[Federal Register Volume 60, Number 114 (Wednesday, June 14, 1995)]
[Rules and Regulations]
[Pages 31258-31260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14512]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AD21


Marine Mammals; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) hereby extends for an 
additional 60 days through August 15, 1995, the final regulations that 
authorize and govern the incidental, unintentional take of small 
numbers of polar bear and walrus during year-around oil and gas 
industry operations (exploration, development, and production) in the 
Beaufort Sea and adjacent north coast of Alaska.

DATES: This rule will be effective on June 14, 1995. It extends the 
effective period of regulations that appear at 50 CFR Part 18, Subpart 
J, for 60 days through August 15, 1995.

FOR FURTHER INFORMATION CONTACT:
David McGillivary, Supervisor, Office of Marine Mammals Management, 
Anchorage, AK, at (907) 786-3800; or Jeff Horwath, U.S. Fish and 
Wildlife Service, at (703) 385-1718.

SUPPLEMENTARY INFORMATION: Under provisions of section 101(a)(5)(A) of 
the Marine Mammal Protection Act of 1972, as amended (MMPA), the taking 
of small numbers of marine mammals may be allowed incidental to 
specified activities other than commercial fishing if the Director of 
the Service finds, based on the best scientific evidence available, 
that the cumulative total of such taking over a five-year period will 
have negligible effect on these species and will not have an 
unmitigable adverse impact on the availability of these species for 
subsistence uses by Alaskan Natives. If these findings are made, the 
Service is required to establish specific regulations for the 

[[Page 31259]]
activity that set forth: permissible methods of taking; means of 
effecting the least practicable adverse impact on the species and their 
habitat and on the availability of the species for subsistence uses; 
and requirements for monitoring and reporting.
    On December 17, 1994, BP Exploration (Alaska), Inc., for itself and 
on behalf of 14 other energy related entities (hereafter collectively 
referred to as ``Industry'') petitioned the Service to promulgate 
regulations pursuant to section 101(a)(5)(A) of the MMPA. A proposed 
rule was published by the Service on December 30, 1992 (57 FR 62283), 
with a 75-day comment period that expired on March 15, 1993.
    The proposed rule announced that the Service had prepared a draft 
Environmental Assessment in conjunction with the rulemaking action; and 
that when a final decision was made on the Industry applications for 
incidental take authority, the Service would decide whether this was a 
major Federal action significantly affecting the quality of the human 
environment within the meaning of section 102(2)(C) of the National 
Environmental Policy Act of 1969 (NEPA). On April 26, 1993, following 
the close of the proposed rule's comment period, the Service concluded 
in a Finding of No Significant Impact (FONSI) that this was not a major 
Federal action under the NEPA and preparation of an Environmental 
Impact Statement was not required.
    Subsequently, on November 16, 1993, the Service published final 
regulations in the Federal Register (58 FR 60402) effective December 
16, 1993, to authorize and govern the incidental, unintentional take of 
small numbers of polar bear and walrus during Industry operations 
(exploration, development, and production) year-round in the Beaufort 
Sea and adjacent northern coast of Alaska. The Service concluded in the 
final rule, based on the best scientific evidence available, that the 
cumulative total of such taking by Industry over a five-year period 
would have a negligible effect on these species and would not have an 
unmitigable adverse impact on the availability of these species for 
subsistence used by Alaskan Natives.
    However, although the MMPA authorizes regulations to be used for 
periods of up to five years, the Service's final regulations were 
initially effective only for an 18-month period through June 16, 1995, 
as a result of additional provisions in the final regulations. These 
provisions stipulate that extension of the final regulations for an 
additional 42 months for the full five-year term authorized by the MMPA 
(through December 15, 1998) is contingent upon the following: (1) 
Within a period of 18 months from the effective date of this 
rulemaking, the Service must develop and begin implementing a Polar 
Bear Habitat Conservation Strategy (Strategy), pursuant to the 
management planning process in section 115 of the MMPA, and in 
furtherance of the goals of Article II of the 1973 International 
Agreement on the Conservation of Polar Bears (1973 Agreement); (2) the 
identification and designation of special considerations of closures of 
any polar bear habitat components to be further protected; (3) public 
notice and comment on those considerations of closures; (4) affirmative 
findings of the Secretary of the Interior; and (5) public notice and 
comment on the Secretary's intention to extend the term of the 
incidental take regulations for a period not to exceed a total of five 
years.
    The final rule explained the additional requirement to develop a 
Strategy as follows:

    In addition to its responsibilities under the [MMPA], the 
Department of the Interior has further responsibilities under the 
1973 multilateral Polar Bear Agreement. Specifically, Article II of 
the Agreement requires that:
    Each contracting Party shall take appropriate action to protect 
the ecosystems of which polar bears are a part, with special 
attention to habitat components such as denning and feeding sites 
and migration patterns * * *
    In comport with, and to meet more fully the intent of the 
Agreement, under this final rulemaking, within 18 months of its 
effective date, the Service has been directed by the Secretary of 
the Interior to develop and begin implementing a strategy for the 
identification and protection of important polar bear habitats. 
Development of such strategy will be done as part of the Service's 
management plan process pursuant to Section 115 of the [MMPA], and 
in cooperation with signatories to the Polar Bear Agreement, the 
Department of State, the State of Alaska, Alaskan Natives, Industry, 
conservation organizations, and academia.

    The Service has developed a draft Strategy, published notice of its 
availability in the Federal Register (February 28, 1995, at 60 FR 
10868), and sought review and comment on it. The draft Strategy was 
developed with the involvement and input of Alaskan Natives, Industry, 
the National Biological Service, that State of Alaska, conservation 
organizations, academia, and others. Its includes Native traditional 
knowledge on polar bear behavior and habitat use.
    The draft Strategy identifies and designates important polar bear 
feeding and denning areas and proposes measures for enhanced 
consideration of these areas from oil and gas exploration, development, 
and production. It also proposes additional measures for polar bear 
habitat protection in furtherance of the goals of the 1973 Agreement. 
These measures consist of a proposed Native Village Communication Plan, 
creation and support of a Polar Bear Advisory Council, and development 
of International Conservation Initiatives. The draft Strategy also 
identifies research needs related to habitat use and relative 
importance of habitat types, and effects of contaminants and industrial 
activities on polar bears.
    The original 60-day period to comment on the draft Strategy would 
have expired on May 1, 1995. However, on May 8, 1995, the Service 
announced in the Federal Register (60 FR 22584) that it had extended 
the comment period for an additional 15 days through May 16, 1995. It 
was extended in response to several April 28, 1995 letters that 
requested a 30-day extension; those requests stated that additional 
time was needed to complete a review of the draft Strategy.
    While the Service agreed to extend the comment period, it was 
determined that a 30-day extension would not allow us adequate time to 
analyze comments and to make a decision on the draft Strategy and on 
the associated proposed rule that was published in the Federal Register 
on March 17, 1995, (60 FR 14408) to extend the effective period of 
incidental take regulations at 50 CFR Part 18, Subpart J. Because of 
the short timeframes involved, it was determined that the draft 
Strategy's comment period could only be extended for 15 days through 
May 16, 1995. This deadline also coincided with the close of the 
comment period on the proposed rule to extend the incidental take 
regulations at 50 CFR Part 18, Subpart J for an additional 42 months.
    For the reasons set out in the Service's proposed rule of March 17, 
1995, (as identified in the previous paragraph) to extend the effective 
period of incidental take regulations, and in the final Beaufort Sea 
rule published on November 16, 1993, the Service proposed to extend the 
regulations in 50 CFR Part 18, Subpart J for the full five-year term 
authorized by the MMPA. Thus, the regulations currently in effect from 
December 16, 1993, through June 16, 1995, would not expire but rather 
would be extended through December 15, 1998. The proposal to extend the 
final Beaufort Sea regulations was made on the basis that the Service's 
draft Strategy, if adopted, would meet the stipulations in those 
regulations. The Service believes that the total expected 

[[Page 31260]]
takings of polar bear and walrus during energy operations will have a 
negligible impact on these species, and there will be no unmitigable 
adverse impacts on the availability of these species for subsistence 
uses by Alaskan Natives. If the provisions of the draft Strategy are 
adopted, and its implementation is initiated, the requirements of the 
Beaufort Sea regulations will have been met, and they can extend for an 
additional 42 months.
    However, the Service has determined that completion of the final 
Strategy cannot be achieved by June 16, 1995, because of extensive 
public interest and the substantial number of comments received 
concerning the draft Strategy. Under current circumstances, which 
indicate that Beaufort Sea oil and gas activities continue to pose no 
more than a negligible impact to polar bear and walrus, a short-term 
extension of the incidental take regulations is in order so that a full 
and fair review of all public comments on the draft Strategy can be 
made. The Service finds that an extension of 60 days will not affect 
its ``negligible impact'' finding or its finding that oil and gas 
activities in the Beaufort Sea will not have an unmitigable adverse 
effect on the availability of polar bear and walrus for subsistence 
uses. The Service therefore is extending the effective period of the 
Beaufort Sea regulations for an additional 60 days through August 15, 
1995. This is a prudent and justifiable action that will allow time to 
adequately review comments, finalize the Strategy, and begin its 
implementation.
    This final rule action neither reopens the comment period on either 
the draft Strategy or the proposed rule to extend the period of 
effectiveness of the Beaufort Sea regulations through December 15, 
1998, nor does it complete the Service's decision making on the March 
17, 1995, proposed rule to extend the effective date of those final 
regulations through December 15, 1998. It merely extends for 60 days 
the effectiveness of the Beaufort Sea regulations during which time the 
Service will analyze public comments and make final decisions on the 
Strategy and the March 17, 1995, proposed rule. The new final decision 
date of August 15, 1995, will be the same for both documents (i.e., the 
Strategy and the proposed rule).
    This 60-day extension of the Beaufort Sea regulations is effective 
immediately. The Service believes there is good cause to take this 
immediate action because of extensive public interest, the need to 
thoroughly consider the substantial number of comments that were 
submitted and to make any necessary and appropriate changes to the 
draft Strategy prior to making final decisions on both the draft 
Strategy and proposed rule to extend the Beaufort Sea regulations, and 
because to do otherwise would cause the Beaufort Sea regulations to 
lapse, thereby denying Industry the basic protections afforded by the 
MMPA's section 101(a)(5)(A). While prudent policy calls for further 
deliberation on the draft Strategy, there is no biological 
justification for allowing the Beaufort Sea regulations to expire.

Required Determinations

    During the rulemaking process to develop Beaufort Sea regulations, 
the Service prepared an Environmental Assessment with a FONSI on 
Industry's proposed actions. This rule was not subject to review by the 
Office of Management and Budget under Executive Order 12866. Under the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., it was also 
determined the rule would not have a significant economic effect on a 
substantial number of small entities. Furthermore, the final rule was 
not expected to have a potential takings implication under Executive 
Order 12630 because it authorized incidental, but not intentional, take 
of polar bear and walrus by Industry and thereby exempts them from 
civil and criminal liability. The rule also did not contain policies 
with federalism implications sufficient to warrant preparation of a 
Federalism Assessment under Executive Order 12612. The above identified 
required determinations associated with the Service's original 
rulemaking process associated with the Beaufort Sea are still valid for 
this current final rule.
    The collections of information associated with this final rule have 
been approved by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and assigned clearance 
number 1018-0070.

List of Subjects in 50 CFR Part 18

    Administrative practice and procedure, Imports, Indians, Marine 
mammals, Transportation.

    For the reasons set forth in the preamble, Part 18, Subchapter B of 
Chapter 1, Title 50 of the Code of Federal Regulations is amended as 
set forth below:

PART 18--MARINE MAMMALS

    1. The authority citation for 50 CFR Part 18 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq.

    2. Section 18.122 of Subpart J is revised to read as follows:


Sec. 18.122  Effective dates.

    Regulations in this subpart, originally effective for an 18-month 
period from December 16, 1993, through June 16, 1995, will continue in 
effect for an additional 60-day period through August 15, 1995, for oil 
and gas exploration, development, and production activities.

    Dated: June 5, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-14512 Filed 6-13-95; 8:45 am]
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