[Federal Register Volume 65, Number 1 (Monday, January 3, 2000)]
[Proposed Rules]
[Pages 105-107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-34066]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 18
RIN 1018-AF87
Marine Mammals; Incidental Take During Specified Activities
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would extend our existing rule issued
Thursday, January 28, 1999 (64 FR 4328), and codified at 50 CFR Part
18, Subpart J to authorize the incidental, unintentional take of small
numbers of polar bears and Pacific walrus during oil and gas industry
(Industry) exploration, development, and production operations in the
Beaufort Sea and adjacent northern coast of Alaska. This proposed rule
authorizes incidental, unintentional take of small numbers of polar
bears and Pacific walrus only for activities covered by our existing
regulations at 50 CFR Part 18, Subpart J; incidental take resulting
from any subsea pipeline activities located offshore in the Beaufort
Sea is not authorized. If made final, this proposed rule would extend
the effective period for the current regulations for 61 days through
March 31, 2000.
DATES: Comments on this proposed rule must be received by January 13,
2000.
ADDRESSES: If you wish to comment, you may submit comments by any one
of several methods.
1. By mail to: John Bridges, U.S. Fish and Wildlife Service, Office
of Marine Mammals Management, 1011 East Tudor Road, Anchorage, AK
99503.
2. By FAX by sending to: (907) 786-3816.
3. By Internet, electronic mail by sending to: [email protected].
Please submit Internet comments as an ASCII file avoiding the use of
special characters and any form of encryption. Please also include
``Attn.: RIN 1018-AF87'' and your name and return address in your
Internet message. If you do not receive a confirmation from the system
that we have received your Internet message, contact us directly at
U.S. Fish and Wildlife Service, Office of Marine Mammals Management
(907) 786-3810 or 1-800-362-5148.
4. By hand-delivery to: U.S. Fish and Wildlife Service, Office of
Marine Mammals Management, 1011 East Tudor Road, Anchorage, AK 99503.
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, U.S. Fish and Wildlife Service, 1011 East Tudor Road,
Anchorage, AK 99503, Telephone (907) 786-3810 or 1-800-362-5148.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the Marine Mammal Protection Act (Act)
gives the Secretary of the Interior (Secretary) through the Director of
the U.S. Fish and Wildlife Service (We) the authority to allow the
incidental, but not intentional, taking of small numbers of marine
mammals in response to requests by U.S. citizens (you) [as defined in
50 CFR 18.27(c)] engaged in a specified activity (other than commercial
fishing) in a specified geographic region. We may grant permission for
incidental takes for periods of up to 5 years. On January 28, 1999, we
published in the Federal Register (64 FR 4328) regulations to allow
such incidental takes in the Beaufort Sea and adjacent northern coast
of Alaska for the period January 28, 1999, through January 30, 2000.
These regulations were based on the findings for the 1-year period that
the effects of oil and gas related exploration, development, and
production activities in the Beaufort Sea and adjacent northern coast
of Alaska would have a negligible impact on polar bears and Pacific
walrus and their habitat and no unmitigable adverse impact on the
availability of these species for subsistence uses by Alaska Natives,
if certain conditions were met.
Our present action proposes to extend the current regulations,
which are located at 50 CFR Part 18, Subpart J, through March 31, 2000.
This rulemaking will avoid a lapse in these regulations that could
occur while we consider public comment on our proposed regulations
published December 9, 1999 (64 FR 68973), the comment period for which
closes on January 10, 2000. Those proposed regulations would allow the
incidental, unintentional take of small numbers of polar bears and
Pacific walrus for a 3-year period during year-round oil and gas
activities, including incidental takes resulting from the construction
and operation of a subsea pipeline associated with the offshore
Northstar facility.
The expiration of our existing regulations on January 30, 2000, may
not allow us sufficient time to fully consider and evaluate public
comments on our December 9, 1999, proposed rule. Therefore, we propose
extending our existing regulations for 2 months to ensure that we have
adequate time to thoroughly review and respond to public input. We
believe it is important to avoid a lapse in our regulations and
maintain the coverage and protection for polar bears and Pacific walrus
provided by those regulations. With the continued coverage, existing
Letters of Authorization, which require monitoring and reporting of all
polar bear interactions as well as site-specific mitigation measures,
will remain in effect.
Prior to issuing the existing regulations, we evaluated the level
of industrial activities, their associated impacts to polar bears and
Pacific walrus, and their effects on the availability of these species
for subsistence use. Based on the best scientific information available
and the results of 6 years of monitoring data, we found that the
effects of oil and gas related exploration, development, and production
activities in the Beaufort Sea and the adjacent northern coast of
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Alaska would have a negligible impact on polar bears and Pacific walrus
and their habitat. We also found that the activities as described would
have no unmitigable adverse impacts on the availability of these
species for subsistence use by Alaska Natives.
If we reach final ``negligible impact'' and ``no unmitigable
adverse impact to subsistence take'' findings, then we will extend the
regulations that include permissible methods of taking and other means
to ensure the least adverse impact on the species and its habitat and
on the availability of the species for subsistence uses along with
other relevant sections. This will include requirements for monitoring
and reporting. The geographic coverage is the same as the existing
regulations. All existing Letters of Authorization will be extended
contingent upon these regulations being issued in final form.
Description of Activity
This rulemaking covers activities as described in the existing rule
that we expect to occur during the brief duration of this rule. These
activities include 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. Development
and production activities located on the North Slope along the shores
of the Beaufort Sea are included. The activities are limited to those
that occur during the winter. The level of activity expected is similar
to that as occurred last winter under the existing regulations. This
region contains more than 11 separate oil fields. All of the fields lie
within the range of polar bears.
Effects of Oil and Gas Industry Activities on Marine Mammals and on
Subsistence Uses
Polar Bear
Winter oil and gas activities may affect polar bears. Polar bears
that continue to move over the ice pack through the winter are likely
to encounter Industry activities. Curious polar bears are likely to
investigate artificial or natural islands where drilling operations
occur. Any on-ice activity creates an opportunity for interactions
between bears and industry. Offshore drill sites may modify habitat and
attract polar bears to artificial open leads downwind from the
activity. Polar bears attracted to these open water leads create the
potential for Industry/polar bear encounters. Winter seismic activities
have a potential of disturbing denning females, which are sensitive to
noise disturbances. Prior to initiating surveys, industry consults with
us through applications for Letters of Authorization. Specific terms of
a Letter of Authorization require that industrial activities avoid
known or observed dens by 1 mile through cooperative operating
procedures. In addition, Letters of Authorization require development
of polar bear interaction plans for each operation. Industry personnel
participate in training programs while on site to minimize detrimental
effects on personnel and polar bears. During the past 6 years, Letter
of Authorization conditions have limited the time and location of
Industry activities in known polar bear denning habitat. In addition to
avoiding known den locations of radio collared polar bears, Industry
has conducted aerial survey overflights of potential denning habitat
using forward looking infrared thermal sensors to detect dens located
beneath snow. A number of den locations have been identified prior to
Industry activities, avoiding potential disturbance. Regarding polar
bear/human interactions, Industry has taken proactive steps to minimize
the aspect of scent attraction to sites through proper disposal of
garbage and waste products. Yet a number of potentially dangerous
encounters have occurred in recent years. These encounters have not
resulted in injury to polar bears or humans. A degree of credit for
this success rate is attributed to enhanced employee awareness and
proper responses to polar bear encounters brought about through
materials contained within polar bear interaction plans.
Pacific Walrus
Pacific walrus rarely use the geographical area during the
preferred open water season and do not occur in the area during the
winter including the February and March period of the proposed
regulations. Consequently, no direct or cumulative effect of Industry
activities to Pacific walrus would be expected.
Subsistence
Polar Bears
Polar bears may be hunted in February and March by residents of
Barrow, Nuiqsut, and Kaktovik, although the numbers of bears taken in
mid-winter months is typically less than during the spring or fall
seasons. Hunter success varies from year to year and with seasonal
variations within a year. As required in the existing regulations,
Industry is required to work through plans of cooperation with
potentially affected subsistence communities to minimize and mitigate
for potential impact on the availability of polar bears for subsistence
uses, where necessary. We do not expect conflicts between subsistence
users and Industry during the February and March term of these
regulations. Previously, we have not noted conflicts between
subsistence users and Industry under the existing regulations.
Pacific Walrus
Pacific walrus are not present and thus are unavailable for harvest
during the winter in this area. No direct or cumulative effect on their
availability for take for subsistence use would occur from industrial
activities.
Conclusions
Based on the previous discussion of direct and cumulative effects
of the proposed activities, and 6 years of results of prior monitoring
programs, we make the following findings regarding this proposed
rulemaking. We find, based on scientific information and the results of
6 years' monitoring data, that the effects of oil and gas exploration,
development, and production activities for the period January 31, 2000,
through March 31, 2000, 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 that there will be no unmitigable adverse
impacts on the availability of these species for take for subsistence
uses by Alaska Natives if conditions contained within Letters of
Authorization are met. Consistent with our current regulations at 50
CFR Part 18, Subpart J, our findings apply to exploration, development,
and production related to oil and gas activities, excluding any
construction and production activities associated with subsea pipelines
at the Northstar facility.
Required Determinations
Environmental documents prepared for our regulations at 50 CFR Part
18, Subpart J concluded in a finding of no significant impact. These
proposed regulations cover the same activities as analyzed under the
current environmental assessment and are therefore consistent with
those findings and the requirements of the National Environmental
Policy Act.
This document has not been reviewed by the Office of Management and
Budget under Executive Order 12866 (Regulatory Planning and Review).
This
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rule will not have an effect of $100 million or more on the economy;
will not adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; will not create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; does not alter the budgetary effects or entitlement,
grants, user fees, or loan programs or the rights or obligations of
their recipients; and does not raise novel legal or policy issues. The
proposed rule is not likely to result in an annual effect on the
economy of $100 million or more. Expenses will be related to, but not
necessarily limited to, the development of applications for regulations
and Letters of Authorization (LOA), monitoring, record keeping, and
reporting activities conducted during Industry oil and gas operations,
development of polar bear 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 6 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 (originally
developed in 1997) and LOA requests probably does not exceed $500,000
per year, short of the ``major rule'' threshold that would require
preparation of a regulatory impact analysis. 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.
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 proposed rule is also not likely to result in a major increase in
costs or prices for consumers, individual industries, or government
agencies or have significant adverse effects on competition,
employment, productivity, innovation, or on the ability of U.S.-based
enterprises to compete with foreign-based enterprises in domestic or
export markets.
We have also determined that this proposed 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, FOR FURTHER INFORMATION CONTACT.
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this request prominently at the beginning of
your comment. However, we will not consider anonymous comments. We will
make all submissions from organizations or businesses, and from
individuals identifying themselves as representatives or officials of
organizations or businesses, available for public inspection in their
entirety.
This proposed rule is not expected to have a potential takings
implication under Executive Order 12630 because it would authorize the
incidental, but not intentional, take of polar bear and walrus by oil
and gas industry companies and thereby exempt these companies from
civil and criminal liability.
This proposed rule also does not contain policies with Federalism
implications sufficient to warrant preparation of a Federalism
Assessment under Executive Order 13132. Coordination with appropriate
Alaska State agencies has occurred, and necessary permits have been
received to ensure State consistency. In addition, extensive
coordination with the North Slope Borough and other Alaska Native
organizations has occurred concerning this issue. In accordance with
the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.), this rule
will not ``significantly or uniquely'' affect small governments. A
Small Government Agency Plan is not required. The Service has
determined and certifies pursuant to the Unfunded Mandates Reform Act
that this rulemaking will not impose a cost of $100 million or more in
any given year on local or State governments or private entities. This
rule will not produce a Federal mandate of $100 million or greater in
any year, i.e., it is not a ``significant regulatory action'' under the
Unfunded Mandates Reform Act.
The Departmental 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 information collection contained in 50 CFR Part 18, Subpart J
has been approved by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and assigned
clearance number 1018-0070. The OMB approval of our collection of this
information will expire in October 2001. Section 18.129 contains the
public notice information-- including identification of the estimated
burden and obligation to respond-- required under the Paperwork
Reduction Act. Information from our Marking, Tagging, and Reporting
Program is cleared under OMB Number 1018-0066 pursuant to the Paperwork
Reduction Act. For information on our Marking, Tagging, and Reporting
Program, see 50 CFR 18.23(f)(12).
List of Subjects in 50 CFR Part 18
Administrative practice and procedure, Alaska, Imports, Indians,
Marine mammals, Oil and gas exploration, Reporting and recordkeeping
requirements, Transportation.
For the reasons set forth in the preamble, we propose to amend Part
18, Subchapter B of Chapter 1, 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 Sec. 18.123 to read as follows:
Sec. 18.123 When is this rule effective?
Regulations in this subpart are effective through March 31, 2000,
for oil and gas exploration, development, and production activities.
Dated: December 23, 1999.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-34066 Filed 12-28-99; 4:08 pm]
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