[Federal Register Volume 63, Number 221 (Tuesday, November 17, 1998)]
[Proposed Rules]
[Pages 63812-63819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30605]
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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: Proposed rule, and request for comments.
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SUMMARY: The Fish and Wildlife Service (Service) is proposing
regulations that would authorize for the next 5 years the incidental,
unintentional take of small numbers of polar bears (Ursus maritimus)
and Pacific walrus (Odobenus rosmarus divergens) during year-round oil
and gas industry operations (exploration, development, and production)
in the Beaufort Sea and adjacent northern coast of Alaska.
Under the provisions of the Marine Mammal Protection Act (Act), the
Service will allow the taking of these marine mammals only if the
Director of the Service finds, based on the best scientific evidence
available, that the total of such taking for the 5 year period will
have a negligible impact on these species and will not have an
unmitigable adverse impact on the availability of these species for
subsistence uses by Alaska Natives. If these findings are made, the
Service will establish specific regulations for the 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.
Through the preparation of a draft Environmental Assessment, and
the knowledge learned from four years of monitoring interactions
between marine mammals and oil and gas industry activities, the Service
has proposed a finding that the total expected takings of polar bear
and walrus during oil and gas industry exploration, development and
production activities would have a negligible impact on these species,
and there would be no unmitigable adverse impacts on the availability
of these species for subsistence uses by Alaska Natives.
DATES: Comments on the proposed rule must be received by December 11,
1998.
ADDRESSES: Written comments should be submitted by mail to Supervisor,
Marine Mammals Management Office, U.S. Fish and Wildlife Service, 1011
East Tudor Road, Anchorage, AK 99503. Comments may also be hand
delivered to the same address. Comments and materials received in
response to this proposal will be available for public inspection at
this address during normal working hours of 8 a.m. to 4:30 p.m., Monday
through Friday.
FOR FURTHER INFORMATION CONTACT: John Bridges, Marine Mammals
Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor
Road, Anchorage, Alaska 99503, (907) 786-3800, FAX (907) 786-3816, or
Internet John__Bridges@mail.fws.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the Act gives the Secretary of the Interior
(Secretary) through the Director of the U.S. Fish and Wildlife 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 geographical region the incidental, but not
intentional, taking of small numbers of marine mammals. The Service may
grant permission for periods of up to 5 years.
If the Service finds, 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, the taking of marine mammals may be allowed. Also,
the Service will 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. The Service issues Letters
of Authorization (LOA), upon request and receipt of appropriate data,
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 September 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, the Service on September
29, 1989, published a final rule (54 FR 40338) amending 50 CFR 18.27
(i.e., regulations governing small takes of marine mammals incidental
to specified activities) that included, among other things, a revised
definition of ``negligible impact'' and a new definition for
``unmitigable adverse impact.'' Negligible impact is now defined 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.'' [50 CFR 18.27(c)]. ``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.''
Id.
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. It is probable that in
[[Page 63813]]
a period of five years, takes of polar bear and/or walrus will occur.
Although there is no legal requirement for the oil and gas industry
(Industry) to obtain incidental take authority, they have chosen to
seek authorization to avoid the uncertainties of 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.,
Digicon 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 the Service for the promulgation of
regulations pursuant to Section 101(a)(5) of the Act.
Regulations were issued on November 16, 1993 (58 FR 60402), that
allowed the incidental, but not intentional, take of small numbers of
polar bears and Pacific walrus in the event that such a taking occurred
in the course of oil and gas exploration, development, or production
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 issued for a period of
18 months. The Secretary of the Interior directed the Service to
develop and begin implementing 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. The Habitat
Conservation Strategy for Polar Bears in Alaska was developed to ensure
that the regulations fully meet with the intent of the 1973
International Agreement on the Conservation of Polar Bears. On August
17, 1995, the final rule and notice of availability of a Completed
Final Polar Bear Habitat Conservation Strategy was issued (60 FR
42805); and the regulations were extended for an additional 42 months
to expire on December 15, 1998.
Specifically, a north/south line at Barrow, Alaska, including all
Alaska state waters and the OCS waters and east of that line to the
Canadian border defines the offshore geographic region. The same north/
south line at Barrow, 25 miles inland and east to the Canning River
defines the onshore region. The Arctic National Wildlife Refuge was
excluded from the proposal.
Summary of the Current Request
On August 28, 1997, BPXA submitted a petition for rule making
pursuant to Section 101(a)(5)(A) of the Act, and Section 553(e) of the
Administrative Procedure Act (APA). The request seeks regulations to
allow the incidental, but not intentional, taking of small numbers of
polar bears and Pacific walrus in the event that takings occur in the
course of oil and gas exploration, development, and production
operations in Arctic Alaska. Specifically, BPXA requested an extension
of the current incidental take regulations beginning at 50 CFR 18.121
for an additional five-year term from December 16, 1998, through
December 15, 2003. The request was submitted by BPXA for itself and on
behalf of ARCO Alaska, Inc., Exxon Corporation, and Western Geophysical
Company.
The geographical extent of this request is the same as the previous
regulations; it is a north/south line at Barrow, Alaska, including all
Alaska State waters and OCS waters, and east of that line to the
Canadian border. The onshore region is the same north/south line at
Barrow, 25 miles inland and east to the Canning River. The Service
excludes the Arctic National Wildlife Refuge from this proposal.
Summary of Proposed Rule
The Service proposes specific regulations to allow the incidental,
unintentional take of polar bear and Pacific walrus in the Beaufort Sea
and northern coast of Alaska. The regulations would be in effect year-
round for a five year period expected to begin at the expiration of the
current regulations (December 15, 1998) for entities conducting oil and
gas industry activities. This proposed regulation does not authorize
the intentional harassment, hunting, capturing or killing of polar bear
or walrus. Under these regulations, Industry operations will continue
while functioning under the restrictions of the Act.
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 the two species of marine
mammals. The Department of the Interior's Minerals Management Service
(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. In over 25 years of
industry activity in this area, only one polar bear died for the
protection of human life. Each person operating under these regulations
will have polar bear interaction training and knowledge of polar bear
interaction plans. The Service authorizes deterrent activities under
Section 109(h)(1) of the Act, and lethal takes (kills) in defense of
self or others are authorized by Section 101(c) of the Act.
The proposed regulations authorizing the incidental take of polar
bears and Pacific walrus is directed to 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 proposed 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. The regulations are based on the finding
that exploration, development, and production activities in this area
may involve the taking of the two aforementioned species of marine
mammals. The Service believes that the total impact of the takings will
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 believe.
Subsequent to establishing regulations, the Service requires a LOA
to conduct activities pursuant to these regulations. Where there is the
likelihood of taking polar bear or walrus, each group or individual
conducting an oil and gas industry-related activity may request a LOA.
The proposed regulations require those who request a LOA to submit a
plan to monitor the effects on polar bear and walrus that are present
during the authorized activities. Also, each applicant for a LOA 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 the Service
[[Page 63814]]
specifically conditions each LOA for that activity and location.
Description of Activity
In accordance with 50 CFR 18.27, Industry has submitted a request
for the promulgation of incidental take regulations pursuant to Section
101(a)(5)(A) of the Act.
Activities that are covered in the petition 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
platform 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.
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: Prudoe 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.
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 these proposed regulations, the Service
anticipates 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 five years 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 proposed area as habitat
which is vital to their survival, more so for polar bears than the
Pacific walrus. The geographical 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 proposed 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.
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 the Service's 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. The Service estimates 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 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
[[Page 63815]]
occurred in a Chukchi 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 Wrangle 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 Bearing 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 (Fay et al. 1984). 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 geographical area of the proposed 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. The walrus constitutes 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, 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 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 the 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 the Service with
the proposed survey route. Through satellite observations of radio
collared bears the Service is able to inform Industry of known denning
sites, and from knowledge of the geographical area the Service can
identify areas of probable denning sites. Industry cooperates with the
Service 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 within all
practicable limits.
Subsistence
The polar bear is not a primary subsistence species of the villages
of Barrow, Nuiqsut or Kaktovik. Preliminary data from the Service's
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 of a well 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.
Based upon historical data, the probability of a blowout not
occurring is calculated to be 99.36 percent. This data set includes all
blowouts including those caused by gas or water, as well as oil. All
blowouts do not necessarily result in the release of oil.
Swimming polar bears are directly impacted by contacting 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.
The Service acknowledges that while there is a low probability of
oil spills
[[Page 63816]]
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. The Service balances the probability of an oil spill with the
potential severity of harm to the species or stock when determining
negligible impact. Even if the potential effects of a spill are
significant but the probability of occurrence is low, a finding of
negligible impact may be appropriate.
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 monitoring results from the
previous five years' monitoring program, the Service makes the
following preliminary findings regarding the proposed action.
Impact on Species
The Service finds, 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 five years 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 the
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, the Service would
reassess the impacts to the polar bear and/or walrus populations and
reconsider the appropriateness of authorization for taking thorough
Section 101(a)(5)(A) of the Act.
The finding of ``negligible impact'' applies to exploration,
development, and production activities related to oil and gas
activities. The following are generic conditions that are proposed to
eliminate interference with normal breeding, feeding, and possible
migration patterns to ensure that the effects to the species remain
negligible. The Service may expand the conditions in the LOA's based
upon site specific and species specific reasons.
(1) These regulations do 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, the
Service can allow such action under the authority of Section 109(h)(1)
or Section 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 the Service, may be required to determine the presence
or absence of denning activity.
(3) Each activity authorized by a LOA will require 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 the Service that a plan of cooperation has
been presented to the subsistence communities, the Eskimo Walrus
Commission, 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, the Service will reevaluate its findings regarding
permissible limits to 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 the Service. The Service bases
each year's monitoring objective on the previous year's monitoring
results.
The Service requires 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 the Service no later than 90 days after completion of the
exploratory activity. Since development 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. The Service will require that the operator submit development
and production activity monitoring results associated with LOAs
annually for review by the Service no later than January 15 for the
previous activity. The Service requires annual approval of the
monitoring results for continued operation under the LOA.
Required Determinations
The Service has prepared a draft Environmental Assessment in
conjunction with this proposed rulemaking. Subsequent to closure of the
comment period for this proposed rule, the Service will decide whether
this is 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 draft
Environmental Assessment, contact the individual identified above in
the section entitled, FOR FURTHER INFORMATION CONTACT.
Through preparation of a Record of Compliance for a Rulemaking
Document, the Department of the Interior has determined that this
proposed rule is not a major rule requiring a regulatory impact
analysis under Executive Order 12866. The proposed regulations are not
likely to result in: (1) an annual effect on the economy of $100
million or more, with the Service estimating actual Industry and
Federal government costs associated with developing petitions, specific
regulations, and LOAs at $500,000-$1 million (Note that without
specific regulations and LOAs, the cost
[[Page 63817]]
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 from lost royalties and tax payments
might be substantial if incidental takes occurred and legal challenges
succeeded in long-term stoppages of oil and gas operations on Federal
and State lands and waters. However, it is unlikely that such stoppages
will occur, but if any such cessation of activities did occur, they
likely would be only short-term and would not have an annual effect on
the economy surpassing $100 million.); (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. It has also been 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 proposed regulations. These
potential applicants have not been identified as small businesses. The
Record of Compliance for this proposed rule is available from the
individual identified above in the section entitled, FOR FURTHER
INFORMATION CONTACT.
This proposed 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 proposed rule also does not contain policies
with Federalism implications sufficient to warrant preparation of a
Federalism Assessment under Executive Order 12612.
The Department has certified to the Office of Management and Budget
that these proposed 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 Office
of Management and Budget for approval under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.). On April 1, 1998, the Service published a
notice in the Federal Register with a 60-day comment period announcing
to the public its intention to seek OMB approval for the collection of
information associated with this rulemaking. On September 22, 1998, the
Service published a Federal Register notice with 30-day comment period
announcing to the public that this collection of information has been
submitted to OMB for reinstatement. On October 24, 1998, OMB granted
approval of our request for reinstatement of this information
collection requirement.
This rulemaking is not a significant rule subject to OMB review
under Executive Order 12866. The Service has determined that the
rapidly approaching expiration of the current regulation necessitates a
public comment period of less than 60 days. Therefore, comments on this
Proposed Rule will be accepted through December 11, 1998.
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 proposes 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: 16 U.S.C. 1361 et seq.
2. Subpart J is revised 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
Sec.
18.121 Specified activity and specified geographical region.
18.122 Effective dates.
18.123 Permissible methods.
18.124 Prohibitions.
18.125 Level of activity.
18.126 Measures to ensure availability of species for subsistence.
18.127 Requirements for monitoring and reporting.
18.128 Letters of Authorization.
18.129 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 Specified activity and specified geographical region.
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. The specified geographical area is 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 in 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 proposal.
Sec. 18.122 Effective dates.
Regulations in this subpart are effective for a five year period,
beginning December 16, 1998, for year-round oil and gas exploration,
development, and production activities.
Sec. 18.123 Permissible methods.
(a) A Letter of Authorization (see Sec. 18.128) permits the
incidental, but not intentional, take of polar bear and walrus by U.S.
citizens:
(1) Conducting geological and geophysical surveys;
(2) Drilling exploratory wells and associated activities; and
(3) Drilling production wells and performing production support
operations.
(b) The operator must conduct methods and activities identified in
Sec. 18.123(a) in a manner that minimizes to the greatest extent
practicable adverse impacts on polar bear and walrus, their habitat and
on the availability of these marine mammals for subsistence uses.
(c) The Service will evaluate each request for a Letter of
Authorization based on the specific activity and the specific
geographical location. Each Letter of Authorization will identify
allowable conditions or methods that are specific to the activity and
location.
Sec. 18.124 Prohibitions.
(a) These regulations do not authorize intentional takes of polar
bear or walrus. (Pursuant to Section 109(h)(1) and Section 101(c) of
the Marine Mammal Protection Act, the Service may authorize the
intentional take (e.g., harassment associated with deterrent
activities, and taking in defense of self or others.)
[[Page 63818]]
(b) Letters of Authorization prohibit any take that fails to comply
with the terms and conditions of these specific regulations.
Sec. 18.125 Level of activity.
When a U.S. citizen requests a Letter of Authorization, the Service
will determine whether the level of activity identified in the request
exceeds that considered by the Service 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, the Service will re-evaluate its
findings to determine if those findings continue to be appropriate
based on the greater level of activity. Depending on the results of the
evaluation, the service may allow the authorization to stand as is, add
further conditions, or withdraw the authorization.
Sec. 18.126 Measures to ensure availability of species for
subsistence.
When applying for a Letter of Authorization, the applicant must
submit a plan of cooperation that identifies measures to minimize
adverse effects on the availability of polar bear and walrus for
subsistence uses if the activity takes place in or near a traditional
subsistence hunting area. The applicant should contact affected
subsistence communities to discuss potential conflicts with the
location, timing, and methods of proposed operations. The applicant
must make reasonable efforts to assure that exploration activities do
not interfere with subsistence hunting or that adverse effects on the
availability of polar bear or walrus are properly mitigated.
Sec. 18.127 Requirements for monitoring and reporting.
(a) The Service requires holders of Letters of Authorization to
cooperate with the Service 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 walrus.
(b) Holders of Letters of Authorization must designate a qualified
individual or individuals to observe, record, and report on the effects
of the activities on polar bear and walrus.
(c) When applying for a Letter of Authorization, the applicant must
include a site-specific plan to monitor the effects of the activity on
the populations of polar bear and walrus that are present during the
on-going activities. The Service's Alaska Regional Director must
approve the plan which identifies the survey techniques that determine
the actions of the polar bear and walrus in response to the on-going
activity. The 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.
(d) The operator must develop 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.
(e) At its discretion, the Service may 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 the
activity on polar bear and walrus.
(f) For exploratory activities, holders of a Letter of
Authorization must submit a report to the Service's 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 the Service's Alaska Regional director by January 15
each year for the preceding calendar year's activities. Reports must
include, at a minimum, the following information:
(1) Dates and time so activity;
(2) Dates and locations of polar bear or walrus activity as related
to the monitoring activity; and
(3) Results of the monitoring activities including an estimate of
the level of take.
Sec. 18.128 Letters of Authorization.
(a) Each person or entity conducting an oil and gas exploration,
development, or production activity in the geographical area described
in Sec. 18.121, that may take a polar bear or walrus in execution of
those activities, should apply for a Letter of Authorization for each
exploration activity or a Letter of Authorization for each development
and production area. At least 90 days prior to the start of the
proposed activity, the operator must submit the application for
authorization to the Service's Alaska Regional Director.
(b) An 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 plan to monitor the behavior and effects of the acitivity on
polar bear and walrus;
(3) A polar bear awareness and interaction plan;
(4) Where relevant, a Plan of Cooperation to mitigate potential
conflicts between the proposed activity and subsistence hunting.
(c) In accordance with Sec. 18.27(f), decisions made concerning
withdrawals of Letters of Authorization, either on an individual or
class basis, will be made only after notice and opportunity for public
comment.
(d) The requirement for notice and public comment in Sec. 18.128(c)
will not apply should the Service determine that an emergency exists
which poses a significant risk to the well-being of the species or
stocks of polar bear or walrus.
Sec. 18.129 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. It is necessary to collect the information in order
to describe the proposed activity and estimate the impacts of potential
takings by all persons conducting the activity. The Service 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 only, the Service estimates a 200 hour
application burden. For the initial year and annually thereafter, the
Service estimates 8 hours per LOA, 4 hours for monitoring, and 8 hours
per monitoring report for each of 5 companies for each of 3 active
sites (20 hours x 5 companies x 3 sites). Therefore, the Service
estimates that there is a total 1,100 hour public burden associated
with this rulemaking for the full 3-year period of OMB authorization
(200 hours to complete a one-time request for specific regulations; 8
hours for each LOA request, 4 hours per monitoring activity, and 8
hours for each monitoring report). Responses to this information
collection are required to obtain a benefit pursuant to Section
101(a)(5) of the Marine Mammal Protection Act. Direct comments regard
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.
[[Page 63819]]
Dated: November 10, 1998.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-30605 Filed 11-16-98; 8:45 am]
BILLING CODE 4310-55-M
