[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Rules and Regulations]
[Pages 4328-4335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2010]
[[Page 4328]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 18
RIN 1018-AF02
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 hereby issues final regulations
to authorize the incidental, unintentional take of small numbers of
polar bears and Pacific walrus during year-round oil and gas industry
(Industry) exploration, development, and production operations in the
Beaufort Sea and adjacent northern coast of Alaska. We clarified types
of activities covered by this incidental take authority that were
identified in our proposed regulations issued on November 17, 1998 (63
FR 63812), and they are essentially identical to activities covered by
our original 5-year incidental take regulations effective from December
16, 1993, through December 15, 1998. As allowed by the Marine Mammal
Protection Act (Act), these final regulations are effective through
January 30, 2000, during which time we will consider new information
associated with sub-sea pipelines to evaluate the scope of activities
that will be covered in a future rule. It is our intention next year,
at a minimum, to propose to extend these regulations for an additional
four years for the activities described in this rule. As noted below,
these regulations do not address or authorize incidental takes
resulting from sub-sea pipeline activities located offshore in the
Beaufort Sea.
dates: This rule is effective January 28, 1999 and remains effective
through January 30, 2000.
addresses: Comments and materials received in response to this action
are available for public inspection during normal working hours of 8
a.m. to 4:30 p.m., Monday through Friday, at the Office of Marine
Mammals Management, U.S. Fish and Wildlife Service, 1011 E. Tudor Road,
Anchorage, AK 99503.
for further information contact: John Bridges, Office of Marine Mammals
Management, Anchorage, Alaska, at 907/786-3800, FAX 907/786-3816, or
Internet John__B[email protected].
supplementary information:
Background
Section 101(a)(5)(A) of the Act gives the Secretary of the Interior
(Secretary) through the Director of the Service the authority to allow,
on request by U.S. citizens [as defined in 50 CFR 18.27(c)] engaged in
a specified activity (other than commercial fishing) in a specified
geographic region the incidental, but not intentional, taking of small
numbers of marine mammals. We may grant permission for incidental takes
for periods of up to 5 years.
If we find, based on the best scientific evidence available, that
the taking of marine mammals will have a negligible impact on the
species or stock and will not have an ``unmitigable adverse impact'' on
the availability of the species or stock for subsistence uses, we may
allow the taking of marine mammals. We then are required to publish
regulations that include permissible methods of taking and other means
to ensure the least practicable adverse impact on the species and its
habitat and on the availability of the species for subsistence uses.
These regulations must include requirements for monitoring and
reporting. We issue Letters of Authorization (LOA), upon request and
receipt of appropriate date, to individual entities to conduct
activities pursuant to the regulations.
The term ``take'' as defined by the Act means to harass, hunt,
capture, or kill, or attempt to harass, hunt, capture, or kill any
marine mammal.
Harassment as defined by the Act, as amended in 1994, ``* * * means
any act of pursuit, torment, or annoyance which--
(i) Has the potential to injure a marine mammal or marine mammal
stock in the wild; 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.''
As a result of 1986 amendments to the Act, we published a final
rule on September 29, 1989, (54 FR 40338), amending 50 CFR 18.27 (i.e.,
regulations governing small takes of marine mammals incidental to
specified activities). The final rule in Sec. 18.27(c) included, among
other things, a revised definition of ``negligible impact'' and a new
definition for ``unmitigable adverse impact'' as follows. ``Negligible
impact is 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 * * *. Unmitigable adverse impact means an
impact resulting from the specified activity (1) that is likely to
reduce the availability of the species to a level insufficient for a
harvest to meet subsistence needs by (i) causing the marine mammals to
abandon or avoid hunting areas, (ii) directly displacing subsistence
users, or (iii) placing physical barriers between the marine mammals
and the subsistence hunters; and (2) that cannot be sufficiently
mitigated by other measures to increase the availability of marine
mammals to allow subsistence needs to be met.''
Oil and gas exploration, development, and production activities
conducted in marine mammal habitat risk violating the moratorium on the
taking of marine mammals and, therefore, violating the terms of the
Act. Although there is no legal requirement for Industry to obtain
incidental take authority, they have chosen to seek authorization to
avoid the uncertainties of conducting oil and gas industry activities
in marine mammal habitat.
On December 17, 1991, BP Exploration (Alaska), Inc. (BPXA), for
itself and on behalf of Amerada Hess Corporation, Amoco Production
Company, ARCO Alaska, Inc., CGG American Service, Inc., Conoco Inc.,
Digison Geophysical Corp., Exxon Corporation, GECO Geophysical Co.,
Halliburton Geophysical Services, Inc., Mobil Oil Corporation, Northern
Geophysical of America, Texaco Inc., Unocal Corporation, and Western
Geophysical Company, petitioned us to promulgate regulations pursuant
to section 101(a)(5) of the Act.
The geographic region defined in Industry's 1991 application
included offshore waters beginning at a north/south line at Barrow,
Alaska, east to the Canadian border, including all Alaska state waters
and OCS waters. The same north/south line at Barrow, extending 25 miles
inland and east to the Canning River defined the onshore region. The
Arctic National Wildlife Refuge was excluded from Industry's proposal;
and it was also excluded from our subsequent final remaking actions in
1993 and 1995, as briefly described in the next paragraph.
On November 16, 1993 (58 FR 60402), we issued final regulations to
allow the incidental, but not intentional, take of small numbers of
polar bears and Pacific walrus in the event that such taking(s)
occurred in the course of Industry activities during year-round
operations in the Beaufort Sea, in Alaskan State waters and Outer
Continental Shelf (OCS) waters and the adjacent northern coast of
Alaska. The regulations were
[[Page 4329]]
issued for a period of 18 months. At the same time, the Secretary of
the Interior directed us to develop, then begin implementation of, a
polar bear habitat conservation strategy prior to extending the
regulations beyond the initial 18 months for a total 5-year period as
allowed by the Act. We developed The Habitat Conservation Strategy for
Polar Bears in Alaska to ensure that the regulations fully met with the
intent of the 1973 International Agreement on the Conservation of Polar
Bears. On August 17, 1995, we issued the final rule and notice of
availability of a completed final polar bear habitat conservation
strategy (60 FR 42805); and we extended the regulations for an
additional 42 months to expire on December 15, 1998.
Summary of the Current Rulemaking Action
On August 28, 1997, BPXA submitted a petition for rulemaking
pursuant to section 101(a)(5)(A) of the Act, and section 553(e) of the
Administrative Procedure Act (APA). Their request sought regulations to
allow the incidental, but not intentional, taking of small numbers of
polar bears and Pacific walrus in the event that takings occurred in
the course of Industry operations in Arctic Alaska. Specifically, BPXA
requested an extension of the incidental take regulations beginning at
50 CFR 18.121 for an additional five-year term from December 16, 1998,
through December 15, 2003. However, the petition for new regulations
includes two new oil fields (Liberty and Northstar). Plans to develop
each field identify need for an offshore gravel island and a buried
sub-sea pipeline to transport crude oil to connect with existing
facilities. The request was submitted by BPXA for itself and on behalf
of ARCO Alaska, Inc., Exxon Corporation, and Western Geophysical
Company.
The geographic extent of this request was the same as that of our
previously issued regulations beginning at 50 CFR 18.121 that were in
effect through December 15, 1998, a north/south line at Barrow, Alaska,
including all Alaska State waters and OCS waters, and east of that line
to the Canadian border; with the onshore region being the same north/
south line at Barrow, 25 miles inland and east to the Canning River.
The Arctic National Wildlife Refuge was excluded from the proposal.
In response to Industry's 1997 application, on November 17, 1998,
we published proposed specific regulations (63 FR 63812) to allow the
incidental, unintentional take of polar bears and Pacific walrus in the
Beaufort Sea and northern coast of Alaska. The proposed regulations
were to be in effect year-round for a five year period expected to
begin at the December 15, 1998, expiration of our incidental take
regulations that began at 50 CFR 18.121 for entities conducting oil and
gas industry activities. However, information related to sub-sea
pipelines is in Draft Environmental Impact Statements and is
preliminary. Currently, two Environmental Impact Statements are being
finalized; one by the U.S. Army Corps of Engineers for the Northstar
Project, and one by the Minerals Management Service (MMS) for the
Liberty Project. Once these documents are final, we will be better
positioned to make a finding based on the latest scientific and
engineering information. Therefore the issuance of these one year final
regulations will not address or authorize the incidental take of polar
bears and Pacific walrus during construction or operations of sub-sea
pipelines in the Beaufort Sea.
These regulations do not permit the actual activities associated
with oil and gas exploration, development, and production, but rather
allow the incidental, unintentional take of polar bears and Pacific
walrus that is associated with the described activities. The Department
of the Interior's MMS and the Bureau of Land Management are responsible
for permitting activities associated with oil and gas activities in
Federal waters and on Federal lands, respectively, and the State of
Alaska is responsible for activities on State lands and in State
waters.
Concern has been directed at polar bear encounter incidents where
human life is in jeopardy. When human activity occurs in polar bear
habitat, polar bear/human encounters are possible. However, during more
than 25 years of industry activity in this area, only three polar bears
have died as a result of industrial activity. Each person operating
under these regulations will have polar bear interaction training and
knowledge of polar bear interaction plans. We authorize deterrent
activities under section 109(h)(1) of the Act, while lethal take is
authorized in defense of self or others in accordance with section
101(c) of the Act.
The regulations authorize the incudental take of polar bears and
Pacific walrus associated with incidents that occur between Industry
and the two species during year-round oil and gas activities that might
cause minor disturbances to polar bears or Pacific walrus, especially
those incidents that may occur in the absence of any negligence or
intentional action by a person carrying out an otherwise lawful
activity.
The regulations include requirements for monitoring and reporting,
and measures to effect the least practicable adverse impact on these
species and their habitat and on the availability of these species for
subsistence uses. Oil and gas exploration, development, and production
activities in the geographic area applicable to this effort may involve
the taking of polar bears and Pacific walrus. However, we have made a
finding that the total impact of the takings have a negligible impact
on these species and on their availability for subsistence uses.
Monitoring reports submitted for each exploration, development, and
production activity conducted from 1993-1997 support this finding.
The rule requires a person to obtain a LOA to conduct exploration,
development, and production activities pursuant to the regulations.
Where there is the likelihood of taking polar bear or walrus when
carrying out one or more of these activities, each group or individual
conducting an oil and gas industry-related activity may request a LOA.
Further, applicants for LOAs must submit a plan to monitor the effects
on polar bear and walrus that are present during the authorized
activities. Also, applicants for LOAs must identify, in a Plan of
Cooperation, measures taken to minimize adverse impacts on the
availability of marine mammals for subsistence uses if the activity
takes place in or near a traditional subsistence hunting area. Each
request for a LOA is evaluated on the specific activity and the
specific location, and we condition each LOA for that activity and
location if necessary.
Description of Activity
As allowed by section 101(a)(5)(A) of the Act, this final rule is
effective through January 30, 2000. Activities that are covered in this
final rule are exploration activities such as geological and
geophysical surveys which include: geotechnical site investigation,
reflective seismic exploration, vibrator seismic data collection, air
gun and water gun seismic data collection, explosive seismic data
collection, geological surveys, and drilling operations. The latter
include: drill ships, floating drill platforms such as the Kulluk, ice
pads, artificial islands, caisson-retained islands, and two types of
bottom founded structures: (1) Concrete island drilling system, and (2)
single steel drilling caisson. This rule does not authorize incidental
take of polar bears or Pacific walrus by activities associated with
sub-sea pipelines.
[[Page 4330]]
Development and production activities are located on the North
Slope along the shores of the Beaufort Sea. This region contains more
than 11 separate oil and gas fields. All of the fields lie within the
range of polar bears, while those in the offshore/near shore may
encounter Pacific walrus on an irregular basis. At present, seven
fields are in production: Prudhoe Bay, Kuparuk, Endicott, Lisburne,
Milne Point, Niakuk, and Point McIntyre. Additional fields expected to
be in production over the next few years are Northstar, Badami,
Liberty, Tarn, and Alpine. The Trans-Alaska Pipeline System transports
oil from each of the producing fields 800 miles south to Valdez,
Alaska.
As mentioned above, this final rule does not authorize incidental
takes of polar bears or Pacific walrus from any sub-sea pipeline
activity. While Industry's original August 28, 1997, application
briefly discussed its plans to develop the offshore Northstar and
Liberty sites and sub-sea pipelines, the actual construction and use of
sub-sea pipelines to transport oil is an activity that we did not
examine during our prior, 1993 final rulemaking. This precludes us at
this time from making any findings about sub-sea pipelines. Upon
completion of the two environmental impact statements addressing this
new activity, we will reconsider the best available scientific
information and reevaluate the scope and duration of a future
rulemaking. Therefore, although incidental take from other development
and production activities, such as the construction and use of gravel
islands and ice roads, is covered by this rule, any incidental take
resulting from the construction or use of sub-sea pipelines is not
covered by this rule. We have made no decision on the eligibility of
sub-sea pipelines to be included in a rulemaking under section
101(a)(5) of the Act, and nothing in this rule or in any LOA issued
under this rule should be interpreted as creating an expectation that
incidental take authority will be granted for sub-sea pipeline
activities at a future date.
Potential sources of incidental take are noise, physical
interactions, and permitted and unpermitted discharges (oil spills).
Oil and gas well drilling operations will include artificial islands,
caisson-retained islands, ice island, bottom-founded structures and ice
pads and drill ships.
During the life of the regulations, we anticipate a similar level
of activity as during the previous five years, with the addition of a
number of new developments as mentioned above. Because of the large
number of variables influencing exploration activity, any predictions
as to the exact dates and locations of the operations that will take
place over the next year would be highly speculative. However, requests
for LOAs must include specific details regarding dates, duration, and
geographic locations of proposed activities.
Biological Information
Polar bears and Pacific walrus utilize the area as habitat which is
vital to their survival, more so for polar bears than the Pacific
walrus. The geographic area is the land and water area east of a north/
south line through Barrow, Alaska. The onshore area is 25 miles inland
and east to the Canning River. The Arctic National Wildlife Refuge is
outside of the area. Offshore, the area extends through Alaska State
waters and into the OCS waters of the Beaufort Sea from Barrow east to
the Canadian border.
Pacific Walrus
The Pacific walrus primarily occurs in the waters of the Chukchi
Sea along the western coast of Alaska. Most of the population
congregates near the ice edge of the Chukchi Sea pack ice during the
summer. The primary summer range of the walrus does not extend east of
Point Barrow. In the winter, walrus occur in areas where there are
polynyas, open leads, or thin ice in which they can create and maintain
breathing holes, and major winter concentrations occur in the
southeastern Bering Sea. Walrus do occur in the Beaufort Sea but in
small numbers. Data from our Marking, Tagging, and Reporting Program
show that from 1994 through 1997, 73 walrus were reported killed by
Barrow hunters. Tagging certificates shows that nearly all walrus were
taken west of Barrow. Based on four years of monitoring Industry's
activities in the Beaufort Sea required as a condition to LOAs, only
two walrus were observed by on-site monitors.
Polar Bear
Polar bears occur only in the Northern Hemisphere, where their
distribution is circumpolar, and they live in close association with
polar ice. In Alaska, their distribution extends from south of the
Bering Strait to the U.S.-Canada border. We estimate the world
population at 21,000-28,000, with possibly as many as 5,000 bears in
Alaska. The most extensive north-south movements of polar bears occur
with the ice in the spring and fall.
Females without dependent cubs breed in the spring and enter
maternity dens by late November. Females with cubs do not mate. An
average of two cubs, sometimes one and rarely three, are usually born
in December, and the family group emerges from the den in late March or
early April. Only pregnant females den for an extended period during
the winter. Other polar bears may burrow out depressions to escape
harsh winter winds. The average reproduction interval for polar bear is
3-4 years. The maximum reported age of reproduction in Alaska is 18
years. Based on these conditions, a polar bear may produce about ten
cubs in her lifetime.
The fur and blubber of the polar bear provide vital protection from
the cold air and frigid water. Newly emerged cubs of the year may not
have a sufficient layer of blubber to maintain body heat when immersed
in water for long periods of time. For this reason, the mother is very
protective of the cubs. Cubs abandoned prior to the normal weaning age
of 2.5 years likely will not survive.
Ringed seals (Phoca hispida) are the primary prey species of the
polar bear; occasionally, they hunt bearded seals (Erignathus barbatus)
and walrus calves. Polar bears scavenge on marine mammal carcasses
washed up on shore. They also eat non-food items such as Styrofoam,
plastic, car-batteries, anti-freeze, and lubricating fluids.
Polar bears have no natural predators, and they do not appear to be
prone to death by diseases or parasites. The most significant source of
mortality are humans. Since 1972, with the passage of the Act, only
Alaska Natives hunt polar bears in Alaska and use bears for their
subsistence needs and manufacture of handicraft and clothing items. The
Native harvest occurs without restrictions on sex, age, number, or
season, providing takes are non-wasteful. From 1980-1997, the total
annual harvest averaged 103 bears. The majority of this harvest (70
percent) came from the Chukchi Sea area.
Effects of Oil and Gas Industry Activities on Marine Mammals and on
Subsistence Uses
Walrus
Oil and gas industry activities such as air and vessel traffic,
noise from air traffic, seismic surveys, ice breakers, supply ships and
drilling may frighten or displace walrus. However, as previously stated
in this document, the primary range of the Pacific walrus is west of
Point Barrow and the likelihood of many walrus being in the Beaufort
Sea is small. Therefore, it is unlikely that oil and gas industry
activities will result in more than a negligible impact
[[Page 4331]]
on the species. Likewise, activities during the ice covered periods and
the onshore development and production activities should not impact the
species.
Stationary drilling structures may affect the movement of walrus.
Walrus are attracted to certain activities or repelled from others by
noise or smell. In the 1989 drilling season an incident occurred in a
Chuckchi Sea operation where a young walrus surfaced in the center hole
(moonpool) of the drill ship. A cargo net removed the walrus from the
drilling area, after which the walrus left the scene of the incident
and was not seen again.
The majority of the population congregates during the summer months
(open water season) in the southern region of the Chukchi Sea pack ice
between Long Strait and Wrangel Island to the west and Point Barrow,
Alaska, to the east. These animals stray or are blown by storms into
the proposed regulation area. The remainder of the population,
primarily adult males, stay in the Bering Sea, Especially along the
Anadyr Gulf coast and in several areas in northern Bristol Bay.
In winter, walrus are found in two major regions where open leads,
polynyas, or thin ice occur. Generally, one group ranges from the Gulf
of Anadyr into the region southwest of St. Lawrence Island, and a
second group is found in the southeastern Bering Sea from south of
Nunivak Island into northwestern Bristol Bay. No impacts to walrus are
expected during winter oil and gas industry activities since the winter
range of the Pacific walrus is not within the geographic area covered
by these regulations.
Seismic surveys generally take place on solid ice or open water.
Since most walrus activity occurs near the ice edge, interactions with
walrus and the seismic activity are unlikely.
Subsistence
Few walrus are harvested in the Beaufort Sea along the northern
coast of Alaska. Walrus constitute a small portion of the harvest for
the village of Barrow. For the four year period that the current
incidental take regulations have been in place and for which data is
available, 1994 through 1997, 73 walrus were reported taken by Barrow
hunters. Reports indicate that all but one of the 73 walrus were taken
west of Point Barrow, outside the limits of the incidental take
regulations. Hunters from Nuiqsut and Kaktovik have not reported taking
any walrus during this time.
Polar Bear
Oil and gas exploration, development, and production activities in
the Beaufort Sea and adjacent northern coast of Alaska may affect the
polar bear. Drill ships and icebreaker activity may be physical
obstructions to normal movement. Noise, sights, and smells produced by
activities may attract or repel bears. These disruptions may introduce
detrimental changes in the bears' natural behavior.
Exploration activities during the open-water season are not likely
to impact the movements or natural behavior of the polar bear. Although
polar bears have been documented in open water, miles from the ice edge
or ice floes, they normally are found near the ice edge. Therefore, it
is unlikely that exploration activities in the open-water season will
have more than a negligible impact on the polar bear.
Winter oil and gas activities have a greater possibility of having
detrimental impacts on the polar bear. Polar bears that continue to
move over the ice pack throughout the year are likely to encounter
Industry activities.. Curious polar bears are likely to investigate
drill ships and artificial or natural islands where drilling operations
occur. Any on-ice activity creates an opportunity for Industry/bear
interactions.
Offshore drill sites within the pack ice may modify the habitat by
creating open water leads down current from the activity. Polar bears
are attracted to open water leads which create temporary niches for
subadult or non-breeding ringed seals, the primary prey species for the
polar bear. Polar bears attracted to these artificial open water leads
create possibilities of Industry/polar bear encounters.
Polar bear interaction plans are developed for each operation.
Industry personnel participate in a polar bear interaction training
program while on -site. These training programs and interaction plans
insure that the activity and possible interactions have the least
detrimental effect on industry personnel and the polar bear.
Occasionally, work is performed on ice adjacent to elevated drill ships
or platforms. In such cases, well-lighted and open work areas are
provided to reduce the likelihood of an encounter with an undetected
polar bear.
Winter seismic activity (survey crews) have a potential of
disturbing denning females which are sensitive to noise disturbances.
Denning females may stop seeking a preferred denning site, or may
abandon dens, thereby risking the lives of their offspring. Prior to
initiating seismic survey activity, Industry provides us with its
proposed survey route. Through satellite observations of radio collared
bears, we are able to inform Industry of known denning sites, and from
knowledge of the geographic area, we can identify areas of probable
denning sites. Likewise, cooperative research Industry in the
development of Forward Looking Infrared Radar shows promise of
detecting polar bears in maternity dens. Industry also cooperates with
us to alter survey routes to pass within no less than one mile of
denning sites. As a result of the ongoing cooperative operating
procedures, Industry activities avoid known den sites in response to
required Letter of Authorization conditions.
Subsistence
The polar bear is not a primary subsistence species of the villages
of Barrow, Nuiqsut, or Kaktovik. Preliminary data from our Marking,
Tagging, and Reporting Program indicate that from July 1, 1993, to June
30, 1997, a total of 83 polar bears were reported harvested by the
Natives of Barrow, 5 polar bears from the village of Nuiqsut; and 9
polar bears from the village of Kaktovik. Hunting success varies
considerably from year-to-year because of variable ice and weather
conditions.
Industry works with the local Native groups to achieve a
cooperative relationship between oil and gas activities and subsistence
activities. It is assumed that oil and gas exploration, development,
and production will not have more than a negligible impact on
subsistence activities.
Oil Spills
The accidental discharge of oil into the environment during
Industry activities could result from operational spills during
refueling, handling of lubricants and liquid products, and during
general maintenance. The spills are small in quantity, generally less
than a barrel of oil per incident. Drilling units maintain onboard
cleanup equipment and train personnel to handle operational spills.
These spills do not pose a threat to polar bear or walrus.
A blowout (i.e., the loss of control during drilling) is a
potentially more serious type of spill accident. However, based on data
calculated by the MMS, the probability of a major blowout in the
Beaufort Sea is extremely low; data compiled by that agency verify that
although blowouts occur during exploratory drilling on the OCS, no oil
has been spilled. This data set includes all blowouts including those
caused by gas or water, as well as oil. All blowouts
[[Page 4332]]
do not necessarily result in the release of oil. Sub-sea pipeline oil
release probabilities are not included in this data.
Swimming polar bears are directly impacted by contracting oil-
contaminated waters. Bears that are fouled by oil may suffer
thermoregulatory problems, ingest oil, and exhibit other detrimental
effects such as inflammation of the nasal passages or damage to their
renal and central nervous system.
We acknowledged that while there is a low probability of oil spills
connected with a blowout, the potential negative effects to polar bears
or their habitats may be significant. Bears that contact oil are likely
to die. We balance the probability of an oil spill with the potential
severity of harm to the species or stock when determining negligible
impact.
Due to the small number of walrus in the Beaufort Sea area, impacts
resulting from oil spills are foreseen as negligible.
Conclusions
Based on the previous discussion and recent years' monitoring
program results, we make the following findings regarding the actions.
Impact on Species
We find, based on the best scientific information available and the
results of four years of monitoring data, the effects of oil and gas
related exploration, development, and production activities for the
next one year in the Beaufort Sea and adjacent northern coast of Alaska
will have a negligible impact on polar bears and Pacific walrus and
their habitat and on the availability of these species for subsistence
uses if certain conditions are met. Oil and gas activities have
occurred in the Beaufort Sea and the adjacent northern coast of Alaska
for many years. To date, there has been only one documented case of a
lethal take of a polar bear at an exploratory drill site. In the event
of a catastrophic spill, we would reassess the impacts to the polar
bear and/or walrus populations and reconsider the appropriateness of
authorizations for taking through section 101(a)(5)(A) of the Act.
Our finding of ``negligible impact'' applies to exploration,
development, and production related to oil and gas activities,
excluding any production activities associated with sub-sea pipelines.
The following are generic conditions intended to minimize interference
with normal breeding, feeding, and possible migration patterns to
ensure that the effects to the species remain negligible. We may expand
the conditions in the LOAs based upon site-specific and species-
specific reasons.
(1) These regulations to not authorize intentional taking of polar
bear or walrus. When an intentional take (e.g., harassment associated
with deterrent activities and/or lethal take) situation arises, we can
allow such action under authority of sections 109(h)(1) or 101(c) of
the Act.
(2) For the protection of pregnant polar bears during denning
activities (selection, birthing, and maturation of cubs) in known and
confirmed denning areas, Industry activities will be restricted in
specific locations during certain specified times of the year. These
restrictions will be applied on a case-by-case basis in response to a
request for each LOA. In potential denning areas, pre-activity surveys,
as determined by us, may be required to determine the presence or
absence of denning activity.
(3) Each activity authorized by a LOA requires a site-specific plan
of operation, and a site-specific monitoring and reporting plan. The
purpose of the required plans is to ensure that the level of activity
and possible takes will be consistent with the finding that the
cumulative total of takes will have a negligible impact on polar bear
and Pacific walrus, their habitat, and where relevant, on the
availability of the species for subsistence uses.
Impact on Subsistence
Polar bear and Pacific walrus contribute a small amount of the
total subsistence harvest for the villages of Barrow, Nuiqsut, and
Kaktovik. However, this does not mean that the harvesting of these
species is not important to Alaska natives. To ensure that the impact
of oil and gas activity on the availability of the species or stock for
subsistence uses is negligible, prior to receipt of a LOA, Industry
must provide evidence to us that a plan of cooperation has been
presented to the subsistence communities, the Eskimo Walrus Commission,
the Alaska Nanuuq Commission, and the North Slope Borough. This plan of
cooperation will provide the procedures on how Industry will work with
the affected Native communities and what actions will be taken to avoid
interference with subsistence hunting of polar bear and walrus.
If there is evidence that oil and gas activities will affect, or in
the future may affect, the availability of polar bear or walrus for
subsistence, we will reevaluate our findings regarding permissible
limits of take and the measures required to ensure continued
subsistence hunting opportunities.
Monitoring and Reporting
The purpose of the monitoring program is to determine short-term
and direct effects of authorized oil and gas activities on polar bear
and walrus in the Beaufort Sea and the adjacent northern coast of
Alaska. Plans must identify the methods used to assess the effects on
the movements, behavior, and habitat use of polar bear and walrus in
response to Industry's activities. Monitoring activities are summarized
and reported each year, and reviewed by us. We base each year's
monitoring objective on the previous year's monitoring results.
We require an approved plan for monitoring and reporting the
effects of oil and gas industry exploration, development, and
production activities on polar bear and walrus prior to issuance of a
LOA. The applicant must submit an annual monitoring and reporting plan,
at least 90 days prior to initiation of proposed activity, for each
exploratory activity; and the applicant must submit a final monitoring
report to us no later than 90 days after completion of the exploratory
activity. Since development and production activities are continuous
long-term activities, upon approval, LOAs and their required monitoring
and reporting plans will be issued for the life of the activity or
until expiration of the regulations, whichever occurs first. We will
require that the operator submit development and production activity
monitoring results associated with LOAs annually for our review no
later than January 15 for the previous activity. We require annual
approval of the monitoring results for continued operation under the
LOA.
Discussion of Comments on the Proposed Rule
The proposed rule, and request for comments was published in the
Federal Register (63 FR 63812) on November 17, 1998. The closing date
for comments was December 11, 1998. We received 228 comments and the
following primary issues were raised by the majority of the commenters.
Comment: Commenters believed that the Service should prepare a full
Environmental Impact Statement (EIS).
Response: Through the preparation of an Environmental Assessment
(EA), we found that the final rule will not significantly affect the
quality of the human environment, thereby resulting in a ``Finding Of
No Significant Impact (FONSI).'' Therefore, in accordance with the
national Environmental Policy Act, no EIS is required. The Service's
analysis in the Final EA found that
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these regulations, which exclude sub-sea pipelines, would not have a
significant impact on a species or stock. A one year final rule
anticipates that the two Final EIS's, Northstar and Liberty, will
provide us with additional information for reconsideration of the scope
and duration of the regulations.
Comment: Commenters were concerned about allowing incidental take
associated with sub-sea pipelines stating that sub-sea pipelines are an
unprecedented expansion into the Beaufort Sea.
Response: We made the decision to issue one year regulations.
Information in two Draft Environmental Impact Statements on the effect
of oil spilled from sub-sea pipelines on polar bears is preliminary.
After the Environmental Impact Statements are final, we will consider
the best available scientific information and reevaluate the scope and
duration of a future rulemaking. Incidental take resulting from the
construction or operation of sub-sea pipelines is not covered by this
rule.
Comment: Commenters stated that the regulations should exclude the
Beaufort Sea area offshore of the Arctic National Wildlife Refuge and
the refuge itself.
Response: The Arctic National Wildlife Refuge is excluded from this
rulemaking. Also Lease Sale 170 does not allow further oil and gas
leasing in the Outer Continental Shelf area offshore of the Arctic
National Wildlife Refuge. However, some oil and gas industry activity
may occur in this area due to existing leases. The area from the coast
to 3 miles out is State of Alaska waters. A State of Alaska lease sale
is planned for this area in the future. By regulations being
implemented, we will have more access to oil and gas operations off the
coast of the refuge to monitor and mitigate potential impacts through
the Letter of Authorization process.
Comment: Commenters stated that the regulations should increase the
level of protection in Important Habitat Areas designated in our
Habitat Conservation Strategy for Polar Bears in Alaska.
Response: Important habitat areas are presently protected through
the Letter of Authorization process. LOAs are conditioned to insure the
safety of polar bear denning activities.
Comment: Commenters stated that the comment period was too short.
Response: The length of the comment period was derived in
consideration of the then approaching expiration on December 15, 1998,
of incidental take regulations beginning at 50 CFR 18.121 that have
governed Industry operations in the Beaufort Sea since December 1993,
and we received extensive public input. These new regulations allow
activities that are identical to the regulations that Industry has
operated under for the past five years. Also, this final rule is issued
for only one year. No later than the end of this one year period, we
will conduct another rulemaking process with full public review.
Required Determinations
We have prepared an Environmental Assessment (EA) in conjunction
with this rulemaking and concluded in a Finding of No Significant
Impact (FONSI) that this is not 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. For
a copy of the EA and FONSI, contact the person in Alaska identified
above in the section entitled, FOR FURTHER INFORMATION CONTACT.
This rulemaking is not a significant rule and was not subject to
OMB review under Executive Order 12866.
We have determined that this rule is not a major rule under 5
U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.
The regulations are not likely to result in: (1) An annual effect on
the economy of $100 million or more. Expenses will be related, but not
necessarily limited, to development of applications for regulations and
LOAs, to monitoring, record keeping, and reporting activities conducted
during industry oil and gas operations, development of polar hear
interaction plans, and coordination with Alaska Natives to minimize
effects of operations on subsistence hunting. Compliance with the rule
is not expected to result in additional costs to Industry that it has
not already been subjected to for the previous five years.
Realistically, these costs are minimal in comparison to those related
to actual oil and gas exploration, development, and production
operations. The actual costs to Industry to develop the petition for
promulgation of regulations and LOA requests probably does not exceed
$500,000 per year, far short of the $100 million ``major rule''
threshold that would require preparation of a regulatory impact
analysis. It should be pointed out that without specific regulations
and LOAs, the cost to Industry resulting from lost profits,
relinquishing leases earlier than expected, and writing off bonus
payments against current income; and the cost to American society
resulting from lost royalties and tax payments might be substantial if
incidental takes were to occur and legal challenges succeeded in long-
term stoppages of oil and gas operations on Federal and State lands and
waters. Such stoppages are unlikely, but if any cessation of activities
did occur, they likely would be short-term and would not have an annual
effect on the economy surpassing $100 million. On the contrary, the
most likely regulatory scenario finds a rule imposing relatively minor
costs. Such a rule would be unlikely to force firms to cease
operations. As is presently the case, profits would accrue to Industry;
royalties and taxes would accrue to the Government; and the rule would
have little or no impact on decisions by Industry to relinquish tracts
and write off bonus payments; (2) a major increase in costs or prices
for consumers, individual industries, or government agencies; or (3)
significant adverse effects on competition, employment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic or export markets.
We have also determined that this final rule will not have a
significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. Oil
companies and their contractors, conducting exploration, development,
and production activities in Alaska have been identified as the only
likely applicants under the regulations. These potential applicants
have not been identified as small businesses. The analysis for this
rule is available from the person in Alaska identified above in the
section entitled, FOR FURTHER INFORMATION CONTACT.
This final rule is not expected to have a potential takings
implication under Executive Order 12630 because it would authorize
incidental, but not intentional, take of polar bear and walrus by oil
and gas industry companies and thereby exempt them from civil and
criminal liability. The final rule also does not contain policies with
Federalism implications sufficient to warrant preparation of a
Federalism Assessment under Executive Order 12612.
The Solicitor's Office has determined that these regulations meet
the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988.
The reinstatement of authority (under OMB Number 1018-0070) to
collect information contained in this rule was submitted to the OMB for
approval under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). On
April 1, 1998, we published a notice in the Federal Register with a 60-
day comment period
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announcing to the public its intention to seek OMB approval for the
collection of information associated with this rulemaking. On September
22, 1998, we published a Federal Register notice with 30-day comment
period announcing to the public that this collection of information had
been submitted to the OMB for reinstatement. On October 24, 1998, the
OMB granted approval of our request for reinstatement of this
information collection requirement.
The Administrative Procedure Act, 5 U.S.C. 553(d), generally
requires that the effective date of a final rule not be less than 30
days from publication date of the rule. Section 553(d)(1) provides that
the 30 day period may be waived if the rule grants or recognizes an
exemption or relieves a restriction. Since this rule relieves certain
restrictions concerning take of marine mammals, and the previous
exemption has expired, the Service has determined that this final rule
should be made effective upon the date of publication.
List of Subjects in 50 CFR Part 18
Administrative practice and procedure, Alaska, Imports, Indians,
Marine mammals, Oil and gas exploration, Reporting and record keeping
requirements, Transportation.
For the reasons set forth in the preamble, the Service amends part
18, subchapter B of Chapter I, Title 50 of the Code of Federal
Regulations 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. Revise subpart J to read as follows:
Subpart J--Taking of Marine Mammals Incidental to Oil and Gas
Exploration, Development and Production Activities in the Beaufort Sea
and Adjacent Northern Coast of Alaska
18.121 What specified activities does this rule cover?
18.122 In what specified geographic region does this rule apply?
18.123 When is this rule effective?
18.124 How do I obtain a Letter of Authorization?
18.125 What criteria do we use to evaluate Letter of Authorization
requests?
18.126 What does my Letter of Authorization allow?
18.127 What activities are prohibited?
18.128 What are the monitoring and reporting requirements?
18.129 What are the information collection requirements?
Subpart J--Taking of Marine Mammals Incidental to Oil and Gas
Exploration, Development and Production Activities in the Beaufort
Sea and Adjacent Northern Coast of Alaska
Sec. 18.121 What specified activities does this rule cover?
Regulations in this subpart apply to the incidental, but not
intentional, take of polar bear and Pacific walrus by U.S. citizens (as
defined in Sec. 18.27(c)) engaged in oil and gas exploration,
development, and production activities in the Beaufort Sea and adjacent
northern coast of Alaska. These regulations do not apply to the
incidental, unintentional take of polar bear and Pacific walrus
resulting from sub-sea pipelines offshore in the Beaufort Sea, and
subsequent production and transport of oil through sub-sea pipelines to
tie in with onshore facilities. These regulations and any
authorizations under these regulations do not constitute approval of
future sub-sea pipeline construction and operation activities.
18.122 In what specified geographic region does this rule apply?
This rule applies to the specified geographic area defined by a
North/South line at Barrow, Alaska, and includes all Alaska coastal
areas, State waters, and Outer Continental Shelf waters east of that
line to the Canadian border and an area 25 miles inland from Barrow on
the west to the Canning River on the east. The Arctic National Wildlife
Refuge is excluded from this rule.
Sec. 18.123 When is this rule effective?
Regulations in this subpart are effective January 28, 1999 through
January 30, 2000, for year-round oil and gas exploration, development,
and production activities.
Sec. 18.124 How do I obtain a Letter of Authorization?
(a) You must be a U.S. citizen as defined in Sec. 18.27(c) of this
part.
(b) If you are conducting an oil and gas exploration, development,
or production activity in the geographic area described in Sec. 18.122
that may take a polar bear or Pacific walrus in execution of those
activities, you should apply for a Letter of Authorization for each
exploration activity or a Letter of Authorization for each development
and production area. You must submit the application for authorization
to our Alaska Regional Director at least 90 days prior to the start of
the proposed activity.
(c) Your application for a Letter of Authorization must include the
following information:
(1) A description of the activity, the dates and duration, the
specific location and the estimated area affected by that activity;
(2) A site-specific plan to monitor the behavior and effects of the
activity on polar bear and Pacific walrus that are present during the
on-going activities. Our Alaska Regional Director must approve your
plan which identifies the survey techniques that determine the actions
of the polar bear and Pacific walrus in response to the on-going
activity. Your monitoring program must document the actions of these
marine mammals and estimate the actual level of take. The monitoring
requirements will vary depending on the activity, the location, and the
time.
(3) A polar bear awareness and interaction plan if the activity is
on ice or in an area of active ice movement. For the protection of
human life and welfare, each employee on site must complete a basic
polar bear encounter training course.
(4) A Plan of Cooperation to mitigate potential conflicts between
the proposed activity and subsistence hunting. This Plan of Cooperation
must identify measures to minimize adverse effects on the availability
of polar bear and Pacific walrus for subsistence uses if the activity
takes place in or near a traditional subsistence hunting area. You
should contact affected subsistence communities to discuss potential
conflicts with the location, timing, and methods of proposed
operations. You must make reasonable efforts to assure that Industry
activities do not interfere with subsistence hunting or that adverse
effects on the availability of polar bear or Pacific walrus are
properly mitigated.
(d) We will evaluate each request for a Letter of Authorization
based on the specific activity and the specific geographic location.
Each Letter of Authorization will identify allowable conditions or
methods that are specific to the activity and location.
Sec. 18.125 What criteria do we use to evaluate Letter of
Authorization requests?
When you request a Letter of Authorization, we will determine
whether the level of activity identified in the request exceeds that
considered by us in making a finding of negligible impact on the
species and a finding of no unmitigable adverse impact on the
availability of the species for subsistence. If the level of activity
is greater, we will re-evaluate our findings to determine if those
findings continue to be appropriate based on the greater level of
activity. Depending on the results of the evaluation, we may allow the
authorization to stand as is, add
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further conditions, or withdraw the authorization.
Sec. 18.126 What does my Letter of Authorization allow?
(a) Depending on your application for incidental take authority,
your Letter of Authorization (see Sec. 18.124) allows the incidental,
but not intentional, take of polar bear and Pacific walrus when you are
carrying out one or more of the following activities:
(1) Conducting geological and geophysical surveys;
(2) Drilling exploratory wells and associated activities;
(3) Developing oil fields and associated activities; and
(4) Drilling production wells and performing production support
operations, except the construction and operation of sub-sea pipelines.
(b) You must conduct methods and activities identified in your
Letter of Authorization in a manner that minimizes to the greatest
extent practicable adverse impacts on polar bear and Pacific walrus,
their habitat, and on the availability of these marine mammals for
subsistence uses.
Sec. 18.127 What activities are prohibited?
(a) You may not intentionally take polar bear or Pacific walrus
under these regulations. Under section 109(h)(1) and section 101(c) of
the Marine Mammal Protection Act, we may authorize intentional take
(e.g., harassment associated with deterrent activities, and taking in
defense of self or others).
(b) Letters of Authorization prohibit any take that fails to comply
with the terms and conditions of these specific regulations.
(c) This rule does not authorize the incidental take of polar bear
and Pacific walrus during sub-sea pipeline activities.
(d) In accordance with Sec. 18.27(f) of this part, we will make
decisions concerning withdrawals of Letters of Authorization, either on
an individual or class basis, only after notice and opportunity for
public comment. This requirement for notice and public comment will not
apply if we determine that an emergency exists which poses a
significant risk to the well-being of the species or stocks of polar
bear or Pacific walrus.
Sec. 18.128 What are the monitoring and reporting requirements?
(a) We require holders of Letters of Authorization to cooperate
with us and other designated Federal, State, or local agencies to
monitor the impacts of oil and gas exploration, development, and
production activities on polar bear and Pacific walrus.
(b) Holders of Letters of Authorization must designate a qualified
individual or individuals to observe, record, and report on the effects
of their activities on polar bear and Pacific Walrus.
(c) We may choose to place an observer on site of the activity, on
board drill ships, drill rigs, aircraft, icebreakers, or other support
vessels or vehicles to monitor the impacts of your activity on polar
bear and Pacific walrus.
(d) For exploratory activities, holders of a Letter of
Authorization must submit a report to our Alaska Regional Director
within 90 days after completion of activities. For development and
production activities, holders of a Letter of Authorization must submit
a report to our Alaska Regional Director by January 15 for the
preceding year's activities. Reports must include, at a minimum, the
following information.
(1) Dates and times of activity;
(2) Dates and locations of polar bear or Pacific walrus activity as
related to the monitoring activity; and
(3) Results of the monitoring activities including an estimate of
the level of take.
Sec. 18.129 What are the information collection requirements?
(a) The collection of information contained in this subpart has
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. We need to collect the information in order to
describe the proposed activity and estimate the impacts of potential
takings by all persons conducting the activity. We will use the
information to evaluate the application and determine whether to issue
specific regulations, and, subsequently, Letters of Authorization.
(b) For the initial year, we estimate your burden to be 200 hours
to develop an application requesting us to promulgate incidental take
regulations. For the initial year and annually thereafter when you
conduct operations under this rule, we estimate an 8 hour burden per
Letter of Authorization, a 4 hour burden for monitoring, and an 8 hour
burden per monitoring report. You must respond to this information
collection request to obtain a benefit pursuant to Section 101(a)(5) of
the Marine Mammal Protection Act. You should direct comments regarding
the burden estimate or any other aspect of this requirement to the
Information Collection Clearance Officer, U.S. Fish and Wildlife
Service, Department of the Interior, Mail Stop 224 ARLSQ, 1849 C
Street, NW., Washington, DC 20240, and the Office of Management and
Budget, Paperwork Reduction Project (1018-0070), Washington, DC 20503.
Dated: January 22, 1999.
Nancy K. Hayes,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-2010 Filed 1-25-99; 2:48 pm]
BILLING CODE 4310-55-M