pdf.
Documents cited in this proposed rule, that are not available
through standard public library access, may be viewed, by appointment,
during regular business hours at the mailing address previously
specified. To help us process and review comments more efficiently,
please use only one method for commenting.
Comments regarding the burden-hour estimate or any other aspect of
the collection of information requirement contained in this proposed
rule should be sent to NMFS via the means stated above, and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Attention: NOAA Desk Officer, Washington, DC 20503,
David_Rostker@eap.omb.gov.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, at 301-
713-2055, ext 128 or Ken.Hollingshead@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA (16 U.S.C. 1361
et seq.) direct 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 are issued.
An authorization will be granted if NMFS finds that the taking will
have 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, and if the permissible methods of taking
and requirements pertaining to the mitigation, monitoring and reporting
of such takings are set forth. NMFS has defined ``negligible impact''
in 50 CFR 216.103 as ''...an impact resulting from the specified
activity that cannot be reasonably expected to, and is not reasonably
likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.''
Summary of Request
On February 28, 2005, NMFS received an application from MMS (MMS,
2005a) requesting, on behalf of the offshore oil and gas industry,
authorization under section 101(a)(5)(A) of the MMPA to take marine
mammals by harassment incidental to explosive severance activities at
offshore oil and gas structures in the GOM OCS. Except for certain
categories of activities not pertinent here, the MMPA defines
``harassment'' as: any act of pursuit, torment, or annoyance which
(i) has the potential to injure a marine mammal or marine mammal
stock in the wild [Level A harassment]; or (ii) has the potential to
disturb a marine mammal or marine mammal stock in the wild by
causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering [Level B harassment].
Description of the Activity
During exploration, development, and production operations for
mineral extraction in the GOM OCS, the seafloor around activity areas
becomes the repository of temporary and permanent equipment and
structures. In compliance with OCS Lands Act (OCSLA) regulations and
MMS guidelines, operators are required to remove or ``decommission''
seafloor obstructions from their leases within one year of lease
termination or after a structure has been deemed obsolete or unusable.
To accomplish these removals, a host of activities is required to (1)
mobilize necessary equipment and service vessels, (2) prepare the
decommissioning targets (e.g., piles, jackets, conductors, bracings,
wells, pipelines, etc.), (3) sever the target from the seabed and/or
sever it into manageable components, (4) salvage the severed
portion(s), and (5) conduct final site-clearance verification work.
There are two primary methodologies used in the GOM for cutting
decommissioning targets; nonexplosive and explosive severance.
Nonexplosive methods include abrasive cutters (sand and abrasive-water
jets), mechanical cutters (e.g., carbide or rotary), diamond wire
cutting devices, and cutting facilitated by commercial divers using
arc/gas torches. Though relatively time-consuming and potentially
harmful to
[[Page 17791]]
human health and safety (primarily for diver severances), nonexplosive-
severance activities have little or no impact on the marine environment
and would not result in an incidental take of marine mammals (MMS,
2005b (PEA)). A description of non-explosive severing tools and methods
can be found in MMS, 2005a and MMS, 2005b (section 1.4.7.1)(see ADDRESSES).
Explosive-severance activities use specialized charges to achieve
target severance. Severance charges can be deployed on multiple targets
and detonated nearly-simultaneously (i.e., staggered at an interval of
900 msec) effecting rapid severances. Coupled with safe-handling
practices, the reduced ``exposure time'' and omission of diver cutting
also makes explosive severance safer for offshore workers. However,
since the underwater detonation of cutting charges generates damaging
pressure waves and acoustic energy, explosive-severance activities have
the potential to result in an incidental take of nearby marine mammals.
For this reason, MMS has requested an incidental take authorization
governing explosive-severance activities that could be conducted under
OCSLA structure decommissionings.
Decommissioning operations conducted under OCSLA authority can
occur on any day of a given year. Operators often schedule most of
their decommissionings from June to December (approximately 80 percent)
to take advantage of the often calm seas and good weather and the time
period when structure installations tend to decrease since both
commissioning and decommissioning operations compete for the same
management groups, equipment, vessels, and labor force (TSB/CES/LSU, 2004).
Depending upon the target, a complete decommissioning operation may
span several days or weeks; however, the explosive-severance activity
or ``detonation event'' for most removal targets (even those with
multiple severances) last for only several seconds because of charge
staggering. For complex targets or in instances where the initial
explosive-severance attempts are unsuccessful, more than one detonation
event may be necessary per decommissioning operation. Even though hours
or days may pass to allow for necessary mitigation measures and
redeployment of new charges, each detonation event would similarly last
only for a few seconds.
During the 10 year period from 1994-2003, there were an average of
156 platform decommissionings per year, with over 60 percent involving
explosive-severance activities (see Table 4 in MMS, 2005a). In addition
to historical activity averages, many of the older, nominally-producing
structures in the mature GOM oil fields are nearing decommissioning
age; this will result in an increase in removal operations in future
years. Despite advancements in nonexplosive-severance methods and the
additional requisite marine protected species mitigations, MMS expects
explosive-severance activities to continue in at least 63 percent of
all platform removals for the foreseeable future. (See Appendix A of
MMS, 2005b) for additional forecasting information).
In addition to platform removals, based upon a review of the
historical trends, industry projections, and recent forecast modeling,
MMS estimates that between 170 and 273 explosive well-severance
activities would occur annually over the next 5 years (see Table 7 in
MMS, 2005a).
Comments and Responses
On August 24, 2005 (70 FR 49568), NMFS published a notice of
receipt of MMS' application for LOAs and requested comments,
information and suggestions concerning the request and the structure
and content of regulations to govern the take. During the 30-day public
comment period, NMFS received one set of comments.
The Marine Mammal Commission recommended that NMFS initiate the
proposed rulemaking provided it is satisfied that the planned marine
mammal and related monitoring programs will be adequate to verify how
and over what distances marine mammals may be affected, that only small
numbers of marine mammals will be taken, and that the cumulative
impacts on the affected species and stocks will be negligible.
As described in detail in this document, all detonations are
monitored by trained biological observers in aircraft and watercraft
with mitigation and monitoring established commensurate with the type
of detonation and the charge weight. Similar extensive monitoring
programs, conducted by trained biological observers, including post-
blast monitoring, have not indicated that any marine mammals have been
seriously injured or killed by explosive severance activities.
Description of Habitat and Marine Mammals Affected by the Activity
The proposed explosive severance activities could occur in all
water depths of the offshore areas designated by MMS as the GOM Central
and Western Planning Areas (CPA and WPA) and a portion of the Eastern
Planning Area (EPA) offered under Lease Sale 181/189 (see Figure 2 or 3
in MMS, 2005a). Water depths in the areas of the proposed action range
from 4 to 3,400 m (13-11,155 ft), with the majority of existing
facilities and wells found within the CPA, concentrated on the upper
shelf waters (less than 200 m (656 ft) water depth) off of Louisiana. A
detailed description of the northern GOM area and its associated marine
mammals can be found in the MMS application and PEA and in a number of
documents referenced in the application. Detailed information on the
marine mammals in the GOM can also be found in the NMFS status of
stocks reports (Waring et al., 2004) which are available for
downloading or reading at: http://www.nefsc.noaa.gov/nefsc/publications/
tm/tm182/ .
A total of 28 cetacean species and one species of sirenian (West
Indian manatee) are known to occur in the GOM. These species are the
sperm whale, pygmy sperm whale, dwarf sperm whale, Cuvier's beaked
whale, Sowerby's beaked whale (extralimital), Gervais' beaked whale,
Blainville's beaked whale, rough-toothed dolphin, bottlenose dolphin,
pantropical spotted dolphin, Atlantic spotted dolphin, spinner dolphin,
Clymene dolphin, striped dolphin, Fraser's dolphin, Risso's dolphin,
melon-headed whale, pygmy killer whale, false killer whale, killer
whale, short-finned pilot whale, North Atlantic right whale
(extralimital), humpback whale (rare), minke whale (rare), Bryde's
whale, sei whale (rare), fin whale (rare), and the blue whale
(extralimital).
A description of the status, distribution, and seasonal
distribution of the affected species and stocks of marine mammals that
might be affected by explosive severance activities is provided in MMS,
2005a.
Potential Impacts to Marine Mammals
Underwater explosions are the strongest manmade point sources of
sound in the sea (Richardson et al., 1995). The underwater pressure
signature of a detonating explosion is composed of an initial shock
wave, followed by a succession of oscillating bubble pulses (if the
explosion is deep enough not to vent through the surface) (Richardson
et al., 1995). The shock wave is a compression wave that expands
radially out from the detonation point of an explosion. Although the
wave is initially supersonic, it is quickly reduced to a normal
acoustic wave. The broadband
[[Page 17792]]
source levels of charges weighing 0.5-20 kg (1.1-44 lb) are in the
range of 267-280 dB re 1 microPa (at a nominal 1-m distance), with
dominant frequencies below 50 Hz (Richardson et al., 1995; CSA, 2004).
The following sections discuss the potential impacts of underwater
explosions on marine mammals, including mortality, injury, hearing
effects, and behavioral effects.
Mortality or Injury
It has been demonstrated that nearby underwater blasts can injure
or kill marine mammals (Richardson et al., 1995). Injuries from high-
velocity underwater explosions result from two factors: (1) the very
rapid rise time of the shock wave; and (2) the negative pressure wave
generated by the collapsing bubble, which is followed by a series of
decreasing positive and negative pressure pulses (CSA, 2004). The
extent of injury largely depends on the intensity of the shock wave at
the receiver (marine mammal) and the size and depth of the animal
(Yelverton et al., 1973; Craig, 2001).
The greatest damage occurs at boundaries between tissues of
different densities because different velocities are imparted that can
lead to their physical disruption; effects are generally greatest at
the gas-liquid interface (Landsberg, 2000; CSA, 2004). Gas-containing
organs, especially the lungs and gastrointestinal tract, are the most
susceptible to this type of damage. Lung injuries (including
lacerations and the rupture of the alveoli and blood vessels) can lead
to hemorrhage, air embolisms, and breathing difficulties. The lungs and
other gas-containing organs (nasal sacs, larynx, pharynx, and trachea)
may also be damaged by compression/expansion caused by oscillations of
the blast gas bubble (Reidenberg and Laitman, 2003). Intestinal walls
can bruise or rupture, which may lead to hemorrhage and the release of
gut contents. Less severe injuries include contusions, slight
hemorrhaging, and petechia (Yelverton et al., 1973; CSA, 2004). Ears
are the organs most sensitive to pressure and, therefore, to injury
(Ketten, 2000; CSA, 2004). Severe damage to the ears can include
rupture of the tympanic membrane, fracture of the ossicles, cochlear
damage, hemorrhage, and cerebrospinal fluid leakage into the middle
ear. By themselves, tympanic membrane rupture and blood in the middle
ear can result in partial, permanent hearing loss. Permanent hearing
loss can also occur when the hair cells are damaged by loud noises
(ranging from single, very loud events to chronic exposure).
Hearing Effects
Mammalian hearing functions over a wide range of sound intensities,
or loudness. The sensation of loudness increases approximately as the
logarithm of sound intensity (Richardson and Malme, 1993). Sound
intensity is usually expressed in decibels (dB), units for expressing
the relative intensity of sounds on a logarithmic scale. Because sound
pressure is easier to measure than intensity and intensity is
proportional to the square of sound pressure, sound pressure level is
usually reported in units of decibels relative to a standard reference
pressure. Based on the information presented in Richardson et al.
(1995), the possible behavioral effects of noise from underwater
explosions on marine mammals may be categorized as follows:
1. The noise may be too weak to be heard at the location of the
animal (i.e., below the local ambient noise level, below the hearing
threshold of the animal at the relevant frequencies, or both);
2. The noise may be audible, but not loud enough to elicit an overt
behavioral reaction;
3. The noise may elicit behavioral reactions, which may vary from
subtle effects on respiration or other behaviors (detectable only
statistically) to active avoidance behavior;
4. With repeated exposure, habituation (diminishing responsiveness)
to the noise may occur. Continued disturbance effects are most likely
with sounds that are highly variable in their characteristics,
unpredictable in occurrence, and associated with situations perceived
by the animal as threatening;
5. Any anthropogenic noise that is strong enough to be heard has
the potential to reduce (mask) the ability of a marine mammal to hear
natural sounds at similar frequencies, including calls from
conspecifics, and underwater environmental sounds such as surf noise.
6. If mammals remain in an area because it is important for
feeding, breeding or some other biologically important purpose even
though there is chronic exposure to noise, it is possible that there
could be noise-induced physiological stress; this might in turn have
negative effects on the well-being or reproduction of the animals
involved; and
7. Very strong sounds have the potential to cause temporary or
permanent reduction in hearing sensitivity. In terrestrial mammals, and
presumably marine mammals, received sound levels must far exceed the
animal's hearing threshold for there to be any temporary threshold
shift (TTS) in its hearing ability. For transient sounds, the sound
level necessary to cause TTS is inversely related to the duration of
the sound exposure. Received sound levels must be even higher for there
to be risk of permanent hearing impairment. In addition, intense
acoustic or explosive events may cause trauma to tissues associated
with organs vital for hearing, sound production, respiration and other
functions. This trauma may include minor to severe hemorrhage.
TTS
The mildest form of hearing damage, TTS, is defined as the
temporary elevation of the minimum hearing sensitivity threshold at
particular frequency(s) (Kryter, 1985; CSA, 2004). TTS may last from
minutes to days. Although few data exist on the effects of underwater
sound on marine mammal hearing, in terrestrial mammals, and presumably
in marine mammals, received levels must exceed an animal's hearing
threshold (i.e., maximum sensitivity) for TTS to occur (Richardson et
al., 1995; Kastak et al., 1999; Wartzok and Ketten, 1999).
Most studies involving marine mammals have measured exposure to
noise in terms of sound pressure level (SPL), measured in dBrms or
dBpeak pressure re 1 microPa. Exposure to underwater sound can also be
expressed in terms of energy, also called sound exposure level (SEL),
or acoustic energy (measured in dB re 1 microPa\2\-s), which, unlike
SPL measurements, considers both intensity and duration of the sound.
If TTS is defined as a measurable threshold shift of 6 dB or more
(Finneran et al., 2000, 2002), then based on experiments with white
whales and bottlenose dolphins, the onset of TTS was associated with an
energy level of about 184 dB re 1 microPa\2\-s (CSA, 2004). However,
the data are very limited, and Finneran (2003) has noted that they
should be interpreted with caution.
Permanent Threshold Shift (PTS)
PTS is a permanent decrease in the functional sensitivity of an
animal's hearing system at some or all frequencies (CSA, 2004). The
principal factors involved in determining whether PTS will occur
include sound impulse duration, peak amplitude, and rise time. The
criteria are location and species-specific (Ketten, 1995) and are also
influenced by the health of the receiver's ear.
[[Page 17793]]
At least in terrestrial animals, it has been demonstrated that the
received level from a single exposure must be far above the TTS
threshold for there to be a risk of PTS (Kryter, 1985, Richardson et
al., 1995; CSA, 2004). Sound signals with sharp rise times (e.g., from
explosions) produce PTS at lower intensities than do other types of
sound (Gisiner, 1998; CSA, 2004).
For explosives, Ketten (1995) estimated that greater than 50-
percent PTS would occur at peak pressures of 237-248 dB re 1 microPa
and that TTS would occur at peak pressures of 211-220 dB re 1 microPa.
The ``safe'' peak pressure level to avoid physical injury recommended
by Ketten (1995) is 100 psi (237 dB re 1 microPa, or about 212 dB re 1
microPa2-s). PTS is assumed to occur at received levels 30 dB above
TTS-inducing levels. Studies have shown that injuries at this level
involve the loss of sensory hair cells (Ahroon et al., 1996; CSA, 2004).
Behavioral Effects
Behavioral reactions of marine mammals to sounds such as those
produced by underwater explosives are difficult to predict. Whether and
how an animal reacts to a given sound depends on factors such as the
species, hearing acuity, state of maturity, experience, current
activity, reproductive state, time of day, and weather.
Richardson et al. (1995) summarized available information on the
reported behavioral reactions of marine mammals to underwater
explosions. Observations following the use of seal bombs as scare
charges indicate that pinnipeds rapidly habituate to and, in general,
appear quite tolerant of, noise pulses from explosives. Klima et al.
(1988) reported that small charges were not consistently effective in
moving bottlenose dolphins away from blast sites in the GOM. Since
dolphins may be attracted to the fish killed by such a charge, rather
than repelled, scare charges are not used in the GOM platform removal
program (G. Gitschlag, personal communication, in Richardson et al., 1995).
There are few data on the reactions of baleen whales to underwater
explosions. Gray whales were apparently unaffected by 9- to 36-kg (20-
to 97-lb) charges used for seismic exploration (Fitch and Young, 1948).
However, Gilmore (1978) felt that similar underwater blasts within a
few kilometers of the gray whale migration corridor did ``sometimes''
interrupt migration.
Humpback whales have generally not been observed to exhibit
behavioral reactions (including vocal ones) to explosions, even when
close enough to suffer injury (hearing or other) (Payne and McVay,
1971; Ketten et al., 1993; Lien et al., 1993; Ketten, 1995; Todd et
al., 1996). In Newfoundland, humpbacks displayed no overt reactions
within about 2 km of 200- to 2,000-kg explosions. Whether habituation
and/or hearing damage occurred was unknown, but at least two whales
were injured (and probably killed) (Ketten et al., 1993). Other
humpback whales in Newfoundland, foraging in an area of explosive
activity, showed little behavioral reaction to the detonations in terms
of decreased residency, overall movements, or general behavior,
although orientation ability appeared to be affected (Todd et al.,
1996). Todd et al. (1996) suggested caution in interpretation of the
lack of visible reactions as indication that whales are not affected or
harmed by an intense acoustic stimulus; both long- and short-term
behavior as well as anatomical evidence should be examined. The
researchers interpreted increased entrapment rate of humpback whales in
nets as the whales being influenced by the long-term effects of
exposure to deleterious levels of sound.
As mentioned previously, Finneran et al. (2000) exposed captive
bottlenose dolphins and belugas to single, simulated sounds of distant
explosions. The broad-band received levels were 155-206 dB; pulse
durations were 5.4-13 ms. This was equivalent to a maximum spectral
density of 102-142 dB re 1 microPa\2\/Hz at a 6.1 Hz bandwidth.
Although pulse durations differed, the source levels required to induce
a behavioral response to the introduced sounds were similar to those
found by Ridgway et al. (1997) and Schlundt et al. (2000).
Estimates of Take by Harassment During Explosive Severance Activities
in the GOM
The MMS has requested NMFS to issue authorizations, under section
101(a)(5)(A) of the MMPA, to cover any potential take by Level A or
Level B harassment for the 28 species of cetaceans listed previously in
this document, incidental to the oil and gas industry conducting
explosive-severance operations regulated by the MMS. Explosive
severance operations have the potential to take marine mammals by
contact with shock wave and acoustic energy released from underwater
detonations and the resultant injury, hearing damage, and behavioral
effects. For this activity, MMS has adopted, without modification,
NMFS' take thresholds and criteria for explosives used in the
incidental take authorization for shock trials for the U.S. Navy's
Winston Churchill (Navy, 2001). While these criteria remain a subject
for future discussion and revision (see 69 FR 21816, April 22, 2004,
and 70 FR 48675, August 19, 2005), the Winston Churchill criteria
(i.e., 12 pounds/in\2\ (psi) peak-pressure and 182 dB (re 1 microPa\2\-
sec)) have been used by MMS for this activity because these criteria
remain conservative. For example, Finneran et al. (2003) did not find
masked TTS in the single bottlenose dolphin tested at the highest
exposure conditions: peak pressure of 207 kPa (30 psi), 228 dB re 1
microPa pk-pk pressure, and 188 dB re 1 microPa\2\-s total energy flux.
The criteria for nonlethal, injurious impacts (Level A harassment)
are currently defined as the incidence of 50-percent tympanic-membrane
(TM) rupture and the onset of slight lung hemorrhage for a 12.2-kg (27
lb) dolphin calf. Level A harassment take is assumed to occur:
1. At an energy flux density value of 1.17 in-lb/in\2\ (which is
about 205 dB re 1 microPa2-s); and
2. If the peak pressure exceeds 100 psi for an explosive source;
i.e., the ``safe'' peak pressure level to avoid physical injury
recommended by Ketten (1995).
The horizontal distance from the explosive to each threshold is
determined and the maximum distance at which either is exceeded is
considered to be the distance at which Level A harassment would occur
(U.S. Dept. Navy, 2001).
NMFS recognizes two levels of noninjurious acoustic impacts (Level
B harassment). One criterion for Level B harassment is defined by the
onset of TTS. Two thresholds are applied. TTS is assumed to be induced:
1. At received energies greater than 182 dB re 1 microPa\2\-s
within any 1/3-octave band; and
2. If, for an explosive source, the peak pressure at the animal
exceeds 12 psi.
As with Level A harassment, the horizontal distance to each
threshold has been determined and the maximum distance at which either
is exceeded is considered the distance at which Level B harassment
(TTS) would occur (Navy, 1998 and 2001; CSA, 2004). These distances
have been used for estimating conservative zones of impact.
``Sub-TTS'' behavioral effects may also be considered to constitute
a take by Level B harassment if a marine mammal reacts to an activity
in a manner that would affect some behavioral pattern in a biologically
significant way. Single, minor reactions (such as startle or ``heads-
up'' alert displays, short-term changes in breathing rates, or modified
single dive
[[Page 17794]]
sequences) that have no biological context would not qualify as takes
(66 FR 22450, May 4, 2001). This would include minor or momentary
strictly behavioral responses to single events such as underwater
explosions. Since explosive severance activities result in single,
almost instantaneous detonations, with no repetitive detonations, NMFS
does not believe that marine mammals would be subject to behavioral
harassment other than behavioral modifications potentially incurred as
a result of TTS.
In order to obtain potential incidental take numbers for explosive
severance activities, fundamental modeling components require: (1)
predictive modeling of detonation pressure/energy propagation, (2)
propagation model verification and utilization, (3) predictive modeling
of marine mammal take estimates, and (4) take-estimate calculation.
These models and the calculations resulting from those models are
explained in detail in MMS, 2005a and MMS, 2005b.
Based on MMS calculations for all explosive-severance monitoring
scenarios, Level A harassment takes would be limited to less than one
bottlenose dolphin annually and between three and five bottlenose
dolphins, one Atlantic spotted, and one pantropical spotted dolphin
over the five-year period of these proposed regulations.
Based on MMS calculations for all explosive-severance scenarios,
annual Level B harassment takes would be limited to 148-227 bottlenose
dolphins, 35-65 Atlantic spotted dolphins, 33-77 pantropical spotted
dolphins, 11-27 Clymene dolphins, 8-12 rough-toothed dolphins, 6-14
striped dolphins, 6-15 melon-headed whales, 4-10 pilot whales, 2-5
spinner dolphins, 1-3 Risso's dolphins, and 1-2 sperm whales. It should
be noted that Level A and Level B harassment estimates are made without
consideration of the implementation of mitigation measures to protect
marine mammals, so actual harassment numbers would likely be lower.
Post-activity monitoring conducted by trained biological observers since
about 1989 has not produced any sightings of distressed marine mammals.
Mitigation and Monitoring
Based upon the analysis found in the Structure-Removal PEA (MMS,
2005b), MMS believes that implementation of the mitigation measures
listed in this section will prevent the occurrence of any mortality or
serious injury to marine mammals.
Charge Criteria
The charge criteria discussed here (e.g., charge size, detonation
staggering, and explosive material) are applicable for all of the
explosive-severance scenarios conducted under the proposed action.
Charge Size
The options available under the multiple explosive-severance
scenarios allow for the utilization of any size charge between 0 and
500 lb (226.8 kg). Most often determined in the early planning stages,
the final/actual charge weight establishes the specific monitoring
scenario that must be adhered to as a condition of an MMPA
authorization. Increasing the charge size results in increasing levels
of mitigation/monitoring. Using explosives greater than 500 lb (226.8
kg) are not proposed to be authorized for taking marine mammals under
the MMPA. Use of explosives greater than 500 lb (226.8 kg) would
require additional National Environmental Policy Act (NEPA) analyses,
Endangered Species Act (ESA) consultations and an MMPA authorization
prior to usage. As a result, no marine mammal takings are proposed to
be authorized for charge weights greater than 500 lbs (226.8 kg) under
this proposed rule.
Detonation Staggering
Multiple-charge detonations are proposed to be staggered at an
interval of 0.9 sec (900 msec) between blasts to prevent an additive
pressure event. For decommissioning purposes, a ``multiple-charge
detonation'' refers to any configuration where more than one charge is
required in a single detonation ``event.''
Explosive Material
There are many important properties (i.e., velocity, brisance,
specific-energy, etc.) related to the explosive material(s) used in
developing severance charges. Material needs vary widely depending upon
target characteristics, marine conditions, and charge placement. Since
specific material and personnel safety requirements must be established
and followed, MMS believes that all decisions on explosive composition,
configuration, and usage should be made by the qualified (i.e.,
licensed and permitted) explosive contractors in accordance with the
applicable explosive-related laws and regulations. NMFS concurs, noting
that limiting charge size or material may result in incomplete severing
possibly requiring even larger charge weight to complete the severing.
Specific Mitigation/Monitoring Requirements
Explosive severance activities, as described in the MMS application
and PEA, have been grouped into five blasting categories (very small,
small, standard, large, and specialty). Since the level of detonation
pressure and energy is primarily related to the amount of the
explosives used, these categories were developed cooperatively by MMS,
NMFS and industry explosives experts based upon the specific range of
charge weights needed to conduct current and future GOM OCS
decommissionings. Depending on the design of the target and other
variable marine conditions, the severance charges developed under each
of these categories could be designed for use in either a below-mudline
(BML) or above mudline (AML) configuration. These factors, combined
with an activity location within either the shelf (less than 200 m (656
ft)) or slope (greater than 200 m (656 ft)) species-delineation zone,
result in 20 separate explosive-severance monitoring scenarios, as
shown in Table 1.
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The charge criteria previously listed are proposed to be standard
for all decommissionings employing explosive-severance activities.
However, depending upon the severance scenario, there are six different
types of marine mammal/sea turtle monitoring surveys that must be
conducted before and after all detonation events (sea turtles are
included in these proposed mitigation and monitoring activities because
NMFS and MMS anticipate that such measures will also minimize impacts
to ESA-listed sea turtles). The specific monitoring requirements,
survey times, and impact zone radii for all explosive-severance
monitoring scenarios are summarized in Table 2.
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Accounting for similar pre- and post-detonation surveys, the 20
explosive-severance monitoring scenarios correspond roughly with 8
basic mitigation processes that vary only in differences in impact zone
ranges and survey times. As noted in Appendix E of MMS, 2005b, these
impact zone radii were derived using the ``Under-Water Calculator,'' a
verified model that predicts the detonation pressure/energy propagation
resulting from underwater detonations. Time requisites were established
by NMFS and MMS scientists, taking into consideration likely marine
mammals/sea turtles and their surfacing/diving rates. Because of its
complexity, the proposed mitigation/monitoring processes for each of
the 20 explosive-severance scenarios is found in MMS, 2005a and is not
repeated here. Instead, the proposed mitigation and monitoring
summarized in Table 2 can be illustrated by using the Standard Blasting
Category for shelf and slope waters as examples:
Shelf Waters (< 200 m): Scenarios C1 and C3
An operator proposing shelf-based, explosive-severance activities
conducted under the standard blasting category will be limited to 80-lb
charge sizes (BML or AML) and will be required to conduct all requisite
monitoring during daylight hours out to
[[Page 17797]]
the associated impact-zone radii listed here:
C1 -- 631 m (2,069 ft)
C3 -- 829 m (2,721 ft)
Required Observers
Generally, two observers who are trained and approved by an
instructor with experience as an NMFS Platform Removal Observer Program
(PROP) trainer (trained observer) are required to perform marine
mammal/sea turtle detection surveys for standard-blasting under shelf
water scenarios C1 and C3. If necessary, the site coordinator will
determine if additional observers are required to compensate for the
complexity of severance activities and/or structure configuration. In
addition to meeting all reporting requirements, the trained observers will:
1. Brief affected crew and severance contractors on the monitoring
requirements and instruct topsides personnel to immediately report any
sighted marine mammal/sea turtles to an observer or designated company
representative;
2. Establish an active line of communication (i.e., 2-way radio,
visual signals, etc.) with company and blasting personnel; and
3. Devote the entire, uninterrupted survey time to marine mammal/
sea turtle monitoring.
Pre-Detonation Monitoring
Before severance-charge detonation, the trained observers will
conduct a 90-min surface monitoring survey of the impact zone. The
monitoring will be conducted from the highest vantage points and other
locations which will provide comprehensive surveys of the surrounding
area. Once the surface monitoring is complete (i.e., the impact zone
determined to be clear of marine mammal/sea turtles), the trained
observer(s) will transfer to a helicopter to conduct a 30-min (Scenario
C1) or 45-min (Scenario C3) aerial monitoring survey. As per approved
guidelines, the helicopter will transverse the impact zone at low
speed/altitude in a specified grid pattern. If during the aerial survey
a marine mammal/sea turtle is:
1. Not sighted, proceed with the detonation;
2. Sighted outbound and continuously tracked clearing the impact
zone, proceed with the detonation after the monitoring time is complete
to ensure no reentry;
3. Sighted outbound and the marine mammal/sea turtle track is lost
(e.g., the animal dives below the surface),
? Halt the detonation,
? Wait 30 min, and
? Reconduct the 30 min (C1) or 45 min (C3) aerial monitoring survey; or
4. Sighted inbound,
? Halt the detonation,
? Wait 30 minutes, and
? Reconduct the 30-min (C1) or 45-min (C3) aerial monitoring survey.
In the third and fourth scenarios, detonations will not proceed
until they satisfy the first or second scenarios after the required
aerial resurvey.
Post-Detonation Monitoring
After severance charge detonation, the trained observer(s) will
conduct a 30-min aerial monitoring survey of the impact zone to look
for affected marine mammal/sea turtles. If a marine mammal/sea turtle
is found shocked, seriously injured, or dead, the operations will cease
and the observer will contact MMS and NMFS' Southeast Regional Office,
attempts will be made, under the direction of the trained observer, to
collect/resuscitate the animal, and the Southeast Region, NMFS will be
contacted for additional instruction. If the animal does not revive,
efforts should be made to recover it for necropsy in consultation with
the appropriate NMFS' Stranding Coordinator. If no marine mammal/sea
turtles are observed to be impacted by the detonation, the trained
observer(s) will record all of the necessary information as required in
MMS's permit approval letter and guidelines for the preparation of a
trip report.
A flowchart of the monitoring process and associated survey times
for standard severance-scenarios C1 and C3 is provided in Figure 6 in
MMS, 2005a.
Slope Waters (>200 m): Scenarios C2 and C4
An operator proposing slope-based, explosive-severance activities
conducted under the standard blasting category will be limited to 80-lb
charge sizes (BML or AML) and conduct all requisite monitoring during
daylight hours out to the associated impact-zone radii listed below:
C2 -- 631 m (2,069 ft)
C4 -- 829 m (2,721 ft)
Required Observers
Slope water scenarios propose to require a minimum of three trained
observers for the coordinated surface, aerial, and acoustic monitoring
surveys, therefore, at least two ``teams'' of observers will be
required. The PROP manager or his designee will determine each ``team''
size depending upon the complexity of severance activities and/or
structure configuration. In addition to meeting all reporting
requirements, the trained observers would perform the same functions as
the observers in the shelf water scenarios C1 and C3.
Pre-Detonation Monitoring
Before severance charge detonation, trained observers will begin a
90-min surface monitoring survey and a 120-min (scenario C2) or 150-min
(scenario C4) passive-acoustic monitoring survey of the impact zone.
The surface monitoring will be conducted in the same manner as the C1
and C3 scenarios. Once the surface monitoring is complete (i.e., the
impact zone cleared of marine mammal/sea turtles), the acoustic survey
will continue while the trained observer(s) transfer(s) to a helicopter
to conduct a 30-min (scenario C2) or 60-min (scenario C4) aerial
monitoring survey. As per approved guidelines, the helicopter will
transverse the impact zone at low speed/altitude in a specified grid
pattern.
The proposed requirements on marine mammal and sea turtle sighting
for the C1 and C3 scenarios would apply here except that the wait times
and aerial survey times differ (see Table 2).
Post-Detonation Monitoring
Scenarios C2 and C4 both would require the same post-detonation
monitoring explained for the C1 and C3 scenarios.
Scenario C4 also requires a post-post-detonation aerial monitoring
survey to be conducted within 2-7 days after detonation activities
conclude. Conducted by helicopter or fixed-wing aircraft, when
applicable, observations are to start at the removal site and proceed
leeward and outward of wind and current movement. If a marine mammal/
sea turtle is found shocked, injured, or dead, the operations will
cease and the observer will contact MMS and NMFS' Southeast Regional
Office, attempts will be made, under the direction of the trained
observer, to collect/resuscitate the animal, and the Southeast Region,
NMFS will be contacted for additional instruction. If the animal does
not revive, efforts should be made to recover it for necropsy in
consultation with the appropriate NMFS' Stranding Coordinator. Any
injured or dead marine mammal/sea turtle must be recorded, and if
possible, tracked after notifying NMFS. If no marine mammal/sea turtles
are observed to be dead, injured, distressed, or shocked during either
aerial survey, the trained observers will record all of the necessary
information as detailed in MMS's permit approval letter and guidelines
for the preparation of a trip report.
A flowchart of the monitoring process and associated survey times
for standard
[[Page 17798]]
explosive-severance monitoring scenarios C2 and C4 is provided in
Figure 7 in MMS, 2005a.
Reporting Requirements
All explosive-severance activities in the GOM would be mandated to
abide by the reporting requirements listed in this section. The
information collected will be used by MMS and NMFS to continually
assess mitigation effectiveness and the level of marine mammal/sea
turtle impacts.
The reporting responsibilities will be undertaken by the NMFS'
marine mammal/sea turtle observer for scenarios B1-E4 (Table 2) and the
collected data will be prepared and routed in accordance with
previously established guidelines for filing times and distribution.
For very-small blasting scenarios A1-A4, the company observer will
be responsible for recording the data and preparing a trip report for
submittal within 30 days of completion of the severance activities.
Trip reports for scenarios A1-A4 will be sent to MMS and NMFS Gulf/
Southeast regional offices.
In addition to basic operational data (i.e., area and block, water
depth, company/platform information, etc.), the observer reports must
contain the following information: (1) Monitoring, (a) Survey Type, (i)
pre-detonation), (ii) post-detonation, (iii) surface survey, (iv)
aerial survey; (b) Time(s) (initiated/ terminated), (c) Marine
Conditions (sea state etc.), (2) Observed Marine Protected Species
(mammals/sea turtles), (a) Type/number (basic description or species
identification (if possible)), (b) Location/orientation, (i) inside/
outside impact zone, (ii) inbound/outbound, etc., (c) Any ``halted-
detonation'' details (i.e., waiting periods, re-surveys, etc.), and (d)
any ``Take-Event'' details - actual injury/mortality to marine
protected species.
In the event that a marine mammal or sea turtle is shocked,
injured, or killed during the severance activities, the observer will
report the incident to MMS and NMFS' Southeast Regional Office at the
earliest opportunity.
Research
To help determine the impact zones for the proposed blasting
categories, MMS contracted for development of a model that would
estimate shock wave and acoustic energy propagation caused by
underwater explosive-severance tools (Dzwilewski and Fenton, 2003). As
with most ``theoretical'' models developed to consider a wide range of
parameters under multiple conditions, the contractor suggested that
their modeling results be compared with in-situ data from actual
explosive-severance activities. Previous in-situ research had been
performed by the Naval Surface Warfare Center (NSWC) for MMS (Conner,
1990), but uncertainties concerning transducer ranging devalued the
sediment-attenuation conclusions. Considering the uncertainties, NMFS
provided guidance suggesting that additional in-situ data comparison
must be conducted.
In November 2002, MMS's Technology Assessment and Research (TAR)
Program began working with MMS's GOM Region to modify an existing
project designed to develop and test the efficiency of linear shaped
charges (Saint-Arnaud et al., 2004; see http://www.mms.gov/tarprojects/
429.htm ). The modifications made it possible to allow BML, in
situ data measurements to be taken during the final testing on actual OCS
targets. While developing the measurement phase of the project, MMS
again coordinated with NMFS to address the concerns expressed over the
NSWC's range uncertainties, ultimately modifying field procedures to
include the use of a sector-scanning sonar in conjunction with
reflectors attached to each transducer array string. The testing was
conducted, and Annex B of the project's final report (Appendix C of the
Structure-Removal Operations PEA; USDOI, MMS, 2004) compares the peak
overpressure (psi), impulse (psi-s), and energy flux density (EFD; psi-
in) measurements collected from the testing with calculated results
from both the UWC and the applicable NSWC similitude equations.
Since the number of targets, charge sizes, and marine conditions
were limited, MMS is currently working with both industry and acoustic
measurement groups to conduct additional research on targets offering a
wider range of parameters. Similar to the TAR project, the research
program under development will focus on in-situ ``targets-of-
opportunity'' offered by industry. As with previous work, the program
will use transducer array assemblies to measure, record, and calculate
the peak pressure, impulse, and acoustic energy released into the water
column from severance charges. With a greater knowledge of the actual
impacts, additional protective and mitigative measures may be possible
in the future to address specific concerns of northern GOM marine
mammals. In addition, the potential new information on impact-reducing
factors (i.e., lower charge weights, increased BML cut depths,
experimental mitigation techniques, etc.) will encourage industry to
push research and development of less harmful and more efficient charges.
As a result, NMFS is proposing to request continued research on the
actual impacts of explosive severance activities, which includes, but
is not limited to, additional in-situ acoustic measurement testing on
decommissioning targets prior to any additional reauthorization for
this activity under section 101(a)(5)(A) of the MMPA.
Preliminary Determinations
NMFS has preliminarily determined that impacts to marine mammals
from explosive-severance activities conducted under the proposed action
will result in the taking (by Level B harassment) of small numbers of
marine mammals, and have no more than a negligible impact on affected
marine mammal stocks. Projected Level A harassment takes are very
unlikely and would be limited to 3 species. No deaths or serious
injuries to marine mammals or sea turtles are projected. If any marine
mammals are displaced from preferred grounds, it will be for a short
period of time (extending no greater than the structure removal
activity itself). No critical habitat is involved in structure removal
operations. Activities may disrupt behavioral patterns in a few
individuals of a few species, but no effect is projected on annual
recruitment or survival. With proposed mitigation measures in place,
the potential impacts on marine mammals are expected to be negligible
and at the lowest level practicable.
ESA
Under section 7 of the ESA, MMS has begun consultation on the
proposed explosive severance activtiy. NMFS will also consult on the
issuance of regulations and LOAs under section 101(a)(5)(A) of the MMPA
for this activity. Consultation will be concluded prior to a
determination on the issuance of regulations.
NEPA
MMS completed and released its PEA to the public for review on
February 28, 2005. That document is available (see ADDRESSES) to the
public. NMFS is reviewing the PEA and will either adopt it or prepare
its own NEPA document before making a determination on the issuance of
regulations and LOAs for this activity.
Information Solicited
NMFS requests interested persons to submit comments, information,
and suggestions concerning MMS'
[[Page 17799]]
application and this proposed rule. NMFS requests commenters also read
the MMS application and PEA on this action prior to submitting comments.
Classification
This action has been determined to be not significant for purposes
of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
If implemented, this rule would authorize takings of marine mammals,
otherwise prohibited by the MMPA, incidental to the explosive removal
of offshore oil and gas structures in the GOM. Most offshore structures
are owned by large- and medium-sized oil and gas companies and by
definition, are not small businesses. However, this rule may affect a
number of contractors providing services related to the demolition of
these structures and monitoring marine mammal takes. Some of the
affected contractors may be small businesses, but the number involved
are very small. Further, since the authorization to incidentally take
marine mammals by this activity facilitates structure removal,
implementation of this rulemaking action would lead to the need for
their services. As a result, the economic impact on them would be
beneficial. Because of this certification, a regulatory flexibility
analysis is not required and none has been prepared.
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 proposed rule
contains collection-of-information requirements subject to the
provisions of the PRA. These requirements have been approved by OMB
under control number 0648-0151, and include applications for LOAs, and
reports.
The reporting burden for the approved collections-of-information is
estimated to be approximately 3 hours for each company applying for an
annual LOA. As in previous years, NMFS expects that approximately 20-30
companies to apply for LOAs annually. These estimates include the time
for reviewing instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection-of-information. Send comments regarding these burden
estimates, or any other aspect of this data collection, including
suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: March 31, 2006.
James W. Balsiger,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 216 is proposed
to be amended 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.
2. Subpart R is added and reserved.
3. Subpart S is added consisting of Sec. Sec. 216.210 through
216.218 to read as follows:
Subpart S--Taking of Marine Mammals Incidental to Explosive
Severance Activities Conducted During Structure Removal Operations
on the Outer Continental Shelf in the U.S. Gulf of Mexico
Sec.
216.210 Specified activity and specified geographical region.
216.211 Effective dates.
216.212 Permissible methods of taking.
216.213 Prohibitions.
216.214 Definitions, terms, and criteria.
216.215 Mitigation.
216.216 Requirements for monitoring and reporting.
216.217 Letters of Authorization.
216.218 Renewal of, and modifications to, Letters of Authorization.
Subpart S--Taking of Marine Mammals Incidental to Explosive
Severance Activities Conducted During Structure Removal Operations
on the Outer Continental Shelf in the U.S. Gulf of Mexico
Sec. 216.210 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of those marine mammal species specified in paragraph (b) of this
section by U.S. citizens engaged in explosive severance activities
conducted during offshore oil and gas structure removal activities in
areas within state and/or Federal waters in the U.S. Gulf of Mexico
adjacent to the coasts of Texas, Mississippi, Louisiana, Alabama, and
Florida. The incidental, but not intentional, taking of marine mammals
by U.S. citizens holding a Letter of Authorization issued under
Sec. Sec. 216.106 and 216.217 is permitted during the course of
severing pilings, well conductors, and related supporting structures,
and other activities related to the removal of the oil and gas 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 1 bottlenose dolphin by Level A harassment and 457 marine
mammals by Level B harassment, limited to the following species: sperm
whale, pygmy sperm whale, dwarf sperm whale, Cuvier's beaked whale,
Sowerby's beaked whale, Gervais' beaked whale, Blainville's beaked
whale, rough-toothed dolphin, bottlenose dolphin, pantropical spotted
dolphin, Atlantic spotted dolphin, spinner dolphin, Clymene dolphin,
striped dolphin, Fraser's dolphin, Risso's dolphin, melon-headed whale,
pygmy killer whale, false killer whale, killer whale, short-finned
pilot whale, North Atlantic right whale, humpback whale, minke whale,
Bryde's whale, sei whale, fin whale, and blue whale.
Sec. 216.211 Effective dates.
Regulations in this subpart are effective from July 15, 2006
through July 14, 2011.
Sec. 216.212 Permissible methods of taking.
The Holder of a Letter of Authorization issued pursuant to
Sec. Sec. 216.106 and 216.217, may incidentally, but not
intentionally, take marine mammals by harassment within the area
described in Sec. 216.210(a), provided the activity is in compliance
with all terms, conditions, and requirements of these regulations and
the appropriate Letter of Authorization.
Sec. 216.213 Prohibitions.
Notwithstanding takings authorized by a Letter of Authorization
issued under Sec. Sec. 216.106 and 216.217, no person in connection
with the activities described in Sec. 216.210(a) shall:
(a) Take any marine mammal not specified in Sec. 216.210(b);
(b) Take any marine mammal specified in Sec. 216.210(b) in a
manner or amount greater than described therein;
(c) Take a marine mammal specified in Sec. 216.210(b) if such
taking results in more than a negligible impact on the
[[Page 17800]]
species or stocks of such marine mammal;
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. 216.217;
(e) Take a marine mammal in violation of these regulations by using
a charge with a weight greater than 500 lbs (227 kg);
(f) Take a marine mammal when conditions preclude conducting
mitigation and monitoring requirements of these regulations or a Letter
of Authorization.
Sec. 216.214 Definitions, terms, and criteria.
(a) Definitions. (1) Below-mud-line or BML means that the
explosives are detonated below the water-mud interface, either inside
or outside a pipe, other structure or cable.
(2) Above-mud-line or AML means that the explosives are detonated
in the water column either inside or outside a pipe, other structure or
cable.
(3) Multiple charge detonation means any explosive configuration
where more than one charge is required in a single detonation event.
(4) Scenario means an alpha-numeric designation provided to
describe charge size, activity location, and target design employed in
order to apply appropriate marine mammal monitoring measures.
(b) Terms. (1) Impact zone (required for all scenarios). The impact
zone means the area (i.e., a horizontal radius around a decommissioning
target) in which a marine mammal could be affected by the pressure and
or acoustic energy released during the detonation of an explosive-
severance charge.
(2) Predetonation survey (required for all scenarios). A
predetonation (pre-det) survey means any marine mammal monitoring
survey (e.g., surface, aerial, or acoustic) conducted prior to the
detonation of any explosive severance tool.
(3) Postdetonation survey (required for all scenarios). A
postdetonation (post-det) survey means any marine mammal monitoring
survey (e.g., surface, aerial, or post-post-det aerial) conducted after
the detonation event occurs.
(4) Waiting period (required for all scenarios). Variable by
scenario, the waiting period refers to the time in which detonation
operations must hold before the requisite monitoring survey(s) can be
reconducted.
(5) Company observer (for scenarios A1-A4 only). Trained company
observers are authorized to perform marine mammal detection surveys for
``very-small'' blasting scenarios A1-A4.
(6) Trained observer (for scenarios B1-E4). Trained observers are
observers trained and approved by an instructor with experience as a
NMFS Platform Removal Observer Program trainer. Trained observers are
required to perform marine mammal detection surveys for all detonation
scenarios with the exception of scenarios A1-A4. Two observers will be
assigned to each operation for detection survey duties. However,
because mitigation-scenarios C2, C4, D2, D4, E2, and E4 require a
minimum of three observers for the simultaneous surface, aerial, and
acoustic surveys, at least two ``teams'' of observers will be required.
(c) Blasting category parameters and associated severance
scenarios. To determine the appropriate marine mammal mitigation and
monitoring requirements in Sec. Sec. 216.217 and 216.218, holders of
Letters of Authorization under this subpart must determine, from this
table, the appropriate explosive severance scenario to follow for the
blasting category, biological zone, and charge configuration for their
activity.
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Sec. 216.215 Mitigation.
The activity identified in Sec. 216.210(a) must be conducted in a
manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitats. When conducting
operations identified in Sec. 216.210(a), all mitigation measures
contained in the Letter of Authorization issued under Sec. Sec.
216.106 and 216.217 must be implemented. Any mitigation measures
proposed to be contained in a Letter of Authorization that are not
specified in this subpart, or not considered an emergency requirement
under Sec. 216.218(d), will first be subject to public notice and
comment through publication in the Federal Register, as provided by
Sec. 216.218(c). When using explosives, the following mitigation
measures must be carried out:
(a)(1) If marine mammals are observed within (or about to enter)
the relevant marine mammal impact zone identified in Sec. 216.214 (c)
column 4 for the relevant charge range and configuration (i.e., BML or
AML) for the activity, detonation must be delayed until the marine
mammal(s) are outside that zone;
(2) Required pre-detonation surveys must begin no earlier than 1
hour after sunrise and detonations must not occur if the post-
detonation survey cannot be concluded prior to 1 hour before sunset;
(3) Whenever weather and/or sea conditions preclude adequate
aerial, shipboard or subsurface marine mammal monitoring as determined
by the trained observer, detonations must be delayed until conditions
improve sufficiently for marine mammal monitoring to be undertaken or
resumed;
(4) Whenever the weather and sea conditions prevent implementation
of the aerial survey monitoring required under
Sec. 216.216(c)(2), the aerial survey must be repeated prior to
detonation of charges; and
(5) Multiple charge detonations must be staggered at an interval of
0.9 sec (900 msec) between blasts.
(b) If a marine mammal/sea turtle is found shocked, injured, or
dead, the explosive severance activity will immediately cease and the
holder of the Letter of Authorization, designee or the lead observer
will contact the Minerals Management Service and the Regional
Administrator, National Marine Fisheries Service' Southeast Regional
Office, or designee at the earliest opportunity.
Sec. 216.216 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization issued for activities
described in Sec. 216.210(a) are required to cooperate with the
National Marine Fisheries Service, and any other Federal, state or
local agency monitoring the impacts of the activity on marine mammals.
(b) Holders of Letters of Authorization must fully comply with the
relevant mitigation and monitoring program for the explosive-severance
activity that corresponds to the blast scenario in Sec. 216.216(e)).
(c) Holders of Letters of Authorization must ensure that the following
[[Page 17802]]
monitoring programs are conducted as appropriate for the required
monitoring scenario.
(1) Surface monitoring survey. Surface monitoring surveys must be
conducted for all scenarios for the period of time that corresponds to
the appropriate explosive severance scenario. Surface monitoring
surveys are to be conducted from the highest vantage point available on
the structure being removed or proximal surface vessels (i.e.,
crewboats, derrick barges, etc.). Surface surveys are restricted to
daylight hours only, and the monitoring will cease upon inclement
weather or when the lead observer determines that marine conditions are
not adequate for visual observations.
(2) Aerial monitoring survey. Aerial surveys are required for all
explosive severance scenarios except monitoring scenarios A1-A4. Aerial
monitoring surveys are to be conducted from helicopters running
standard low-altitude search patterns over the extent of the potential
impact area that corresponds to the appropriate explosive severance
scenario. Aerial surveys will be restricted to daylight hours only, and
cannot begin until the requisite surface monitoring survey has been
completed. Aerial surveys will cease upon onset of inclement weather or
when marine conditions are not adequate for visual observations as
determined by the lead observer, or when the pilot/removal supervisor
determines that helicopter operations must be suspended.
(3) Acoustic monitoring survey. Acoustic monitoring surveys are
required to be conducted on all Standard, Large, and Specialty blasting
scenarios conducted at slope (>200 m (656 ft)) locations (i.e.,
scenarios C2, C4, D2, D4, E2, and E4). Persons conducting acoustic
surveys will be required to use NMFS-approved passive acoustic
monitoring devices and technicians. Acoustic surveys will be run
concurrent with requisite pre-detonation surveys; beginning with the
surface observations and concluded at the finish of the aerial surveys
when the detonation(s) is allowed to proceed.
(4) Post-detonation surface monitoring survey. A 30-minute post-
detonation surface survey must be conducted by the trained observer for
scenarios A1 - A4 immediately upon conclusion of the detonation.
(5) Post-detonation aerial monitoring survey. For scenarios B1-D4,
a 30-minute aerial survey must be conducted immediately upon conclusion
of the detonation. For scenarios E1-E4, a 45-minute aerial survey must
be conducted immediately upon conclusion of the detonation.
(6) Post-post-detonation aerial monitoring survey. Post- post-
detonation aerial monitoring surveys must be conducted for scenarios
C4, D2, D4, E2 and E4 within 2-7 days after detonation activities
conclude, by either helicopter or fixed-wing aircraft. Observations are
to start at the removal site and proceed leeward and outward of wind
and current movement. Any injured or dead marine mammals will be noted
in the survey report, and if possible, tracked and collected after
notifying the National Marine Fisheries Service within the time
requirements stated in Sec. 216.216(f).
(7) If unforeseen conditions or events occur during an explosive
severance operation that may necessitate additional monitoring not
specified in this paragraph, the lead biological observer will contact
the appropriate National Marine Fisheries Service and Minerals
Management Service personnel as detailed in the Letter of Authorization
for additional guidance.
(d) Holders of Letters of Authorization must conduct all monitoring
and/or research required under the Letter of Authorization. Any
monitoring or research measures proposed to be contained in a Letter of
Authorization that are not specified in this subpart or not considered
an emergency requirement under Sec. 216.218(d), will first be subject
to public notice and comment through publication in the Federal
Register, as provided by Sec. 216.218(c).
(e) The following table summarizes the required survey mode and
duration for all blasting scenarios of marine mammal impact zones for
implementation of surface and aerial monitoring requirements depending
upon charge weight and severance scenario.
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(f) Reporting (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, Office of Protected Resources, within 30 days of
completion of the removal activity.
(2) The National Marine Fisheries Service will accept the trained
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 submitted.
(3) If a marine mammal/sea turtle is found shocked, injured, or
dead, the Holder of the Letter of Authorization, or designee, must
report the incident to the National Marine Fisheries Service' Southeast
Regional Office, at the earliest opportunity.
Sec. 216.217 Letters of Authorization.
(a) To incidentally take marine mammal species listed in Sec.
216.210(b) pursuant to these regulations, each company or contractor
responsible for the removal of the structure or an industry-related
seafloor obstruction in the area specified in Sec. 216.210(a) must
apply for and obtain either a Letter of Authorization in accordance
with Sec. 216.106 or a renewal under Sec. 216.218(a).
(b) An application for a Letter of Authorization must be submitted
to the National Marine Fisheries Service at least 30 days before the
explosive removal activity is scheduled to begin.
(c) Issuance and renewal of a Letter of Authorization will be based
on a determination that the number of cetaceans taken annually by the
activity will be small, that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the species or stock of affected marine mammal(s), and will not have
an unmitigable adverse impact on the availability of species or stocks
of marine mammals for taking for subsistence uses.
(d) A Letter of Authorization, unless suspended, revoked or not
renewed, will be valid for a period of time not to exceed the period of
validity of this subpart, but may be renewed annually subject to annual
renewal conditions in Sec. 216.218(a).
(e) A copy of the Letter of Authorization must be in the possession
of the persons conducting activities that may involve incidental
takings of marine mammals.
(f) Notice of issuance or denial of a Letter of Authorization will
be published in the Federal Register within 30 days of a determination.
Sec. 216.218 Renewal of, and modifications to, Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 for the
activity identified in Sec. 216.210(a) will be renewed annually upon:
(1) Timely receipt of the report(s) required under Sec.
216.216(f), which have been reviewed by the Assistant Administrator and
determined to be acceptable; and
(2) A determination that the mitigation measures required under
Sec. 216.215 and the Letter of Authorization have been undertaken.
[[Page 17804]]
(b) Notice of issuance of a renewal of the Letter of Authorization
will be published in the Federal Register within 30 days of a determination.
(c) In addition to complying with the provisions of Sec. 216.106,
except as provided in paragraph (b) of this section, no substantive
modification, including withdrawal or suspension, to the Letter of
Authorization issued pursuant to Sec. 216.106 and subject to the
provisions of this subpart shall be made until after notice and an
opportunity for public comment. For purposes of this paragraph, renewal
of a Letter of Authorization under
Sec. 216.218, without modification other than an effective date
change, is not considered a substantive modification.
(d) 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. 216.210(b), the Letter
of Authorization issued pursuant to Sec. 216.106, or renewed pursuant
to this paragraph may be substantively modified without prior notice
and an opportunity for public comment, pursuant to the Administrative
Procedure Act. A notice will be published in the Federal Register
subsequent to the action.
[FR Doc. 06-3327 Filed 4-6-06; 8:45 am]
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